Dr Ruwan Suwandarathne v Canberra Health Services
[2022] FWC 2011
•29 JULY 2022
| [2022] FWC 2011 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Dr Ruwan Suwandarathne
v
Canberra Health Services
(C2021/8419)
| COMMISSIONER MATHESON | SYDNEY, 29 JULY 2022 |
Application to deal with a dispute about matters arising under an enterprise agreement – ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 – dispute regarding Respondent’s refusal to advance Applicant’s classification under enterprise agreement – jurisdictional objection raised by Respondent – whether Commission has jurisdiction to hear dispute or grant relief sought – jurisdictional objection dismissed – whether Respondent complied with advancement provisions in enterprise agreement – whether Applicant met criteria for advancement – whether Respondent breached consultation obligations under enterprise agreement – application dismissed.
On 10 December 2021, Dr Ruwan Suwandarathne (Applicant) filed an application in the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) seeking that the Commission deal with a dispute in relation to the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 (Agreement).
Background
The Applicant commenced working for Canberra Health Services (Respondent) on 2 March 2015, initially in a temporary position and then as a permanent employee.
The Applicant is currently classified at the level of “Specialist Band 5”, the level immediately below the “Senior Specialist” classification in the Agreement.
The dispute relates to the refusal of the Respondent to advance the Applicant to the classification of Senior Specialist.
The Respondent submits that the Commission does not have the jurisdiction to hear the dispute or grant the Applicant the relief he is seeking.
The hearing
A hearing in relation to the matter was conducted on 28 March and 29 March 2022.
During the hearing, the Respondent sought to be represented by a lawyer. The Applicant objected to the Respondent being represented. By way of summary, the Applicant submitted:
· the Commission is not a court, he is representing himself and has no prior experience in the Commission or a court setting;
· the Respondent has the internal resources of senior solicitors and industrial officers and he could not understand why the complexity of the matter was beyond their capacity, considering his own; and
· the Respondent has been acting in a way that is obstructionist and is seeking to use the might of government to bring in a legal argument instead of pursuing industrial democracy.
The Respondent submitted:
· the materials filed in the matter were voluminous and a complex jurisdictional objection had been raised by the Respondent;
· the proceedings would run more efficiently if the Commission was assisted by counsel taking into account the complexity of the matter; and
· the Respondent is not seeking to be obstructionist, however is seeking a resolution.
Having heard the submissions and considered the materials filed, I was satisfied that complexity arises in relation to the matter including because questions of jurisdiction had been raised by the Respondent in the context of the dispute settling and internal review provisions of the Agreement, which raised complex considerations for determination. I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, and decided to grant the Respondent permission to be represented pursuant to s.596(2)(a) of the Act.
As such, during the hearing, the Respondent was represented by McCarthy, initial S, and the Applicant was self-represented.
Two witnesses filed witness statements and appeared at the hearing to give evidence for the Respondent, being:
· Mr Steven Linton, Director in the Industrial Relations, People and Culture team in the Respondent’s Workforce Relations Division; and
· Dr Nicholas Coatsworth, who held the position of Executive Director of Medical Services (EDMS) at the Respondent from 14 October 2020 to 7 December 2021.
I note that the materials filed by the Applicant in this matter are voluminous and his submissions are very challenging to follow in the form in which they have been presented. The Respondent’s submissions raise jurisdictional considerations turning to highly complex and prescriptive procedures in the Agreement and do not engage with all of the Applicant’s materials in detail. Further, the Applicant’s submissions have not addressed in detail the contentions raised by the Respondent in relation to its jurisdictional objections or the Agreement’s complex procedures.
This has made it necessary to include detailed analysis of the facts relevant to this dispute, the positions of the parties, the provisions of the Agreement and the documents referred to within it in order to decipher what this dispute is actually about before turning to whether the Commission has the power to deal with it. Absent the complex jurisdictional questions that have been raised by the Respondent, it may not have been necessary to engage with the many considerations turning to the provisions of the Agreement that I have had to have regard to. However, questions of jurisdiction and the scope of my remit have been raised and, as such, I need to deal with them as threshold considerations before I turn to the substantive dispute.
The relevant facts
Eligibility to apply for advancement from Specialist to Senior Specialist
Clause 14 of the Agreement provides for arrangements for advancement to Senior Specialist and states:
“14.1. This clause provides for broadbanding arrangements for advancement from Specialist to Senior Specialist.
14.2. A Specialist at the Specialist Band 5 may apply to be advanced to Senior Specialist under this clause.”
It is not in contest that the Applicant was and is eligible to apply to be advanced to Senior Specialist.
Key events leading up to the Applicant’s application for advancement to Senior Specialist
The Applicant had been seeking information on the application process for advancement from Specialist to Senior Specialist since 2019 and was frustrated at the lack of clarity provided to him by the Respondent regarding how he should go about this. Finally, in March 2021, the Applicant applied for advancement via an expression of interest (EOI) process that invited applications.
Dr Coatsworth’s uncontested evidence was that, in March 2021, at the time of the Applicant’s application for advancement, he was responsible for applications for advancement to Senior Specialist.[1]
On 27 January 2021, the Applicant emailed Dr Coatsworth, stating his intention to apply for advancement to Senior Specialist when EOIs were advertised. [2] Attached to Dr Coatsworth’s witness statement was a chain of emails between Dr Coatsworth and the Applicant. This included an email from Dr Coatsworth to the Applicant dated 27 January 2021, in response to the Applicant’s email, which states:
“As we prepare the EOI, I also am recommending that all specialists intending to express interest familiarise themselves with section 2 of the policy (available through the policy section of the intranet), which will also be reflected in more detail in the EOI itself. That will assist in preparing applications.”
The EOI process opened on 3 March 2021 with applications due by 31 March 2021. On 3 March 2021, Dr Coatsworth sent an email to all of the Respondent’s senior medical officers calling for EOIs for advancement from Specialist to Senior Specialist.[3] Attached to Dr Coatsworth’s witness statement is a copy of that email dated 3 March 2021 which reads:
“Re. Expressions of Interest (EOI) for Advancement from Specialist to Senior Specialist
The ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 provides for broadbanding arrangements for advancement from Specialist to Senior Specialist. These arrangements are described in CHS20/333 Canberra Health Services Guideline Advancement to Senior Staff Specialist.
The EOI for advancement from Specialist to Senior Specialist is available now on the HealthHub EOI Page.
Applications close 31 March 2021.”
The assessment and advancement process prescribed by the Agreement
Clause 14 of the Agreement deals with advancement to Senior Specialist and provides:
“14.3. Assessment of suitability for advancement will be made by a Review Panel in accordance with the criteria and robust competency framework to be set out in “Advancement to Senior Specialist” guidelines (Until these guidelines are finalised, the existing “Specialist to Senior Specialist Selection Process” Guidelines will apply).
14.4. Based on its findings, the Review Panel will make a recommendation to the head of service on the suitability of the applicant for advancement to Senior Specialist.”
There is some confusion regarding what “guidelines” referred to in clause 14.3 of the Agreement should be applied.
In his closing submissions at the hearing, the Applicant submitted that the “Advancement to Senior Specialist” guidelines referred to in clause 14.3 are:
· those attached to the Respondent’s submissions with the identifier ‘DGD13-033’ entitled ‘Specialist to Senior Specialist Selection Process’ with the subheading ‘Guidelines for Promotion of Specialist to Senior Specialist’ (DGD13-033); and
· after December 2020, the replacement document with the identifier ‘CHS20/333’ entitled ‘Canberra Health Services Procedure Advancement to Senior Staff Specialist’ (CHS20/333).
As noted above, the email from Dr Coatsworth to the Respondent’s senior medical officers dated 3 March 2021 calling for EOIs stated:
“The ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 provides for broadbanding arrangements for advancement from Specialist to Senior Specialist. These arrangements are described in CHS20/333 Canberra Health Services Guideline Advancement to Senior Staff Specialist.” (emphasis added)
However, the Respondent’s written submissions indicated that, in March 2021, at the time of the Applicant’s application for advancement to Senior Specialist, the Applicant’s employment and application for advancement to Senior Specialist were subject to:
· the Agreement;
· the Public Sector Management Act 1994 (ACT) (PSM Act); and
· the ‘Canberra Health Services Guideline Advancement to Senior Specialist’ with the identifier ‘CHS21/311’ (CSH21/311).[4]
The Applicant submitted that CHS21/311 could not have applied in March 2021 as this guideline came into existence after he made his application.
Mr Linton gave evidence that:[5]
· in March 2021, at the time of the Applicant’s application for advancement to Senior Specialist, the Applicant’s employment and application were subject to the Agreement and CHS21/311;
· CHS21/311 came into effect in January 2021, despite not being formally issued until 25 May 2021;
· the Applicant had access, at all relevant times including in March 2021, to CHS21/311 through the intranet and CHS Policy Register, which are accessible by all employees;
· when it came into effect in January 2021, CHS21/311 replaced CHS20/333 which was issued on 22 December 2020;
· CHS20/333 and CHS21/311 are substantially the same and, when CHS21/311 was introduced in January 2021, there were no material changes made, with the only changes made being updating the document to reflect the applicable enterprise agreement and a change in title to a ‘guideline’ instead of a ‘procedure’;
· prior to CHS20/333, the Respondent had in place DGD13-033; and
· the change from DGD13-033 to CHS20/333 (and subsequently CHS21/311) represented a more significant change, however, fundamentally the principles remained the same.
The Applicant took Mr Linton to paragraph 6 of his witness statement and sought clarification as to whether the Agreement and CHS21/311 were in effect at the time of the Applicant’s March 2021 application for advancement. Mr Linton confirmed that they were. Mr Linton further clarified that, in confirming they were in effect, he meant they had been approved through internal processes, having been the subject of consultation with staff, and they were readily available to staff through the intranet and made available to applicants seeking to be involved in that EOI process.
The Applicant put to Mr Linton that CHS21/311 came into place later in March after the EOI for applications for advancement was advertised. Mr Linton noted that he could not comment on the specific dates of the change but that he did note in his witness statement that CHS20/333 and CHS21/311 are substantially the same.
During its closing submissions, the Respondent:
· submitted that confusion arises in the email calling for EOIs as there is a disconnect between the document number and title, i.e. “CHS20/333” and “Canberra Health Services Guideline Advancement to Senior Staff Specialist”, with “CHS20/333” relating to a “procedure” and “CHS21/311” relating to a “guideline”; and
· conceded that the document sent out as a part of the EOI was actually CHS20/333 and, while this may have given rise to some confusion, CHS20/333 and CHS21-311 are substantially and materially the same and there was no change in the process under which the Applicant applied or was assessed against in March 2021.
In providing this clarification, and noting that CHS20/333 and CHS21/311 are substantially and materially the same, I understand that the question as to whether CHS20/333 or CHS21/311 should be applied is not material to the dispute and, based on the Respondent’s submissions, understand that it does not contest that the document CHS20/333 is the guideline that should have been applied at the time of the Applicant’s application for advancement and subsequent interviews.
Relevantly, section 2 of CHS20/333 sets out the duties and selection criteria for a Senior Staff Specialist and provides:
“A Senior Staff Specialist at CHS is expected to perform the duties of a Staff Specialist, as well as two or more of the following:
·Clinical: Show advanced clinical expertise in their speciality area, which may include the ability to work without supervision, as recognised by their peers.
·Safety and Quality: Provide leadership by:
oa demonstrated ability to be effective in leading safety and quality activities, including experience relevant to specialist college accreditation
oproviding senior medical input to the safety and quality activities of the medical unit and clinical division, and
oparticipating actively in specialist college accreditation.
·Teaching: Provide senior input using demonstrated experience in the development and provision of teaching and training at CHS and services in the surrounding region.
·Research: Undertake speciality-specific research and/or have relevant publications of research in a respected health or medical journal.
·Administrative functions: Support the medical unit director in the administration of the unit and provide senior medical input to the development of policies and practices of the unit.
·Observing CHS’ values in their role as a Staff Specialist at CHS: Demonstrating CHS values - Reliable, Progressive, Respectful and Kind - in the day to day performance of their duties.”
It is this selection criteria that the Applicant submits should have been applied in assessing his application for advancement to Senior Specialist.
The March 2021 application
On 19 March 2021, the Applicant submitted an application in response to the EOI for advancement to Senior Specialist and requested that his appointment be backdated to 1 July 2019.
Attached to Dr Coatsworth’s witness statement is a copy of an email from the Applicant to Dr Coatsworth and Dr Olivia Jakobs, Project Officer, Medical Services Group, dated 19 March 2021, with three attachments, which states:
“Please find the application and selection criteria for the advancement of senior specialist attached herewith.
Statements on my behalf will be provided by Dr Bronwyn Avard (Director ICU) and Dr Manoj Singh(Deputy Director ICU).
Additionally, please note my request previously regarding backdating my appointment to 1st July 2019, as my application was delayed by the lack of clarity from HR previously. Therefore, I am attaching our previous correspondence too herewith.”
Dr Coatsworth’s evidence was that, as far as he was aware, there was no avenue for the backdating of appointments to Senior Specialist and to assess suitability of successful applicants retrospectively.[6]
A five-person review panel was responsible for considering applications for advancement from Specialist to Senior Specialist (Initial Review Panel). Dr Coatsworth’s evidence was that he was the chair of the Initial Review Panel, consisting of:
· Mr David Peffer, Deputy Chief Executive Office;
· Ms Raelene Burke, Executive Group Manager, People and Culture;
· Dr Frank Piscioneri, Clinical Director, Surgery, Critical Care and Anaesthesia;
· Dr Imogen Mitchell, Executive Director of Research and Intensive Care Specialist; and
· himself.[7]
Dr Coatsworth’s evidence was that, on 16 June 2021, he sent an email to applicants for advancement from Specialist to Senior Specialist indicating that all applications had been considered and that applicants had either been:
· advanced without interview;
· nominated for interview; or
· not advanced.[8]
A copy of that email was attached to Dr Coatsworth’s witness statement and states the following in relation to communication of outcomes:
“Section 5 – Outcome of the process
EDMS will:
·convey the recommendations of the Review Panel to the CEO for sign off
·advise unsuccessful applicants of the decision and
·provide feedback on unsuccessful applicants to the appropriate Clinical Director
·following delegate approval, advise successful applicants of the outcome, and direct the Senior Medical Recruitment Office to make the necessary administrative and payroll arrangements for advancement of successful applicants, commencing ten business days after the date of the delegate’s decision.
Clinical Director of the applicant will:
·Provide feedback to unsuccessful applicants
·Ensure unsuccessful applicant’s annual Performance Plan includes measures which allow for their career development and provide them with a platform to again pursue advancement to Senior Staff Specialist at an appropriate future time
In relation to the above, because this is the first EOI process, I will attend all meetings led by the relevant Clinical Director when feedback is provided to unsuccessful applicants. This feedback will include a pathway for the individual candidate to achieve senior specialist promotion in the future which will subsequently be communicated to their direct line manager for incorporation in their performance plan.”
Recommendation of the Initial Review Panel
Dr Coatsworth’s evidence was that, based on the available evidence, the Initial Review Panel did not consider that the Applicant was suitable for advancement to Senior Specialist and the Initial Review Panel made a decision not to advance the Applicant’s application without an interview.[9]
Attached to Dr Coatsworth’s witness statement was a copy of the Initial Review Panel’s recommendation which states:
“This Review Panel Recommendation has been prepared by the Chair of the Review Panel for the Chief Executive Officer (CEO). In accordance with CHS, the CEO is the decision-maker on all recommendations of the Review Panel. This document sets out the reasons for the recommendation of the Review Panel to advance (or not advance) the above named applicant from specialist to senior specialist.”
Dr Coatsworth’s evidence was that, on 29 June 2021, Dr Jakobs sent the Applicant an email on his behalf advising the Applicant of the decision.[10] A copy of this email was attached to Dr Coatsworth’s witness statement and reads:
“Re. Outcome of Selection Process – March 2021 EOI for Advancement to Senior Specialist
I am writing on behalf of Clin. A/Prof. Nicholas Coatsworth, Executive Director of Medical Services (EDMS) and Chair of the Advancement to Senior Specialist Review Panel (the Review Panel) regarding the outcomes of the selection process for the inaugural March 2021 EOI for advancement to senior specialist.
I regret to advise you have not been successful in your application to advance from specialist to senior specialist.
Your Divisional Clinical Director will arrange to meet with you and your Medical Unit Director shortly to provide feedback to you. Your Clinical Director will ensure your annual Performance Plan includes measures which allow for your career development and provide you with a platform to again pursue advancement to senior specialist at an appropriate future time.
The office of the EDMS will be posting a second EOI for advancement to senior specialist later this year, likely in October 2021.
The Review Panel strongly encourages you to submit an application during the next round if you receive suggestions for improvement from your Clinical Director that relate to:
·A more careful preparation of a more comprehensive CV;
·The inclusion of more detailed information in your 2-page pitch; and/or
·The inclusion of more specific examples to better demonstrate in your 2-page pitch (or at interview) that you can perform two of the enhanced duties of a senior specialist.
If you receive suggestions for improvement from your Clinical Director that relate to you obtaining more experience or training that might make your application more competitive, then you are strongly encouraged to obtain that experience or training before submitting your second application for advancement to senior specialist.”
The Applicant’s response to the Initial Review Panel’s recommendation
On 30 June 2021, the Applicant sent an email response to Dr Jakobs stating that he would be starting a legal process to get an external second opinion of the selection process. The email from the Applicant to Dr Jakobs reads as follows:
“Dear Olivia,
I am reading your email with disappointment and frustration.
Please note that it is not personally directed at you but the process where I was taken through rounds over the last couple of years.
I truly believe that I am more than suitable and contributed enough to ACT health to be promoted to become a senior specialist.
I am starting a legal process to get an external second opinion on the selection process, and I am meeting with a lawyer this week.
Could you please provide me with a copy of the selection panel's recommendation on me under the freedom of information as soon as possible?”
On 6 July 2021, Dr Jakobs sent the Applicant an email offering to arrange a meeting to discuss the outcome of the selection process.
Relevant to the Applicant’s response to the Initial Review Panel’s decision is a further chain of emails between the Applicant and Dr Damian West, Deputy Director General, Workforce Capability and Governance. An email from the Applicant to Dr West on 7 July 2021 states:
“I would request that you review the decision under section 145 of the ACT public sector medical practitioner agreement 2017-2021 with a view of applying section 146.12 to change the decision if applicable.
I believe section 145.4 of the ACT public sector medical practitioners agreement 2021-2021 do not apply here as the selection committee does not fulfil section 16.2 and section 16.3 of the ACT public sector enterprise agreement 2017-2021 regarding the composition of the selection committee.”
An email from Dr West to the Applicant on 8 July 2021 states:
“Following the receipt of the further information that you have provided my team and I have formed the following view. There are two avenues of review available under the ACTPS Enterprise Agreements with respect to promotion matters. The first is an appeal (which is set out in the sections you reference) and the second an internal review.
An appeal is considered by a panel, including an independent chair and can affirm, change or overturn the original decision.
An internal review examines the process conducted but cannot change the outcome. Under subclause 136.10 the reviewer makes a recommendation to the Head of Service (or delegate) to either confirm or vary the original decision, or take other action. In this case the Head of Service delegate is the CEO CHS, but she may choose to refer it to another officer should there be a conflict of interest, perceived or real.
You are seeking an appeal. However this option is not available to you by virtue of section 146.3 which reads:
‘For the purposes of subclause 146.2, an appeal may only be made in relation to promotions or temporary transfer to a higher office or role where the pay applicable is any classification with a maximum pay that is less than the minimum pay of a classification equivalent to a Registrar 2. For positions above this level (or equivalent) an application may be made for an internal review of the process (see clause 147 of this Agreement).’
This pay barrier exists not only for medical practitioners but right across the ACT Public Service.
This brings us to internal review. The Specialist to Senior Specialist assessment process is a competency assessment which if successful allows a Specialist to move into the Senior Specialist ranks. You have indicated that you are unhappy with the outcome of the assessment completed in March of your case for movement. It is open to you to have your matter assessed through internal review. The conduct of internal review is not centralised within the Service. If you wish to proceed in the first instance your matter will be referred back to the CEO CHS. The CEO will arrange for a review to be conducted. At the discretion of the CEO, this may be done by an officer within CHS or alternatively outside of the directorate.
I will not refer the matter to CHS until I hear back from you on how you wish to proceed. I am happy to discuss further.”
The chain of emails between the Applicant and Dr West suggests that the Applicant, at least initially, had a different view regarding the relevant provisions in the Agreement applicable to his request for a review of the decision of the Initial Review Panel, as an email from the Applicant to Dr West on 8 July 2021 states:
“With all due respect to you and your team, my understanding is that we can proceed with an independent review with a view of changing the decision if applicable as described below, where the appeal is considered on sub-clause 145.2 but not 146.2.
As described in my previous email, I request this appeal under section 145 of ACT public sector Medical Practitioners Enterprise Agreement 2017-2021. My appeal is related to subclause 145.2 of the ACT public sector medical practitioners enterprise agreement 2017-2021, where there is the absence of natural justice and procedural fairness. In my email dated the 2nd of July to Kathy Leigh, I stated that the process followed was not based on the principle of merit, and various forms of bias and favouritism may have played in decision making. Further, I provided evidence for the absence of feedback from my line supervisor or a delegate. Also, I would draw your attention to our confidential phone conversation when I described potential internal conflicts and conflicts of interest that may have played a role in this decision. In addition, please note that the selection committee does not fulfil clause 16 of the above-mentioned agreement here.
Please draw your attention to subclause 146.5 of the agreement, which further describes the scope of subclause 146.2. The senior specialist advancement process is not a competitive promotion process but a broadband point according to the ACT public Sector Medical practitioner agreement 2017-2021 as per clause 14 of section D. I believe subclause 146.2 will apply to a competitive promotion process where the applicant appeal against the selection of another candidate against him or herself as described in subclause 146.5. The senior specialist advancement process is not competitive, and also the process does not follow the prerequisites of subclause 146.2 as described in subclause 146.5. Further, the issues of natural justice are addressed through clause 145 but not 146.
Therefore my appeal is under subclause 145.2 but not 146.2 of the ACT public sector medical practitioners enterprise agreement.
On the other hand, I don't think any institution of justice such as FWC or court would restrict an appeal against natural justice or not act in good faith under modern enterprise agreements if we seek an interpretation.
I would not believe an internal review process will serve me justice. Also, I appreciate how sensitive this matter is given the institutional seniority of the people involved. Please note that I am happy for a prompt informal process as par as it serves me the justice and the outcome I deserve.
I would kindly request you to proceed with an independent review process without delay as this unfortunate process causes me enough distress I do not deserve. I will meet my legal team on coming Tuesday the 13th of July. I can request their support to interpret the agreement if you or your team find it useful.”
A further email from the Applicant to Dr West on 9 July 2021 does however appear to suggest that a conversation between the Applicant and Dr West was had in which he agreed to an independent review. That email to Dr West states:
“As per our phone conversation just now, I am happy for you to move forward with an independent reviewer to review the outcome and process to alter the outcome if applicable.”
The feedback meeting
Dr Coatsworth’s evidence was that on 22 July 2021, when he returned from a period of leave, he held a meeting with the Applicant to give him feedback in relation to his unsuccessful application and in attendance at that meeting was:
· the Applicant;
· Dr Bronwyn Avard, the Medical Unit Director, Intensive Care Unit;
· Dr Piscioneri;
· Dr Jakobs; and
· himself.[11]
The minutes of the meeting on 22 July 2021 are attached to Dr Coatsworth’s witness statement. Of note, these minutes indicate that:
· Dr Coatsworth clarified that the purpose of the meeting was to give the Applicant feedback on his unsuccessful application.
· Dr Coatsworth said he was aware of the internal review under Section P of the Agreement and noted that that review was a separate matter and the appropriate forum in which to canvass process issues.
· Dr Coatsworth said his intention was to provide feedback to the Applicant about his application in order that he may either re-submit his application in October, should he feel that he could amend his application to address the feedback, or to work toward advancement in the coming years.
· Dr Coatsworth said that the Initial Review Panel expected applications to be of a “…high standard…” and the Applicant was not advanced because it was not clear from his two page pitch and CV that he had demonstrated a capacity to perform two of the Enhanced Duties of a Senior Specialist.
· Dr Coatsworth reiterated that he would not canvass process issues with the Applicant because that was a separate matter being addressed in another forum (Section P internal review).
· Dr Coatsworth gave Dr Avard and the Applicant a copy of the matrix he had circulated to Clinical Directors to guide performance-based discussions with unsuccessful applicants.
· Dr Coatsworth said that, in his view, the Applicant had two options moving forward:
oif, after reviewing the matrix, the Applicant thought he had demonstrated capacity in two of the enhanced duties, then he should ensure this is reflected in his CV and two page pitch and reapply for advancement in October; or
oif he thought needed more experience or training to make his application more competitive, Dr Coatsworth would be happy to work with him, Dr Piscioneri and Dr Avard to tailor a development plan to meet his needs.
· The Applicant indicated he was of the view that the process was biased and that he would be taking the matter to “Fair Work”.
The minutes were provided to the Applicant on 9 August 2022 and the Applicant put forward several amendments that were ultimately annexed to the minutes.
Request for a review
The Applicant submitted that he requested an independent panel review the outcome following what he described as “unfavourable communication” from Dr Coatsworth who chaired the meeting on 22 July 2021.
In particular, the Applicant sent an email to Ms Meg Brighton, Deputy Director-General of the Respondent, dated 21 September 2021, in which he made the following request:
“Under clause 136.12 of EA, I request the following:
1. Could you please take reasonable actions to advance me to the senior specialist position promptly through the available evidence or following an interview/review as recommended by the internal review together with appropriate backdating of the appointment?
2. If you plan to review my application through another interview or review panel, please ensure that the panel consists of members independent of the previous panel. And also, no prejudice will be upon me due to the independent review request and dispute following the unsuccessful outcome.
3. Would you please act to finalise the matters with an outcome before fourteen days under clause 136.14 of EA?”
To contextualise this request, clause 136 is situated within Section P of the Agreement and sets out detailed and prescriptive processes for the internal review of management actions that affect employees, subject to a detailed list of exceptions.
The internal review and the Smith Report
After further communications between the Applicant and Respondent, a review of the Initial Review Panel’s decision was undertaken subject to Section P of the Agreement.
As a part of this process, Mr Greg Smith AM, former Deputy President of the Commission, was appointed to conduct an independent review and prepared a report dated 15 September 2021 (Smith Report).
The Smith Report stated that the Applicant, in his submission regarding his request for review, submitted:
“I would kindly request you to review the process and the outcome of my application to advancement to the senior specialist position where I failed to succeed. I believe the procedure followed is not based on merit principles and lacked procedural fairness and natural justice. Further, the treatment I received appears disrespectful and unreasonable. An unsuccessful outcome may suggest bias and favouritism in the absence of objective reasoning behind the decision despite my ability to fulfil the requirements as per selection criteria.”[12]
However, the Smith Report identifies that Mr Smith’s remit was limited to a process review under clause 136 of the Agreement and that he was not reviewing the Applicant’s suitability for the role.
The Smith Report found:
“It may be that the professional judgment of the Review Panel did not align with Dr
Suwandarathne’s view of his strengths, but that is not clear in the material before me where there appears to be a concentration on a failing to produce a more comprehensive and persuasive CV.
In my view this may not be a matter of a failure of procedural fairness or natural justice as Dr Suwandarathne was given the opportunity to put forward any matter he chooses in his application. Although it may be argued as such. Rather than making a final determination on that question, I propose to take another course. His application did not persuade a properly constituted Review Panel. A feedback meeting was convened and matters relevant to the application were discussed. I apprehend from the material that Dr Suwandarathne may have had an unfavourable interaction with A/Prof Coatsworth. This should be given some attention to by Human Resources.”
Mr Smith ultimately recommended that the Applicant be interviewed for progression to Senior Specialist.
The Applicant took issue with the Respondent’s submissions in so far as they referenced extracts of the Smith Report. In particular, the Respondent stated in its submissions that the Smith Report observes:[13]
· “It is not my role to substitute my view for those on the panel but to determine whether or not the process itself inhibited a proper examination of Dr Suwandarathne’s application.”
· “This decision does not, and should not, been [sic] seen as expressing a view about the medical competence of otherwise of Dr Suwandarathne in relation to advancement. That will be a matter for the Review Panel. The Review Panel could reach a view that Dr Suwandarathne should not be appointed to the position of Senior Specialist.”
The Applicant raised concerns that the extracts referred to by the Respondent were selectively chosen and did not provide a full picture. The Applicant emphasised the following statements in the Smith Report:[14]
· “I state at the beginning that my role is to only examine the process which was adopted and not whether Dr Suwandarathne is appropriately qualified to hold such a position. I am not qualified to do so and would not presume to do so.”
· “Dr Avard, in her supporting documentation, addressed in strong terms a couple of the selection criteria. Without testing those views, it is difficult to see how a merit view of “requires development” could be reached.”
· “In my view this may not be a matter of a failure of procedural fairness or natural justice as Dr Suwandarathne was given the opportunity to put forward any matter he chooses in his application. Although it may be argued as such. Rather than making a final determination on that question, I propose to take another course.”
The Applicant submitted that Mr Smith took a balanced approach:
· without commenting on whether the Applicant had the skills required for progression;
· without wanting to take part in an assessment of natural justice; and
· without making findings about whether what the Respondent did was wrong or right and instead suggesting another path by recommending that the Applicant be interviewed.[15]
The decision to advance the Applicant to interview
On 13 October 2021, Ms Brighton, acting as delegate of the head of service and having considered the Smith Report, determined that the Applicant be advanced to interview.
Under clause 136.14 of the Agreement, the Applicant was advised of that decision. A letter from Ms Brighton to Mr Peffer, copying the Applicant, dated 13 October 2021, was attached to the Applicant’s application and states:
“On balance and as a delegate, I have determined that Dr Suwandarathne should be interviewed, however, this recommendation is primarily associated with the lack of clarity in the Panel’s decision about the reasons for not advancing Dr Suwandarathne rather than, as the reviewer recommended, providing Dr Suwandarathne the opportunity to persuade the panel.”
At that time, the second EOI round for advancement from Specialist to Senior Specialist had been advertised and was underway, with a closing date of 31 October 2021.[16]
Dr Coatsworth’s evidence was that, on 21 October 2021, in response to the Smith Report and the Delegate’s decision, Dr Jakobs sent the Applicant an email on his behalf:
· inviting the Applicant to participate in an interview for his March application;
· offering the Applicant the option to attend an interview when any October 2021 round interviews were to take place or before that time, noting that the October 2021 round did not close until Sunday 31 October 2021; and
· seeking to know if the Applicant intended to update his application.[17]
A copy of that email was attached to Dr Coatsworth’s witness statement and states:
“Enhanced Duties Pro Forma for Applicants Short-Listed for Interview
Please use the attached Enhanced Duties Pro Forma for Applicants Short-Listed for Interview to identify the two or more Enhanced Duties that you believe you have demonstrated capacity in. Please ensure you submit your completed form to [email protected] at your earliest convenience before the day of your interview – I have not specified a date in the form because your interview date is not yet known.
The questions put to you at interview will be focussed on the Enhanced Duties you select.”
Dr Coatsworth’s evidence was that, on 24 October 2021, the Applicant:
· provided an update to his March application, being an amended first page of his CV; and
· expressed that he wanted to finalise the process as soon as possible and to attend an interview before the next round of interviews took place.[18]
Attached to Dr Coatsworth’s witness statement was a copy of the Applicant’s email dated 24 October 2021, which states:
“I prefer to finalise this process as soon as possible without waiting for the next round of interviews.
Based on the information received through the feedback, I updated the first page of my CV for the panel’s convenience.
My CV and proforma are attached herewith.”
Dr Coatsworth’s evidence was that the Applicant did not apply in response to the EOI in the October 2021 round.[19]
The interview and recommendation of the Second Review Panel
Dr Coatsworth’s evidence was that, in October 2021, he was the chair of a four-person review panel who interviewed the Applicant, with the review panel responsible for advancing or not advancing the Applicant’s application for advancement from Specialist to Senior Specialist (Second Review Panel).[20]
Dr Coatsworth’s evidence was that the Second Review Panel consisted of:
· Ms Cathie O’Neill, Chief Operating Officer;
· Ms Kalena Smitham, Executive Group Manager, People and Culture;
· Dr Mitchell; and
· himself.[21]
During cross-examination, the Applicant drew Dr Coatsworth’s attention to the inclusion of Dr Mitchell in the review panels and asked Dr Coatsworth to confirm whether Dr Mitchell was the Clinical Director, Intensive Care Specialist, at that time. Dr Coatsworth clarified that Dr Mitchell was the “Executive Director of Research”.
In his closing submissions, the Applicant submitted this was relevant because Section 4 of CHS20/333 provides that:
“A Review Panel will be established to consider applications. Membership will comprise of four or more people and must include:
·EDMS (chair)
·Deputy Chief Executive Officer (DCEO)
·Executive Group Manager, People and Culture (EGM P&C)
·A Senior Staff Specialist or Visiting Medical Officer from each specialty being considered.”
The Applicant submitted that Dr Mitchell was not a “Senior Staff Specialist or Visiting Medical Officer from each specialty being considered” as she was not working in the ICU during the time of his application or the interview.
The Respondent submitted that, while Dr Mitchell’s title was different, she was still a staff specialist and valid candidate for the review panels.
The Applicant participated in an interview before the Second Review Panel on 9 November 2021.
Dr Coatsworth’s evidence was that the Second Review Panel decided not to advance the Applicant’s application for advancement, based on the available evidence and the Applicant’s performance at the interview on 9 November 2021, and that he did not consider the Applicant was suitable for advancement to Senior Specialist.[22]
Dr Coatsworth’s evidence was that, on 18 November 2021, he telephoned the Applicant advising him of the decision not to advance his application for advancement to Senior Specialist.[23]
Attached to Dr Coatsworth’s witness statement was an email from Dr Coatsworth to the Applicant, dated 18 November 2021, in which he communicates the outcome of the process. That email states:
“Re. Outcome of Selection Process – Advancement to Senior Specialist
Further to our telephone conversation today, I am writing in my capacity as Executive Director of Medical Services (EDMS) and Chair of the Advancement to Senior Specialist Review Panel (the Review Panel) regarding the outcome of your advancement to senior specialist selection process.
I regret to advise you have not been successful in your application to advance from specialist to senior specialist.
I am happy to provide the selection report on request which contains detailed reasoning from the panel regarding its decision.
I recommend a formal feedback session with myself and Kalena Smitham where we can discuss further development opportunities that will enable you to reach senior specialist level in the future. If we are able to coordinate a meeting next week that would be preferable in terms of providing timely feedback. We should include the acting Director of ICU, Manoj Singh, in that discussion.
Thank you for your application and your ongoing support of the process.”
The Applicant responded via email on 18 November 2021, requesting a copy of the selection report. Dr Coatsworth responded via email shortly thereafter, on 18 November 2021, indicating that there was a signed hard copy of this document and he had sent the soft copy so the Applicant could scroll through the comments.
The questions to be determined
The Applicant now seeks to bring a dispute before the Commission under s.739 of the Act.
Given the complexity and volume of the information and submissions filed, as well as their form and structure, I sought clarification from the Applicant during the hearing as to what questions he considered I needed to determine in order to resolve the dispute.
The Applicant had difficulty addressing this question directly, however directed me to a summary he had provided setting out the clauses of the Agreement that the Applicant submitted the Respondent had breached.
The Applicant’s summary alleges that the Respondent breached clause 14.3 of the Agreement by:[24]
· obstructing his application;
· moving the goal posts for assessment;
· not doing a merit-based comparative assessment; and
· not applying procedural fairness.
Clause 14.3 of the Agreement states, in relation to advancement to Senior Specialist:
“Assessment of suitability for advancement will be made by a Review Panel in accordance with the criteria and robust competency framework to be set out in “Advancement to Senior Specialist” guidelines (Until these guidelines are finalised, the existing “Specialist to Senior Specialist Selection Process” Guidelines will apply).”
The Applicant clarified that he contends that the criteria and robust competency framework to be set out in “Advancement to Senior Specialist” guidelines” referred to in clause 14.3 of the Agreement have not been followed.
Having heard the Applicant’s submissions during the hearing, I understand the Applicant is seeking for me determine the following primary questions:
Has the Respondent complied with clause 14.3 of the Agreement and, in particular, has the criteria and robust competency framework to be set out in “Advancement to Senior Specialist guidelines” referred to in that clause been applied to the Applicant’s application for advancement to Senior Specialist?
Has the Applicant met the criteria and robust competency framework to be set out in “Advancement to Senior Specialist guidelines” such that he should progress to Senior Specialist?
The Applicant also raises a secondary argument that the Respondent has breached its consultation obligations in the Agreement. As such, I understand the Applicant is seeking a determination of the following question:
Has the Respondent breached its consultation obligations under clause/s 14.5 and/or 124 of the Agreement?
The relief sought by the Applicant
The Applicant’s application had originally identified the relief sought as being, by way of summary, to:[25]
· help him negotiate with the Respondent to advance to Senior Specialist or to direct the Respondent to provide acceptable objective evidence for their decisions and procedures under clause 14 of the Agreement and section 2 of CHS2020/33 relating to advancement to Senior Specialist;
· backdate his appointment to Senior Specialist to his date of eligibility to apply, being 22 April 2019 and backdate his payment, including payment of allowances; and
· direct the Respondent to pay his legal fees in the event he is successful in his application.
However, in his submissions, the Applicant refined this to “backdated advancement to Senior Specialist to July 2019”.[26]
Summary of the Applicant’s position
Background
Given the large volume of materials that has been filed in relation to this matter, I provided the parties with the opportunity to summarise their respective positions during the hearing.
The Applicant’s position is that he is able to progress to the role of Senior Specialist after three years and, as such, applied to progress to the role of Senior Specialist in 2019 but was not provided with clear advice as to how he should go about this application process at this time.
The Applicant provided the following submissions and account of events:
· following discussions between the Respondent and the Australian Salaried Medical Officers Federation (ASMOF), the relevant union, in March 2021, the Respondent advertised EOI criteria based on a policy called CHS20/333;
· he then made an application for progression to the role of Senior Specialist based on this EOI criteria and was informed that he was unsuccessful;
· when he made enquiries about this outcome, he was advised that a different criteria was applied that set a much higher bar than what was advertised such that the Respondent had “moved the goal posts”;
· notwithstanding this, he meets this different criteria and is therefore entitled to progress to the Senior Specialist classification;
· he sought and was not provided with an adequate explanation as to why his application for progression was not successful;
· he then escalated the matter to the ACT Chief Minister who referred the matter to an internal review process;
· internal review was conducted by Mr Smith, who produced a report with findings and recommendations that did not satisfy the Applicant’s concern; and
· he sought a review of the decision not to progress him by an independent panel and the Respondent has not agreed to this request.
Having not secured the outcome he was seeking through this process, the Applicant made an application to the Commission to deal with the dispute.
Jurisdiction
The Applicant seeks to bring a dispute before the Commission pursuant to s.739 of the Act. Under s.739(1) of the Act, there must be a term referred to in s.738 that applies. The term in s.738(b) that the Applicant relies on is clause 125 of the Agreement.
During the hearing, the Applicant submitted that, by way of summary:
· clause 125.1.1 of the Agreement provides that the objective of the procedures set out in clause 125 is the prevention and resolution of disputes about “matters arising in the workplace, including disputes about the interpretation or implementation of the Agreement”;
· there is a dispute in relation to the implementation of the Agreement as referred to in clause 125.1.1; and
· because the dispute is in relation to these matters, it clearly falls within the Commission’s jurisdiction as a dispute that the Commission can deal with.
Further, the Applicant submitted that:
· clause 14.3 of the Agreement relates to a “policy” of the Respondent, being CHS20/333;
· CHS20/333 refers to the PSM Act and the Public Sector Management Standards 2016 (ACT) (PSM Standards), defined in the Agreement as the “Public Sector Management Act 1994 as varied or replaced” and the “Public Sector Management Standards made under the PSM Act as varied”;
· the Agreement refers to the PSM Act;
· the Respondent has breached the “merit principle” within the PSM Act;
· the dispute is in relation to these matters;
· these are matters arising in the workplace, including “disputes about the interpretation or implementation of the Agreement”; and
· the dispute therefore falls within the Commission’s jurisdiction as a dispute it can deal with.
Further, the Applicant submitted that the Respondent did not agree to participate in mediation and, as such, the dispute remains unresolved and, in these circumstances, clause 125.9.2 of the Agreement empowers the Commission to arbitrate the dispute and make binding determinations.
The Applicant submitted that the powers of the Commission under clause 125 of the Agreement are broad with clause 125.10 providing that the Commission “may exercise any powers it has under the FW Act as are necessary for the just resolution or determination of the dispute”.
The primary dispute – clause 14.3 of the Agreement
The Applicant submits that the primary issue in dispute relates to the implementation of clause 14.3 of the Agreement.
As I have earlier found, I understand the Applicant is asking me to determine the following question:
Has the Respondent complied with clause 14.3 of the Agreement and, in particular, has the criteria and robust competency framework to be set out in “Advancement to Senior Specialist guidelines” referred to in that clause been applied to the Applicant’s application for advancement to Senior Specialist?”
The Applicant submitted that clause 14.3 of the Agreement was breached “[f]irstly, with obstruction to apply, secondly with moving the goal post and thirdly by not doing merit-based comparative assessment and absence of procedural fairness”.[27] Further specifics of the breaches of clause 14.3 alleged by the Applicant are set out below.
Alleged breach of clause 14.3 through obstruction of the Applicant’s application
At the hearing, the Applicant submitted that clause 14 of the Agreement provides an eligible applicant with the opportunity for advancement to Senior Specialist and that, for two years, this opportunity was not given to him. The Applicant directed me to his submissions in which he submits the Respondent obstructed his application from 22 April 2019 to March 2021 “by not providing precise advice on request and deliberately packaging advice with obstructions to apply”.[28]
I understand the Applicant’s submission to be that the Respondent was making it difficult for him to make an application for advancement to Senior Specialist and that he considers this to be a breach of the Agreement.
The Applicant took me to DGD13-033, which he submits was the process that should have applied up until 2020. DGD13-033 states:
“ARRANGEMENTS FOR PROMOTION TO SENIOR SPECIALIST GRADE - OVERVIEW
A vacancy of a Senior Specialist position needs to become available for advertisement or there is a budgeted and approved position to be created.
A Committee shall be constituted to consider and make recommendations to the Delegate in relation to promotion to the Senior Specialist grade. The Committee must consist of three (3) people, it must include the Executive Director (ED) or Delegate, Clinical Unit Director or Principal Medical Advisor, and the third person must be a People Strategy and Services Branch or Medical and Dental Appointment Committee representative.
The Committee may at their discretion choose to make a decision to promote the candidate based upon the application and referee reports only or may choose to interview the candidate.
No appointment can be made to the Senior Specialist Grade without the recommendation of the Committee.
If the Committee does not recommend promotion to Senior Specialist grade then the Committee must provide its reasons in writing to the applicant within twenty-one days of the date of the meeting at which the application was considered.
Please note; employees may appeal this decision under Section Q, Appeal Mechanism, in the ACT Public Service Medical Practitioners Enterprise Agreement 2011 – 2013.
SUBMITTING A POSITION TO THE COMMITTEE
As a guide, the Committee will generally recommend a Senior Specialist grading if the position requires one or more of the following:
·There is a funded vacancy
·There is a need to fill / create a Senior Specialist position due to operation Requirements
A Duty Statement and Selection Criteria must be established, which must be forwarded to the Committee for approval prior to advertising the position.
Before a position description can be considered by the Committee, written evidence of the support for the position to be graded must be provided from both the Executive Director PSSB and the relevant line area Executive Director.
It is anticipated that the Committee will be able to consider position descriptions without meeting in person and therefore will be able to provide a response to the manager promptly. Once the Committee recommends the position description, the manager can advertise the position.”
In his closing submissions, the Applicant took me to the following statement within DGD13-033 which states:
“Before a position description can be considered by the Committee, written evidence of the support for the position to be graded must be provided from both the executive Director PSSB and the relevant line area Executive Director.”
The Applicant submitted that, without written evidence of the support for the position to be graded being provided from both the Executive Director PSSB and the relevant line area Executive Director, he was unable to apply to become a Senior Specialist.
The Applicant also submitted that:
· when he enquired about the advancement process, he was told “Let me do some digging and let you know”. The Applicant directed me to an email from Ms Sally Green, HR Business Partner, to this effect dated 20 August 2019;
· DGD13-033 had been in place since 2013 and, noting his enquiry was made in 2019, he could not understand the response from human resources; and
· Ms Green did not provide further advice as to how he would make an application despite multiple phone calls to follow up.
The Applicant directed me to a further email exchange between himself and Ms Green on 11 September 2019 in which the Applicant states:
“As discussed over the phone, I am requesting form/advice in regards to promotion to senior specialist.”
Ms Green replied:
“The Guidelines are attached and outline the process for applying for promotion to a Snr Specialist position. The required documentation is outlined on page 7 of the Document. I have confirmed with People & Culture that there is no additional application/form available for completion.
I am awaiting advise (sic) on who has responsibility for establishing the Committee to consider the application.”
The Applicant made a further enquiry on 14 December 2020 to find out how he should apply to become a Senior Specialist. Ms Green replied to the Applicant on 16 December 2020 as follows:
“The process is attached, which details what is required from you as an application.
Bronwyn will need to ensure that there is a Snr Specialist position vacant or have a budgeted and approved Snr Specialist position created and then establish a selection committee, as outlined in the document, to consider your application.”
During the hearing, the Applicant submitted that it was not a requirement that a budgeted position was available and that this was the case because, other than experience, there is no difference between the Specialist and Senior Specialist roles. In support of this submission the Applicant took me to the job advertisement for the role that he applied for and was successful in securing. This was advertised in 2016 and had the title “Specialist/Senior Specialist – Intensive Care (00XB2)”.
Alleged breach of clause 14.3 through application of different criteria than that specified in the Agreement and CHS20/333
At the hearing, the Applicant submitted that, in 2020, an EOI process came into place and did provide for a process through which he could apply for advancement but the Respondent applied the assessment criteria to his application in a way that he described as “moving the goal posts”.[29] The Applicant further submitted that, even though the “moving goal post” criteria was applied, he met it.
In particular, the Applicant submitted that a new process was instigated in 2020 when CHS20/333 came into effect and that the new process was to be managed by Dr Coatsworth who called for EOIs for advancement in March 2021 and November 2021.
The Applicant submitted that CHS20/333 required the Applicant to perform two or more criteria beyond those of a Specialist and his strongest areas are Clinical, Teaching and Quality and Safety.
However, the Applicant submitted that the actual criteria considered in assessing his application were set “at a higher unrealistic level than criteria advanced under CHS20/333”.[30]
In particular, the Applicant submitted that under the “Clinical” criterion, CHS20/333 required the Applicant to:
“Show advanced clinical expertise in their speciality area, which may include the ability to work without supervision, as recognised by their peers.”[31]
The Applicant submitted that in practice, he was required to meet a different criterion, as set out in an interpretive document applied by the Respondent, being:
“Clinical skills above those usually possessed by peers (e.g., performs procedures or clinical activities that are uncommonly performed and require extensive post-fellowship training, development of novel techniques; introduction of novel technique into CHS).”[32]
In his closing submissions, the Applicant submitted that all Specialists perform their duties independently without supervision and the “idea” behind the criteria in CHS20/333 is that someone with performance and disciplinary issues would not be able to proceed.
Further, the Applicant submitted that, under the “Safety and Quality” criterion, CHS20/333 required the Applicant to:
“Provide leadership by:
· a demonstrated ability to be effective in leading safety and quality activities, including experience relevant to specialist college accreditation
· providing senior medical input to the safety and quality activities of the medical unit and clinical division,
· participating actively in specialist college accreditation.”[33]
However, the Applicant submitted that, in practice, he was required to meet a different criterion, as set out in the interpretative document applied by the Respondent, such that “within unit and non-multidisciplinary committees without the whole of hospital impact would not be considered sufficient for promotion”.[34]
In relation to the “Teaching” criterion, the Applicant submitted that CHS20/333 required him to:
“Provide senior input using demonstrated experience in the development and provision of teaching and training at CHS and services in the surrounding region.”[35]
The Applicant submitted that a different criterion was applied, as set out in the interpretative document applied by the Respondent, being:
“Leadership of curriculum development, implementation or delivery of college programs (lecturing, examining would be insufficient, examples would include lead regional College examiner for CHS or equivalent, Program Director, national examiner, or equivalent; leadership of ANUMS examining committees or equivalent can be considered).”[36]
The Applicant submitted that it was agreed between the Respondent and Applicant that he met the “Teaching” criterion, and this was reflected in the Second Review Panel recommendation, but nevertheless pointed to what he submits are differences in the criteria in CHS20/333 and the interpretative document applied by the Respondent.[37]
Alleged breach of clause 14.3 by failure to advance despite meeting CHS20/333 and “moving goal post” criteria
As I have earlier found, I understand the Applicant is seeking for me to determine the question:
Has the Applicant met the criteria and robust competency framework to be set out in “Advancement to Senior Specialist guidelines” such that he should progress to Senior Specialist?”
The Applicant submitted that, even though he considered the assessment criteria to be “moving goal posts”, he nevertheless met the criteria under both CHS20/033 and the “moved goal post” criteria in the interpretative document applied by the Respondent.[38] In particular:
· in relation to the “Clinical” criterion in CHS20/333 being “Show advanced clinical expertise in their speciality area, including the ability to work without supervision, as recognised by their peers”, the Applicant submitted that:
o the references he provided confirmed peer recognition; and
o the Smith Report observed “Dr Avard, in her supporting documentation, addressed in strong terms a couple of the selection criteria;[39]
· in relation to what he described as the “moved goal post” “Clinical” criterion, being “Generalist clinicians would need to prove advanced skills through peer recognition and evidence they were actively involved in teaching junior consultants”, the Applicant submitted:
o he had completed a Master of Clinical Ultrasound, which he submitted was extensive post-fellowship training;
o he was accredited as a point of care echocardiography assessor by college of intensive care medicine, which he submitted constituted peer recognition;
o he was the only such person at the time of application;
o he demonstrated leadership in developing and conducting an echocardiography teaching programme together with a course in CHS and beyond, which he submitted satisfied the generalist teaching component;[40] and
· in relation to what he described as the “moved goal post” “Safety and Quality” criterion, requiring leadership of a hospital-wide multi-disciplinary committee, the Applicant submitted that the tracheostomy committee (TRACS) that he leads is a multidisciplinary committee that oversees the management of tracheostomy patients in CHS and consists of medical, allied health and nurses (both local and community), managing tracheostomy patients in TCH and the rest of ACT. The Applicant submitted that, as medical lead of the TRACS, he oversees clinical management, clinical governance (including providing advice on clinical incidents), education, and training of multidisciplinary team members who care for patients with tracheostomy across the disciplines both in hospital and the community. The Applicant submits this provides he meets the criteria in CHS20/333 and the “moved goal post” criteria.[41]
The Applicant submitted that it was agreed between the Respondent and Applicant that he met the “Teaching” criteria and this was reflected in the Second Review Panel recommendation but nevertheless pointed to what he submits are differences in the criteria in CHS20/333 and the interpretative guidelines applied by the Respondent.[42]
Alleged breach of clause 14.3 of the Agreement by breaching s.8 of the PSM Standards and s.27 PSM Act
The Applicant also made an allegation that the Respondent has breached s.8 of the PSM Act and that this “further facilitated the breach of” clause 14.3 of the Agreement.[43] In this regard, I understand that the Applicant actually means to say that the Respondent has breached s.8 of the PSM Standards, not the PSM Act.
The Applicant submits that this was because his application was assessed against the selection criteria advertised in CHS20/333 and that the Respondent breached the requirement that the Respondent “make a comparative assessment of applicants based on each applicant’s claim against the selection criteria for the position”, in accordance with s.8 of the PSM Standards.[44]
For completeness, I also note that the Applicant’s application alleges a breach of s.27 of the PSM Act.
The secondary dispute – consultation
The Applicant also submits that the Respondent has not complied with clauses 14.5 and 124 of the Agreement in relation to consultation and review of the competency requirements for progression to Senior Specialist.
Clause 14.5 of the Agreement states:
“Work level standards and competency requirements for progression through the soft barrier will be reviewed in consultation with ASMOF during the life of the agreement for inclusion in the PSM Standards and to ensure they provide a robust and sustainable mechanism for advancement.”
The Applicant submits that related to this is clause 124, the consultation term of the Agreement, with clauses 124.1 to 124.8 stating:
“124.1 There will be effective consultation with an employee(s) and their representatives, including union representatives, on workplace matters. The ACTPS recognises that consultation and employee participation in decisions that affect them is essential to the successful management of change.
124.2. Where there are proposals by the ACTPS to introduce changes that would have a significant effect on an employee or a group of employees, the head of service will consult with the affected employees and union(s). Consultation means a genuine opportunity to contribute to and influence the decision making process prior to decisions being made.
124.2.1. Significant Effect includes, but is not limited to, effects of proposals that deal with:
124.2.1.1. the termination of the employment of employees through redundancy; or
124.2.1.2. changes to the composition, operation or size of the directorate workforce or the skills required of employees; or
124.2.1.3. the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
124.2.1.4. the alteration of hours of work; or
124.2.1.5. the need to retrain employees; or
124.2.1.6. the need to physically relocate employees; or
124.2.1.7. the restructuring of job-roles, positions, structures or directorates; or
124.2.1.8. changes to employment policies; or
124.2.1.9. anything likely to materially affect workloads; or
124.2.1.10. any other matter deemed relevant by parties covered by this Agreement
124.3. An employee(s) and/or their representative(s) may also initiate consultation on any matters or proposals if such consultation hasn’t already been initiated under subclause 124.2.
124.4. The head of service will provide relevant information to assist the employee(s) and the union(s) to understand the reasons for the proposed changes and the likely impact of these changes so that the employee(s) and the unions are able to contribute to the decision making process.
124.5. In addition to the consultation outlined in subclauses 124.1 to 124.3:
124.5.1. Directorate Consultative Committees (DCCs) will be established, with membership to be agreed by the head of service and the union(s) following commencement of this Agreement and comprising representatives of:
124.5.1.1. the head of service; and
124.5.1.2. the union(s); and 124.5.2. adequate time will be provided to employees and the union(s) to consult with the relevant Directorate(s);
124.5.2. adequate time will be provided to employees and the union(s) to consult with the relevant Directorate(s);
124.5.3. Three Workplace Consultative Committees (WCC) will be established to represent the Senior Medical Officers, Career Medical Officers and Junior Medical Officers.
124.5.4. Additional levels of consultation, such as additional Workplace Consultative Committees (WCC), may be established with the agreement of the DCC to operate at the local level. Where established these levels of consultation will deal with workplace specific issues before such issues may be raised with the DCC and have membership agreed by the DCC.
124.6. The purpose of the DCC is to:
124.6.1. monitor the operation and implementation of this Agreement;
124.6.2. consider any proposed new or proposed significant changes to Directorate policy statements and guidelines that relate to the provisions of this Agreement; and
124.6.3. consult on workplace matters significantly affecting employees.
124.7. The DCC will meet within two months of the commencement of this Agreement. The purpose of this meeting is to agree on the terms of reference, which will include the consultative structure to operate during the term of this Agreement.
124.7.1. The DCC will meet no less than once in any twelve month period thereafter, unless a different period is agreed in the Terms of Reference.
124.7.2. Additional meetings of the DCC may also be convened if requested by any member of the DCC, or as determined by the Terms of Reference.
124.8. The Chief Minister, Treasury and Economic Development Directorate will consult with the union(s) and employees prior to the finalisation of any significant changes or any new provisions in the PSM Act and the PSM Standards and any new service wide policy statements or guidelines that relate to the provisions of this Agreement. This consultation may occur through the Joint Council.”
The Applicant pointed to clause 124.2, which provides that:
“…Consultation means a genuine opportunity to contribute to and influence the decision making process…”
I understand the Applicant’s submission to mean that the process set out in clause 124 of the Agreement is the process by which the consultation required under clause 14.5 is to occur.
The Applicant submitted that the Respondent did not consult with affected employees before adapting either CHS20/333 or “moved goal posted criteria” of selection and that the Respondent has the burden of proving it has met its consultation obligations.[45]
During closing submissions, the Applicant submitted that, while the Respondent may have put consultation material in relation to CHS20/333 in a place where nobody knows it exists, no emails were sent to employees.
During closing submissions, the Applicant also directed me to an email exchange between Mr Terry Keel, Senior Adviser, Policy and Strategy, People and Culture, of the Respondent, and Mr Steve Ross of ASMOF in March 2021. On 1 March 2021, Mr Keel wrote to Mr Ross stating:
“With the operational period of the interim Advancement to Senior Specialist policy document coming to a close, CHS has reviewed it with the intention of bringing it up to date and current, so that it can be endorsed on the CHS Policy Register as a longer term policy document, i.e. it will not need to be reviewed again for 3 years.
I am attaching for your information a copy of CHS’ proposed updated policy document, which we propose going forward will be known as the Advancement to Senior Specialist Guideline.
CHS currently has the revised document out for internal consultation, and we would welcome ASMOF’s views on the document also.
As with the interim policy document, there are no material changes to the earlier versions of the policy document, only superficial ones e.g. updating to reflect correct references to the newly-approved ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021. In accordance with the CHS Policy and Guidance Documents – Review and Development, it is considered that the policy document is more appropriately categorised as a guideline instead of a procedure, hence the policy document follows the guideline format.
It would be appreciated if you could review the attached draft guideline and respond with any comments or suggested changes by the close of business Monday 15 March 2021.”
Mr Ross replied on 2 March 2021 stating:
“ASMOF understands there are no material changes to the document you have circulated from that previously agreed other than to update references to the MPEA 2017-2021. In this instance ASMOF sees no need to enter into a 2 week consultation period on a document that is years late.
We note further that the interim policy document was written to allow progression under the terms and conditions of the MPEA 2017-2021 as a consequence of the delays in approval of that agreement. As such it remains in compliance with the agreement.
ASMOF wrote to the EDMS on 12 January regarding calling for EOIs for Advancement to Senior Specialist. From the reply we received we had understood that this was to occur prior to the end of February. The call for EOIs should proceed as a priority. Any further delay is unacceptable given the history of this matter.”
The Applicant submits that this is evidence that clause 14.5 of the Agreement has not been complied with.
During closing submissions, the Applicant also submitted that Annex F of the ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022 (New Agreement) provides evidence that consultation in relation to the selection criteria to be applied for Senior Specialist advancement did not occur as it provides:
“1. This agreement provides for the following reviews or projects:
a. The review of work level standards and competency requirements for progression to senior staff specialist in consultation with ASMOF (Clause 14.5)…”
The Applicant also pointed to an email from ASMOF to him dated 28 July 2021, in which Mr Ross states:
“There has been to ASMOF’s knowledge no work done as yet on the requirements referred to in 14.5 of the MPEA.”
In his written submissions, the Applicant submitted:[46]
· “Not agreeing to level standards with employees of competency requirements for advancement allowed CHS to set an unrealistic high bar with frequent changing goal posts, which is not compatible with criteria considered previously or with criteria other states and territories of Australia use”; and
· “Australia’s senior specialist appointments go through mostly automatic advancement based on experience or through a straightforward, transparent process except in ACT”.
The Applicant submitted that the examples of practices from other states are relevant because the Act is a federal one and that the Respondent’s approach is “controversial” when it is doing something different.
Summary of the Respondent’s position
Jurisdiction
The Respondent noted at the start of the proceedings that the Applicant had been asked to identify the central questions for determination and that the Applicant had confirmed to the Commission that the central question for him was whether he should be advanced to Senior Specialist and whether clause 14.3 of the Agreement has been followed throughout the process.
The Respondent submitted that, putting to the side the issue of the Respondent’s view as to the appropriateness of its decision in relation to the Applicant’s application for advancement to Senior Specialist, the Commission does not have jurisdiction to deal with the dispute under clause 125 of the Agreement, or any other provision of the Agreement.
During the hearing, the Respondent drew my attention to three main issues:
· the terms of the Agreement itself;
· the nature of the Application’s employment with the Respondent and his EOI in March 2021 for advancement to Senior Specialist, as the factual framework for the applicable dispute resolution clauses in the Agreement; and
· the actual dispute resolution process that was followed under section P of the Agreement and the final decision of Ms Brighton on 13 October 2021, which the Respondent submits is a decision that the Applicant does not challenge.
The terms of the Agreement
Clause 14
Clause 14 of the Agreement deals with advancement to Senior Specialist. Clause 14.2 provides:
“A Specialist at the Specialist Band 5 may apply to be advanced to Senior Specialist under this clause.”
The Respondent submitted that it should be drawn from this that advancement is not a “fait accompli” and that a candidate will still need to go through an application process once becoming eligible to make an application for advancement.
Clauses 14.3 and 14.4 of the Agreement provide:
“14.3 Assessment of suitability for advancement will be made by a Review Panel in accordance with the criteria and robust competency framework to be set out in “Advancement to Senior Specialist” guidelines (Until these guidelines are finalised, the existing “Specialist to Senior Specialist Selection Process” Guidelines will apply).”
14.4 Based on its findings, the Review Panel will make a recommendation to the head of service on the suitability of the applicant for advancement to Senior Specialist.”
The Respondent submitted that what clause 14.4 does, in effect, is set a two stage decision process for advancement with:
· stage one being a recommendation by the review panel to the head of service, following assessment of the suitability of the candidate; and
· stage two being an implied decision made by the head of service, based on that recommendation.
The Respondent submitted that, under clause 14 of the Agreement, the review panel itself does not advance the candidate to Senior Specialist, rather, it makes a recommendation to the head of service based on its view regarding suitability and it is the head of service that makes the decision.
However, as I have found, the Second Review Panel actually found the Applicant was competent in relation to the “Teaching” criteria. As such, it is not the Second Review Panel’s assessment of the Applicant against this criterion that resulted in the “action” or decision that is now the subject of this dispute. In this regard, I do not consider that this technical breach by the Respondent is material to this particular dispute.
Has the Applicant met the criteria and robust competency framework to be set out in “Advancement to Senior Specialist guidelines” such that he should progress to Senior Specialist?
The Applicant submits he has met the relevant criteria and competency framework referred to in clause 14.3 of the Agreement and should progress to Senior Specialist. This is the remedy that he seeks and asks that the appointment be backdated to 2019.
The Initial Review Panel did not agree that he has met the relevant criteria and competency framework referred to in clause 14.3 of the Agreement and made a decision not to progress him to Senior Specialist. This decision or “original action” was the subject of an internal review in accordance with Section P of the Agreement.
In this regard, Dr Coatsworth’s evidence was that:[67]
· on or about September 2021, he was provided with a copy of the Smith Report;
· in October 2021, he was the chair of a four-person review panel who interviewed the Applicant, being the Second Review Panel, which was responsible for advancing or not advancing the Applicant’s application for advancement from Specialist to Senior Specialist;
· the Second Review Panel decided not to advance the Applicant’s application for advancement based on the available evidence and the Applicant’s performance at the interview on 9 November 2021; and
· he did not consider the Applicant was suitable for advancement to Senior Specialist.
Ultimately, the internal review lead to the Second Review Panel interviewing the Applicant and confirming the “original action”. Section 137 of the Agreement permits an external review of that action in accordance with clause 125 of the Agreement.
Attached to Dr Coatsworth’s witness statement was a copy of the Review Panel recommendation which is central to the Second Review Panel’s decision. Part B of the recommendation deals with the ‘enhanced duties’ that were considered. Under the heading “Enhanced Duty One”, the criterion “Clinical” and “Safety” are ticked, and under the heading “Enhanced Duty Two”, the criteria “Teaching” is ticked and adjacent text includes rationale for the rating. Part D of the recommendation includes a space for additional comments.
The recommendation rates the Applicant as “RD” (Requires Development) against the Clinical and Safety and Quality criteria, “C” (Competent) against the Teaching criteria and “n/a” against the other criteria.
The Applicant put to Dr Coatsworth that Ms Smitham did not agree with the recommendation to which Dr Coatsworth responded he believed she did agree and signed a copy. Ms Smitham did not appear as a witness and I do not have any evidence before me that would lead me to a conclusion that she did not agree with the recommendation of the Second Review Panel.
The Clinical Criterion
In relation to the “Clinical” criteria, during the cross-examination of Dr Coatsworth, the Applicant referred to the text, which appears in both versions of the recommendation, that:
“With regards to Clinical experience, Dr Suwandarathne pointed to his knowledge and skills in point of care ultrasound, including his introduction of the technique to intensive care and his involvement in the teaching program. There were no other examples describing advanced clinical practice...”
The Applicant then took Dr Coatsworth to the Discussion Guidelines and sought clarification as to how he was not meeting that criteria. Dr Coatsworth indicated that the Applicant’s response had indicated that he had only taught non specialist junior medical staff, such as registrars, not colleagues. Dr Coatsworth stated that the second point of contention was whether point of care ultrasound represents an advanced clinical technique and that, while one may have made that contention a decade or more ago, now, across a range of specialities, point of care ultrasound is a well established and common technique that in his mind did not represent an advanced clinical technique and can be easily seen as one that a Specialist would have.
The Applicant took Dr Coatsworth to the summary of his CV, which states in relation to the enhanced duty “Clinical”:
“After completing intensive care training, I had additional training in point of care echocardiography and ultrasound to complete the master of clinical ultrasound from the University of Melbourne.
The College of intensive care medicine (CICM) formally recognised me as an assessor of point of care echocardiography training.
I support my colleagues and intensive care trainees with the point of care echocardiography and ultrasound for clinical decision making and enhance their echocardiography/ultrasound skills. No other CICM accredited assessors of point of care ultrasound working in the Canberra hospital other than myself.”
The Applicant sought to understand what his deficiencies were in this regard. Dr Coatsworth reiterated his earlier response that point of care ultrasound is a very common technique across a range of different sub-specialities and is almost expected training now within Specialists in intensive care rather than Senior Specialists.
The Safety and Quality Criterion
In cross-examining Dr Coatsworth, the Applicant stated that his CV demonstrated he was on a committee relevant to an ACT Health Quality and Safety activity which included a multi-disciplinary team and asked how it met or didn’t meet his requirements.
Dr Coatsworth responded by saying simply being nominated medical lead within a program of the hospital is not prima facie evidence of success within that role. Dr Coatsworth continued that “quality and safety” is almost an advanced speciality in itself and one of the base levels of quality and safety is to be able to articulate achievement in terms of framing the problem, the activity that was done, how that was evaluated and how that cycle was improved in a continuous improvement sense. Dr Coatsworth explained that one of the common framings is the “plan, do, study and act” (PDSA) cycle.
Dr Coatsworth stated it is difficult to advance against this criteria if, during an application and interview, an applicant is unable to even mention let alone assess against criteria such as the PDSA cycle and in order to advance an applicant would have to have articulated themselves in such a way, and articulate clearly, what the improvement for patient outcomes actually was.
During cross-examination, the Applicant took Dr Coatsworth to his CV summary page which stated, under the “Safety and Quality” criteria:
“The medical lead of Act tracheostomy committee “TRACS”
ACT tracheostomy committee is a multidisciplinary committee that oversees the management of tracheostomy patients in CHS. This interdisciplinary committee consists of medical, allied health and nurses (both local and community) managing tracheotomy patients in TCH and the rest of ACT.
As the medical lead of the TRACS, I oversee clinical management, clinical governance (including providing advice on clinical incidents), education and training of multidisciplinary team members who care for patients with tracheostomy across the disciplines both in hospital and in the community.
As modules in Masters of clinical epidemiology, I received training on relevant aspects of quality and safety.”
The Applicant put to Dr Coatsworth that the above description clearly demonstrates that this improves patient care. Dr Coatsworth did not agree with this and said that he would characterise this description as a role description.
The Teaching Criterion
Dr Coatsworth and the Applicant agreed that the recommendation identified the Applicant as competent in relation to the “Teaching” criteria.
Findings
I cannot be satisfied, based on the evidence before me, that the Applicant meets the criteria and should be advanced to Senior Specialist. I am not a medical expert and it would be dangerous territory for the Commission to purport to play this role or attempt to apply such expertise on its own volition when it comes to an assessment of matters such as clinical competency.
That is not to say that the Commission cannot make findings of fact about complex or technical matters that are relevant in the determination of a dispute and it is called up to do so often. However, I need to rely on the evidence before me in doing so. In this regard, I only have the documents before me and contested opinions of the Applicant and Dr Coatsworth to weigh up in arriving at my findings. The Applicant did not bring any of his own witnesses, expert or otherwise, and I attach more weight to the evidence of Dr Coatsworth, as the Chair of a panel of multiple persons who made the assessment about whether Applicant has met the criteria, than the Applicant’s individual assertions about his suitability for advancement.
There is no alternative expert evidence before me turning to whether the Applicant’s experience and credentials can be said to meet the stated criteria or that contradicts the opinion of Dr Coatsworth or findings of the Second Review Panel in a way that would tip the weight of the evidence in favour of the Applicant’s position.
In these circumstances, I am unable to find that the Applicant should advance to the level of Senior Specialist.
Has the Respondent breached its consultation obligations under clauses 14.5 and/or 124 of the Agreement?
The Respondent submits that:
· the policies and procedures that were in place at the time the Applicant applied for advancement on 19 March 2021 were settled and in force; and
· a “broad brush review” of the validity of those documents and the consultation process that occurred between the Respondent and its employees from June 2020 is beyond the scope of the dispute as the process has been finalised and the Commission does not have jurisdiction to hear it.
During closing submissions, the Respondent further elaborated on this, submitting that Section O of the Agreement deals with “Communication and Consultation” about workplace matters and acknowledged this is a broad term. The Respondent went on to submit that clause 124.2 of the Agreement, however, dealt with proposals to introduce changes that would have a significant effect on an employee or group of employees. The Respondent submitted that:
· clause 125 of the Agreement provides a dispute resolution process in respect of those changes; and
· the reason that clause 125 does not give the Commission jurisdiction to deal with the dispute is because the EOI post-dates the changes that the Applicant refers to.
The Respondent submitted that:
· the March 2021 EOI was the first EOI under the new system but it was not uncertain or poorly communicated to employees and there was no failure in consultation;
· the goal posts were not moved between December 2020 and March 2021; and
· if there was an issue relating to consultation as the Applicant contends, no steps have been taken under clause 125 of the Agreement at the local level and the Commission has no jurisdiction to adjudicate the dispute until that has been taken.
Having found that the dispute was instigated in 2021, that the criteria in CHS20/333 were applied and that the process in clause 14.3 of the Agreement was therefore followed, the Applicant’s contentions regarding the adequacy of consultation fall away. This is because it is not in dispute that CHS20/333 is the criteria that should have been applied and there is no suggestion that this criteria is somehow invalid, whether due to deficiencies in consultation or otherwise. However, for completeness I have considered the evidence before me.
Mr Linton’s evidence was that:[68]
· as a result of the move from DGD12-033 to CHS20/333 (and subsequently CHS21/311), the Respondent engaged in extensive consultation with ASMOF, the Australian Medical Association and employees;
· consultation included negotiations on work levels and competency requirements used in the assessment process for advancement to Senior Specialist. Mr Linton attached to his witness statement copies of emails between the Respondent and ASMOF during the period 1 December 2020 to 2 March 2021 by way of example; and
· at all times the relevant consultation documents were available to the Applicant through the intranet and Respondent’s Policy Register.
The Applicant asked Mr Linton whether the Discussion Guidelines developed by the Respondent in relation to the selection criteria for advancement to Senior Specialist had been discussed with employees or unions or subject to consultation. Mr Linton responded by saying all of the documents that had been introduced since the Agreement came into effect were discussed with the relevant union and were made available to staff for comment before finalisation.
The Applicant clarified that he was talking about the Discussion Guidelines. Mr Linton was unable to comment about whether the Discussion Guidelines, which he understood was developed by Dr Coatsworth and the office of EDMS, was subject to consultation. He did however note that the document is part of the process of follow up following the assessment process, rather than a part of the assessment process itself.
I have earlier dealt with the Discussion Guidelines to the extent that they are relevant to this dispute. The obligation in clause 14.5 of the Agreement is that work level standards and competency requirements for progression will be reviewed in consultation with ASMOF. I do not consider that Discussion Guidelines are part of “the work level standards and competency requirements for progression”. These are to be found in CHS20/333 and it is these requirements that require review.
During cross-examination, the Applicant asked Mr Linton whether agreement is still being reached with ASMOF regarding competency requirements. Mr Linton confirmed that there is ongoing work underway as there is with anything that is subject to review as time goes by.
The Applicant noted that the New Agreement has come into effect since the bringing of this dispute and took Mr Linton to Annex F of the New Agreement which provides for the following review:
“a. The review of work level standards and competency requirements for progression to senior staff specialist in consultation with ASMOF (Clause 14.5).”
The Applicant asked Mr Linton to confirm whether he agreed that this review had not been done. Mr Linton replied that, while the clause of the New Agreement refers to that review, there are existing procedures in place, and there have been for some time, in relation to how those selection processes would operate.
The Applicant took Mr Linton to clause 14.6 of the New Agreement and asked him whether he agreed that competency requirements for a Senior Specialist advancement have not been reached between the union and Respondent. Mr Linton replied that he agreed that the New Agreement provides there would be a review of those processes but that there are in place arrangements and competency requirements and the New Agreement merely provides for a review of those arrangements not the instigation of them.
I do not consider that the review mechanisms that the Respondent is required to follow under the New Agreement are relevant are relevant to this dispute.
The Applicant also took Mr Linton to an email from the Applicant to Mr Ross of ASMOF dated 23 July 2021 in which the Applicant asks:
“1. Under the section 14.5 of ACT public sector medical practitioner enterprise agreement 2017-2021; Did any representative on behalf of Canberra health services discussed and agreed the competency framework for senior specialist advancement with ASMOF?
2. If agreed can you please provide me a copy.
3. Have you got a summary of the process followed by other Australian states in regards to senior Specialist advancement/promotion?”
An email in response from Mr Ross to the Applicant dated 28 July 2021 states:
“Thank you for your email. In reply I make the following points:
· Prior to the current MPEA advancement to Senior Specialist was restricted by the availability of positions and budget;
· For the current agreement (in force since January this year) ASMOF was able to successfully argue for a competency based progression;
· As part of the current process ASMOF had input into the “Specialist to Senior Specialist Selection Process” Guidelines referred to in clause 14.3 of the MPEA;
· ASMOF pushed to have the EOI process for advancement commence given the lengthy delays in the current MPEA being approved;
· There has been to ASMOF’s knowledge no work done as yet on the
· requirements referred to in 14.5 of the MPEA;
· ASMOF has received a number of reports from members who have been unsuccessful in their applications for advancement;
· ASMOF has written to the EDMS seeking details of the application process and to date that correspondence has not been responded to;
· As part of the current negotiations for the next MPEA ASMOF is seeking incremental advancement to Senior Specialist as it is clear in our view that the current processes are not working.”
The Applicant drew Mr Linton’s attention to the part of the response above which states:
“There has been to ASMOF’s knowledge no work done as yet on the requirements referred to in 14.5 of the MPEA.”
The Applicant asked Mr Linton whether he agreed with the statement.
Mr Linton responded that the comment was made in July 2021 and that the provisions of clause 14.5 of the New Agreement provide for a review of the current arrangements. Mr Linton stated that, while he won’t dispute that there hasn’t been work done to review those arrangements since that point in time, there is certainly in place existing competency arrangements for those assessments.
In the context of this dispute, it is not in contention that arrangements were in place for advancement to Senior Specialist in CHS20/333. This is the criteria should have been applied. While clause 14.5 of the Agreement commits the Respondent to reviewing work level standards and competency requirements during the life of the Agreement, and while it is apparent that the Respondent has been tardy in reviewing these arrangements, it is not relevant to this dispute. The central question is really whether the correct criteria has been applied and I have answered this question in relation to those criteria that were relevant to the Applicant’s application for advancement.
The Applicant drew Mr Linton’s attention to the statement in Mr Ross’ email that:
“As part of the current negotiations for the next MPEA ASMOF is seeking incremental advancement to Senior Specialist as it is clear in our view that the current processes are not working.”
The Applicant asked Mr Linton whether he had done any market research before the Respondent decided to adopt a specific process. The Respondent objected to this question on the grounds of relevance.
I agree with the Respondent that market arrangements and the circumstances of other employers regarding advancement arrangements are not relevant to the dispute before me.
The Applicant took Mr Linton to a document filed by the Respondent entitled “Clinical and Non-Clinical Work for Senior Medical Practitioners”, which explains it is a “factsheet intended to inform dismissions between SMPs [Senior Medical Practitioners] and their managers about how to effectively balance clinical and non-clinical hours of work”. The Applicant asked whether the clinical and non-clinical work practices had been the subject of a dispute resolution process before the Commission. Mr Linton indicated he was unsure but it was not “beyond the realm of possibility”. These matters are not relevant to the dispute before me.
I am not satisfied, based on the evidence before me, that there was any failure in consultation on the part of the Respondent in relation to the criteria that the Respondent was required to apply to the Applicant’s application for advancement, being CHS20/333. While it appears that the Respondent may not have reviewed work level standards and competency requirements in consultation with ASMOF during the life of the Agreement, as required by clause 14.5 of the Agreement, I do not consider this to be material to the dispute before me and the question of whether I should grant the Applicant the relief he seeks, as there were existing arrangements in place, being those in CHS20/333.
Conclusion
It is apparent to me that the exercise of pursuing advancement to Senior Specialist has been a protracted and unpleasant one for the Applicant and understandably so. It is perplexing that persons within Human Resources were unable to give the Applicant clear guidance about how he should go about applying to progress to Senior Specialist between 2019 and 2021, despite his persistent follow up and given there were established guidelines in place at that time. However, the Applicant, while persistent, did not raise a dispute under the Agreement or its predecessor at that time and did eventually make an application pursuant the EOI process advertised by Dr Coatsworth in March 2021, after the Agreement came into effect in January 2021.
It seems that even this EOI process has given rise to some confusion, with the Respondent itself unclear as to whether CHS20/333 or CHS21/311 was provided to applicants when the EOI was advertised. The Respondent’s own evidence was contradictory in this regard. In determining this dispute, this doesn’t matter because the criteria in CHS20/333 and CHS21/311 was essentially the same. However, it is indicative of the general flavour of confusion that required navigation throughout the course of these proceedings. Further, my objective reading of the criteria in CHS20/333 and CHS21/311 is that it is very ‘high level’. While this is the current criteria that must be applied and may be conducive to flexibility, as a general observation, it may also give rise to frustration from applicants who are seeking to address it and potential disputation when they do not get the outcome they are seeking from the process where interpretations differ. Given that a review of these arrangements is contemplated in Annex F of the New Agreement and was supposed to happen under the Agreement that is the subject of this dispute, which I acknowledge had a short-lived term, this is a matter that the Respondent may wish to turn its mind to.
Notwithstanding this, in relation to the matters that I need to determine as a part of this dispute, I have found as follows:
· As to the question of whether the Respondent has complied with clause 14.3 of the Agreement, I find that the Respondent has not strictly complied with clause 14.3 of the Agreement in one respect. In particular, I find that, in its assessment of the Applicant against the “Teaching” criterion in CHS20/333, the Discussion Guidelines applied by the Review Panels had the effect of both narrowing the scope of the criterion as well as setting a higher bar in order for it to be satisfied. However, as I have found, the Second Review Panel actually found the Applicant was competent in relation to the “Teaching” criteria. As such, it is not the Second Review Panel’s assessment of the Applicant against this criterion that resulted in the “action” or decision that is now the subject of this dispute. In this regard, I do not consider that this technical breach by the Respondent is material to this particular dispute.
· Based on the evidence before me, I am unable to find that the Applicant should advance to the level of Senior Specialist.
· I am not satisfied, based on the evidence before me, that there was any failure in consultation on the part of the Respondent in relation to the criteria that the Respondent was required to apply to the Applicant’s application, being CHS20/333. While it appears that the Respondent may not have reviewed work level standards and competency requirements in consultation with ASMOF during the life of the Agreement, as required by clause 14.5 of the Agreement, I do not consider this to be material to the dispute before me and the question of whether I should grant the Applicant the relief he seeks as there were existing arrangements in place that should have been applied, being those in CHS20/333.
In these circumstances, I am unable to grant the Applicant the relief he is seeking and dismiss the Applicant’s application.
COMMISSIONER
Appearances:
Dr R Suwandarathne on his own behalf.
Ms S McCarthy of Counsel for the Respondent, instructed by Ms A Mohindra of the ACT Government Solicitor.
Hearing details:
2022.
Sydney (by Video using Microsoft Teams).
March 28 and 29.
[1] Respondent, ‘Witness Statement of Doctor Nicholas Coatsworth’, dated 25 February 2022, [8].
[2] Ibid, [10].
[3] Ibid, [11].
[4] Respondent, ‘Outline of Submissions’, filed 25 February 2022, [6].
[5] Respondent, ‘Witness Statement of Steven Linton’, dated 24 February 2022, [6]-[12].
[6] Respondent, ‘Witness Statement of Doctor Nicholas Coatsworth’, dated 25 February 2022, [13].
[7] Ibid, [14]-[15].
[8] Ibid, [17].
[9] Ibid, [16].
[10] Ibid, [18].
[11] Ibid, [22].
[12] ‘Report of Mr G. R. Smith AM’, dated 15 September 2021, 2.
[13] Respondent, ‘Outline of Submissions’, filed 25 February 2022, [8]-[9]; ‘Report of Mr G. R. Smith AM’, dated 15 September 2021, 1, 6.
[14] ‘Report of Mr G. R. Smith AM’, dated 15 September 2021, 1, 6.
[15] Applicant, ‘Outline of submissions’, filed 4 February 2022, [17].
[16] Respondent, ‘Witness Statement of Doctor Nicholas Coatsworth’, dated 25 February 2022, [28].
[17] Ibid, [29].
[18] Ibid, [30].
[19] Ibid, [31].
[20] Ibid, [32].
[21] Ibid, [33].
[22] Ibid, [34].
[23] Ibid, [35].
[24] Applicant, ‘Outline of submissions in reply’, filed 11 March 2022.
[25] Applicant, ‘Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure’, filed 10 December 2021, 3.1.
[26] Applicant, ‘Outline of submissions in reply’, filed 11 March 2022, [43], [48] and [51].
[27] Ibid, [42].
[28] Ibid, [19].
[29] Ibid, [23].
[30] Ibid, [24].
[31] Ibid, [28].
[32] Ibid, [28].
[33] Ibid, [30].
[34] Ibid, [31].
[35] Ibid, [32].
[36] Ibid, [33].
[37] Ibid, [39]-[40].
[38] Ibid, [37]-[39].
[39] Ibid, [36].
[40] Ibid, [37].
[41] Ibid, [41].
[42] Ibid, [39]-[40].
[43] Ibid, [51].
[44] Ibid.
[45] Ibid, [50].
[46] Ibid, [46]-[47].
[47] [2020] NSWCA 155.
[48] Respondent, ‘Outline of Submissions’, filed 25 February 2022, [28].
[49] [2020] FWC 423, [29].
[50] Respondent, ‘Outline of Submissions’, filed 25 February 2022, [29].
[51] Respondent, ‘Outline of Submissions’, filed 25 February 2022.
[52] [2020] FWC 423.
[53] Applicant, ‘Outline of submissions in reply’, filed 11 March 2022, [19].
[54] Respondent, ‘Witness Statement of Doctor Nicholas Coatsworth’, dated 25 February 2022, [8], [16]-[18], [32]-[35].
[55] [2020] NSWCA 155.
[56] ‘Report of Mr G. R. Smith AM’, dated 15 September 2021, 2.
[57] Applicant, ‘Chronology of events’, filed 10 December 2021.
[58] Applicant, ‘Outline of submissions in reply’, filed 11 March 2022, [19].
[59] Applicant, ‘Outline of submissions’, filed 4 February 2022, [1].
[60] Applicant, ‘Outline of submissions in reply’, filed 11 March 2022, [23]-[27].
[61] Ibid, [28]-[29].
[62] Ibid, [30]-[31].
[63] Ibid, [32]-[34].
[64] Ibid, [51].
[65] Ibid.
[66] Ibid.
[67] Respondent, ‘Witness Statement of Doctor Nicholas Coatsworth’, dated 25 February 2022, [25], [32]-[34].
[68] Respondent, ‘Witness Statement of Steven Linton’, dated 24 February 2022, [13]-[15].
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