Dr Geraldine Goss

[2019] FWC 7961

[2019] FWC 7961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Dr Geraldine Goss
(AB2019/174)

COMMISSIONER BISSETT MELBOURNE, 26 NOVEMBER 2019

Application for an FWC order to stop bullying.

[1] Dr Geraldine Goss has made an application to the Fair Work Commission (Commission) for orders to stop bullying conduct. Dr Goss has named Professor Eva Segelov as the person whose conduct constitutes bullying. Both Dr Goss and Professor Segelov work for Monash Health. Professor Segelov denies the conduct and Monash Health says that the conduct of Professor Segelov is reasonable management action carried out in a reasonable manner and therefore fits to the exception to the definition of bullying behaviour.

[2] Dr Goss has made an application to the Commission for orders for production of a document and orders for persons to attend at the time of hearing of her application. This decision deals with those matters only.

[3] I have previously granted permission to both Professor Segelov and Monash Health to be represented by lawyers pursuant to s.596(2) of the Fair Work Act 2009 (FW Act). Dr Goss is represented by the Australian Salaried Medical Officers Federation.

Application for production of document

[4] Dr Goss seeks the production by Monash Health of a September 2018 External Review of Cancer Services (Report) at Monash Health.

[5] Dr Goss says in support of the application to produce that the Report “identifies the conduct of Prof Segelov which gave rise to concerns by staff at Monash Health”, that it puts the “alleged bullying conduct of Prof Segelov towards Dr Goss into perspective”, that it is relevant to “putting the conduct of Monash Health in normalizing unreasonable conduct towards staff intoperspective” (sic) and that it will enable the evidence of Dr Goss and others to be considered “in context” of the culture within the work area and in the context of the “approach adopted by Monash Health to support Prof Segelov.”

[6] Dr Goss (through her representative) said that the request for production of the Report was not a fishing exercise and that the Report contains sufficient material directly relevant to the conduct of Professor Segelov that justifies its production.

[7] Monash Health oppose production of the Report. It submits that the Report contains no reference to bullying by Professor Segelov and that the Report contains hearsay, opinion and conclusions. It could not be of assistance in determining if bullying did occur. If the report was produced and admitted into evidence very little weight could be attributed to it. Monash Health do not claim that production would be oppressive or that there is any lack of particularity in the order.

[8] Professor Segelov objects to the production of the Report. She submits (through her representative) that she objected to a number of elements of the review and how it was conducted. She says that the Report is of little probative value.

[9] I have carefully considered the submissions of all parties to this matter. The only matter to determine is if the Report is of any relevance to the matters that I must determine.

[10] To the extent that the Report does deal with cultural issues within the medical oncology group at Monash Health I am satisfied , in this regard, it has some apparent relevance to the issues before me. 1 In this respect I note that it is not necessary to pinpoint the precise relevance the Report may have.2 The order for production of the Report will stand.

[11] Monash Health indicated that, should I not set the order aside and require production of the Report, it would seek a confidentiality order with respect to the document. I have no issue with such an order being made and will make an order in the appropriate form.

[12] Monash Health is required to provide a draft confidentiality order to my chambers within 24 hours of the issue of this decision. The Report will not require production until the confidentiality order is issued.

Application for orders that certain persons attend

[13] Dr Goss has made an application that a number of named persons be required to attend the Commission and give evidence in the proceedings. I deal with each of these individually or grouped below.

Dr Tom Jobling and Dr Pearly Khaw

[14] Dr Goss seeks that each of these persons attend to give evidence in relation to the operation of the multi-disciplinary team meetings (MDT) and Dr Goss’ conduct as a participant in those meetings. She says that the evidence will provide context for the evidence of Dr Goss and Professor Segelov in relation to the alleged conduct of Professor Segelov.

[15] Monash Health submits that Professor Segelov does not attend these meetings such that the evidence cannot be relevant to the matters before the Commission.

[16] Given that Professor Segelov does not attend these meetings I am not convinced the evidence of Dr Jobling or Dr Khaw will assist in resolving matters associated with the interactions of Dr Goss and Professor Segelov.

[17] To the extent that witnesses who have filed witness statements have attended the MDT I am sure they can give evidence as to context and the conduct of Dr Goss in such meetings. If not then the only evidence of Dr Goss’ conduct in such meetings will be from her – it cannot be countered by any direct evidence of Professor Segelov as she does not attend those meetings.

[18] The orders issued to each of these persons will therefore be set aside.

Dr Gwo-Yaw Ho and Dr Kate Webber

[19] Dr Goss seeks that each of these people be required to appear to give evidence in relation to the credibility of Dr Goss and Professor Segelov.

[20] Dr Goss submits that Dr Ho and Dr Webber are referred to in Professor Segelov’s response to the application of Dr Goss 3 and in the evidence of both Dr Goss and Professor Segelov. Again, Dr Goss submits that the evidence of these two individuals is necessary to enable the Commission to properly consider the context within which the alleged bullying conduct is said to have occurred and will assist in determining the credibility of the both Dr Goss and Professor Segelov.

[21] Monash Health oppose the issue of the orders with respect to these two people. It submits that the evidence of each of these doctors could only be relevant in an extremely limited manner. In any event Monash Health submits that the calling of persons as witnesses for the purpose of determining credibility of evidence of other witnesses is not a basis on which orders should be issued.

[22] Professor Segelov submits that the matter in dispute relates to decisions taken in relation to resourcing within the medical oncology group. Any conversations that Professor Segelov had with individuals did not inform the decision she made in this respect.

[23] In her application Dr Goss said that she had been prevented from working with other oncologists and surgeon and had been limited in her role on the MDT. In her response to the application Professor Segelov wrote that “[t]hree new oncologists were recruited into the Gynaecological Oncology sub-speciality during 2018. Each of those oncologists have requested not to be required to attend clinics with [Dr Goss] and to limit their exposure to [Dr Goss].” It is not in dispute that Dr Ho and Dr Webber, the two doctors named in the orders, along with Dr Sophia Frentzas – who has filed a witness statement – are the three oncologists referred to be Professor Segelov.

[24] It is not apparent that Professor Segelov relies on the statements of these individual doctors in her witness statement as the basis on which she took any decision about the work given or clinics offered to Dr Goss. Whilst Professor Segelov refers to statements she said were made to her by the three doctors in her response to the application this is not repeated in her evidence filed in these proceedings.

[25] Whilst the witnesses may give evidence as to the truth or otherwise about what they said to Professor Segelov in relation to working with Dr Goss, I am not convinced that this will help resolve the question of whether the actions of Professor Segelov constitute bullying conduct. To the extent the evidence of the two named persons might be called to assist in determining the credibility of other witnesses I am not convinced this is grounds to issue the orders to attend as sought by Dr Goss. The determination of credibility is a matter for me to determine based on the oral and written evidence of the witnesses. 4 In any event Dr Frentzas is attending as a witness and can be questioned on such matters to the extent they are relevant to the matters before me.

[26] The orders issued to each of these people will therefore be set aside.

Mr Andrew Stripp

[27] Mr Stripp is the Chief Executive Officer of Monash Health. Dr Goss submits that he can give evidence as to why a complaint made to him by Dr Goss in relation to Professor Segelov was not investigated and why Dr Goss was treated differently (apparently in relation to disciplinary matters) to other oncologists. Dr Goss submits that Mr Stripp’s evidence will go directly to the question of whether the actions of Professor Segelov were reasonable management action taken in a reasonable manner.

[28] Monash Health oppose the issue of the order. It submits that the issues raised by Dr Goss in relation to Mr Stripp post-date the conduct of Professor Segelov of which Dr Goss complains. It says for this reason Mr Stripp’s evidence cannot be of relevance to the issues before the Commission.

[29] Professor Segelov submits that she was not aware of the complaint by Dr Goss to Mr Stripp and was not involved in any decision in relation to the complaint. For this reason she says Mr Stripp could give no relevant evidence.

[30] Whether the actions of Professor Segelov were reasonable management action taken in a reasonable manner is clearly a matter at issue in these proceedings. That is a relevant exception as to conduct that might otherwise be considered bullying conduct. It is not apparent to me that any other witness has the capability of giving evidence on such a matter (beyond Professor Segelov). Mr Stripp is the Chief Executive Officer of Monash Health and has been directly involved (even if it may be by a lack of action) in responding to the complaint of Dr Goss. To this extent I am satisfied that Mr Stripp may give evidence relevant to an issue in the proceedings.

[31] The order directed to Mr Stripp will stand.

Dr Anjali Dhulia

[32] Dr Goss seeks to call Dr Dhulia so that she can give evidence with respect to the “unrelenting pursuit of Dr Goss and A/Prof marion [sic] Harris in relation to disciplinary matters alleged against them” [sic] and to give evidence that will allow the Commission to consider the matters “in context”.

[33] To the extent that there has been unrelenting pursuit of Dr Goss in relation to disciplinary matters and it is relevant to proceedings, this was one of the grounds on which the attendance of Mr Stripp was sought. He can give evidence on that matter such that the attendance of Dr Dhulia is not necessary. Further, Dr Dhulia’s evidence is not necessary to provide “context”. It is apparent that any number of the witnesses already called can do this.

[34] The order issued to Dr Dhulia is hereby set aside.

Acting Professor Marion Harris

[35] Dr Goss seeks to call Acting Professor Harris on the grounds that she can give evidence of disciplinary action taken against her by Monash Health when “trying to respond to the External Review of Cancer Services” Report, evidence of her interactions with Professor Segelov and evidence of the “position adopted by Monash Health to support Professor Segelov.”

[36] The role of Acting Professor Harris is not apparent (and I was not enlightened on this at the hearing in relation to the objections) such that I could be satisfied that she could give evidence as to the position adopted by Monash Health in support of Professor Segelov. In any event I have allowed the order to attend for Mr Stripp to stand and I expect he can give such evidence.

[37] Further, it is not apparent that any disciplinary action was taken against Acting Professor Harris or, if such action was taken, if it was different to any (non-specified disciplinary action) taken against Dr Goss for the same or very similar conduct. Further, it is not apparent (or claimed) that, if disciplinary action was taken it was instigated, determined or controlled by Professor Segelov such that the apparent relevance of any evidence that Acting Professor Harris might give could be seen to be relevant to the matters to be determined.

[38] I do not consider that Acting Professor Harris is necessary to provide “context” in relation to the conduct of Professor Segelov.

[39] The application for an order requiring Acting Professor Harris to attend is refused.

Disposition

[40] An order 5 reflecting this decision in relation to the orders to be set aside will be issued with this decision.

[41] Monash Health is required to provide to the Commission a draft confidentiality order in relation to the Report referred to above within 24 hours of the issue of this decision. The order requiring production of the Report will be amended and will be issued in conjunction with the confidentiality order.

[42] The order requiring Mr Andrew Stripp to attend will stand. That order may be amended if the date of hearing changes.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR714509>

 1   Trade Practices Commission v Arnotts Limited and Others (1989) 88 ALR 90 at 103; Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 Print H2892, 2 June 1988.

 2   Kirkman v DP World Melbourne Limited[2015] FWCFB 3995 at [21].

 3   Form F74 response from a person against who bullying has been alleged

 4   See, for example, Reguero-Puente v City of Rockingham[2018] FWC 1926 at [47].

 5   PR714589.