Doctor’s $5 million claim over wrongful Xmas party ‘thrust’ allegations

A breast cancer doctor put forward a $5 million claim for compensation after being wrongfully accused of sexual harassment by his workplace.

A top radiologist wrongfully accused of “pelvic thrusting” a female employee at a Christmas party sought $5 million in damages after explaining to court he was simply demonstrating the haka.

Senior radiologist Kevin Daynes, 72, took his former employer I-MED Radiology to the NSW Supreme Court after being fired from its Cairns clinic in May 2022.

The court heard how Dr Daynes, who specialised in breastwork, was terminated from the clinic following “bullying conduct and victimisation” complaints from a radiographer, as well as “sexual harassment” claims by a female technologist.

Dr Daynes had been in the industry for 35 years.

The technologist claimed Dr Haynes “thrust” into her in front of other colleagues in December 2021 while she was dressed in a foam outfit as a piece of Christmas holly.

Dr Daynes denied the allegations but said that at some point during the group conversation, he did “move a little on the spot” to demonstrate the haka while discussing New Zealand.

On Monday, the NSW Supreme Court handed down its final judgment regarding costs, with Dr Daynes to be paid $348,179.96.

However, court documents revealed the amount was a far cry from what Dr Daynes was originally seeking – more than $5 million.

“The plaintiff was seeking a significantly higher sum than he obtained (in excess of $5 million),” Judge Richard Cavanagh SC said in his judgment.

The court found Dr Daynes was wrongfully terminated. Picture: Supplied

The court heard how Dr Daynes claimed the high sum as he believed he would have continued work until he was 77 years of age if it weren’t for the wrongful allegations against him.

However, Dr Daynes was on a fixed-term contract, with the court only awarding him for the three months which were left on his contract – plus another three months.

Throughout the case, several colleagues were cross-examined, with one telling the court: “Dr Daynes turned towards [the woman’s side] and pelvic thrusted the side of her costume.”

However, Judge Cavanagh said he was “unable to be satisfied” with the fact that he had engaged in the conduct.

“There is really no explanation as to why the plaintiff would have done what he is alleged to have done,” Judge Cavanagh.

“There is no suggestion that the plaintiff had consumed excess alcohol. There is no suggestion that the conversation between anyone in the group was of a sexual nature.

“The allegation of sexual harassment is not made out.”

The court also heard “bullying and victimisation” claims from another colleague.

The woman said Dr Daynes would “turn and walk out of the room if she was there” and that she would “frequently receive yellow sticky notes from him saying things aren’t right”.

Dr Daynes denies the incident ever occurred. Picture: Supplied

“She suggested that when she had to talk to the plaintiff concerning a patient request, he ignored her for a few minutes making her stand there like a child,” Judge Cavanagh said.

“Eventually he would turn around and look at her with disdain before saying, ‘yes?’ She believed that his response to her came with an edge to it or a sarcastic comment.”

Judge Cavanagh ruled this behaviour “fell below” the definition of workplace bullying.

“The plaintiff was in a position of authority to [the woman],” Judge Cavanagh said.

“He ought to have been conscious as to how his behaviour might impact upon her. It can be said that there should be no place for rudeness and discourtesy at the workplace but the workplace remains a melting pot of persons with different personalities, different levels of experience, different levels of competence and is often mixed with high levels of stress and anxiety.

The court also found Dr Daynes’ conduct fell below the definition of workplace bullying. Picture: Supplied

“Again, none of that justifies rudeness or discourtesy, but there is a line to be drawn between what might be described as bullying an employee at the workplace and being rude, discourteous and uncooperative.”

Judge Cavanagh said the claims did not amount to ”serious misconduct”; therefore, the clinic was not justified in terminating Dr Daynes.

“There must be deliberate or serious misconduct or serious professional misconduct or serious breach of duty,” he said.

“It is not just any conduct or poor behaviour at the workplace which would give rise to the right to terminate without notice.”

Originally published as Doctor’s $5 million claim over wrongful Xmas party ‘thrust’ allegations