A Darwin mental health service provider has failed in it’s bid to hold a former staff member in breach of contract, after multiple clients terminated their services to follow the coordinator to their new job.
Mental Illness Fellowship of Australia NT (MIFANT) received an adverse ruling in the NT Supreme Court this week, with Justice Judith Kelley describing some correspondence by the plaintiff as appearing to contain “untruths”.
Defendent Hayden Sandrey self-represented in the case that stretched for over 12-months, where solicitors from Da Silva Hebron, a legal firm that was also engaged by suspended NDIS CEO Andrea Cooper on multiple occasions; failed to prove a breach of contract.
The case sort out to determine whether the former employee breached the “restraint of trade clause” by “soliciting former clients within six months of termination of his employment”.
MIFANT also claimed the defendant breached section 183 of the Corporations Act, or “equitable duty to employer” by “misusing confidential information to benefit himself or another to the detriment of the former employer”.
The trouble for MIFANT started early last year, when the defendant requested unpaid leave from his employer to complete his nursing degree.
This request was denied and Hayden provided a notice of resignation from his position, in what appeared to be very good terms, with an offer to assist in a hand-over period to his replacement.
A month after his final day at MIFANT, Hayden picked up employment with a rival service TK Community Care as an NDIS Support Co-ordinator and Recovery Coach.
In the weeks following his departure, the mental health service provider alleged Hayden was responsible for at least five clients’ decision to terminate their contracts and follow him to his new job.
In her 46-page judgement, Justice Kelley said that MIFANT’s Executive Officer Lorraine Davies and support coordinator Emma were not qualified in their assertion that two of the four clients providing witness statements in favour of Hayden were “mentally unable to give the evidence”.
She ruled the pair were “demonstrably wrong” in their assertion about one former client’s ability to give evidence, allowing the man to swear an affidavit and attend court where he was cross-examined.
A series of letters from three former clients to terminate their NDIS services with MIFANT, written on rival TK Community Services letterheads, appeared to be one aspect in the organisation’s reasoning to pursue legal action.
Subpoenaed phone calls and texts after the defendant [Hayden’s] departure from MIFANT to one former client, and another’s legal guardian, formed part of the plaintiff’s case.
Mobile phone communications totalling 75 sms messages between Hayden and one legal guardian after his departure from MIFANT, and eight voice calls between another former client were tendered into evidence.
Both witnesses from the subpoenaed phone records gave evidence in court that they initiated the contact, with the legal guardian describing how she would send multiple messages at a time.
It did not appear that the contents of these messages were available or entered into evidence.
Justice Kelley wrote in her ruling: “MIFANT relies on the sheer volume of the text messages as being akin to grooming, cultivating a sense of intimacy and reliance in order to induce the former client to follow Mr Sandrey [Hayden].
“The evidence of [the clients] is that the close relationship with and trust in Mr Sandrey was formed well before his employment with MIFANT was terminated.
“They were fulsome in their praise for Mr Sandrey’s caring and consideration during the time he provided services. Similar evidence was adduced from [other clients].”
No phone communication records were entered into evidence between Hayden and any other former clients who terminated their contracts after his departure.
In an affidavit by MIFANT Executive Officer Lorrane Davies, she referred to seven clients wishing to change services; all of whom were supported by the defendent, with six of them having the defendant’s employment referee for his job at MIFANT as their “nominee, advocate or case manager.”
An assertion was put forward by the plaintiff that this relationship made the defendant feel as though he had “some kind of ownership of these clients”. The defendant denied this claim under cross-examination.
“In my experience most, if not all, of the participants with psychosocial disabilities are very susceptible to suggestion and potential manipulation. Accepting participants as clients who are following an employee from another service provider runs the risk of facilitating or benefiting from the influence by that employee. Participants’ choice and control in and of their lives is important but it is open to be abused where participants have psychosocial disabilities.”
– MIFANT Executive Officer Lorraine Davies
MIFANT’s Executive Officer gave further evidence: “Participants usually remain with MIFANT indefinitely. Since late 2018, 60 participants have received support coordination/recovery coach services from MIFANT.
“Over that time, 17 clients have ceased receiving MIFANT’s services (not including the terminators). 17 Five clients left MIFANT in around 2022 to follow a departing employee. This was the reason for asking Sandrey [Hayden] to sign the non-solicitation clause variation on 3 February 2022.”
Hearsay evidence criticising Hayden as “a poacher” by one former client was relied on by a MIFANT support coordinator in her affidavit; but the details of the conversation were remembered differently, and contradicted by the client when he gave evidence in court.
Justice Kelley did not put any weight on hearsay evidence from the MIFANT Executive Officer that the defendant also offered to bring clients from Better Connections when he first started with MIFANT.
A signed letter shown to the court by MIFANT read that the client felt “confused” by the service transfer, and “would like to stay with MIFANT”.
The client gave testimony in court that: “I did not have my glasses on and could not read the letter [provided by MIFANT in court]. Emma just told me to sign the letter and I did.
“I later found out that this letter was used as part of the dilemma against Hayden, and it made me feel sick.”
In another former client’s deposition, he said Hayden had not approached him and ask him to leave MIFANT.
In assessing his evidence, Justice Kelley described the witness as being “really annoyed at the suggestion that this had occurred”.
The former client told the court Hayden “never asked me to leave MIFANT and he didn’t encourage me to leave MIFANT.”
The witness described “not having a good relationship” with the new coordinator, who he alleged would “forget” to let him know if there was no one available to pick him up to go to MIFANT for supports, and sometimes he would just be left waiting.
Justice Kelley wrote in her judgement that the former client said Hayden never forgot to contact him, and he believed cared about him.
“The fact that Hayden was leaving really pissed me off and I was going to stay with him no matter where he went. I understand MIFANT are accusing Hayden of asking me to leave MIFANT and follow him. That never happened and I find that MIFANT saying this is really annoying and I find it insulting to me as a client as it appears they don’t think I know what I’m doing. They treat me like I am stupid because of my ABI [acquired brain injury] and they have tried to interfere with my choice and control over my life.”
– Another client providing a deposition
In another deposition from a client supporting the defendant, they said: “After two months it wasn’t working out at all [with MIFANT], I was asking about funding for my plan and Emma gave me the wrong figures.
“Because Emma had told me the wrong figures and I didn’t have the relationship with her that I had had with Hayden, I knew it was time to find a new Support Coordinator.
“Because Ranu [support worker] was a previous employee at TK Community Care she was aware that Hayden had moved to that company.
“I then Googled TK Community Care and they have a web-based program that responds to verbal commands. This is how I got in contact with TK Community Care in the first instance.
“TK then called me and asked where I had been receiving supports before. I told them I was at MIFANT and I didn’t want to be with them anymore and didn’t want Emma to be my Support Coordinator anymore.
“I asked them to contact MIFANT and tell them I wanted to cease services because I didn’t want to do it as it would stress me out.
“TK Community Care provided me with a female Support Coordinator for a few weeks. A short time later they offered to provide Hayden as my Support Coordinator. This made me feel like I was getting back on track.
“At no time at all did anyone asked me to move from MIFANT to TK Community Care.
“I made this choice myself as is my right, regardless of my disability. My ability to make choices and independence is very important to me and no one should be allowed to take that away from me.”
The client’s support worker Ranu also deposed in court on Emma [taking over her case] “would not answer and would not return phone calls”.
“I wanted to exercise my choice as to who I had as my support worker. I really wanted Hayden to look after me. Hayden told me that he was going to find another job but when he first told me that he was leaving MIFANT he didn’t tell me where he was going. Hayden never asked me to leave MIFANT and he didn’t encourage me to leave MIFANT.”
– Another client providing a deposition
When the defendant [Hayden] was in cross-examination, he described how one client valued the “continuity of care” he provided over the six months he worked at TK Community Care, before starting his employment as a nurse.
“He was going for a plan review at that time, and because I had worked with Keith for such a long period of time; when you do a plan review, you’ve got to get the OT reports, psych reports, neuro-psych reports, doctors’ reports, for his acquired brain injury. He’s got his support workers. He’s got DCLS and he’s got multiple situations occurring.
“He had a housing issue as well at that time. So I think he was extremely stressed, because I was dealing with that as a whole and then I was no longer there.
“He felt; or that he wasn’t receiving – or that they knew what was happening.
“So that’s why he was like, ‘I need you to take care of this.’
“So then he was very aware that I was moving or departing in six months. In that six month period we got him a new plan review. We got him increased fundings and we got his housing issue.
“What else did we get sort. There was an array of concerns that I had managed to sort out for him during that six-month period.”
“When he transitioned through from mifant, they had depleted his funds completely. so i was working pro bono for two months”
– Defendant [Hayden]
In her judgement, Justice Kelley wrote that she did not see any significance in the wording of the letters written on a TK Community Care letterhead, signed by the former clients.
She was also scathing in her assessment of correspondence by MIFANT and the “readiness to make serious allegations against Mr Sandrey without a basis in evidence, and to tell what would appear to be untruths in the process.”
Justice Kelly wrote that one particular email to an external social worker named Danielle “was worth quoting in full.”
Justice Kelley wrote in her judgement: “Given the nature of this litigation, if MIFANT had any admissible evidence of these things, they would have adduced that evidence in this proceeding.
“They have not. Rather, they rely on inference and an assumption that because clients have left MIFANT and most of them have gone to TK, Mr Sandrey must have groomed them, induced or coerced them to do so.”
“I am not prepared to infer that any of the seven clients who left MIFANT did so as a result of any solicitation by Mr Sandrey.
“Four of the seven have sworn affidavits and given oral evidence in this proceeding, all of whom deny that Mr Sandrey solicited or enticed them to leave MIFANT and follow
him to TK.
“They gave oral evidence to similar effect which was not challenged in cross-examination.
“MIFANT also claims that Mr Sandrey breached his equitable duty of confidence not to use MIFANT’s confidential information or proprietary information for his or another’s benefit or to MIFANT’s detriment.
“I have already found that MIFANT has not proved that Mr Sandrey canvassed, solicited or induced clients to leave MIFANT and go to TK.
“As to the alleged breach by signing a false statutory declaration, the wording of that Statutory Declaration was clearly produced by MIFANT.
“During an exchange between counsel for MIFANT and the bench, counsel conceded that it was possible that Mr Sandrey did not know that telephone numbers he had on his phone were ‘digital copies of confidential information’.
“In any event, it has not been explained how signing a statutory declaration that was untrue constituted a misuse of confidential information.
“I decline to make a finding that Mr Sandrey breached s 183 of the Corporations Act or his equitable duty to MIFANT by misusing confidential information to benefit himself or TK or to the detriment of MIFANT.
“MIFANT has not established that he solicited any of the clients who left MIFANT.
“Making a statutory declaration, even if it was knowingly false (which has not been established) does not amount to a misuse of confidential information.”
In her orders, Justice Kelly wrote: “Judgment for the defendant.
“The plaintiff is to pay the defendant’s costs of and incidental to the proceeding to be agreed or taxed.”
The full 46-page judgement is available here: https://supremecourt.nt.gov.au/__data/assets/pdf_file/0006/1551786/NTSC-57-Kel2511-Mental-Illness-Fellowship-of-Australia-NT-Inc-v-Sandrey-12-Aug.pdf
We are The Mango Inquirer
[Note: Mango must disclose I worked for TK Community Care about six years ago as my third employer while juggling jobs. I left on good terms. I also attended a job interview with the plaintiff Mental Health Fellowship of Australia NT, but I didn’t proceed with employment as it was three-hour shifts that didn’t suit my existing roster at the time.]
Recent Comments