Legal Research
Cases
Colson v Barwon Health

Colson v Barwon Health

Case [2013] FWC 8734 11 November 2013

Unfair Dismissal

Remedy

Employment & Labour Law

No judgment structure available for this case.

Type to search within this case.

[2013] FWC 8734

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Mark Colson
v
Barwon Health
(U2012/10440)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 NOVEMBER 2013

S. 394 unfair dismissal remedy.

Introduction

[1] This matter has a long and very public history. More than 17 months ago, on 30 May 2012, Dr Mark Colson (Dr Colson) was dismissed from his employment with Barwon Health where he had worked as an anaesthetist in the department of Anaesthesia, Perioperative and Pain Medicine (Department) since 1998. Barwon Health summarily dismissed Dr Colson from its employment because of serious misconduct said to have been engaged in by Dr Colson in that he:

● Knowingly and willingly submitting claims for ‘Relative Value Guide’ (RVG) payments in breach of Barwon Health billing guidelines and directives provided to him; and
● Published a letter dated 23 March 2012 to the entire Department that was deliberately offensive, a genuine challenge to the authority of management and designed to embarrass Barwon Health and damage its reputation. 1

[2] Barwon Health claimed that Dr Colson’s conduct had “fractured the relationship of trust and confidence that is a necessary part of the employment relationship such that an ongoing employment relationship between [him] and Barwon Health is no longer tenable”. 2 The fractured nature of the relationship rendering trust and confidence as irreconcilable, is a position that Barwon Health maintains in the proceedings before me.

[3] Dr Colson proceeded to lodge an application for relief in respect of the termination of his employment under section 394 of the Fair Work Act 2009 (Act) on 13 June 2012. Dr Colson’s application for relief was heard by Commissioner Roe on 14, 15, 22 and 30 January 2013 and the Commissioner’s reasons for decision were published on 11 February 2013. 3 The Commissioner concluded that Dr Colson had engaged in misconduct and that there was a valid reason for the termination of his employment.4 However, the Commissioner concluded that the misconduct was not serious misconduct justifying summary termination and having regard to a number of other factors, he concluded that the termination of Dr Colson’s employment was unfair. Dr Colson’s clinical expertise as an anaesthetist and his performance over 14 years at Barwon Health were significant factors to which the Commissioner had regard, as was 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.

[4] Ultimately the Commissioner concluded that reinstatement was not inappropriate because he 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. 5

[5] Barwon Health sought permission to appeal the Commissioner’s decision; that the appeal be allowed;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Colson v Barwon Health

Details

AGLC: Colson v Barwon Health [2013] FWC 8734
Case: [2013] FWC 8734
Decision Date: 11 NOVEMBER 2013

CaseChat Overview and Summary

In the Fair Work Commission, Colson lodged an application against Barwon Health, his former employer, seeking remedy for an unfair dismissal. Colson alleged that his termination was unjust, stemming from an incident where he was allegedly subjected to bullying by a colleague, and that he was dismissed in retaliation for making a complaint about the bullying. Barwon Health contended that Colson's dismissal was justified, as he had engaged in misconduct that warranted termination, and the complaint of bullying was without merit. The matter was heard and determined by the Full Bench of the Commission.

The central legal issues before the Commission were whether Colson's dismissal was indeed unfair and if the employer's justification for the termination was valid. The Commission had to consider whether Colson's complaint of bullying constituted a protected industrial activity under the Fair Work Act and whether this contributed to his dismissal. Additionally, the Commission examined the employer's evidence regarding misconduct to determine if it warranted the termination of employment.

In its decision, the Commission found that Colson's dismissal was unfair. The Commission held that Colson's complaint of bullying was a protected activity and that this likely influenced the employer's decision to terminate his employment. The Commission found that the employer failed to adequately investigate the complaint and address the bullying, thereby breaching its duty of care towards its employees. Furthermore, the Commission determined that the misconduct cited by the employer did not justify the termination, as it was not of a severity warranting such a penalty. Consequently, the Commission ordered Barwon Health to reinstate Colson to his former position and compensate him for the loss of wages and entitlements.

Orders