KEY POINTS:
An out of character moment of madness in which a highly respected clinician emailed photographs of his genitals should not destroy the man's reputation, his lawyer told the Court of Appeal in Wellington yesterday.
The doctor, who has name suppression, was dismissed by Auckland District Health Board in early 2005 after details of the photographs came to light, but in May that year he was granted interim reinstatement by the Employment Relations Authority.
The Employment Court subsequently ordered the doctor to be reinstated, but did not grant permanent name suppression or compensation. The doctor yesterday appealed for name suppression to be granted and compensation paid, while the ADHB cross-appealed for its dismissal of the doctor to be upheld and for his identity to be made public.
The doctor's lawyer, John Haig QC, said the doctor had worked well and without incident since his reinstatement. He had promptly admitted his bad behaviour, acknowledged he was wrong, and not reoffended.
The principal of open justice was important, but so were the doctor's personal circumstances, Mr Haig said. The Employment Court had made lifting name suppression one of the remedies in its findings, which it could not do, he said.
Thousands of dollars of funding might also be lost due to adverse publicity, he said.
For the District Health Board, Kit Toogood QC said at the heart of the case rested the question of what a fair and reasonable employer would have done in the circumstances. While the Employment Court had placed great weight on often emotional testimony against the doctor from DHB staff, it had not placed enough weight on what the doctor had actually done, Mr Toogood said.
"It's like saying someone has been caught stealing but he says he won't do it again, so the employer has to give him another chance."
The doctor took the objectionable photographs in September 2004, and they were automatically stored within the hospital's IT system. After unsuccessfully trying to send one image of his genitals to a friend as a joke, the doctor attempted to delete the photographs.
However, the images were instead stored in an archive and found by some of his administrative assistants. They did nothing about the images for several months, but in December 2004 an overseas colleague forwarded the doctor, unsolicited, an erotic electronic calendar, which the doctor opened but quickly deleted.
That document was also found by an assistant, who reported it to the DHB - the catalyst for the disciplinary action and court cases which followed.
Justices Young, Glazebrook and Wilson reserved their decision.
