Colson v Barwon Health

[2013] FWC 8734

[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; the decision be set aside and Dr Colson’s application for relief be dismissed. It also sought a stay of the Commissioner’s decision and reinstatement order. That application was dismissed. 6 On a narrower basis, Dr Colson also sought permission to appeal, relating to the Commissioner’s decision not to make an order to restore lost pay. Both appeals were heard by a Full Bench of the Commission, of which I was a member, on 16 April 2013 and reasons for its decision were published on 15 July 2013.7 The Full Bench concluded that the Commissioner had 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 and that there were a number of erroneous findings in the Commissioner’s consideration of the allegations against Dr Colson.8 Consequently the Full Bench granted Barwon Health permission to appeal, upheld its appeal and quashed the Commissioner’s decision.9 Upon the rehearing of the matter, the Full Bench concluded that there were valid reasons for the termination of Dr Colson’s employment. The Full Bench identified two matters relating to Dr Colson’s conduct that each founded a valid reason for the dismissal. The two matters were Dr Colson’s:

● deliberate lodgement of 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
● publication of the letter dated 23 March 2012 to the entire Department of Anaesthesia. 10

[6] The Full Bench concluded that neither of these two matters could be characterised as serious misconduct justifying summary dismissal. 11 The Full Bench adopted the Commissioner’s finding in respect of six other relevant matters identified at [235] – [240] of the Commissioner’s reasons for decision as these were not subject to challenge in the appeal and, taking into account all of the matters set out in section 387 of the Act, concluded that the termination of Dr Colson’s employment was harsh, particularly having regard to his lengthy period of service and the significant impact of the termination on his reputation’s ability to find suitable employment.12 This is to be contrasted with the Commissioner’s initial finding that the dismissal of Dr Colson was unfair, a general description used to describe a dismissal that is harsh, unjust or unreasonable.13 The Full Bench observed that its harshness conclusion was also supported by the fact that:

● 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 not received a warning specifically directed to his communication style. 14

[7] The matter of remedy was referred to me for determination by way of a rehearing having regard to the conclusions of the Full Bench as to valid reason and harshness, and to provide an opportunity to the parties to lead further evidence as to the prevailing circumstances since the Commissioner’s decision. It was therefore unnecessary for the Full Bench to deal with Dr Colson’s appeal.

[8] For the reasons which follow, I have declined to make an order reappointing Dr Colson as an anaesthetist with Barwon Health because I am satisfied that reinstatement of Dr Colson is not appropriate. I have decided that there will be an order of compensation payable to Dr Colson in the amount of $59,050.00.

Remedy for unfair dismissal
The statutory provision

[9] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[10] The matters set out in subsections 390(1) and (2) are not put in issue in the proceedings before me. The Full Bench has determined that Dr Colson has been unfairly dismissed. Further, there is no question that Dr Colson is a person protected from unfair dismissal and has made a valid application under 394. Therefore the jurisdictional preconditions to the order of an appropriate remedy are satisfied.

[11] The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. Neither party suggested that I exercise my discretion not to order a remedy at all. I consider that a remedy is appropriate in all the circumstance of this case.

Reinstatement as the primary remedy for an unfair dismissal

[12] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal. The discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is inappropriate. The object of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, also tells us that an object of that Part is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. 15 But to describe reinstatement as the ‘primary remedy’, is to do no more than to recognise it as being the first, perhaps even the foremost, remedy under the Act. The description is not licence to search for a reason to order an employee’s reinstatement when that in not appropriate. The only question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether that is appropriate in the particular case.

Determining whether reinstatement of the person is inappropriate

[13] In order to understand and appropriately decide the question of whether reinstatement of Dr Colson is inappropriate, it is important to briefly consider the legislative development of the remedy provisions pertaining to unfair dismissal relief. In the federal sphere, codified remedies for ‘unfairly’ dismissed employees first commenced on 30 March 1994 when Part VIA of the Industrial Relations Act 1988 (IR Act) commenced.The jurisdiction to order a remedy was conferred on the Federal Court 16 and section 170EE (2) of the IR Act then provided:

“If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170 DB or 170 DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may, if it considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay employee compensation of such amount as the Court thinks appropriate.” (Emphasis added).

[14] Commencing on 25 November 1996 the IR Act was renamed the Workplace Relations Act 1996 (WR Act) and from 31 December 1996 the unfair dismissal scheme was amended. Simply stated, remedies in respect of a harsh, unjust or unreasonable dismissal were thereafter to be dealt with by the Australian Industrial Relations Commission (AIRC) by conciliation and if needed, by arbitration. 17 Section 170CH(3) of the WR Act relevantly provided that the AIRC may make an order requiring the employer to reinstate the employee if it “considers it appropriate”. Section 170CH(6) of the WR Act provided as follows:

“If the Commission thinks that the reinstatement of the employee is inappropriate, the commission may, if the commission considers it appropriate in all circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the commission in lieu of reinstatement.” (Emphasis added).

[15] Two things may be observed from the foregoing. The first is that the earlier IR Act provision required a consideration of the ‘practicability’ of reinstatement, whereas the latter WR Act provisions focused attention on whether reinstatement of the employee is ‘appropriate’ and permitted orders of compensation to be made only if the Commission thought that reinstatement is ‘inappropriate’. The second is that, although somewhat more cumbersomely expressed, the remedy provisions of the WR Act are to the same effect as section 390 of the Act. Both schemes emphasise reinstatement as the primary remedy with compensation available as a remedy only when reinstatement is inappropriate. The only relevant question as to remedy under both schemes is whether reinstatement is appropriate.

[16] As to the first observation, a Full Bench of the AIRC in Australia Meat Holdings Pty Ltd v McLauchlan 18 gave consideration to the differences in the provisions of the IR Act and the WR Act and concluded that “a consideration of appropriateness of reinstatement involves the assessment of a broader range of factors than practicability . . . [I]n considering whether to order the reinstatement the Commission is not confined to an assessment of the practicability of such an order are that must decide whether such an order is appropriate”19. I respectfully agree. It follows from my second observation that the conclusions of the Full Bench in McLauchlan about the consideration of the appropriateness of reinstatement continue to have currency and I adopt them for the purposes of deciding whether an order reinstating Dr Colson is appropriate.

When might reinstatement be inappropriate?

[17] Reinstatement might be inappropriate in a whole range of circumstances. The remedy may be inappropriate if reinstatement would be futile, for example where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination. 20 Reinstatement as a remedy may be inappropriate if the employer no longer conducts a business into which the employee may be reappointed.21 The mere absence of a position in a business into which an employee may be reappointed will rarely found a conclusion that reinstatement is inappropriate.22 However if reinstatement of an employee would result in the employee being surplus to the employer’s business requirements, this is clearly a factor which goes to the question of the appropriateness of reinstatement.23

[18] Reinstatement may be inappropriate if an employee is incapacitated because of illness or injury in a material way so that further performance of the employee’s contractual obligations would be impossible. 24

[19] The most common basis advanced to support the proposition that reinstatement is inappropriate is that there has been a loss of trust and confidence, or a breakdown in that relationship, so as to make the re-establishment of the employment relationship unviable or unproductive. Here we are concerned with that which is essential to make an employment relationship workable. It is not to be confused with an implied term in a contract of employment of mutual trust and confidence, the existence of which in Australian law has not been considered by the High Court, and continues to be the subject of differing judicial opinion. 25

[20] It is doubtless the case, that trust and confidence is a necessary ingredient in any employment relationship. But it would be wrong to assume the status of the relationship of trust and confidence is the sole criterion or even a necessary one to determine whether or not reinstatement is appropriate. 26 As Justice Gray observed in Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd27 the development of the law relating to trust and confidence in the employment relationship commenced when that relationship invariably involved a close personal relationship between the employer and employee, but with the emergence of corporate employers, the importance of trust and confidence in the employment relationship has diminished.28

[21] I do not take his Honour’s comments to mean that trust and confidence as an element of the employment relationship is no longer important. It is merely recognition that in many cases it will be important to have regard to the totality of the employment, and that in the case of a corporate employer, the loss of trust and confidence in the employee will be by a manager or managers of the corporate employer. But as his Honour observed, in such cases the “critical question must be what effect, if any, a loss of trust by the manager in an employee is likely to have on the operation of the workplace concerned”.  29 It is important to understand that his Honour’s observations were made in the context of an interlocutory application while His Honour was considering “balance of convenience” arguments against reinstatement on an interlocutory basis. His Honour’s observation about the effect of the shift from a personal to a corporate employment relationship were made as an introduction to his conclusion that the respondent did not provide any evidence on the “critical question” as identified. So much is clear from the following passage:

“. . . It might be more significant, for instance, to know the name of Mr Voss’s immediate supervisor and to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust. It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace. There is no evidence as to any of these matters.

[43] Resort to an assertion that trust and confidence in a particular person have been lost cannot be a magic formula for resisting the compulsory reinstatement in employment of the particular person.” 30

[22] In my view, His Honour is merely saying that it is not enough to simply assert that trust and confidence in an employee has been lost. Where this is relied upon then there must be evidence from the relevant managers holding that view and an assessment must be made as to the effect of the loss of trust and confidence on the operations of the workplace. In short, all of the circumstances must be taken into account. This seems evident and is hardly controversial.

[23] In Perkins v Grace Worldwide (Aust) Pty Ltd 31 the Full Court of the Industrial Relations Court considered the effect of a loss of trust and confidence on the question of the “practicability” of a reinstatement remedy and said:

“Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell [1933] HCA 8; (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 32

[24] As the Full Bench of the AIRC observed in McLauchlan, although Perkins was decided under the IR Act, the Court’s observations reproduced above remain relevant to the question of whether reinstatement is appropriate in a particular case. 33 To this I would add the observations of Full Bench of Fair Work Australia in Regional Express Holdings Limited v Richards: 34

“Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account.” 35

[25] From the foregoing, and putting to one side the obiter observations of the Full Court in Perkins that the law imports into employment contracts an implied term of mutual trust and confidence,the following propositions may be distilled concerning the impact of a loss of trust and confidence on the question of whether reinstatement is an appropriate remedy:

● An assessment of whether there has been a loss of trust and confidence must be decided on the circumstances of the particular case, including the nature of the employment;
● An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise any claim by an employer that reinstatement is inappropriate because of a loss of confidence in the employee;
● The appropriateness of reinstatement does not depend on notions of a loss of trust and confidence in the employee, although it is a relevant and even important consideration;
● Dismissal for misconduct, assuming the employer is acting honestly, will in most cases imply a loss of trust and confidence in the employee. If the dismissal is ultimately found to be ‘unfair’, the question becomes whether the relationship can be restored if the employee is reinstated. In answering that question all of the circumstances must be taken into account, not just the views of management;
● The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed;
● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate;
● In most cases, employment relationships are capable of withstanding some friction and doubt and in this context, trust and confidence are concepts of degree;
● The question, so far as it relates to reinstatement is ultimately, whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.

These propositions are accepted by both Dr Colson and Barwon Health 36.

Has there been a loss of trust and confidence?

[26] Barwon Health submits, in part, that reinstatement of Dr Colson to his former position with Barwon Health is inappropriate because the relationship of trust and confidence between the parties has been destroyed by reason of Dr Colson’s conduct, and any restoration of the employment would be impracticable 37. I take the reference to “parties” relevantly to mean between Dr Colson and those having managerial and supervisory authority over him. This submission is advanced on a number of bases each of which are considered below.

[27] DishonestyBarwon Health submits that Dr Colson was dishonest with its managers under whose supervision he worked, and under whose supervision he would continue to work were he to be reinstated to a position with Barwon Health 38. This submission is founded on a view held by Barwon Health that Dr Colson was dishonest with management of Barwon Health in his Position Statement of 28 March 201239 and during the investigation meeting on 14 May 2012 by claiming that he did not have an understanding of the correct methodology for time units claimed on 4 March 201240. It is said that Dr Colson’s “claims of ignorance of the guidelines on 4 March 2012 were false and were intended to mislead” Barwon Health during the course of the disciplinary process, and that it is now open to me (based on matters put to Dr Colson during hearings before me and on the evidence before and findings made by Commissioner Roe) to make such a finding41.

[28] This issue was considered by the Full Bench which said as follows:

“ [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; and

● left Dr Colson in no doubt about what Dr Tomlinson regarded as the correct methodology for time unit claims,

the Commissioner should also have found that Dr Colson deliberately misled Barwon Health in his position paper 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.
[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. 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. Barwon Health submitted that such a finding would constitute a stand alone ground justifying dismissal and relied on Streeter v Telstra Corporation Ltd in aide of its submission.
[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.
[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 ...”

[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.” 42 Endnotes omitted

[29] Before me it is not said that such a finding should be made for the purposes of concluding that Barwon Health was entitled to summarily dismiss Dr Colson on that ground, rather it is said that Dr Colson’s dishonesty during the investigation into the billing allegations was destructive of the relationship of trust and confidence. In order to overcome the difficulties of making such a finding identified by the Full Bench Dr Colson was cross-examined by Counsel for Barwon Health on this issue during which the following exchange occurred:

“MR McDONALD: No, I’ve asked the witness – I’ve put a straight proposition to you. You really should be able to answer yes or no?---Yes, I believe that the matter was open to debate and that when this email was written, that debate was still ongoing.

And you didn’t agree with it?---It was open to debate.

On your side of the vote you didn’t agree with it?---Because it was open to debate, there will be differences of opinions in any debate.

Could you not just answer a very simple, straight question? You didn’t agree with the billing methodology as set out in that email of 22 December which is – you certainly understand it now – you don’t charge more than four units per hour. You didn’t agree with it?---I interpreter four units per hour as being one unit per 15 minutes or part thereof so - - -

Yes, and when you found out what was actually the position – on your account, when you found out what was the position – and you say that it was only on 28 March. In your position statement you say it was only as at 28 March did you now understand what was meant, but when you did get that understanding, you didn’t agree with it. You thought it was inconsistent with the certified agreement. That’s correct, isn’t it?---I agreed to comply at that point.

Yes?---As soon as I understood what was requested, I agreed to comply. That was the evidence put before Roe C.

You agreed to comply but under protest. Your position was, “This is inconsistent with the certified agreement.” It’s all set out in the minutes. We don’t want to waste time. We’ll be here for three weeks. It’s all in the minutes of the meeting on 14 May where you set out that, yes, you’ll comply, but this is inconsistent with the certified agreement. It’s in black and white. That was your position?---That’s not correct. The only protest was that I had by this time been accused of fraud and I requested that the fraud allegation be withdrawn.

Very well, Dr Colson. You prepared a position statement on 28 March 2012 and I think it might be an attachment to the decision. Just bear with me.

THE DEPUTY PRESIDENT: Yes, it’s attachment 3, Mr McDonald.

MR McDONALD: I might be wrong about that.

THE DEPUTY PRESIDENT: It’s attachment 3 to the decision.

MR McDONALD: It’s attachment 3 to the decision. Thank you very much, your Honour.

This was a document that you, am I correct – correct me if I’m mistaken, but you prepared this document in anticipation that there was going to be a meeting to consider allegations which had been put against you and you were setting out your position. That’s right?---Yes, that’s broadly correct.

Right; and under the heading “Timeline”, under that paragraph, you talk - in the second half you’re referring here to the meeting on 22 December. You say:

There was some discussion of time units at this meeting but I presumed I had made a simple error in time-unit calculations. In fact it is only now apparent to me that what was being demanded at that meeting was a new method of calculating time units which was quite different from my normal practice over 11 years and did not conform to the AMA RVG description of time-unit calculation.

So in setting that out in this document you were basically explaining your position, your perspective, in advance of the meeting. Correct?---Yes.

Now, the relevant meeting was actually held on 14 May 2011 – I beg your pardon, 2012. You understood that the purpose of that meeting was to inquire and investigate into the allegations which had been made against you and to give you an opportunity to further put your position. Correct?---Yes.

And you understood, as a consequence of that meeting, there might be disciplinary action against you?---Yes.

And you understood that disciplinary action might include termination of your employment?---Yes.

You made a recording of that meeting?---No, I didn’t.

Isn’t exhibit C9 in the proceedings a recording that you made? I’m not making a big deal of the fact you made a recording, Dr Colson. I just want to confirm - - -?

---The fact is I didn’t make a recording. I transcribed the meeting in real-time using software to do that. It’s not an audio-recording.

Right, but exhibit C9 in the proceedings is a result of that non-recording. Correct?

---If you’d just give me a minute, Mr McDonald.

We can take you to it, if you like. It’s in the appeal book?---Yes.

It’s page 552 of the appeal book?---Okay. I wonder if I could - - -

That’s in volume 2 of the appeal book, but all I want to do is to read from you. I’m sure Mr Millar will pull me up if he thinks I’m not doing this accurately, but at page 554 of the appeal book at the top of the page - this is an extract from your transcription, I’ll call it, your real-time transcription.

THE DEPUTY PRESIDENT: Just before you go on, Mr McDonald, the software you used was akin to something like Dragon Dictation or some such?---It wasn’t actually Dragon but it was - it was very cheap, low-quality software but something similar, your Honour.

Yes, I understand; yes.

MR McDONALD: What you are transcribed as saying is:

As the December 2011 meeting with Colin and Simon time units were discussed but with so many other things Colin wished to change that I did not fully appreciate his interpretation of time-unit calculations at that meeting -

I beg your pardon, I’ll go back -

but with so many other things Colin wished to change that I did not fully appreciate his interpretation of the time-unit calculations at that meeting, nor was it made clear in a follow-up email.

So what I want to put to you, Dr Colson, is that by your position statement of 28 March 2012 and by the statement that you’ve made there on 14 May 2012 you have deliberately misled Barwon Health by claiming not to have understood the direction which was given to you when in fact you had a clear understanding?

---That’s not correct.

And you say it’s not correct because in fact the position was that you did not have an understanding?---Would you repeat the question, please?

I’ve put it to you that your statements were misleading.

. . .

MR McDONALD: So the point we were at was I’ve taken you to your position statement of 28 March and I’ve taken you to the extract from the transcription of the meeting on 14 May 2012 and I’m putting to you that by making those statements in the context of a disciplinary process you were intending to mislead Barwon Health?---I was not intending to mislead Barwon Health, but it was confusing by the meeting on the 14th of May, there was enormous confusion about exactly what it was I was doing wrong.

THE DEPUTY PRESIDENT: Just excuse me for a moment, Mr McDonald. Yes, Mr McDonald?

MR McDONALD: Thank you.

I want to be fair to you, Dr Colson, because we all know the stakes are very high in this case. On the current state of the findings of the full bench you did understand the direction which was given to you on 22 December 2011. Now, I know you’re taking issue with that, but that’s the finding of the full bench. That’s the factual position?---I don’t - - -

All right. That is the position. That’s not a question. I’m just laying the foundation for my question. I’ve taken you to statements you’ve made in writing and orally which are inconsistent with that factual finding in the full bench decision. I’m giving you an opportunity now to qualify your account regarding the meeting on 14 March – sorry, 14 May and the statement you made in writing on 28 March. I’m giving you the opportunity to put forward any other explanation that you may wish to as to why you made those statements which are inconsistent with the findings of fact of the full bench. Now, are you in a position to do so? Do you want to take up that opportunity?---I do, Mr Millar, thank you. I think the central problem in this area is that when I went into the meeting of 14 May, I was not clear whether the Barwon Health billing guidelines applied at all times or only during periods of two-theatre operations and it seemed to me at the time that it was - the directive was that the Barwon Health billing guidelines at all times but in fact only now or subsequently did I learn that the Barwon Health billing guidelines – that the application of the AMA RVG during single-theatre operations is not in contention and which brings me to one of my conditions attached to my adherence to the Barwon Health billing guidelines was I wanted it spelt out that these billing guidelines applied only during two-theatre operations and not at all times after hours. This was my chief concern.

Can I suggest to you, Dr Colson, basically in the evidence you’ve just given you are maintaining the position that as at 4 March you did not understand the direction which you had been given on 22 December?---My evidence is that I wasn’t given a direction. I stand by that evidence.” 43

[30] Despite the urging of Counsel for Barwon Health, I am not satisfied that on the evidence, when viewed in its totality, I should make a finding of dishonesty. For present purposes it must be accepted that Dr Colson was given a clear directive on 22 December 2011 that only 4 units per hour were to be claimed when running two theatres 44, that Dr Colson agreed to comply with that directive45 and that Dr Colson had deliberately lodged a claim for payment which he knew was inconsistent with the direction he had been given by management regarding the appropriate billing method for time units when working in two theatres concurrently46.

[31] It is not suggested, nor is it open on the available evidence to find that Dr Colson engaged in fraud or that he submitted claims on 4 March 2012 dishonestly, for financial gain 47. In fairness to Dr Colson, his evidence is that he was confused about “exactly what it was I was doing wrong”48. When this evidence is understood in context, at the time that Dr Colson prepared his position statement and responded to questions during the meeting of 14 May 2012, Dr Colson thought that the whole of the billing procedure adopted by him and said to be in accordance with the “prevailing AMA RVG”, 49 was at issue, and it is against this backdrop that the response that “it is only now apparent to me”50 might be understood. So much seems clear from his evidence before me in which he said:

“. . . . I think the central problem in this area is that when I went into the meeting of 14 May, I was not clear whether the Barwon Health billing guidelines applied at all times or only during periods of two-theatre operations and it seemed to me at the time that it was - the directive was that the Barwon Health billing guidelines at all times but in fact only now or subsequently did I learn that the Barwon Health billing guidelines – that the application of the AMA RVG during single-theatre operations is not in contention . . .” 51

[32] Given this doubt, coupled with Dr Colson’s evidence before me that he “was not intending to mislead Barwon Health” 52 which I am prepared to accept, I am not inclined to make such a serious finding that Dr Colson was dishonest.

[33] Nevertheless given the Full Bench findings described earlier in these reasons, it appears to me that Dr Colson’s explanation in his position statement of the 28 March 2012 and during the meeting on 14 May 2012, that the first occasion on which he understood that Barwon Health wanted him to claim only 4 units per hour when running two theatres, was after he was queried about the time sheet he submitted on 4 March 2012, was a disingenuous attempt to explain his actions. The totality of the evidence points clearly to this conclusion. Dr Colson was not being straightforward or candid in his position statement or in the discussions with management of Barwon Health. In my view, his response in the position statement and in the discussions on 14 May 2012 was insincere and calculated to place his action of disregarding the directive given to him on 22 December 2011 in the best possible light. Given that which Barwon Health knew at the time about the directive that was given to Dr Colson in the meeting with him on 22 December 2011 and in the follow-up email, it seems to me an inescapable conclusion that Dr Colson’s response in his position statement and in the meeting of 14 May 2012 had the effect of damaging the trust and confidence that Barwon Health management had in Dr Colson even absent deliberate dishonesty.

[34] In the circumstances I accept that Barwon Health management may now not be confident that Dr Colson would be straightforward and candid with them in the future. Indeed Dr Colson’s failure to respond candidly and in a straightforward manner to Dr Tomlinson’s email query about his whereabouts on 23 May 2013 53 (a matter to which I will later return) will have done little to alleviate that doubt.54

Dr Colson’s Obstinacy

[35] Barwon Health submits that during cross examination of Dr Colson in proceedings before me, Dr Colson chose to stand by the evidence he gave before Commissioner Roe and that contrary to the Full Bench findings Dr Colson continues to maintain a position that he was not given a directive that Barwon Health wanted him to claim only 4 units per hour when running two theatres on 22 December 2011, he did not agree to comply with the directive and that he did not intentionally comply with the directive during January and February of 2012. In consequence, so it is submitted, the obstinacy with which Dr Colson “continues to maintain, in effect, that he was right and that the Full Bench and Drs Tomlinson and Gordon are wrong, of itself illustrates that Dr Colson cannot work under the direction and supervision of Drs Tomlinson and Gordon” 55

[36] There is some merit in this submission. Whilst it is understandable that Dr Colson would feel aggrieved that his dismissal by Barwon Health was harsh, it is difficult to understand why Dr Colson is so adamant in his refusal to accept that which has been overwhelmingly established. Putting to one side the question of whether he agreed to comply with the directive and whether he in fact did so during January and February 2012, there would seem to be no rational basis for Dr Colson now continuing to maintain that he was not given a directive on 22 December 2011. Drs Tomlinson and Gordon gave evidence that a directive was given. The follow-up email from Dr Tomlinson to Dr Colson on 22 December 2011 makes clear that which was required of Dr Colson, namely that Dr Colson could “claim for cases occurring simultaneously, but not “double dip” on time units. Therefore while running two theatres/anaesthetising locations, time in attendance should be claimed at the rate of 4 units per hour” 56. The email concludes with the unequivocal statement that Dr Tomlinson expected “that these particular billing mistakes will not occur in the future”57. I find the explanation given by Dr Colson in his position statement and in evidence before Commissioner Roe on this point entirely unconvincing, though I can well understand Dr Colson’s desire to explain his actions in the best light possible in the context of a disciplinary forum and in a contested unfair dismissal proceeding.

[37] Based on the evidence, the Full Bench concluded that Dr Colson was given a directive on 22 December 2011. In light of the weight of evidence and the Full Bench findings based on that evidence, Dr Colson’s evidence before me that he was not given a direction and that he stood by that evidence 58, demonstrates obstinacy in the face of a compelling evidence to the contrary, and in my view has the effect of damaging the confidence that Barwon Health management might otherwise have in him. It lends voice to the concerns expressed by Dr Tomlinson that he continues to hold the view that there has been a breakdown in the relationship with Dr Colson59, and to those of Mr Watson that he believes that Dr Colson will continue to challenge management at every opportunity and be a destructive presence in the Department60.

[38] Whilst it was submitted on Dr Colson’s behalf that his response is unremarkable and he was doing no more than saying that he stood by the evidence that he gave before Commissioner Roe 61 and by necessary implication Dr Colson was not suggesting that that was his view now, this is not borne out by his evidence recovered in the transcript when read in the context in which Dr Colson’s answer was given. I set out below relevant exchange recorded in transcript between Counsel for Barwon Health and Dr Colson:

“MR McDONALD: Thank you.

I want to be fair to you, Dr Colson, because we all know the stakes are very high in this case. On the current state of the findings of the full bench you did understand the direction which was given to you on 22 December 2011. Now, I know you’re taking issue with that, but that’s the finding of the full bench. That’s the factual position?---I don’t - - -

All right. That is the position. That’s not a question. I’m just laying the foundation for my question. I’ve taken you to statements you’ve made in writing and orally which are inconsistent with that factual finding in the full bench decision. I’m giving you an opportunity now to qualify your account regarding the meeting on 14 March – sorry, 14 May and the statement you made in writing on 28 March. I’m giving you the opportunity to put forward any other explanation that you may wish to as to why you made those statements which are inconsistent with the findings of fact of the full bench. Now, are you in a position to do so? Do you want to take up that opportunity?---I do, Mr Millar, thank you. I think the central problem in this area is that when I went into the meeting of 14 May, I was not clear whether the Barwon Health billing guidelines applied at all times or only during periods of two-theatre operations and it seemed to me at the time that it was - the directive was that the Barwon Health billing guidelines at all times but in fact only now or subsequently did I learn that the Barwon Health billing guidelines – that the application of the AMA RVG during single-theatre operations is not in contention and which brings me to one of my conditions attached to my adherence to the Barwon Health billing guidelines was I wanted it spelt out that these billing guidelines applied only during two-theatre operations and not at all times after hours. This was my chief concern.

Can I suggest to you, Dr Colson, basically in the evidence you’ve just given you are maintaining the position that as at 4 March you did not understand the direction which you had been given on 22 December?---My evidence is that I wasn’t given a direction. I stand by that evidence.” 62

[39] It is clear from the above that Counsel for Barwon Health was giving Dr Colson the opportunity to state whether he continued to be of the view that he was not given a directive on 22 December 2011 having now had the opportunity to reflect on the evidence and the finding of the Full Bench on that issue. Dr Colson’s ultimate response was that he was not given a direction.

[40] The question of whether, and if so, to what degree, an employee’s obstinacy is relevant in assessing its impact on trust and confidence will necessarily vary in every case. However, in this case I am satisfied that Dr Colson’s obstinacy is a relevant factor in assessing whether and to what extent there has been a loss of trust and confidence, whether that relationship can be repaired to the point of workability and whether there is a rational basis for the views expressed by the managers responsible for Dr Colson about the status of that relationship..

Capacity to work with Drs Tomlinson and Gordon

[41] Dr Colson says that he does not have a problem working with either Dr Tomlinson or Dr Gordon 63. This is a position that I would expect a person seeking reinstatement to maintain, however when Dr Colson’s statement is viewed in the context of the totality of the evidence both at first instance and before me, the statement is difficult to accept. To begin with, and as the Full Bench found, the wide distribution and content of the letter from Dr Colson of 23 March 2012 was inappropriate and unprofessional, and it contained unwarranted personal attacks on Dr Colson’s superiors including Dr Tomlinson, and was circulated with the intent of damaging their reputations64. There can be little doubt that the wide circulation of the letter has contributed to a deterioration of the relationship between Drs Tomlinson and Colson. During the proceedings before Commissioner Roe, Dr Colson gave that which the Commissioner described as a “belated” apology,65 but in doing so Dr Colson remained of the view 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”66.

[42] Before me Dr Colson maintained that if he had the opportunity to do so he would apologise to Dr Tomlinson for causing hurt by distributing the letter of 23 March 2012, but that he would have difficulty apologising for the “factual allegation” contained in that letter. 67 A number of observations may be made about the circulation of the letter and Dr Colson’s evidence before me. First, a suspicion of wrongdoing falls a long way short of a “factual allegation”. Secondly, Dr Colson first made the allegation in 2007 and has felt sufficiently strongly about it ever since so as to cause him to remake the allegation and widely circulate it some five years later. Thirdly, it is difficult to reconcile such a long and strongly held belief that Dr Tomlinson has engaged in serious wrongdoing with the evidence given before me that Dr Colson does not have a problem working with Dr Tomlinson.

[43] In the proceedings before Commissioner Roe, a document prepared by Dr Colson purporting to be minutes of a disciplinary meeting occurring on 14 May 2012 was tendered into evidence 68. This document is instructive as it records views held by Dr Colson of Dr Tomlinson. First the document records Dr Colson’s explanation to his employer of the circumstances in which he submitted and then resubmitted claim forms for 4 March 2012. In so doing Dr Colson explains:

“It is important that you understand there is a malicious element to this. I believe Simon Tomlinson set a trap: he knew the only possible response to the receipt of the apparently approved claim forms would be to re-submit them. Also knew he would then be able to claim that I had deliberately resubmitted rejected claims. My inevitable actions would then be used to accuse me of a devious behaviour stop this was a deliberate trap, but it was a good one: after all, I fell for it.” 69

[44] Later in the document Dr Colson records himself as saying:

“In 2007 by privately advised Simon Tomlinson that it was inappropriate for him and his family to accept flights to New York and accommodation courtesy of Pfizer pharmaceuticals, as this breached Barwon Health guidelines in effect at the time. 3 days later, Simon wrote me an email threatening that it may be time for me to consider “alternative career opportunities”. I went to my managers at the time, Damian Armour and Dr Tony Weaver, to report that I felt threatened by Dr Tomlinson’s behaviour. Despite this, no action was taken against Dr Tomlinson. Instead, I ended up with a pejorative summary of the meeting on my personnel file.” 70

[45] In the next paragraph of the document Dr Colson records himself explaining that in 2008 Dr Tomlinson and sent him a letter alleging three “instances of unauthorised absenteeism - all of which were fabrications” 71. Still later in the document Dr Colson records himself as saying that in 2009 “Colin Gordon advised the reappointment committee in writing that I should only be offered a one year appointment as I had accessed the whistleblowers’ protection office”72.

[46] Finally the document records Dr Colson saying the following:

“Then, my planned 2010 sabbatical leave application was endlessly watered in a fashion which none of my colleagues had to endure more previously nor since.

And of course, in 2011, we have the accusation of the indictable criminal offence of fraud.

I’ve put it to you that you have been advised of Dr Tomlinson’s bullying behaviour on a number of occasions over the past five years and yet at no stage has Barwon Health intervened to modify this behaviour, nor even censure Dr Tomlinson. He is simply not being managed, and Barwon Health’s failure to manage Dr Tomlinson’s (sic) has allowed him to fabricate grounds with which to threaten me with dismissal every single year since 2007. Any external investigation of this behaviour – all of which is documented in great detail – would surely confirm both the dysfunctional nature of the behaviour, and Barwon Health’s failure to intervene to modify the behaviour on multiple occasions. As a result, I can have had to endure a very stressful workplace for over 5 years, devoid of the normal job security to which I am entitled, enjoyed by my colleagues . . .” 73

[47] It is clear from the extracts above that Dr Colson does not have a high regard for Dr Tomlinson. He has accused Dr Tomlinson of setting him up, of fabricating dismissal grounds, of bullying and of dysfunctional behaviour. He has also accused Dr Gordon of recommending the provision of a short-term contract in retaliation for Dr Colson having made a whistleblower complaint. Whatever else might be said about these allegations, they do not sit comfortably with the evidence that Dr Colson gave before me that he has no problem working with Drs Tomlinson and Gordon.

[48] During the proceedings before Commissioner Roe, Dr Colson alleged that Barwon Health and Dr Gordon had taken intellectual property belonging to be Australian Society of Anaesthetists relating to the Relative Value Guide by copying it, extensively modifying it and distributing it 74. Dr Colson also gave evidence that the reference in his widely circulated letter of 23 March 2012 to Dr Tomlinson’s unwelcoming approach to dissent and that democracy was clearly not Dr Tomlinson’s preferred political system, was a comment about Dr Tomlinson’s management style; and, rather than it showing a lack of respect for Dr Tomlinson, it was a statement of fact75.

[49] Furthermore Dr Colson continues to maintain that Dr Tomlinson and through him Barwon Health dismissed Dr Colson in retaliation for the whistleblower complaint made by Dr Colson in 2008. 76 Dr Colson also gave evidence before me that he believes that the account of the meeting of 22 December 2011 given by Drs Tomlinson and Gordon given under oath in proceedings before Commissioner Roe was completely inconsistent with his account of what had occurred at that meeting and was untrue.77

[50] Although I have no doubt that Dr Colson is genuine in his desire to be reinstated to his former position, in light of the evidence outlined above, I cannot and do not accept that Dr Colson has no problem working with Drs Tomlinson and Gordon – clearly he does.

[51] Trust and Confidence in Dr Colson by those responsible for his managementDr Tomlinson is the Director of the Department in which Dr Colson was employed. In proceedings before me, Dr Tomlinson gave evidence that he considered that his relationship with Dr Colson had broken down irretrievably prior to Commissioner Roe’s order for reinstatement because he could no longer trust Dr Colson or have a constructive, professional relationship with him 78. Dr Tomlinson gave evidence that he had arrived at this view because Dr Colson had previously refused to follow his directions in relation to billing, he continued to be uncooperative and exhibit a hostile response to Dr Tomlinson’s directions, such as the publication of the letter of 23 March 2012 which was extremely offensive and contained false allegations and disparaging attacks on Dr Tomlinson’s character79.

[52] Dr Tomlinson’s evidence was that he continued to hold the view that the relationship had broken down and that Dr Colson’s conduct upon returning to work in March 2013 only served to confirm his view 80. I will return later in these reasons to consider the allegations about Dr Colson’s conduct in the period since returning to work in March 2013 and the date of the decision of the Full Bench.

[53] In my view the attitude taken by Dr Tomlinson to Dr Colson that he can no longer trust Dr Colson andthat he is unable to have a professional and constructive relationship with Dr Colson is both rationally based and understandable. First, as to the billing directive, the Full Bench concluded that a directive was given to Dr Colson on 22 December 2011, that Dr Colson deliberately lodged a claim for payment in 4 March 2012 which he knew to be inconsistent with that directive and that this provided a valid reason for the termination of Dr Colson’s employment  81. Secondly, as to the publication of the letter dated 23 March 2012, the Full Bench concluded that the entire letter together with its wide distribution was inappropriate and unprofessional, that it contained unwarranted personal attacks on Dr Colson’s superiors, it was circulated with the intent of damaging their reputations and that it was misconduct providing a valid reason for the termination of Dr Colson’s employment82. In light of the findings of the Full Bench, there is no reasonable basis upon which it may be said that Dr Tomlinson does not have a rational basis for holding that view that he cannot trust Dr Colson nor have a professional and constructive relationship with him. This is not a case where Dr Tomlinson is refusing to shift from a view that Dr Colson engaged in misconduct even though a tribunal has found to the contrary. Dr Colson’s conduct which directly involved Dr Tomlinson was misconduct.

 9   Ibid at [150]

 10   Ibid at [152] – [153]

 11   Ibid at [87] and [130]

 12   Ibid at [156] – [157]

 13   [2013] FWC 766 at [241]; See also Byrne v Asutralian Airlines Limited (1995) 185 CLR410 at 465 per McHugh and Gummow JJ for a discussion of the overlap in and separate meanings of, the words “harsh,unjust or unreasonable”

 14   [2013] FWCFB 4515 at [158]

 15   Section 381(1)(c)

 16   The then Australian Industrial Relations Commission could make an award that provided a remedy of a kind that could be granted by the Court under section 170EE of the IR Act if the parties made an election to have the matter dealt with by content arbitration; see section 170EC of the IR Act

 17   See generally subdivision B of Division 3 of Part VIA of the WR Act

 18 (1998) 84 IR 1

 19   Ibid at 17

 20   Such discovery might also be relied upon by the employer as a valid reason for the employee’s dismissal which is the subject of an unfair dismissal remedy application

 21   Chelvarajah v Global Protection Pty Ltd (2004) 142 FCR 296

 22   Ibid; See also Smith v Capral Aluminium, 7 October 1999 Print R9808; Fairhall v Smorgon, 22 February 2002, PR913285

 23   Newtronics Pty Ltd v Salenga, AIRC Full Bench 29 April 1999, Print R4305

 24   See for example Smith v Moore Paragon AIRC Full Bench 20 January 2004, PR942856

 25 See most recently Commonwealth Bank of Australia v Barker [2013] FCAFC 83; per Jacobson and Lander JJ at [77]-[108]; C/f Per Jessup J at [236]-[340]

 26   See Tenix Defence Pty Ltd v Galea, PR928494, 11 March 2003; see also Liddell v Lembke(1994) 1 IRCR 466, per Gray J at 495 and Abbott-Etherington v Houghton Motors Pty Limited(1995) 63 IR 394, per Marshall J at 396-397

 27 [2000] FCA 627

 28   Ibid at [42]

 29   Ibid

 30   Ibid

 31 (1997) 72 IR 186

 32   Ibid at 191

 33 (1998) 84 IR 1 at 18

 34   [2010] FWAFB 8753

 35   Ibid at [26]

 36   Transcript PN8765; PN8968-PN8979; MFI1

 37   Barwon Health's further submissions on remedy at [11(a)]

 38   Ibid at [12]

 39   AB724

 40   Barwon Health's further submissions on remedy at [18]

 41   Ibid at [19] – [20]

 42   [2013] FWCFB 4515 at [135] - [140]

 43   Transcript PN4952-PN4985 and PN4997-PN5002

 44   [2013] FWCFB 4515 at [71] and [79]

 45   Ibid at [79]

 46   Ibid at [153]

 47   Ibid at [87]

 48   Transcript PN4997

 49 AB724.1

 50 AB724.9; see also AB731.4

 51   Transcript PN5001

 52   Transcript PN4997

 53   Exhibit RR7, attachment ST-1

 54   Exhibit RR7 at [7]-[20]

 55   Barwon Health's further submissions on remedy at [15]

 56 AB782.7

 57 AB783.1

 58   Transcript PN5002

 59   Exhibit RR7 at [6]

 60   Exhibit RR6 at [15]

 61   Transcript PN8795

 62   Transcript PN4999 – PN5002

 63   Transcript PN4941

 64   See [2013] FWCFB 4515 at [130]

 65   [2013] FWC 766 at [224]

 66 AB164; Transcript PN1188

 67   Transcript PN 5102 – PN 5103

 68 AB81; Transcript PN252 – PN258; AB552; Exhibit C9

 69 AB554.8

 70 AB558.5

 71 AB558.7

 72 AB558.10

 73 AB559 .1 – AB559.4

 74 AB163; Transcript PN1173 – PN1176

 75 AB176 – AB 177; Transcript PN1311 – PN1315; see also AB71 9.6

 76   Transcript PN5109 – PN5114; Exhibit RR5

 77   Transcript PN4026 – PN4129

 78   Exhibit RR7 at [6]

 79   Ibid

 80   Ibid

 81   [2013] FWCFB 4515 at [71], [75], [79], [86] and [153]

 82   Ibid at [130] and [153]

 83   Further Submissions of Dr Colson Regarding Remedy at [8]

 84   [2013] FWC 766 at [270]

 85   Ibid

 86   Exhibit RA1

 87 AB344; PN 3027

 88 AB347; PN 3049 – PN 3053

 89 AB689; Exhibit B6 before Commissioner Roe at [14]

 90   Exhibit RA1 at [9]

 91   Further Submissions of Dr Colson Regarding Remedy at [11]

 92   [2013] FWCFB 4515 at [159]

 93 AB455 – 456; PN 4079 – PN 4081

 94   Exhibit RR6 at [5]

 95   Exhibit RR6 at [15]

 96   Ibid at footnote 3 of submissions

 97   Ibid at footnote 3

 98   Transcript PN 8164 – PN 8173

 99   Transcript PN 8195 – PN 8199

 100   Transcript PN 4933 – PN 4934

 101   I have noted AB 671; Exhibit B5 before Commissioner Roe at [10] and the content of attachment PM- 3 thereto

 102   Transcript PN5687 – PN 5688

 103   Transcript PN 7950

 104  Transcript PN 6306 – PN 6308

 105   Transcript PN 6739 – PN6741

 106   Transcript PN 7594

 107   Exhibit RR7 at [7]

 108   Transcript PN 8218 – PN 8228

 109   Attachment ST-12 to exhibit RR7

 110   Attachment ST-1 to exhibit RR7

 111   Attachment ST-2 to exhibit RR7

 112   Exhibit RR7 at [11] – [19]; Exhibit RR6 at [6] – [7]

 113   Exhibit RR6 at [7]

 114   Further Submissions of Dr Colson Regarding Remedy at [19]-[20]

 115   Ibid at [20]

 116   Exhibit RR7 at [24]

 117   Further Submissions of Dr Colson Regarding Remedy at [29]

 118   Ibid

 119   Exhibit RR7 at [24]

 120   Ibid at [25]; Attachment ST–16 thereto

 121   Exhibit RR7, Attachment ST–16 at p1.7

 122   Exhibit RR7, Attachment ST–16 at p2.1

 123   Exhibit RR7, Attachment ST–16 at p1.6

 124   Exhibit RR7, Attachment ST–16 at p1.9

 125   See exhibit RR6 at [8]–[9]

 126   Ibid at [10] – [14]

 127   Ibid at [12]-[13]

 128   Exhibit RR6, attachment PW-5

 129   Ibid

 130   Exhibit RR6 at [14]; Attachment PW-7

 131   Further Submissions of Dr Colson Regarding Remedy at [33]

 132   Exhibit RR5

 133   Barwon Health's further submissions on remedy at [17]

 134   Ibid

 135   See for example Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622

 136   Exhibit RR5 at p1.1

 137   Ibid at p1.9

 138   [2013] FWCFB 4515 at [153]

 139   Ibid at [130]

 140   Ibid at [153]

 141   Exhibit RR5 at p2.4

 142   Exhibits RA9 and RA39

 143   Ibid at [6]

 144   Transcript PN 8481

 145   Transcript PN 8479

 146  Transcript PN 8480

 147   Transcript PN 6473 – PN 6481

 148   Transcript PN 7459 – PN 7460

 149  Transcript PN 7461 – PN 7462

 150   Transcript PN7463 – PN 7466

 151   Transcript PN 7474 – PN 7475

 152   Transcript PN 7735

 153   Transcript PN 7324 – PN 73 to 5

 154   Transcript PN 7975

 155   Transcript PN 7933 – PN 7938

 156   Transcript PN 8922 – PN 8930

 157   Transcript PN 8955 – PN 8959

 158   Barwon Health's further submissions on remedy at [44]

 159   [2013] FWCFB 431

 160 (1998) 88 IR 21

 161   Print S5109

 162 AB546 (exhibit C5); AB563 (exhibit C11); Transcript PN 9064 – PN 9082; exhibit RR9; Transcript PN 9131 – PN 9144

 163 AB 73 (PN 186); AB835 (Submissions of the Applicant)

Printed by authority of the Commonwealth Government Printer

<Price code G, PR544220>