Barwon Health - Geelong Hospital v Colson
[2013] FWCFB 4515
•15 JULY 2013
[2013] FWCFB 4515 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Dr Mark Colson
(C2013/3409)
Dr Mark Colson
v
Barwon Health - Geelong Hospital
(C2013/3427)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 15 JULY 2013 |
Unfair dismissal appeal - s.604 Fair Work Act 2009 (Cth) - significant errors of fact - in the public interest to grant permission to appeal - appeal upheld - reinstatement order quashed - dismissal harsh - remedy referred to a Member for rehearing.
1. Introduction
[1] Dr Mark Colson was dismissed from his employment as an anaesthetist with Barwon Health on 30 May 2012, for serious misconduct. Dr Colson made an unfair dismissal application to the Fair Work Commission (the Commission). Dr Colson’s application for relief was heard by Commissioner Roe on 14, 15, 22 and 30 January 2013 and his reasons for decision were published on 11 February 2013. 1
[2] The Commissioner found that Dr Colson had engaged in misconduct and that there was a valid reason for the termination of his employment, 2 but having regard to a number of other relevant factors the Commissioner concluded that the termination of Dr Colson’s employment was unfair. The evidence concerning Dr Colson’s clinical expertise and performance over 14 years at Barwon Health was a significant factor in favour of the Commissioner’s finding that the termination of Dr Colson’s employment was harsh or disproportionate. The Commissioner also had regard to the evidence concerning the significant impact of the dismissal on Dr Colson’s reputation and on his ability to find suitable employment in the Geelong area where he lives.
[3] As to remedy, the Commissioner was satisfied that there was a sufficient level of cooperation for a proper working relationship to resume and he ordered that Dr Colson be reappointed to the position in which he was employed immediately before the dismissal. The Commissioner declined to make an order for lost remuneration because of Dr Colson’s misconduct and his lack of insight into the significance of that misconduct. 3
[4] Barwon Health seeks permission to appeal the Commissioner’s decision; that the appeal be allowed; the decision set aside and Dr Colson’s application for relief be dismissed (the appeal). Dr Colson also seeks permission to appeal, but on a narrower basis. Dr Colson’s appeal relates to the Commissioner’s decision not to make an order to restore lost pay, (the cross appeal).
[5] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal, rather an appeal may only be made with the permission of the Commission.
[6] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3.2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[7] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Tribunal identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 5
[8] For the reasons which follow we have decided that it is in the public interest to grant Barwon Health’s application for permission to appeal and to uphold the appeal. In our view, the Commissioner made significant errors of fact in his consideration of whether there was a valid reason for the termination of Dr Colson’s employment. However, like the Commissioner, we have concluded that Dr Colson was unfairly dismissed. We remit the issue of remedy to Deputy President Gostencnik for determination. As the question of remedy is to be reheard there is no need for us to consider the cross appeal.
2. The Barwon Health Appeal
[9] It was common ground that Dr Colson was a person ‘protected from unfair dismissal’ within the meaning of s.382 the Act. It was also agreed that Dr Colson had been ‘dismissed’ (within the meaning of s.386) and that the dismissal was not a case of genuine redundancy and nor did it relate to Dr Colson’s performance. The ‘Small Business Fair Dismissal Code’ was not relevant in the circumstances of this matter.
[10] The main issue in the proceedings at first instance, and on appeal, was whether Dr Colson had been ‘unfairly dismissed’. This issue required a finding to be made as to whether or not the dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria in relation to this issue:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[11] At first instance, and on appeal, the central issue in dispute was whether there was a ‘valid reason’ for Dr Colson’s dismissal, within the meaning of s.387(a).
[12] The reasons for Dr Colson’s dismissal are set out in the letter terminating his employment. 6 This letter is Annexure PW3 to the witness statement of Mr Peter Watson. A copy of the termination letter is set out at Attachment 1.
[13] Barwon Health gave two reasons for Dr Colson’s dismissal:
(i) Knowingly and willing submitting claims for ‘Relative Value Guide’ (RVG) payments in breach of Barwon Health billing guidelines and directives provided to him to comply with those guidelines (the first allegation); and
(ii) Publication of a letter dated 23 March 2012 to the entire Department of Anaesthesia that was said to be intended to be deliberately offensive, a genuine challenge to the authority of management and designed to embarrass Barwon Health and damage its reputation (the second allegation).
[14] The Commissioner found that the first allegation could not be substantiated because the billing guidelines and directives did not clearly exclude the billing methodology utilised by Dr Colson. The Commissioner also found that Dr Colson had not repeatedly refused to comply with policy or directives and nor did Dr Colson state that he would not comply with policy or directives in the future.
[15] The Commissioner found that the second allegation was substantiated, in part, in that the letter of 23 March 2012 contained unwarranted personal attacks on managers and the distribution of these comments throughout the Department of Anaesthesia constituted misconduct.
[16] Barwon Health submits that a number of the factual findings which underpin the Commissioner’s conclusions were wrong. Before turning to deal with each of these matters we propose to say something about the general approach to challenging factual findings on appeal.
[17] In the joint reasons in Fox v Percy, 7 in a passage which has been applied since,8 Gleeson CJ, Gummow and Kirby JJ said:
“[23] [An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. 9 These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.”10
[18] The judgment of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd 11is also relevant in this context. In Earthline the trial judge had rejected the evidence of the State Rail Authority’s principal witness, Mrs Page, whose testimony had been corroborated by the evidence of two other witnesses (Mrs Meek and Ms Packham), neither of whom had been cross examined. Gaudron, Gummow and Hayne JJ said the following in relation to these circumstances:
“[62] The [State Rail Authority] contends that the trial judge was in error in three respects. First, the trial judge failed to give sufficient attention to all the evidence of the case, especially that of Mrs Meek and Ms Packham, as well as the extensive documentary evidence, in evaluating the evidence of Mrs Page. Secondly, the trial judge applied the incorrect standard of proof in analysing the evidence led by the [State Rail Authority]. And thirdly, the trial judge misdirected himself as to the relevant issue concerning the certification of the dockets. For the reasons outlined above when reviewing the judgments of the trial judge and the Court of Appeal, the [State Rail Authority] has established each of these grounds.
[63] It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable [their Honours cited Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496-7; ALR. See also Voulis v Kozary (1975) 7 ALR 126; 50 ALJR 59; Chambers v Jobling (1986) 7 NSWLR 1].The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page.
[64] As Kirby J and Callinan J point out in their reasons for judgment, these were matters to which weight was not given either by the trial judge or the Court of Appeal. The substance of the matter is that there has not yet been a determination of the SRA’s case upon a consideration of the real strength of the body of evidence it presented. There must be a new trial at which this consideration will be undertaken.”
[19] And at [154] Callinan J said:
“[154] The evidence of Mrs Page was therefore corroborated in material particulars by Mrs Meek and Ms Packham. It was given further force by the respondents’ decision not to cross-examine those corroborators, the failure of the respondents to call any evidence in refutation, and by the attempts at subornation by MessrsDavies, matters to which neither the trial judge nor the Court of Appeal accorded any weight.”
[20] Kirby J was in general agreement with the approach of Callinan J. 12
[21] There are differences between the circumstances in Earthline and those in these proceedings. In Earthline, the witnesses (Mrs Meek and Ms Packham) had not been cross examined to suggest their account was incorrect, hence their evidence was uncontradicted corrobative evidence. In the proceedings to which these appeals relate, that was not so. At least in relation to the critical factual contests (e.g. what was said during the meeting of 22 December 2011), the relevant witnesses were cross examined.
[22] A similar situation was considered by the Full Federal Court in Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union, 13in which Besanko and Perram JJ said:
“[70] There are differences between the situation which obtained in Earthline and that obtaining in this case. . . Mr Bell’s evidence did contradict the account given by each of Mr Sawyer, the foreman and the project manager. Indeed, it was on this basis that his Honour had rejected each of their evidence. Earthline, on the other hand, was a case where one could not dismiss Mrs Page’s evidence without reconciling that finding with the uncontradicted evidence of Mrs Meek and Ms Packham. This led the CFMEU and Mr Bell to submit that Earthline was to be understood as ‘a case of glaring improbabilities or uncontested evidence not brought into account’. This is, indeed, a distinguishing feature from Earthline. We would not accept that by itself, however, it is sufficient to make inapplicable the point that Earthline makes. That point is that a trial court must consider the evidence as a whole including, where relevant, how that evidence internally relates to itself.
[71] Here the constellation of facts is a little different, although, we believe, not materially so. One of the strengths of the appellant’s case was that the three witnesses all contended that Mr Bell had made statements to them of a particular kind. One finding consistent with that evidence was that they all gave that evidence because, in fact, it had been said. Further, if one were to accept that Mr Bell had said such things in one of the conversations, that made it much more likely that they had been said in the others. Consequently, as in Earthline, the evidence of each of Mr Sawyer, the foreman and the project manager was corroborative of the evidence of each of the others.
[72] For that reason it was necessary for the trial judge to consider that corroborative effect if he was to discharge his obligation to consider all of the evidence. The only difference between this case and Earthline is that the corroborative evidence in Earthline was uncontradicted. However, we do not think that is a sufficient reason to distinguish it.”
[23] Applying the above observations to these appeals, the Commissioner was obliged to consider the evidence as a whole. In discharging that obligation it was necessary for him to consider the corrobative effect of the evidence and how the evidence internally relates to itself.
The First Allegation - Failure to Comply with Directives
[24] It is convenient to group the grounds of appeal filed by Barwon Health by reference to the two allegations made against Dr Colson. Appeal grounds 1, 2, 5 and 10 concern the Commissioner’s conclusion in relation to the first allegation, and certain factual findings which support that conclusion.
[25] There are two aspects to the first allegation, namely that Dr Colson knowingly and willingly submitted claims for RVG payments:
(i) in breach of Barwon Health billing guidelines; and
(ii) in breach of directives given to Dr Colson.
[26] As to the first aspect of the allegation against Dr Colson, the Commissioner decided (at [48]) that the Barwon Health billing guidelines in place prior to Dr Colson’s dismissal did not ‘explicitly rule out the methodology utilised by Dr Colson’. At paragraph [49] of his decision the Commissioner said:
“[49] I am satisfied that prior to the termination the policy was not clearly documented in a policy or guidelines document in a manner that would exclude Dr Colson’s methodology . . .”
[27] There is no challenge to this aspect of the Commissioner’s decision. It is the Commissioner’s conclusion in relation to the second aspect of the allegation which is challenged by Barwon Health on appeal.
[28] The issue in contention is whether Dr Colson submitted claims for payment in breach of a directive given by Barwon Health as to the billing practice to be followed when working in two theatres concurrently. The Commissioner’s conclusion in respect of this matter is set out at paragraph [144] of the Commissioner’s decision:
“I am satisfied that it has not been established that Dr Colson ‘knowingly and willing’ submitted claims for RVG payments in breach of Barwon Health billing guidelines and directives provided to you to comply with those guidelines.” 14
[29] Before turning to Barwon Health’s challenge to this finding it is necessary to provide some information about the methodology associated with claims for RVG payments.
[30] RVG payments are payments calculated in accordance with the ‘Relative Value Guide’ (‘RVG’) published by the Australian Society of Anaesthetists and reproduced in full in the Australian Medical Association’s list of medical services and fees publication. The RVG is designed to assist anaesthetists in the determination of the fees charged for professional anaesthetic services. It expresses the relative value of the various components in the delivery of anaesthesia services. Dr Grutzner deals with the RVG in this evidence:
“The relative value of an anaesthetic service has three main components;
4.1 A basic unit allocation for the surgical or diagnostic procedure.
4.2 Time units. The time is expressed as one unit per fifteen minutes or part thereof for the first two hours and as one time unit or part thereof per ten minutes or part thereof for additional time beyond two hours. The RVG is premised on the fact that an anaesthetist is providing exclusive one on one care of a patient and can only charge for the care of one patient at any time.
4.3 Modifying units are applicable for other factors such as extremes of age, the presence of severe systemic disease and the presence of emergency surgery.
4.4 Additional units may be added for anaesthesia consultations, specialised forms of invasive catheterisation and monitoring, perioperative nerve blocks performed as adjuncts to provide postoperative analgesia, and for special procedures such as blood transfusions, autologous blood collection, double lumen endobronchial intubation and awake fibreoptic intubation.
These components when added together give the total relative value for the service. A dollar amount is assigned per unit and the total fee for anaesthesia services determined. The ASA advises each year on what it considers as a reasonable maximum unit value but does stress that each anaesthetist must determine their own unit value for each patient.” 15
[31] In March 2012 the dollar value attributed to a unit was $32.
[32] The AMA-Barwon Health Full Time Anaesthetists Certified Agreement 2001 (which applied to Dr Colson’s employment by Barwon Health) refers to the RVG as the document by reference to which after hours work should be billed and paid.
[33] The first allegation centres on Dr Colson’s billing practices in circumstances where he was working in two theatres which were operating concurrently. Dr Grutzner’s evidence was that operating sessions often overlap in the public hospital system and:
“. . . it is entirely ethical and professional for an anaesthetist to provide anaesthesia services in one theatre whilst supervising a trainee or less experienced medical colleague in another theatre at the same time. This practice is widespread at public hospitals in Victoria.” 16
[34] The RVG does not deal with the circumstances where an anaesthetist is working in two theatres concurrently as it is premised on the proposition that anaesthetists provide exclusive care to one patient at a time. The billing practice in these circumstances is dealt with by local arrangement between the hospital and the specialist.
[35] Drs Gordon and Tomlinson (respectively the Director and Deputy Director of the Barwon Health Department of Anaesthesia Perioperative and Pain Medicine) gave evidence that since 2001 the ‘local arrangement’ at the Geelong hospital was that when two theatres were operating concurrently only four time units per hour could be claimed (one ‘time unit’ is 15 minutes or part thereof). In the proceedings at first instance the Commissioner accepted that only Dr Colson submitted claims on a different basis. 17 The Commissioner deals with Dr Colson’s practice at paragraphs [23] and [24] of his decision:
“[23] Dr Colson accepts that he interpreted the policy in the manner proposed by Dr Tomlinson and Dr Gordon until payroll told him that he had to put a finish time at the end of each sheet of four patients. From then on his practice was: “Where such a period spanned more than one claim form, my long-standing practice was to record the time of starting the first case on each subsequent claim form as the end time on the previous claim form.” Dr Colson accepts that the capacity to claim for dual theatre operation has been in place since approximately 2001 and it has become more common in recent years.
[24] Dr Colson’s practice is demonstrated by his March claims. The start time for the first procedure on each sheet was recorded and that time was also recorded as the finish time on the earlier sheet. So for example the first sheet specified a start time of 8.30 and a finish time of 11.20 and the second sheet specified a start time of 11.20 and a finish time of 15.40. The time units claimed for these two sheets was 30 units but the actual time span was 7 hours and ten minutes which under the policy alleged by the Respondent was only 29 units. It should be noted that the Respondent accepts that part of 15 minutes is paid as with the RVG if the total is not a multiple of 15 minutes.” 18
[36] The Commissioner accepted (at [26]) the evidence of Drs Gordon and Tomlinson that when two theatres are operating concurrently the finish time specified at the end of the billing form is a nominal, rather than an actual time. This practice is explained at paragraph [25] of his decision:
“[25] Dr Gordon and Dr Tomlinson say that a time is required at the start and finish of each form but that at the end of the form if simultaneous operations are continuing it is not reasonable to put down an actual finish time which relates to a specific patient because, although there will be an end time for one patient, activity in respect to another patient will be continuing. Hence it is obvious in the view of Dr Gordon that the nearest 15 minute period should be specified as the end time on one sheet and the start time of the subsequent sheet. Dr Colson refers to such times as imaginary.” 19
[37] Against that background we now return to the issue of whether Dr Colson submitted claims for payment in breach of a directive given by Barwon Health. This issue turns on what was discussed at a meeting between Dr Colson and Drs Tomlinson and Gordon on 22 December 2011, and an email sent by Dr Tomlinson to Dr Colson on the same day. The relevant facts are as follows.
[38] An audit of Dr Colson’s on call claims for 15 and 18 December 2011 showed that, due to the billing method used by Dr Colson, he had lodged claims for payments for after hours work performed when providing services to patients in two operating theatres concurrently at a rate in excess of 4 units per hour. 20
[39] On 22 December 2011 a meeting took place between Dr Colson and Drs Tomlinson and Gordon. Drs Tomlinson and Gordon gave evidence that at that meeting Dr Colson was told that when running two theatres concurrently afterhours time attendance was to be claimed at a rate of 4 units per hour and that the claim he had lodged for 15 and 18 December 2011 would be reduced to 4 units per hour. Two instances of over-charging were discussed. The net result was an increase in the payments due to Dr Colson.
[40] At 6.33pm on 22 December 2011 Dr Tomlinson sent an email to Dr Colson. The email purports to summarise what had been discussed at the meeting earlier that day. 21 A copy of the email is set out at [68] of this decision.
[41] Dr Colson did not reply to this email, nor challenge its contents at any time prior to 8 March 2012. 22
[42] On 4 March 2012 Dr Colson submitted a claim for 6 units per hour in relation to afterhours work when he was working in two theatres concurrently.
[43] The 4 March 2012 claim for payment provided the basis for one of the allegations that Dr Colson had knowingly and willingly submitted claims for RVG payments in breach of the directions provided to him by Barwon Health. The Commissioner concluded, at [144], that on the evidence before him this ground of termination was not established. He also concluded, at [158], that neither Dr Colson’s written demand for an apology on 28 March 2012 nor his responses during a meeting with Barwon Health management on 14 May 2012 could properly be interpreted as a refusal to comply with Barwon Health billing guidelines in the future (we return to these matters later). Barwon Health submits that these findings are underpinned by significant errors of fact.
[44] Barwon Health challenges a number of the factual findings which underpin the Commissioner’s conclusion in respect of the first allegation and contends that the Commissioner made a number of ‘significant errors of fact’, within the meaning of s.400(2), in respect of three matters:
(i) the meeting between Drs Colson, Tomlinson and Gordon on 22 December 2011;
(ii) the email of 22 December 2011; and
(iii) Dr Colson’s ‘ongoing refusal to comply with the 22 December 2011 billing directive’.
[45] We now turn to the alleged significant errors of fact.
(i) The meeting between Doctors Tomlinson, Gordon and Colson on 22 December 2011
[46] It is common ground that on the afternoon of 22 December 2011 Dr Colson met with Drs Tomlinson and Gordon and that this meeting followed an audit of claims for payment lodged by Dr Colson. Both Dr Gordon and Dr Tomlinson gave evidence that during this meeting:
(i) Dr Colson was given a clear direction as to the correct methodology for billing afterhours work when working in two operating theatres concurrently; and
(ii) Dr Colson agreed that he would comply with that direction in the future. 23 This evidence includes a verbatim account from Dr Gordon of what he said to Dr Colson, including telling Dr Colson that such claims could be treated as fraudulent with the associated risks to Dr Colson’s reputation. It also includes Dr Gordon’s account of how he demonstrated to Dr Colson during the meeting on a sheet of paper the correct method for claiming out of hours dual theatre operations work.
[47] Dr Colson’s evidence was that there was no discussion about these matters during the meeting 24 and that he did not understand how the hospital wanted him to bill for after hours work when working in two operating theatres concurrently, until March 2012.25
[48] Dr Tomlinson corroborated Dr Gordon’s account of this meeting and described as “fundamentally untrue” 26 Dr Colson’s account that there had been no discussion during the meeting of what Barwon Health regarded as the correct methodology for billing after-hours dual theatre operations work.27 Dr Tomlinson’s evidence was that during the meeting he told Dr Colson that the claim submitted incorrectly could be treated as fraudulent.28 His evidence was that Dr Colson specifically agreed during the meeting that 4 units per hour was the appropriate calculation for time units29 and that, according to Dr Tomlinson, the meeting was designed as an educative process such that subsequent behaviour inconsistent with the direction would require a disciplinary process.30
[49] The evidentiary conflict about what was discussed at the meeting on 22 December 2012 required findings to be made about three critical matters:
(i) Was there a discussion about the methodology for claiming time units for dual theatre operations?
(ii) Was Dr Colson given a clear direction as to the correct methodology for billing after hours work when working in two operating theatres concurrently?
(iii) Did Dr Colson agree to comply with that direction?
[50] The Commissioner made express findings in respect of matters (i) and (iii), we return to matter (ii) shortly.
[51] As to matter (i), at [73] of his decision the Commissioner found that the method for claiming time units for dual theatre operations was discussed at the meeting of 22 December 2011. This finding implicitly rejected Dr Colson’s evidence that there was no discussion about this issue at the meeting.
[52] As to matter (iii) the Commissioner rejected the evidence of Drs Tomlinson and Gordon that Dr Colson had agreed that he would comply with the billing requirements from that time, for the reasons given at [74] of his decision. The Commissioner’s finding in respect of this issue was as follows:
“[74] Doctors Tomlinson and Gordon say that the Applicant at the 22 December 2011 meeting agreed that he would comply with the billing requirements from that time on ...
I am not satisfied that Dr Colson was as definitive as suggested by Doctors Tomlinson and Gordon. It is more likely that there was a failure to contest rather than a positive agreement.”
[53] In our view, this finding was erroneous and it constitutes a ‘significant error of fact’ within the meaning of s.400(2).
[54] The Commissioner’s rejection of the evidence of Drs Tomlinson and Gordon is based on two matters:
(a) that evidence ‘does not sit well with the Applicant’s almost belligerent response on this issue when it was raised again in March 2012’; and
(b) it is not consistent with the nature of Dr Tomlinson’s email of 22 December 2011.
[55] As to the second matter the Commissioner says, at [74]:
“The tone of that email suggests that Dr Tomlinson was not convinced that the Applicant was going to change his practices. If the Applicant had so clearly agreed to comply it would not have been necessary to set out the matters in such detail.”
[56] This was not a circumstance where the Commissioner was resolving an evidentiary conflict between witnesses; it will be recalled that Dr Colson’s account was that the issue of charging 4 units per hour was not even discussed during the meeting. 31 The Commissioner’s finding in respect of this issue was an inference he drew from other facts. As the majority of the High Court observed in Warren v Coombes:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.” 32
[57] In our view, the matters relied upon by the Commissioner do not provide a proper basis for rejecting the evidence of Drs Tomlinson and Gordon regarding the agreement of Dr Colson to comply with Barwon Health’s billing requirements. The ‘tone’ of the 22 December 2011 email does not justify the rejection of the clear, corroborated evidence of Drs Tomlinson and Gordon. We return to the email of 22 December shortly. It is also relevant to note that it was never put to Drs Tomlinson and Gordon that rather than positively agreeing to comply with the requirement of billing 4 units per hour, Dr Colson was not as definitive and that he simply did not contest the billing requirements put to him. The Commissioner’s inferential finding did not accord with any of the evidence given by Drs Tomlinson, Gordon or Colson, and was not open to him.
[58] The Commissioner was required to have regard to all of the evidence in the case and in discharging that obligation was required to consider the corroborative effect of the evidence of Drs Gordon and Tomlinson. 33 In rejecting the evidence of Drs Tomlinson and Gordon in respect of what had been agreed with Dr Colson during the meeting of 22 December 2011 the Commissioner failed to have sufficient regard to the fact that Dr Colson and Dr Gordon corroborated each other’s account of what occurred during the meeting on 22 December 2011 and there was no direct evidence to the contrary - Dr Colson simply denying that the issue was discussed (evidence which the Commissioner rejected).
[59] In this regard, it is relevant to note that the Commissioner made an express finding, at [273], that he ‘was impressed by the integrity of both Dr Tomlinson and Dr Gordon’ and, save for the finding at [74], the Commissioner made no adverse findings of any substance regarding the evidence given by Drs Tomlinson and Gordon.
[60] Dr Colson’s billing practices in January and February 2012 are also relevant. The Commissioner deals with this issue at [86]-[90]:
“[86] Dr Tomlinson gives evidence that the claim forms submitted by the Applicant subsequent to the meeting of 22 December 2011 and prior to the 4 March 2012 claim (claim forms dated 31 December 2011, 6 January 2012 and 21 February 2012) were all completed appropriately as far as time units were concerned and consistent with the email of 22 December 2011. This suggests that the Applicant understood the methodology set out in the email and was complying with it.
[87] This matter was put to the Applicant in the meeting of 14 May 2012 and he did not challenge the fact but suggested that it may be because the times happened to coincide with multiples of 15 minutes.
[88] In the proceedings Dr Colson responded to this as follows:
‘What you did in the ensuing three months of - or these two months of January and February 2012, was you did bill in accordance with the four units per hour rate for dual operating theatres, didn’t you?---Well, so I’m told, but I can only conclude that the real times happened to coincide with Colin’s preferred system during that period. I didn’t change - - -
You didn’t intentionally comply. Is that what you’re saying?---Sorry?
You didn’t intentionally comply with 4.4.1?---No. I don’t believe I did anything differently until 4 March.
It’s a coincidence, you say, that your claim forms complied with the rule in the interim period?---I guess so.’
[89] The Respondent did not produce the claim forms but in cross examination Dr Tomlinson said that he had the forms with him and could produce them.
[90] I consider it to be unlikely that the finish times for the patients in one theatre would have coincided with exact quarter hours. However, I cannot exclude the possibility that the Applicant’s forms complied with the methodology sought by Dr Tomlinson by coincidence rather than design.” 34
[61] Barwon Health contends that the Commissioner ‘failed to make a decision one way or the other on this important issue’ and that he was required to make a finding as to whether Dr Colson complied with the 22 December 2011 directive during January and February 2012. It is submitted that the Commissioner should have found that Dr Colson did comply with the 22 December 2011 directive during January and February 2012. We agree.
[62] Dr Colson did not dispute that the claim forms lodged in January and February 2012 were consistent with the directive said to have been given on 22 December 2011, but said that such compliance was coincidental rather than deliberate. 35 Barwon Health submits that Dr Colson’s evidence on this issue was ‘simply not credible, especially as his criticism on the directive was that it involved claiming for ‘imaginary times’ rather than actual times worked’36
[63] In our view the evidence supports a finding that Dr Colson’s billing practices in January and February 2012 were consistent with his compliance with a directive given to him during the meeting of 22 December 2011. As the Commissioner observed, it is ‘unlikely that the finishing times for the patients in one theatre would have concluded with exact quarter hours’. The more likely explanation is that Dr Colson was complying with a directive given to him by Drs Tomlinson and Gordon on 22 December 2011.
[64] We note the Commissioner’s observation that he ‘cannot exclude the possibility’ that Dr Colson’s forms complied with the methodology sought by Dr Tomlinson ‘by coincidence rather than design’. This observation is, with respect, based on a misconception about the appropriate standard of proof. The Commissioner had to determine this factual issue on the balance of probabilities. The observation that he could not ‘exclude the possibility’ that Dr Colson’s compliance was by coincidence rather than design, seems predicated on the application of a higher standard of proof, namely that of beyond reasonable doubt.
[65] We now turn to consider whether Dr Colson was given a clear direction as to the correct methodology for billing after hours work when working in two operating theatres concurrently.
[66] The Commissioner did not make an express finding on this issue but it may be inferred that he had concluded that such a direction was given. We draw such an inference from the Commissioner’s consideration of issue (iii), that is, did Dr Colson agree to comply with such a direction. Issue (iii) would only need to be considered in circumstances where a direction had been given, otherwise there would be no need to consider whether Dr Colson had agreed to comply with such a direction. The inference is also supported by the Commissioner’s observation, at [143], that ‘the December 2011 meeting . . . could have left Dr Colson in no doubt about what Dr Tomlinson regarded as the correct methodology for time unit claims’.
[67] If we are wrong about this, and no such finding may be properly inferred, then the Commissioner has failed to make a finding about a material issue and in those circumstances, in the context of a rehearing of the matter, we would make a finding that Dr Colson was given such a direction during the meeting on 22 December 2011. We would make such a finding on the basis of the evidence of Drs Tomlinson and Gordon, and Dr Colson’s subsequent compliance with the billing method directive.
(ii) The email of 22 December 2011
[68] The email of 22 December 2011 is set out below.
Colin GORDON | |
From: SIMON TOMLINSON Sent: Thursday, 22 December 2011 18:33 To: MARK COLSON Cc: Colin GORDON Subject: RVG claims | |
Dear Mark Thank you for meeting with myself and Colin to discuss your RVG claims. As discussed: 1. These are legal documents, the accuracy of which is the responsibility of the practitioner, not the department nor myself or Colin. Once the form has been handed in to Diane it has been submitted - Di checks the arithmetic but is not in a position to check the veracity of the item numbers claimed. Colin’s review of submitted claims is not systematic and is intended to assist and educate staff with the process as it has evolved - not act as a gate-keeper. Staff should not rely on this to protect them from the consequences of non-compliant claims. 2. Inappropriate claims, if detected by audit or other review constitute poor practice at best, and would almost certainly be regarded as fraudulent if the behaviour was repeated after appropriate education. 3. There are guidelines created by the department to clarify areas of uncertainty within the AMA RVG system which we have discussed at a number of departmental meetings. 4. We will continue to develop our RVG guidelines to minimise the possibility of any misunderstandings, and in light of our discussions today will include the following clarifications:
2. Items of service which do not attract PM, T modifiers - these are clearly labelled in the AMA RVG guide. It has been agreed as part of our contract that all individual patient care episodes after hours attract the M2 modifier and this would include epidurals in labour and consults where no anaesthesia ensues. It is the responsibility of the practitioner to ensure that these items are not claimed unless applicable. 3. It is appropriate to claim for an emergency pre-op consult (CA 051) prior to insertion of a labour epidural. 4. Time units: as part of our employment contract we have an agreement that we can claim for cases occurring simultaneously, but not “double dip” on the time units. Therefore
2. If a single theatre is operating, the RVG claim for that patient should reflect the AMA time unit schedule which has an increasing number of units per hour after the initial 2 hours. If, for example, the one of the anaesthetists present goes off to put in an epidural during that case, a decision needs to be made as to whether you are going to claim for multiple cases or the increased time units for the single case - not both. 3. When calculating the fee for taking over a case, the total RVG value for the case (on which you are going to base your pro-rata amount) should be based on the normal RVG calculations with an ascending time unit calculation. If there are any uncertainties with future claims please don’t hesitate to discuss them with Colin or myself, prior to submission. I expect that these particular billing mistakes will not occur in future, and if there are any changes to items in future editions of the RVG guide, I expect that your association with the ASA should prove valuable in clarifying the way they are to be used as soon as the new version comes out. Kind regards Yours sincerely Simon | |
[69] The Commissioner deals with this email at [43] to [76] of his decision. As to whether the email constituted a clear direction as to the correct methodology for billing after hours work when working in two operating theatres concurrently, the Commissioner states:
“[58] I am satisfied that the email makes it clear that only 4 units per hour can be claimed reflecting the total actual time spent in hospital during the dual theatre out of hours session. The email makes it clear that the times on the sheet do not have to be accurate from a specific case perspective.
[59] Dr Colson suggests that the email is not clear because it does not say that you cannot put the actual finish time of a case at the end of each sheet. I reject this submission as an artificial and pedantic reading. The requirement for only 4 units per hour is to be read in conjunction with the provision that the times do not have to be accurate from a specific case perspective.
[60] Dr Colson suggests that it was not clear from the email that the strict 4 units per hour approach applied in each case given that the option of only claiming for one theatre in cases of long operations was offered. 37 I consider that this exception was clearly understood and did not detract from the clarity of the approach that if you wish to claim for two theatre operation, including the units for various item numbers in both theatres then only 4 time units can be claimed per hour.
[61] Dr Colson suggests that the email does not constitute a direction. In my view there are some aspects of the email which do constitute a direction and in particular statements:
- That incorrect claims may be regarded as fraudulent if repeated after appropriate education; and
- Emphasizing that it is the doctor’s responsibility to get it right; and
- Statements urging direct contact with Dr Tomlinson if anything is unclear.
[62] ... I am satisfied that the email was not general advice given that the email was specifically addressed to Dr Colson and Dr Colson only and that it followed directly upon the meeting to discuss Dr Colson’s claims...
[75] I am satisfied that the December email does make it clear how Dr Tomlinson wished Dr Colson to claim time units in the future. There is no ambiguity about the methodology proposed in the email. However, the December email is not a warning. It is a general direction to fill in claim sheets correctly and notice that there could be consequences if there was a continuing failure to do so. There were a range of errors including arithmetic and item number errors in Dr Colson’s claim.
[76] The December email does leave some question mark about what the final policy document will be and therefore it doesn’t provide a sound basis for discipline based on breach of policy, guideline or direction in respect to the method for claiming time units for dual theatre operation. This is because Dr Colson is a long serving senior employee who in March 2012 asserted a strongly held belief that his practice was consistent with policy and there was no sound basis for a conclusion that his practice was inconsistent with the written policy. I also consider it likely that Dr Colson believed when he made a further claim for time units using his preferred methodology in March 2012 that there was still room for debate, notwithstanding the explanation given to him and the expectation expressed by Dr Tomlinson at the meeting and in the email of 22 December 2011.That belief was reasonably open to him.” 38
[70] In our view the Commissioner’s conclusion, at [76], that the email ‘does leave some question mark about what the final policy document will be and therefore doesn’t provide a sound basis for discipline based on breach of . . . directions’, was an error. The following points are clearly made in the email:
- only 4 units per hour can be claimed when running two theatres;
- the accuracy of submitted RVG claims is the responsibility of the practitioner (i.e. Dr Colson);
- inappropriate claims constitute poor practice at best and ‘would almost certainly be regarded as fraudulent if the behaviour was repeated after appropriate education’; and
- if there are any uncertainties over a future claim then it should be discussed with either Dr Gordon or Dr Tomlinson, ‘prior to submission’.
[71] In our view the email clearly constitutes a direction that only 4 units per hour be claimed when running two theatres.
[72] The Commissioner’s conclusion as to the characterisation of the email is based on two particular passages. The first is in the introductory words to point 4 where Dr Tomlinson says:
“We will continue to develop our RVG guidelines to minimise the possibility of any misunderstandings ...”
[73] The second passage relied upon is in the concluding paragraph:
“... if there are any changes to items in future editions of the RVG guide, I expect that your association with the ASA should prove valuable in clarifying the way they are to be used as soon as the new version comes out.”
[74] The Commissioner’s reliance on these passages in the email is apparent from [63] of his decision:
“Dr Colson also suggests that the reference to “we will continue to develop our RVG guidelines to minimise the possibility of any misunderstandings” in a context where he knew the guidelines were still under development and discussion meant that he should regard the items listed as a draft and still subject to discussion. I accept that this is a reasonable reading even though it was not the intention of Dr Tomlinson. Support for Dr Tomlinson’s view that it was a direction and not open to discussion is given by words “in light of our discussions today (the guidelines) will include the following clarifications.” The conclusion of the email quoted earlier reinforces this message where it states: “I expect that these particular billing mistakes will not occur in the future...” However, the next phrase “and if there are any changes to items in future editions of the RVG guide, I expect that your association with the ASA should prove valuable in clarifying the way they are to be used as soon as the new version comes out” suggests a consultative approach to the finalisation of guidelines.” 39
[75] Viewed in context the two passages do not support the Commissioner’s conclusion. It is important to appreciate that this email was purporting to document what was discussed at the meeting earlier that day and that during that meeting Dr Colson was given a direction about the correct methodology for billing after hours work. Nor should the passages relied on by the Commissioner be viewed in isolation from their context in the email itself.
[76] In relation to the first passage, the email goes on to say:
“. . . and in light of our discussions today [our RVG guidelines] will include the following clarifications:” [emphasis added]
[77] One of the clarifications mentioned concerned the billing method when working in two operating theatres concurrently. As to the second passage, it is proceeded by the phrase:
“I expect that these particular billing mistakes will not occur in future . . .”
[78] When viewed in context it is clear that while other aspects of the Hospital’s RVG guidelines would continue to be developed, the issue of time unit billing when working in two theatres concurrently was settled.
[79] It follows from the foregoing that during the meeting on 22 December 2011, and in the email of that date from Dr Tomlinson, Dr Colson was given a clear directive as to the correct methodology for billing after hours when working in two operating theatres concurrently. Further, during the meeting on 22 December 2011, Dr Colson agreed to comply with that directive. The Commissioner’s findings to the contrary constitute ‘significant errors of fact’ within the meaning of s.400(2) of the Act. This is so because these factual findings are central to the determination of the first allegation. We reject Dr Colson’s submission to the contrary.
[80] We now turn to the question of whether Dr Colson knowingly and willingly submitted claims for RVG payments in breach of the directive given to him.
[81] Dr Colson submits that his billing practice did not constitute serious misconduct or provide a valid reason for termination and no error has been demonstrated in the Commissioner’s conclusion in that regard. Dr Colson rejects the proposition that he submitted a claim in full knowledge that it was inconsistent with the directive, on two bases. First, it is submitted that there was no directive:
“The summary in paragraph 15 of the Barwon Health submissions of the email of 22 December 2011 critically omits that the e-mail refers to Barwon Health stating that it will continue to “develop our RVG guidelines to minimise the possibility of any misunderstandings” 40, together with the final sentence:
I expect that your association with the ASA should prove valuable in clarifying the way they are to be used as soon as the new version comes out.
It is clear from this that the matter canvassed in the e-mail continued to be under discussion. The guidelines were a work in progress at that stage: they did not come out until March 2012, and, as recorded by the Commissioner (at [46]), Dr Gordon acknowledged that Dr Colson was not in breach of those guidelines.” 41
[82] Second it is submitted that there is no evidence that Dr Colson was aware that he was incorrectly submitting time sheets: ‘he believed his methodology was consistent with the established practice. The Respondent contends that the Commissioner was entirely correct in finding that Dr Colson was not seeking to be paid money to which he was not entitled.’ 42
[83] As we have noted, on 4 March 2012 Dr Colson submitted a claim in relation to after hours work when he was working in two theatres concurrently. This claim was inconsistent with the methodology discussed at the meeting on 22 December 2011 and set out in the email from Dr Tomlinson later that day.
[84] The Commissioner deals with the 4 March 2012 claims in various passages between [91] and [159]. The Commissioner concluded that:
“[115] ... this is not a situation where false claims were submitted, that is where Dr Colson was seeking to be paid money to which he was not entitled. I am satisfied that it was a situation where Dr Colson was seeking to contest the right of Dr Tomlinson to change the billing practice where Dr Colson believed that his methodology was consistent with established practice and was not in conflict with previously agreed local arrangements, the Agreement or the RVG.” 43
[85] Barwon Health submits that there are numerous flaws in what it describes as ‘this benign view of the evidence’:
(i) Dr Colson could have sought further discussions regarding billing methodology with Dr Gordon and Dr Tomlinson. He did not do so. Rather he submitted a claim in full knowledge that it was inconsistent with the directive at 4.4.1 of the email of 22 December 2011. There is no evidence to support a conclusion that when Dr Colson lodged the claim for payment on 4 March 2012 he did not expect that it would not be paid. The only reason it was not paid was that Dr Tomlinson reviewed the claim and refused to approve it because it sought more than 4 units per hour. But for the intervention of Dr Tomlinson, Dr Colson would have been paid at the rate in excess of 4 units per hour. Contrary to the Commissioner’s conclusion at [115], Dr Colson was seeking a payment which he knew on 4 March 2012 he was not entitled to receive.
(ii) The finding at [115] is directly inconsistent with Dr Colson’s own evidence. The sole basis upon which Dr Colson sought to defend his conduct in lodging the claim on 4 March 2012 was that he did not understand the direction which he had received verbally and in writing on 22 December 2011 to the effect that 4 units per hour was the maximum. 44 This evidence (which includes a response from Dr Colson to direct questioning from the Commissioner45 was rejected by the Commissioner at [75], [141] and [143] of his decision. At no stage did Dr Colson give evidence that when he lodged the claim on 4 March 2012 he was “seeking to contest the right of Dr Tomlinson to change the billing practice.”
[86] Barwon Health contends that having rejected the sole basis upon which Dr Colson sought to justify his conduct in lodging the claim on 4 March 2012 it was not open to the Commissioner to construct a defence unsupported by any evidence. We agree. The Commissioner erred in failing to conclude that Dr Colson’s failure to comply with the direction he received on 22 December 2011 constituted a valid reason for termination of his employment.
[87] However, contrary to Barwon Health’s submission we are not persuaded that Dr Colson’s conduct amounted to serious misconduct justifying summary dismissal. After the direction of 22 December 2011 there was only one instance of Dr Colson making a claim which was inconsistent with the billing methodology directive (and the difference was only two time units). Serious misconduct would require clear and cogent evidence. 46 The available evidence does not persuade us that Dr Colson engaged in fraud or that he submitted the 4 March claims dishonestly, for personal financial gain.
(iii) Dr Colson’s ongoing refusal to comply with the 22 December 2011 billing directive
[88] After lodging his claim on 4 March 2012 an email exchange took place between Dr Colson and Dr Tomlinson on 7 and 8 March. 47 A copy of that email exchange is attached to our decision at Attachment 2.
[89] The Commissioner concluded, at [99]-[100]:
“... this email cannot be read as a refusal to abide by the approach to claiming time units requested by Dr Tomlinson ... Dr Colson is suggesting that compliance might be an outcome following further process.
This response in a situation where the Applicant says that he did not have the claim forms in front of him because he had returned them for payment suggests that the Applicant well understood the issue and that the Applicant’s actions in respect to the claim for time units may have been conscious and deliberate.” 48
[90] Barwon Health submits that in its terms Dr Colson’s email of 8 March 2012 is clearly a refusal to comply with the direction given to him both verbally and in writing on 22 December 2011. It also submits:
“If all doctors employed by BH took it upon themselves to dictate to management that compliance with lawful directives “might be an outcome following further process” the result would be a complete breakdown of the Hospital’s administration. Dr Colson had the right to raise the legitimacy of the billing directive which he had received from Dr Tomlinson. He could have done so whilst at the same time complying with the directive. He did not have any right to simply ignore it. Insofar as Roe C’s reasoning endorses such conduct of Dr Colson it is seriously flawed.” 49
[91] In reply, it is submitted that there is no refusal by Dr Colson, in his email of 8 March 2012, to comply with any directions and nor was there any subsequent refusal by Dr Colson to comply with ‘lawful billing directions.’
[92] In his Position Statement of 28 March 2012 Dr Colson included an offer to comply with the direction of 22 December 2012 subject to the conditions that:
- BH issues a formal retraction and apology for Dr Gordon’s written accusation of 23 March 2012 that I have”... knowingly and willingly submitted false claims for RVG payments.”
- BH issues a written undertaking that this matter will never again be raised in future in any other context.
[93] A copy of the Position Statement is set out at Attachment 3.
[94] The Commissioner concluded at [153] that ‘it was understandable for Dr Colson to have demanded a formal apology for allegations that he had submitted false claims and that it be the end of the matter’.
[95] Barwon Health submits that the Commissioner’s reasoning in this regard is ‘seriously flawed’. Dr Colson had received a lawful and reasonable directive regarding the manner in which he was to submit claims for payment for out of hours dual theatre operations. The evidence of Dr Tomlinson and Dr Gordon (which the Commissioner accepted at [27]) was that all other doctors in the Department were complying with the methodology of billing a maximum of 4 units per hour. On the Commissioner’s findings of fact Dr Colson deliberately lodged a claim on 4 March 2012 that was inconsistent with the direction he had received on 22 December 2011. There is no legitimate basis upon which it could be concluded that it was “understandable” that Dr Colson should receive an apology in these circumstances.
[96] During the course of the meeting on 14 May 2012 Dr Colson made a number of statements which, Barwon Health contends, evidenced an ongoing refusal to abide by the billing directive of 22 December 2011:
- My position is that it is ludicrous to modify and distribute Barwon Health billing guidelines when the AMA RVG is in place as the long accepted means of remuneration for afterhours work. I question the very legitimacy of the Barwon Health Billing Guidelines. 50
- I intend to continue my longstanding practice and bill in accordance with my certified agreement until such time as the agreement states otherwise. 51
- The implication for your question is that the Barwon Health Billing Guidelines are legitimate. As I have already stated I reject that premise. 52
- He (Dr Tomlinson) again expressed the opinion that there can only ever be 4 time units per hour. I rejected this, as sometimes the AMA RVG results in 6 or more time units in an hour- depending on the case mix. 53
[97] During the meeting on 14 May 2012 Dr Colson was asked: “If your employment with Barwon Health continues do you agree to unconditionally and strictly comply with its billing guidelines and directives provided to you in regards to billing practices?” Dr Colson responded “not sure how to answer that”.
[98] The Commissioner concluded, at [158], that he was not satisfied that Dr Colson’s responses at the 14 May 2012 meeting could “be properly interpreted as refusing to comply with the Barwon Health billing guidelines in the future. However I am satisfied that the responses do lead to a conclusion that there was a risk that Dr Colson would not comply in the future.”
[99] Barwon Health submits that during the meeting on 14 May 2012, Dr Colson was given an opportunity to unequivocally commit to complying with BH’s billing guidelines and he declined the opportunity to give an unequivocal undertaking. Further, it is submitted that the Commissioner erred in failing to have regard to the cumulative effect of the evidence. It is submitted that when viewed cumulatively, the evidence supported a conclusion that between 4 March 2012 and 14 May 2012 Dr Colson consistently refused to provide a commitment to comply with the billing direction he had received on 22 December 2011.
[100] We do not think the conclusion urged by Barwon Health is open based on the evidence before the Commissioner. The “minutes of disciplinary meeting” 54 prepared by Dr Colson, the accuracy of which was not challenged by Barwon Health records the following question and response:
“It appears from your written responses to the allegations that you had no intention of changing your billing practices and complying with the Hospital’s directives in that regard. Is that correct?”
“Mark – no It’s (sic) not correct stop you’ve received my position paper, and you’ve seen that I will change my practice to comply with the Barwon Health Billing Guidelines, but there are conditions attached. I offer to accept Colin’s method of imaginary time recording but only in the specific circumstance where two operating theatres are running concurrently. At all other times, I shall insist that the AMA RVG method of time unit calculation – using actual times – shall be adhered to.” 55 (Our underlining)
[101] The whole billing dispute between Dr Colson and Barwon Health concerned the billing method adopted by Dr Colson when two theatres were running concurrently. The response given by Dr Colson and recorded above during the meeting of 14 May 2012 is unequivocal on this point. Dr Colson says that he will adhere to Barwon Health’s preferred method of billing when two operating theatres are running concurrently. Dr Colson’s later response that he was “not sure how to answer that” 56, is given to a more generalised question of whether Dr Colson will agree “to unconditionally and strictly comply with its billing requirements and directives provided to you in regards to billing practices”57. Doubtless Dr Colson was hedging his bets because the question was so broad and not confined to the billing issue in dispute, but when read with his earlier response, Dr Colson’s answer should not be interpreted in the manner suggested by Barwon Health.
[102] Whatever may have been the position between December 2011 and 13 May 2012, it seems clear on the evidence that by 14 May 2012, Dr Colson had agreed to comply with Barwon Health’s billing procedure for periods when two theatres are running concurrently.
The Second Allegation - Dr Colson’s Letter of 23 March 2012
[103] On 23 March 2012 Dr Colson sent a five page letter to all members of the Anaesthetic’s Department. 58 There are 42 specialists in the Department. Dr Colson’s letter was sent in response to a letter from Barwon Health also dated 23 March 2012.59 A copy of the Barwon Health letter is attached to this document. In that letter, Barwon Health:
(i) put Dr Colson on notice of allegations of misconduct;
(ii) advised him that, if proven, the behaviour could result in disciplinary action; and
(iii) directed him to attend a meeting with Barwon Health management to answer the allegations.
[104] On 11 June 2012 Dr Colson sent a letter of apology in relation to his correspondence of 23 March 2012. The letter of apology 60 is in the following terms:
“Dear David/Tom
As you will be aware, the fallout in the aftermath of my summary termination nearly two weeks ago is creating dangerously polarised positions.
Bruce Munroe has indicated to me that a simple apology might be all that is required to reverse this unfortunate turn of events.
Accordingly, I have no hesitation in apologising for any embarrassment the distribution of my letter of 23 March 2012 may have caused Barwon Health.
As stated in the transcript of the disciplinary meeting of 14 May 2012, the purpose of this letter was to muster the support of my colleagues. It was not intended to embarrass the management of Barwon Health.
To put my actions into context, we need to consider my mindset at the time. I had just been accused (in writing) of submitting false claims for after-hours work. Essentially it is in allegation of fraud. I completely reject the allegation, and will fight to prove my innocence.
I believe any reasonable person who found themselves falsely accused of fraud would find their judgment affected in the same way that my judgment was affected as I wrote that letter on 23 March 2012.
With kind regards,
Dr Mark Colson”
[105] The Commissioner noted that the apology was ‘belated’ but did reject the suggestion that it was insincere (at [224]) 61. In the proceedings at first instance Dr Colson ‘apologised’ for the letter, in these terms:
“In retrospect, there are things I wish I hadn’t put in there. In fact I wish I’d never written the letter, but I have written it. There are things which have upset Colin Gordon and Barwon Health. I’ve apologised for them. I can’t undo what’s done.”
No?---But I do believe that this is a completely reasonable letter for someone who has been falsely accused of fraud and threatened with termination after 14 years of excellent service for a large employer.” 62
[106] In relation to the above remarks the Commissioner observed that ‘it was not a particularly fulsome apology’ (at [226]).
[107] Appeal grounds 3 and 4 concern the Commissioner’s conclusion in relation to the second allegation, and certain factual findings that support that conclusion. Barwon Health submits that Dr Colson’s letter provides a valid reason for his dismissal on the basis that it was intended to be deliberately offensive, a genuine challenge to the authority of management and designed to embarrass Barwon Health and damage its reputation.
[108] The Commissioner’s consideration of Dr Colson’s letter is set out at [218]-[227] of his decision and his findings are as follows:
- the letter was ‘inappropriate and a disproportionate response to the actions of management’ (at [221]);
- it was a letter ‘written in the heat of the moment ... in response to an allegation of false claims which was subsequently not proven, much of the letter could be regarded as inappropriate but not seriously offensive or damaging to the employer’ (at [227]);
- there are some aspects of the letter ‘which are an unwarranted personal attacks on managers ... [the] distribution of these comments throughout the department does constitute misconduct’ (at [227]);
- Dr Colson had ‘a history of this style of communication with his manager and about his manager’ and ‘Barwon Health took no action between 2007 and 2012 to stop this style of communication of Dr Colson. Barwon Health tolerated and condoned the inappropriate communication of Dr Colson [and] did not clearly and directly tell Dr Colson that his communication style would no longer be tolerated and if it continued it could lead to his termination’ (at [227]).
[109] It is apparent from [229] of the decision that the aspects of the letter which the Commissioner decided constituted misconduct were the allegations that ‘Democracy is clearly not Dr Tomlinson’s preferred political system’ and ‘Although I know you are opposed to the very concept of copyright’ which was directed at Dr Gordon.
[110] Dr Colson did not resile from these aspects of his letter in cross examination. He described the letter as ‘completely reasonable’. 63 He stated that his observation that democracy is not Dr Tomlinson’s preferred political system to be ‘a statement of fact’.64
[111] The Commissioner deals with Dr Colson’s inappropriate communication style at [219] and [221]:
“[219] I consider that the evidence of earlier communications and the direct evidence of Dr Gordon and Dr Colson support a conclusion that Dr Colson had previously engaged in the same type of communication with his managers and colleagues as seen in the letter of 23 March 2012. In previous communications with Dr Tomlinson, and with others at Barwon Health, Dr Colson had accused Dr Tomlinson of not pulling his weight, poor commitment, lack of publications and poor management and communication skills. Dr Colson used a robust and disrespectful tone. It may well be that concerns raised by Dr Tomlinson about Dr Colson’s attendance were not substantiated, I am not in a position to make any judgment about that, but it is clear that the concerns of Dr Tomlinson actually related to issues about communication style and practice and issues of accountability to management. The evidence suggests that the raising of these concerns did not justify the responses of Dr Colson.
[221] ... the actions of Barwon Health demonstrate that they did tolerate this sort of communication from Dr Colson. Apart from the email of Dr Tomlinson in March 2007 the evidence does not suggest that any action was taken to counsel or warn Dr Colson that such communications would not be tolerated.”
[112] The relevant aspects of the March 2007 email 65 from Dr Tomlinson to Dr Colson to which the Commissioner referred, state:
- In relation to the discussions about organisation of work, I emphasised the value of trying to anticipate and manage the consequences of the sometimes inevitable and unpredictable delays associated with clinical care. Communication with the SA as soon as practicable is the mainstay of this process. I think it is an important part of our professional responsibility that we make concerted efforts to limit inefficiencies and inconvenience to other staff, wherever possible.
- I acknowledge your assertion that your philosophical approach to life is one of ‘contrariness’. However, this is only useful if it is tempered with a positive even optimistic focus that looks for solutions as well as problems. Otherwise it generates a sense of negativity and isolation from your colleagues that, you mentioned, is perhaps already apparent and is obviously causing you some concern. I am delighted to hear that you still enjoy working here as a staff anaesthetist, and that both the clinical and non-clinical aspects remain satisfying. You certainly have many clinical and non-clinical skills and abilities to contribute to the department, but your contrary attitude has, I believe, limited your ability to involve yourself in department discussions and activities in an optimal way. This needs to change if you are to fulfil your potential as a senior staff anaesthetist. Should this not be possible, then it may be necessary for you to consider alternative career opportunities.
“Personal and professional attitudes
- I hope that our discussion will encourage you to become more actively and positively involved in the department, in keeping with your experience and seniority. Please continue to raise issues with me that concern you, and I will do my best to help you resolve them.”
[113] The Commissioner refers to Dr Tomlinson’s email at [227] and says:
“The suggestion by Dr Tomlinson in 2007 that ‘it may be necessary for you to consider alternative career opportunities’ was too indirect and Barwon Health subsequently tolerated inappropriate communications.’
[114] Barwon Health submits that the writing and distribution of the 23 March 2012 letter constituted an act of serious and wilful misconduct. It is submitted that the letter was defamatory in that it contains the imputation that Dr Tomlinson benefited financially from Pfizer’s sponsorship and that this was a matter which could have impaired his judgment in promoting the use of an allegedly dangerous drug. The relevant parts of Dr Colson’s letter are as follows:
“But neither is it the first time I have received such a communication. That was on 1 March 2007, when received an email from Dr Simon Tomlinson which contained the phrase ‘... it may be necessary for you to consider alternative career opportunities’. I remember the occasion quite clearly because three days earlier (26 February 2007), Dr Tomlinson and I had a private meeting at which I questioned the appropriateness of Pfizer flying him to New York for a conference. I cautioned that as Director of the Anaesthetic Department which happened to be the largest prescriber of Pfizer’s Dynastt (parecoxib) in Australia, his acceptance of such hospitality could impair his ability to rationalise the use of this drug within our department. Given that the TGA was proposing the complete withdrawal of parecoxib from the Australian market at the time based on adverse event reports emanating from the USA, I had good reason to believe that inappropriate use of Dynastat could constitute a patient-safety issue.”
[115] The Commissioner refers to the Pfizer allegation at [204];
“Dr Colson raised an issue concerning Dr Tomlinson’s acceptance of a conference or research trip funded by a pharmaceutical company, Pfizer, and his alleged promotion of a particular drug produced by that company. Dr Colson argued that the use of this drug was inappropriate due to its side effects and that Geelong Hospital was the highest user of the drug in Australia. An internal investigation into the allegation was commenced but that was stopped when the matter was taken up by the ombudsman. An internal investigation resumed when there was no outcome from the ombudsman. It appears that the allegations concerning high or inappropriate use of the drug were not sustained. Dr Gordon gave evidence that he was responsible for the approval of the use of the drug not Dr Tomlinson. An internal investigation did establish that acceptance of the airfare was contrary to the hospital’s gift policy but there was no other finding of inappropriate conduct. The Ombudsman’s investigation had no outcome. The issue was finalised several years ago.”
[116] Dr Tomlinson’s unchallenged evidence was that he had no role in the selection of Dynastat as a drug used in the Department 66 and that the breach of the hospitals gift policy was only a technical breach. Pfizer paid expenses which would have otherwise been directly paid by Barwon Health.67 Dr Tomlinson received no financial gain from the Pfizer sponsorship.
[117] Barwon Health makes the following submission about those aspects of the 23 March 2012 letter relating to Dr Tomlinson and Pfizer:
“The fact that Dr Colson gratuitously repeated these allegations 5 years after the event in circumstances where the evidence before Roe C pointed strongly to the conclusion that they were entirely without merit, warranted the strongest condemnation.” 68
[118] In the reply submissions, at [32] and [33], Dr Colson deals with the reference to the Pfizer matter in his letter of 23 March 2012:
“At paragraph 37-40 of its submissions, Barwon Health refers to Dr Colson having raised the issue of the Pfizer provided trip to New York by Dr Tomlinson in 2007. A key factual issue which Barwon Health has not referred to here is the submissions is the previous occasion on which Dr Colson’s whistleblowing actions had been used to threaten his tenure, with an attempt being made for Dr Colson’s to be only offered a short term contract. 69
Establishing exactly what occurred in relation to the Pfizer allegation was always beyond the scope of this proceeding. Contrary to the suggestions of Barwon Health 70 Dr Colson has yet sought to use this proceeding in order to pursue that matter. It was certainly not serious misconduct for Dr Colson to ventilate his concern about the whistle-blowing issue continuing to be used against him- particularly as it was the unchallenged position that the employer had attempted to do so once before.”71
[119] Dr Colson submitted that Barwon Health’s criticism that he had not sought to establish the truth of the matters contained in the Pfizer complaint, and other matters raised in his letter of 23 March 2012, is misconceived:
“This is not a proceeding concerning the whistle-blowing. Nor is it an adverse action proceeding in which it would be necessary to show that Dr Colson had been penalised for having exercised workplace rights. The matters only enter the analysis because Dr Colson had every reason to suspect that there were other issues involved in the employer taking action against him, as had been the case in 2009.” 72.
[120] Dr Colson also submits that the Commissioner’s findings in relation to his letter of 23 March 2012 were entirely open on the evidence:
“There is no basis for the claim . . . that the distribution of the letter was for the “principal purpose of causing maximum damage to the reputation of those individuals, particularly Dr Tomlinson”. The purpose of the letter was to defend Dr Colson’s position from allegations, tantamount to fraud, which should never been made against him. It was, admittedly, as the Commissioner correctly records (at [161 and 181]), written and sent in the heat of the moment but it remained a letter sent in response to serious and unfounded allegations of “false claims” being made against him that day.” 73
[121] Barwon Health also submits that the Commissioner’s finding that it condoned Dr Colson’s inappropriate communication style is ‘misconceived’. Barwon Health says:
“In the present case the relevant misconduct was the writing and distribution of the 23 March 2012 letter. That misconduct could not have been condoned until it occurred. Nothing which took place between 23 March and 30 May 2012 when Dr Colson’s employment was terminated could on any view constitute condonation of Dr Colson’s conduct in writing and distributing the letter.” 74
[122] In reply Dr Colson submits:
“If Barwon Health had wanted to maintain strict adherence to what it regarded as appropriate forms of communication, then it should not have allowed previous communications to have been sent without reproach. There is no error in the approach of the Commissioner.” 75
[123] It is convenient to deal first with the Commissioner’s finding that the March 2007 email was ‘too indirect’ and that Barwon Health had tolerated inappropriate communication.
[124] As to the first matter, the March 2007 email contains the phrase ‘it may be necessary for you to consider alternative career opportunities’. It is clear from the context that this statement is made in reference to Dr Colson’s ‘contrary attitude’ which ‘limited [his] ability to involve [himself] in departmental discussions and activities in an optimal way’. The Commissioner found that this statement was ‘too indirect’ to constitute a warning that Dr Colson’s communication style would no longer be tolerated and if continued could lead to the termination of his employment.
[125] While the language used and its context are important in characterising the words used, it is also relevant to consider Dr Colson’s interpretation of the statement that it may be necessary for him ‘to consider alternative career opportunities’. It is clear that, contrary to the Commissioner’s finding, Dr Colson regarded this statement as a threat to his ongoing employment. This is apparent from Dr Colson’s letter to Dr Gordon, dated 23 March 2012 76 in which he says:
“The next thing I noticed was the overt threat to terminate my employment at Barwon Health. It’s not every day that one receives a written threat to one’s employment and livelihood.
But neither is it the first time I have received such a communication. That was on 1 March 2007, when I received an email from Dr Simon Tomlinson which contained the phrase ‘... it may be necessary for you to consider alternative career opportunities ...’
The next occasion on which I was threatened with termination occurred two years later during my reappointment in 2009.”
[126] Having regard to Dr Colson’s characterisation of the March 2007 email we have concluded that the Commissioner erred in finding that it was ‘too indirect’. However, importantly, this threat to Dr Colson’s employment is not directed - in terms - at his inappropriate communications. It is clear from the context that the threat, or warning, was directed at Dr Colson’s ‘contrary attitude’.
[127] As to the second matter we are not persuaded that Barwon Health tolerated communications of the kind circulated by Dr Colson on 23 March 2013. There was no evidence that Dr Colson had previously circulated throughout the Department correspondence of the same type as the letter on 23 March 2012. Drs Tomlinson and Gordon and Mr Watson strongly rejected the proposition put to them in cross-examination that the letter was “typical” of Dr Colson’s communication style. 77 This evidence emphasised both the highly offensive content and widespread distribution of the letter as a point of distinction between it and earlier correspondence from Dr Colson.
[128] Barwon Health also submits that Dr Colson’s motivation for ‘the widespread distribution of a letter containing a series of baseless but highly damaging accusations was for the principal purpose of causing maximum damage to the reputation of those individuals, particularly Dr Tomlinson’. 78 In this regard, the Commissioner rejected (at [163]) Dr Colson’s suggestion that one reason for the wide distribution of the letter was to ask his colleagues to keep an eye on him to protect patient safety given the possibility he might be distracted by the allegation of fraud or false claims made against him.79 Barwon Health submits that having rejected Dr Colson’s explanation for the wide distribution of the letter the Commissioner should have addressed the issue of Dr Colson’s motivation.
[129] We largely agree with this submission. The Commissioner made no express finding as to Dr Colson’s motivation for the wide distribution of the letter. It seems to us that one of the purposes for the wide distribution of the letter was to damage the reputation of Dr Tomlinson.
[130] The Commissioner found that parts of the letter of 23 March 2012 contained unwarranted personal attacks on managers and that the distribution of these comments throughout the Department constituted misconduct and provided a valid reason for termination. We would go further. In our view the entire letter and its wide distribution was inappropriate and unprofessional. It contained unwarranted personal attacks on Dr Colson’s superiors and was circulated with the intent of damaging their reputations. The writing and dissemination of the letter of 23 March 2012 constitutes misconduct and provides a valid reason for the termination of Dr Colson’s employment. But given the context, in particular our finding that Dr Colson did not engage in fraud or submit the 4 March claims dishonestly, combined with the fact that the letter was written in the heat of the moment we are not persuaded that Dr Colson’s conduct should be characterised as serious and wilful misconduct justifying termination without notice. It does however constitute a valid reason for dismissal.
[131] Having dealt with appeal grounds 1, 2, 3, 4, 5 and 10 we now turn to consider the remaining grounds of appeal.
Other Grounds of Appeal
[132] Appeal ground 6 relates to Dr Colson’s conduct during the investigation relating to his March 2012 time unit claims.
(i) Appeal ground 6
[133] On 28 March 2012 Dr Colson forwarded a ‘Position Statement’ to Barwon Health management. A copy of the ‘Position Statement’ is Attachment 3 to this Decision and contains the following:
“In fact, it is only now apparent to me that what was being demanded at that meetings (sic) was a new method of calculating time units which was quite different from my normal practice and did not conform to the AMA RVG description of time unit calculations.” 80
“Only now do I think I understand the time unit interpretation actually sought by Doctors Gordon and Tomlinson.” 81
[134] On 14 May 2012 Dr Colson attended a disciplinary meeting with Barwon Health Management. He digitally recorded the meeting 82 and the following exchange is recorded:
“Do you maintain that you did not understand the Hospital’s billing guidelines when you submitted the claim form for 4 March 2012? Mark- actually that’s correct. I did not understand the implications of the BH guidelines on 4 March 2012 I understand it now but I still don’t accept the legitimacy of the BH guidelines for all the reasons I have stated.” 83
[135] Barwon Health submits that because Commissioner Roe found that the 22 December 2011 email to Dr Colson:
- made the billing methodology to be used by Dr Colson in the future unambiguously clear 84; and
- left Dr Colson in no doubt about what Dr Tomlinson regarded as the correct methodology for time unit claims 85,
the Commissioner should also have found that Dr Colson deliberately misled Barwon Health in his position paper 86 and during an investigation meeting on 14 May 2012 by claiming that he did not have an understanding of the correct methodology for time unit claims when he submitted his claim form on 4 March 2012.87
[136] This additional finding, it was submitted, should have led the Commissioner to conclude that Dr Colson engaged in an act of serious misconduct justifying Dr Colson’s dismissal, and founding a valid reason for the termination of Dr Colson’s employment. 88 During the hearing of the appeal, Barwon Health urged us to find that Dr Colson’s claims of ignorance of the guidelines on 4 March 2012 were false and were intended to mislead it during the course of the disciplinary process.89 Barwon Health submitted that such a finding would constitute a stand alone ground justifying dismissal and relied on Streeter v Telstra Corporation Ltd90in aide of its submission.91
[137] Dr Colson argued that Barwon Health’s reliance on Streeter was misplaced. There was no misconduct justifying dismissal as there was no reason to disbelieve Dr Colson that as at 4 March 2012, he did not understand the interpretation of the guidelines sought by Barwon Health. 92
[138] We are inclined to agree with Dr Colson, although for different reasons. There are a number of difficulties with Barwon Health’s submission on appeal. The findings sought by it were not urged on the Commissioner below. This in itself would not be a basis to reject such findings on appeal if the findings were clearly open on the evidence. However, the proposition that Dr Colson misled Barwon Health in his position paper and during the investigation meeting on 14 May 2012 by claiming, as he did that as at 4 March 2012 he did not have an understanding of the correct methodology for time unit claims, was not put to Dr Colson by Barwon Health during the hearing before Commissioner Roe. Even when, as is evident below, Dr Colson’s claim was clearly asserted by him during cross-examination:
“I see, and the reason you say you didn’t refuse is because you gave the conditional offer at the end of your position statement on 28 March. Is that right?---No, the reason is there was a longstanding billing practice which - the first occasion on which I understood that my longstanding billing practice was not consistent with the approved departmental approach was on the occasion of 4 March, and when I realised that I queried it ...” 93
[139] Dr Colson’s assertion was not challenged, and the proposition now being advanced on appeal was not put to Dr Colson. As Dr Colson was not given an opportunity to deny the proposition, or to clarify, explain or qualify the evidence by reference to the proposition, it would have been unwise for the Commissioner to have made such an adverse finding.
[140] It follows that the Commissioner did not fall into error by not finding that Dr Colson misled Barwon Health, it was not reasonably open on the evidence for him to have done so. It is equally not reasonably open to us to do so.
(ii) Appeal grounds 7 and 8
[141] Barwon Health submits that in both the letter of 23 March 2012 and during the meeting on 15 May 2012 94 Dr Colson made a series of serious and unsubstantiated allegations against Dr Tomlinson, namely:
(i) that the investigation was retaliation for his decision in 2009 to make a complaint to the Victorian office of Whistleblower Protection;
(ii) that Dr Tomlinson was acting maliciously and “had set a trap”;
(iii) that he had been singled out for an audit of his time unit claims;
(iv) that Dr Tomlinson had engaged in bullying behaviour during the previous 5 years;
(v) that the investigation was linked to a discussion he had had with Dr Tomlinson in February 2007 during which Dr Colson advised Dr Tomlinson that he believed that it was inappropriate for Dr Tomlinson to accept flights and accommodation from Pfizer;
(vi) that Dr Tomlinson had threatened to terminate Dr Colson’s employment in 2009 95.
[142] Barwon Health submits that the allegations set out above were not put to Dr Tomlinson during the course of cross examination. The only reference to any of the matters set out at (i) - (vi) above is at [3687]-[3689] where it was put to Dr Tomlinson that he had taken offence at the reference in the letter to the flight to New York funded by Pfizer and the whistleblowing allegations. At no point did counsel for Dr Colson seek to establish the truth of any of the matters set out at (i) - (vi).
[143] In reply, Dr Colson submits that Barwon Health’s ‘selective list of matters that had been referred to by Dr Colson in his letter of 23 March and at the meeting of 15 May 2012 96, do not constitute the making of ‘false allegations’.’ Further it is submitted that:
“Dr Colson admittedly engaged in a robust defence of his position, given the serious nature of the allegation of fraud that had been taken against him, however the observations made in so doing were not so unreasonable or intemperate as to constitute serious misconduct.” 97
[144] At [202] of his decision, the Commissioner concluded that the history of the relationship between Dr Colson and Dr Tomlinson did not mean that there was anything inappropriate in Dr Gordon and Dr Tomlinson challenging Dr Colson’s 4 March 2012 claim for payment. The Appellant submits that in addition to making this finding, the Commissioner should have concluded that Dr Colson, without any justification, used his response to the investigation of the March 2012 claim as a vehicle for making totally unwarranted attacks on Dr Tomlinson.
[145] The submissions of Baron Health made in support of appeal grounds 7 and 8 overlap in part with those advanced in support of appeal grounds 3 and 4. We have earlier in this decision concluded that, in our view, the entire letter of 23 March 2012 and its wide distribution was inappropriate and unprofessional, that it contained unwarranted personal attacks on Dr Colson’s superiors and was circulated with the intent of damaging their reputations. This conclusion, in our view, deals with Barwon Health’s submission that in addition to the Commissioner’s finding at [202], the Commissioner should also have concluded that Dr Colson, without justification, used his response to the investigation of the March 2012 claim as a vehicle for making totally unwarranted attacks on Dr Tomlinson, at least insofar as the response was contained in Dr Colson’s letter of 23 March 2012.
[146] However Barwon Health also suggests in appeal grounds 7 and 8, and in its written submissions 98 that Dr Colson made a series of serious and unsubstantiated allegations against Dr Tomlinson during the meeting on 14 May 2012. We do not accept this submission. It seems clear from Barwon Health’s record of the meeting of 14 May 2012 prepared by Mr Muncaster99, that the allegations made by Dr Colson in his letter of 23 March 2012 had been discussed by Dr Colson in response to specific questions put to him by Barwon Health. That meeting record includes the following questions:
“It appears that the publication of your letter dated 23 March 2012 to the entire Department of Anaesthesia was intended to be deliberately offensive, a challenge to Barwon Health’s authority and was designed to embarrass Barwon Health its management. How do you respond to those contentions?” 100
“Why did you make public allegations of unlawful conduct by Barwon Health, including references to breach of copyright, illegal billing of Medicare and torment of employees?” 101
[147] Dr Colson’s responses to these questions are also recorded. It would be wrong in our view to characterise Dr Colson’s responses to questions put to him by Barwon Health during the meeting on 14 May 2012 about his correspondence of 23 March 2012 as Dr Colson making serious and unsubstantiated allegations. Dr Colson’s responses as recorded in the meeting record show that he was seeking to explain the basis for his comments in the letter of 23 March 2012. He was not using the opportunity to respond as a vehicle for making totally unwarranted attacks on Dr Tomlinson as submitted by Barwon Health.
(iii) Appeal grounds 9 and 11
[148] The submissions made in support of appeal grounds 9 and 11 challenge the Commissioner’s decision to reinstate Dr Colson. As we have decided that the question of remedy will be the subject of a rehearing it is unnecessary for us to address those submissions.
Conclusion
[149] We have found that the Commissioner made a number of ‘significant errors of fact’ in his consideration of whether there was a valid reason for the termination of Dr Colson’s employment. We have also identified a number of erroneous findings in the Commissioner’s consideration of the allegations against Dr Colson.
[150] In our view it would be unjust to allow the decision to stand. We are satisfied that it is in the public interest to grant permission to appeal. We grant permission to appeal and uphold the appeal. We will quash the decision subject to appeal.
[151] In the rehearing of this matter we need to decide whether Dr Colson was unfairly dismissed within the meaning of s.385 and, if he was, the remedy to award.
[152] We have concluded that there were valid reasons for the termination of Dr Colson’s employment. But as is evident from s.387 of the Act such a finding is only one of the matters which the Commission must take into account in dealing whether or not a dismissal was harsh, unjust or unreasonable (and hence whether Dr Colson was unfairly dismissed within the meaning of s.385). We now turn to the statutory criteria for considering whether Dr Colson’s dismissal was harsh, unjust or unreasonable, as set out in s.387 of the Act.
s.387(a) valid reason
[153] Two matters relating to Dr Colson’s conduct each provided a valid reason for his dismissal:
(i) Dr Colson had deliberately lodged a claim for payment which he knew to be inconsistent with a direction he had been given by management regarding the appropriate billing method for time units when working in two theatres concurrently; and
(ii) Dr Colson’s publication of the letter dated 23 March 2012 to the entire Department of Anaesthesia.
s.387(b), (c) and (d) Notification, Opportunity to respond and support person
[154] Dr Colson was notified of the reasons for his dismissal and was given an opportunity to respond to those reasons at the meeting on 14 May 2012. Dr Colson was represented at the meeting on 14 May 2012.
s.387(f) and (g) Size of Employer and HR Expertise 102
[155] Barwon Health is a large employer with dedicated human resources management expertise.
s.387(h) Other Relevant Matters
[156] The Commissioner considered seven ‘other relevant matters’ at [233] to [240]. Other than the first of these matters - Barwon Health tolerating Dr Colson’s communication style - there is no challenge to this part of the Commissioner’s decision. We have decided to adopt the Commissioner’s findings in respect of the six other relevant matters. 103.
[157] Having regard to all of the matters in s.387 we have concluded that the termination of Dr Colson’s employment was harsh, particularly having regard to his 14 years of service and the significant impact of the termination on his reputation and ability to find suitable employment.
[158] Our conclusion in this regard is also supported by the following matters;
- after the direction of 22 December 2011 there was only one instance of Dr Colson making a claim which was inconsistent with the billing and methodology directive (and the difference was only two time units); and
- Dr Colson has never received a warning specifically directed to his communication style.
[159] We now turn to the question of remedy. It seems to us that this matter is most appropriately dealt with by referring the matter of remedy to a single Member for determination pursuant to s.607(3)(c)(i) of the Act. This will provide an opportunity for the parties to lead further evidence as to the circumstances since the Commissioner’s decision and to make submissions on the basis of our conclusions regarding the valid reasons for Dr Colson’s dismissal.
[160] We will refer the question of remedy to Deputy President Gostencnik for determination.
PRESIDENT
Appearances:
M. McDonald SC and J. Tracey (solicitor) for Barwon Health - Geelong Hospital.
Mr Rohan Millar ofCounsel for Dr Mark Colson.
Hearing details:
2013.
Melbourne:
April 16.
Subsequent submissions filed on:
17, 19 and 24 April 2013.
ATTACHMENTS
1. Letter to Dr Mark Colson from Mr Peter Watson, Executive Director Surgical Services, dated 30 May 2012 (Re: Termination of Employment) [PW-3]
2. Email from Dr Mark Colson to Simon Tomlinson dated 8 March 2012 (Re: RVG Claim 4/3/12)
3. Position statement of Dr Mark Colson dated 28 March 2012 [CG-6]
4. Letter to Dr Colin Gordon, Deputy Director, Department of Anaesthesia Barwon Health from Dr Mark Colson dated 23 March 2012 [CG-4]
5. Letter to Dr Mark Colson from Dr Colin Gordon dated 23 March 2012 (Re: False Claims for RVG’s) [CG-2]
ATTACHMENT 1
ATTACHMENT 2
ATTACHMENT 3
ATTACHMENT 4
ATTACHMENT 5
1 [2013] FWC 766.
2 [2013] FWC 766 at para 229 and 242.
3 Ibid at para 279.
4 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at para 17 per Gleeson CJ, Gaudron and Hayne JJ.
5 (2010) 197 IR 266 at para 27.
6 Exhibit B11, Attachment PW3.
7 (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at para 23.
8 Australian Securities and Investments Commission v Hellicar (2012) 86 ALJR 522; 286 ALR 501; 88 ACSR 246; [2012] HCA 17 at para 130; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; 270 ALR 204; [2010] HCA 31 at para 76.
9 Dearman v Dearman (1908) 7 CLR 549 at 561; 15 ALR 287 at 291; [1908] HCA 84. See also Scott v Pauly (1917) 24 CLR 274 at 278-81; 24 ALR 27 at 31-3; [1917] HCA 60.
10 Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 AII ER 635 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 AII ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25.
11 (1999) 160 ALR 588.
12 Ibid at para 71.
13 [2013] FCAFC 8.
14 [2013] FWC 766 at para 144.
15 Exhibit C3, para 4; AB533-AB534.
16 Ibid at para 8; AB535.
17 [2013] FWC 766 at paras 22 and 27-29.
18 [2013] FWC 766 at paras 23-24.
19 [2013] FWC 766 at para 25.
20 See the discussion at Transcript, 16 April 2013, at PN14-PN52 and AB548.
21 Exhibit B10; Annexure ST-1, AB782-783.
22 Exhibit B10 at para 8; AB777; Transcript, 14 January 2013 at PN973 and PN1056.
23 See evidence of Dr Gordon: Transcript, 16 January 2013 at PN2709, PN2879-PN2880, PN2883-PN2889; AB309, AB327-AB328.
24 Transcript, 14 January 2013 at PN797, PN842-PN843, PN917-PN918, PN928-PN933, PN959-PN964, PN1026-PN1027 and PN1215; AB127, AB131, AB138, AB140, AB143-AB144, AB149, AB167.
25 Transcript, 14 January 2013 at PN808; AB128.
26 Transcript, 22 January 2013 at PN3525; AB397.
27 Ibid at PN3482; AB392.
28 Ibid at PN3531-PN3533; AB397-AB398.
29 Ibid at PN3597; AB405.
30 Ibid at PN3646; AB410.
31 Transcript, 14 January 013 at PN843 and PN918.
32 (1979) 142 CLR 531 at pp 551 cited with approval in Fox v Percy (2003) 214 CLR 118 at para 25 per Gleeson CJ, Gummow and Kirby JJ.
33 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 at [63]-[64], [71] and [154]; Director, Office of the Fair Work Building Inspectorate v CFMEU [2013] FCAFC 8 at [70]-[72].
34 [2013] FWC 766 at paras 86-90.
35 Transcript, 14 January 2013 at PN988-PN991.
36 Exhibit B6, Attachment CG4; AB718.
37 Transcript, 14 January 2013 at PN850.
38 [2013] FWC 766 at paras 58-62 and 75-76.
39 Ibid at para 63.
40 Ibid at para 55.
41 Submissions in Reply of the Respondent, 12 April 2013 at paras 24 - 25.
42 Submissions in Reply of the Respondent, 12 April 2013 at para 23.
43 [2013] FWC 766 at para 115.
44 Transcript, 14 January 2013 at PN808, PN1264, PN1445-PN1448, and PN1452.
45 Transcript, 14 January 2013 at PN1264.
46 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450.
47 Exhibit B10, Attachment ST2 and ST3; Appeal Book 785.
48 [2013] FWC 766 at para 99-100.
49 Appellant’s Outline of Submissions, 5 April 2013 at para 25.
50 Exhibit C9; Appeal Book 552.
51 Exhibit C9; Appeal Book 553.
52 Exhibit C9 at Appeal Book 553.
53 Exhibit C9 at Appeal Book 555.
54 Exhibit C9 at Appeal Book 552.
55 Exhibit C9 at Appeal Book 555.
56 Exhibit C9 at Appeal Book 557.
57 Exhibit C9 at Appeal Book 557.
58 Exhibit B6, Annexure CG-4 at Appeal Book 716-720.
59 Exhibit B6, Annexure CG2 at Appeal Book 693-694.
60 Exhibit C12 at Appeal Book 564.
61 [2013] FWC 766.
62 Transcript, 14 January 2013 at PN1187 to PN1188.
63 Transcript, 14 January 2013 at PN1188.
64 Transcript, 14 January 2013 at PN1313.
65 Exhibit C-28 at Appeal Book 615-616.
66 Transcript 22 January 2013 at PN3240.
67 Transcript 22 January 2013 at PN3239.
68 Appellant’s Outline of Submissions 5 April 2013 at para 40.
69 Paras 216 and 217: see also transcript at PN2773 where Dr Gordon is cross-examined.
70 Eg Exhibit C27.
71 Submissions in Reply of the Respondent, 12 April 2013 at paras 32-33.
72 Submissions in Reply of the Respondent 12 April 2013 at paras 41.
73 Submissions in Reply of the Respondent, 12 April 2013 at paras 31.
74 Appellant’s Outline of Submissions, 5 April 2013 at para 45.
75 Submissions in Reply of the Respondent, 12 April 2013 at 36.
76 Exhibit B6, Annexure CG-4 at Appeal Book 716-720.
77 Transcript 15 January 2013 at PN3006, PN3007, PN3091 (Gordon); Transcript 22 January 2013 at PN3690, PN3691 (Tomlinson); PN3927 - PN3930 (Watson).
78 Appellant’s Outline of Submissions 5 April 2013 at para 36.
79 Transcript 14 January 2013, PN1358-PN1362.
80 Exhibit B6, Attachment CG-6 at Appeal Book 724.
81 Exhibit B6, Attachment CG-6 at Appeal Book 731.
82 Exhibit C9 at Appeal Book 552-560.
83 Exhibit C9 at Appeal Book 553.
84 [2013] FWC 766 at para 75.
85 Ibid at para 143.
86 Exhibit B6 Attachment CG-6 at Appeal Book 724.
87 Exhibit C9 at Appeal Book 553, Exhibit B6, Attachment CG6 at Appeal Book 724 and 731; see also Appellant’s Outline of Submissions 5 April 2013 at paras 46-47.
88 Barwon Health’s Notice of Appeal, 1 March 2013 at para (6)(b).
89 Appellant’s Outline of Submissions, 5 April 2013 at para 47.
90 (2008) 170 IR 1 at para 23.
91 Appellant’s Outline of Submissions 5 April 2013 at para 48.
92 Respondent’s Submissions in Reply, 12 April 2013 at para 38; see also exhibit B6, Attachment CG-6 at Appeal Book 731.
93 Transcript, 15 January 2013 at PN 1927.
94 According to both the notes of meeting prepared by Mr Perry Muncaster and Dr Colson the meeting occurred on 14 May 2013, Exhibit C9 at Appeal Book 552; Exhibit B5, Attachment PM-1 at Appeal Book 672.
95 Exhibit B6, Attachment CG-4 at Appeal Book 720, Exhibit C9 at Appeal Book 554-555, Appeal Book 558-559.
96 According to both the notes of meeting prepared by Mr Perry Muncaster and Dr Colson the meeting occurred on 14 May 2013, Exhibit C9 at Appeal Book 552; Exhibit B5, Attachment PM-1 at Appeal Book 672
97 Respondent’s Submissions in Reply 12 April 2013 at para 40.
98 Appellant’s outline of submissions 5 April 2013 at para 49.
99 Exhibit B5, Attachment PM1 at Appeal Book 672.
100 Exhibit B5, Attachment PM1 at Appeal Book 674.
101 Ibid.
102 The matter in s.387(e) is not relevant in the circumstances of this case.
103 [2013] FWC 766 at para 234 - 240.
Printed by authority of the Commonwealth Government Printer
<Price code J, PR538714>
10
17
0