Greg Ivanoff v Yarram and District Health Service
[2023] FWC 333
•9 FEBRUARY 2023
| [2023] FWC 333 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Greg Ivanoff
v
Yarram and District Health Service
(U2022/12210)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 9 FEBRUARY 2023 |
Application for an unfair dismissal remedy – application made 3 years outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
Introduction
This decision concerns an application made by Dr Greg Ivanoff (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Yarram and District Health Service (the Respondent) from 2016 as a Doctor.
His employment with the Respondent was terminated with effect from 20 September 2019. The unfair dismissal application was lodged by the Applicant on 23 December 2022.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). As the dismissal took effect on 20 September 2019 the period of 21 days ended at midnight on 11 October 2019. The application was therefore filed over 3 years outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3) of the Act.
The application for an extension of time to file the unfair dismissal application was set down for conference/hearing on 8 February 2023, in advance of which both parties filed material in accordance with the Directions issued. After hearing from the parties, I determined to conduct a hearing pursuant to s 399 of the Act. At the hearing, Mr Ryan of the AMA/ASMOF appeared on behalf of and called the Applicant to give evidence. Mr Rick Catanzariti of DLA Piper, who was granted permission to appear on behalf of the Respondent pursuant to s 596(2) of the Act, called Jane Millard, Director of Corporate Services for the Respondent, to give evidence.
Abuse of process
Before turning to the extension of time application, it is necessary to deal with a preliminary matter raised by the Respondent, that being it submits the application constitutes an ‘abuse of process’. That is said to be in circumstances where the Applicant filed an unfair dismissal application in the Commission in U2019/10710 (the First Application) on 23 September 2019 and then discontinued it unconditionally on 19 November 2019.
The Respondent submits that s 394(2)(b), which allows the Commission to extend the time within which an application is made, has no work to do. That is so it says because of the circumstances in this case where an application has already been made within the 21-day period in accordance with 394(2)(a). The submission is made that the language of s 394(2) refers to “application” in the singular. The Respondent submits that as the First Application was made on 23 September 2021, it was made in time, though subsequently withdrawn. That on the Respondent’s construction acts to prevent a subsequent application being made outside of the 21-day period.
The submission must be rejected. The language used in s 394(2) is directed to “the application” which is clearly directed to the application currently before the Commission for which an extension of time is required. There is nothing in the language of the section that prevents the Commission from considering an extension of time request for the filing of the application pursuant to ss 394(2)(b) and 394(3) in circumstances where a previous application related to the same dismissal was made and withdrawn. Support for my view may be found in the comments of the Full Bench in Chandra Gupta Narayan v MW Engineers Pty Ltd[1] (Narayan) which was affirmed by a Full Bench in AB v Tabcorp Holdings Limited[2] (Tabcorp). In Narayan the Full Bench specifically stated as follows;
“[24] If an unfair dismissal applicant (such as Mr Narayan) unconditionally discontinues their application before the Commission has determined it on the merits then they (Mr Narayan) can make a fresh application in respect of the same dismissal.
…………..
[29] In this case, if Mr Narayan were minded to make a further unfair dismissal application in relation to his dismissal by the respondent he will need to apply to extend the time period within which to make the application…..”[3]
As to the submission of the Respondent that the application should be dismissed pursuant to either s 399A or s 587 of the Act, those submissions are similarly rejected. It cannot be said that the Applicant has failed to comply with directions of the Commission or failed to attend a conference or proceeding in relation to the present application. Nor is there material before me to satisfy me that the Applicant’s case has no reasonable prospect of success.
I accept that the Respondent may be aggrieved at having to deal with an application for an unfair dismissal remedy filed by the Applicant over three years after his dismissal in circumstances where the First Application was made within the 21-day period and subsequently discontinued. However, the particular circumstances of this case, which are traversed below in dealing with the application for an extension of time for the filing of the unfair dismissal application, do not in my view support the argument that the application is an abuse of process. The Applicant has filed his application outside the 21-day time period, an extension of time is consequently required in order for that application to proceed and he advances a case as to why that extension of time should be granted. That is utterly consistent with the process set down in the Act and on the authorities set out above is clearly permitted. No abuse of process is evident.
Statutory framework
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[4] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[5]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Background and evidence
On 31 July 2017, the Applicant commenced employment with the Respondent in a permanent full-time capacity. He assumed the role of Senior Medical Officer on 1 March 2018.
On 20 July 2019, Ms Andrea Mattern, who was the Infection Control Nurse/ANUM for the Respondent at the time, sent an email to Mary Garland, Manager Clinical Care complaining that the Applicant had attended work that day in an intoxicated state[6].
On 25 July 2019, The Respondent’s Chief Executive Officer, Bernadette Wardle and its Director of Medical Services, Craig Winter met with the Applicant to discuss complaints regarding his conduct and unsatisfactory performance. A written warning was issued to the Applicant the same day[7].
On 17 September 2019, Ms Garland sent an email to Ms Wardle raising the Applicant’s failure to complete his ‘ward rounds’ on 16 September 2019 when he was ‘on-call’[8].
On 20 September 2019, the Applicant’s employment was terminated with immediate effect and he received three months’ pay in lieu of notice. The reasons stated for the dismissal were as follows;
“I advise that Yarram District Health Service has made the decision to terminate your employment, effective immediately, on the basis that your overall performance and suitability for the role was not satisfactory. The decision is made pursuant to clause 13.4 of your contract.”[9]
On 23 September 2019, the Applicant filed the First Application. The matter was subject to an unsuccessful conciliation on 13 November 2019.
On 16 October 2019, the Australian Health Practitioner Regulation Agency (AHPRA) responded to complaints in respect of the Applicant’s clinical performance and commenced an “immediate action” process. It provided the Applicant with an opportunity to make submissions on the proposed “immediate action” which the Applicant did on 22 October 2019[10]. The Applicant states that he was required to work with his indemnity insurer to provide an urgent response as invited by AHPRA.
On 25 October 2019 AHPRA confirmed to the Applicant that it would proceed to take “immediate action under section 156 of the Health Practitioners National Law” (The National Law) and while not suspending the Applicant’s registration, it imposed conditions on his continued registration. The Applicant was notified that the conditions would continue to have effect until the decision was set aside on appeal or the conditions were removed by the AHPRA Board[11].
The Applicant agreed during cross examination that following his dismissal by the Respondent he moved from Yarram to Traralgon in November 2019. He then commenced employment with the Traralgon Medical Centre on or around the same time. He continued to work at the Traralgon Medical Centre up until he ceased work due to his being found to be totally and permanently disabled (TPD) in late 2021. He also oversaw extensive renovations of his house in Traralgon following his move there in November 2019 which he says took many months.
On 19 November 2019, Mr John Ryan of the AMA Victoria/ASMOF filed an F50 Notice of Discontinuance[12] in relation to the First Application on the instructions of the Applicant[13].
On 19 May 2020, the Applicant’s legal representative, Andrew Smith of Ball & Partners, sent a detailed submission to AHPRA in relation to the “immediate action” taken against the Applicant. The submission addressed various matters including the conduct allegations, provided a number of character references, noted the Applicant’s improved management of alcohol and advised that at the date of the submission he had gained employment at the Traralgon Medical Centre. The submission also relied upon a report from the Applicant’s treating psychiatrist, Dr Agrawal, who stated that the Applicant had no evidence of major psychiatric syndromes and had no history of alcohol abuse or dependence syndrome[14].
On 22 July 2020, AHPRA wrote to the Applicant’s legal representative, Mr Smith advising the outcome of its investigation into the Applicant’s performance, conduct and whether he had a health impairment. AHPRA confirmed that arising from its investigation, it had decided to take no further action against the Applicant. Relevantly, AHPRA concluded based on the evidence before it that the Applicant did not suffer “from a health impairment that detrimentally impacts or may impact his capacity to practice the profession”.[15]
On 30 October 2020, AHPRA again wrote to Mr Smith and advised that it had decided to take off hold its investigation into the Applicant’s performance and conduct in relation to the provision of care to a former child patient who had died. The parent of the deceased child had made a complaint to HCC and AHPRA. The death of that child was also acknowledged by AHPRA as being the subject of an ongoing coronial inquest[16].
On 12 February 2021, AHPRA wrote to the Applicant’s legal representative Mr Smith and advised of the outcome of its investigation into the Applicant’s conduct in respect of the provision of care to a former child patient who had died. AHPRA advised that it had decided to take no further action under s 167(a) of the Health Practitioner Regulation National Law. In the letter AHPRA went on to set out the reasons for its decision and further stated that “..the Board considered the information available supported the conclusion that Dr Gregor Ivanoff does not pose an ongoing risk to public health and safety.”
On 18 July 2021, the Applicant’s marital relationship formally ended and shortly after that, legal proceedings commenced in the Federal Circuit and Family Court (the Federal Court) in relation to the disputed property settlement and custody of his three children[17].
On 26 August 2022, property mediation occurred between the Applicant and his former wife[18].
On 16 October 2022, a psychiatric report ordered by the Federal Court was provided as part of the Federal Court proceedings. The Applicant stated during cross examination that the report which was prepared by Dr Cidoni, was in relation to whether he was fit to assume shared custodial arrangements for his children. The report of Dr Cidoni relevantly stated that he did not believe the Applicant suffered from alcohol use disorder and that he has mild on-going symptoms and has demonstrated good insight and engaged mental health supports generally[19].
On 31 October 2022, the “Finding Into Death Without Inquest” report (the Coroner Report) into the above-referred death of a child was released by the Coroner. The Coroner Report identified that the deceased child passed away due to Asthma and made no adverse findings or observations in respect of the Applicant’s role in the treatment of the deceased[20]. The Applicant agreed during cross-examination that his involvement in the Coroner’s inquiry ended sometime prior to the release of the Coroner Report on 31 October 2022 but could not state with certainty when. During cross-examination the Applicant sought to clarify his evidence about when he received the Coroner Report and stated that it was sometime after 31 October 2022 but could not state with certainty when he received it.
On 18 November 2022, an Outline of Case Document (Final Hearing) for the Federal Court proceedings was issued in relation to the disputed property settlement and child custody arrangements. During cross-examination the Applicant stated that the Federal Court proceedings in relation to custody arrangements are ongoing with a final determination pending. He also referred to a 5-day hearing in the Federal Court having taken place in the period immediately preceding his contact with Mr Ryan on 5 December 2022 although the specific dates of that Federal Court hearing were not provided.
On 5 December 2022, the Applicant wrote to Mr Ryan of the AMA requesting his assistance in preparing an unfair dismissal application. In his email to Mr Ryan, the Applicant refers to acceptance by Allianz of his workers compensation claim on 31 August 2022, release of the above-referred Coroner Report on 31 October 2022 and his earlier clearance by AHPRA of 11 other complaints[21].
On 23 December 2022, an application for unfair dismissal (the Second Application) was filed by Mr Ryan of the AMA/ASMOF on behalf of the Applicant.
The Applicant also gave evidence that during the period since his dismissal by the Applicant, he has suffered from significant work related stress, has sought treatment for this and has taken time off work. He also refers to ongoing treatment and counselling he has received from various medical practitioners including his GP, psychiatrist, endocrinologist, psychotherapist and mental health social worker. He further states that his workplace related illnesses were accepted by the Respondent’s Workcover insurer Allianz on 14 July 2022. He further claims that on 30 August 2022 Allianz also accepted his claim for a work related illness which was diagnosed by an endocrinologist as Functional Hypogonadotropic Hypogonadism[22]. The Applicant agreed during cross-examination that while he referred in his evidence to his medical conditions, no medical reports were provided in support of that evidence.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 11 October 2019. The delay is the period commencing immediately after that time until 23 December 2022, although circumstances arising prior to that day may be relevant to the reason for the delay.[23]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[24] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[25].
The Applicant submits that a number of overlapping and interconnected matters combined to delay the filing of his Second Application. Those matters are said to be;
1.The AHPRA investigations into conduct and performance allegations levelled against him;
2.A coronial investigation into the death of a child patient that received treatment by the Applicant while employed by the Respondent;
3.Significant health issues caused by work related stress suffered while working for the Respondent; and
4.The breakdown of his marriage and ensuing litigation over the property disposition and custody of his children.
The matters raised by the Applicant indicate that he confronted challenging personal and professional circumstances in the period following his dismissal. However, for the reasons set out below I do not accept that they adequately explain the delay of over three years in filing the Second Application.
Turning to the medical condition/s suffered by the Applicant to which he refers in his evidence. No medical reports or other independent medical evidence was advanced that would allow me to conclude that his medical condition was such that he was incapable of filing an unfair dismissal application within the 21-day period. This is particularly the case in circumstances where the Applicant had the benefit of representation of the AMA/ASMOF.
Furthermore, several matters tell strongly against a finding that the Applicant’s medical condition/s explains the delay in filing the Second Application. Firstly, he filed the First Application within the 21-day period at a time he says he was affected by his medical condition/s. Secondly, he also secured employment with Traralgon Medical Centre in November 2019 where he continued to work until late 2021. Thirdly, he was able to issue instructions to his legal representative and engage with the AHPRA investigation process during 2020 and 2021. Fourthly, he was able to make a workers compensation claim that was ultimately accepted by Allianz in 2022. Fifthly, he participated in the Coroner’s inquiry into the death of a former child patient that commenced sometime prior to October 2020. Finally, he was able to engage in what was on his evidence a long and difficult Federal Court process related to property settlement and child custody arrangements following the breakdown of his marriage in 2021.
All of the afore-mentioned matters lead me to conclude that the Applicant’s medical condition was not such that it would have prevented him from filing his unfair dismissal application at an earlier point in time. I am not satisfied that the Applicant’s medical condition/s provides an adequate explanation for part or the whole of the delay.
With respect to the AHPRA investigation, I accept without hesitation that the Applicant viewed this matter as a serious threat to his career as a medical practitioner, as evidenced by his engaging legal representation in that matter. An investigation of eleven initial allegations regarding his conduct and performance commenced in October 2019 and concluded in July 2020. A further investigation into the Applicant’s conduct in respect of the care of a former child patient that passed away commenced in October 2020 and was finalised in February 2021. What is not made clear at all in the Applicant’s evidence is the degree to which he engaged in the investigation beyond assisting his legal advisors prepare submissions and evidence for AHPRA. In any case, to the extent that his participation in the AHPRA investigations may have explained the delay in filing the Second Application, it can only be said to have explained the delay up until February 2021.
Turning to the Coroner’s inquiry into the death of a former child patient of the Applicant, I again accept that the matter was of great significance to the Applicant as a former treating doctor of the deceased child. As earlier stated, the Coroner Report was released on 31 October 2022 and made no adverse findings or observations regarding the treatment provided by the Applicant to the child when in his care. The absence of adverse findings appears harmonious with the earlier conclusions reached by APHRA in relation to its investigation of the Applicant’s conduct in respect of the same matter.
When pressed during cross-examination on when he was last engaged in the Coroner’s inquiry, the Applicant was evasive and unsure but ultimately conceded that it was sometime before the report was issued on 31 October 2022. The Applicant also dissembled during cross-examination on the question of when he actually received the Coroner Report, claiming it was sometime after 31 October 2022. I found the Applicant’s evidence to be unconvincing on this point. I also note that in the email sent to Mr Ryan on 5 December 2022, he specifically referred to the date of 31 October 2022 as when the Coroner Report was released. It is in my view more likely than not that the Applicant received a copy of the Coroner Report on or very shortly after the 31 October 2022. It follows that to the extent the Coroner’s investigation explains the delay in the Applicant filing his Second Application, it can only be said to explain the delay up until 31 October 2022.
Turning finally to the matter of the Applicant’s marriage breakdown and subsequent Federal Court proceedings regarding property settlement and child custody arrangements. It is apparent that the marriage breakdown in November 2021 and the litigation that flowed from that event has been extremely difficult for the Applicant, particularly with respect to the child custody arrangements. It is not however clear how the Federal Court proceedings and his involvement in those proceedings acted to prevent or delay the Second Application in circumstances where he had been able to instruct representatives and/or engage in concurrent matters during 2021 and 2022. I am not satisfied that the Applicant’s participation in the Federal Court proceedings explains the delay in filing the Second Application.
It follows from the foregoing that I am not satisfied that the matters raised by the Applicant on their own or collectively explain why the Applicant was unable to file the Second Application until 23 December 2022. He was clearly capable of engaging in complex and challenging matters, either directly or through his representatives, as evidenced by his participation in the AHPRA investigations, Coroner investigation and Federal Court proceedings. He was also able to work at least until late 2021 and progress a workers compensation claim during the period when he says he was unable to file an unfair dismissal application.
I am satisfied that the Applicant prioritised the resolution of the other matters that he was dealing with prior to filing his Second Application. On one view, that may have been rational from the perspective of the Applicant wanting to ‘clear his name’ in respect of the AHPRA and Coroner investigations prior to pressing an unfair dismissal application. The fact that those two matters were on foot were not however a barrier to an unfair dismissal application being made. Even if I were to accept that the AHPRA and Coroner investigations constituted an acceptable reason for the delay, such explanation serves to explain the period up to 31 October 2022 when the release of the Coroner Report effectively ruled a line under the investigations into the Applicant’s professional conduct. So much is acknowledged by the Applicant in his email to Mr Ryan on 5 December 2022. It does not however explain the delay beyond the 31 October 2022 and why it took a further 7 weeks for the application to be filed.
As to the Federal Court proceedings relied on as a further reason for delay, I approach with caution the explanation provided by the Applicant for the following reasons. Firstly, the Applicant failed to provide evidence as to when the 5-day Federal Court hearing took place. Secondly, no mention of those proceedings was made in the 5 December 2022 email to Mr Ryan requesting that he assist in the filing of the unfair dismissal application. Finally, there is no evidence as to the level, duration and timing of the Applicant’s involvement in the Federal Court proceedings. I am simply unable to conclude that the Applicant’s involvement in the Federal Court proceedings was so time consuming as having prevented him issuing instructions to Mr Ryan at an earlier time to file an unfair dismissal application.
Finally, I need to say something about the closing submission from the Applicant’s representative that the delay beyond 5 December 2022 was attributable to representative error. That submission was made without the Respondent having been able to cross-examine the Applicant’s representative on what instructions were given to him, what actions were taken by him and when in relation to those instructions and what further communication took place between himself and the Applicant after the 5 December 2022 email. There is simply no evidence before me to establish that the reason for the delay beyond 5 December 2022 falls into the category of representative error.
Having regard to all of the above circumstances I do not accept the explanations provided either individually or collectively acted to prevent the Applicant from lodging the application on time or at a time earlier than the date on which the Second Application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find, that the Applicant’s employment ceased on 20 September 2019. He therefore had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. The Applicant was unarguably aware of his dismissal as evident by the First Application on 23 September 2019 made three days after his dismissal, which as previously stated was discontinued on 19 November 2021. These circumstances weigh against a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant initially contested his dismissal after it took effect on 20 September 2019 by filing the First Application on 23 September 2019. The First Application was however subsequently discontinued by him on 19 November 2019. The fact that the Applicant withdrew the First Application leads me to conclude that such action to contest his dismissal does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
Notwithstanding the application was filed over 3 years outside of the 21-day period, the Applicant contends that it would be difficult to conceive how any prejudice to the Respondent would arise in circumstances where the evidence that would need to be produced by the Respondent would still be in its custody, such as client records. I disagree. It is established on the evidence of Ms Millard that a number of the witnesses to the events that led to the Applicant’s dismissal are no longer employed by the Respondent. There is also likely to be a significant factual contest over matters that led to the dismissal where direct witness evidence will be important. The availability of relevant witnesses is uncertain, and there is potential for the memories of witnesses to be affected by the long passage of time since the dismissal. These circumstances operate to prejudice the Respondent in my view and weigh against a conclusion that there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The Applicant contends that it is reasonable in these proceedings to proceed on the basis that the alleged unsatisfactory performance relied upon by the Respondent to terminate the Applicant’s employment was the same unsatisfactory performance which was the subject of the AHPRA investigation and decision which was in the Applicant’s favour. On that basis the Applicant submits he has an extremely meritorious case. The Respondent resists the application and contends that if the matter were to proceed the Commission would need to hear significant evidence.
It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. While the Applicant points to the outcome of the AHPRA investigation into his performance and conduct, that is of no assistance as it falls to the Commission to independently assess the evidence before reaching a conclusion on whether the dismissal was unfair. I do however accept that the AHPRA outcome indicates that the Applicant’s case may not be without merit. It is not however possible to make any firm or detailed assessment of the merits at this stage and in these circumstances I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
J Ryan for the Applicant.
R Catanzariti for the Respondent.
Hearing details:
2023.
Melbourne.
February 8.
Printed by authority of the Commonwealth Government Printer
<PR750334>
[1] [2013] FWCFB 2530
[2] [2015] FWCFB 523 at [12]
[3] [2013] FWCFB 2530 at [24]-[29]
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[5] Ibid.
[6] Exhibit R1, Witness Statement of Jane Millard, dated 23 January 2022, at [7], Attachment JM-1, Email from Andrea Mattern dated 20 July 2022, titled ‘In confident’
[7] Exhibit R1 at [8], Attachment JM-2, Written warning dated 25 July 2019
[8] Exhibit R1, at [9], Attachment JM-3, Email from Mary Garland, dated 17 September 2019, titled ‘Greg on call’
[9] Exhibit A1, Witness Statement of Dr Gregor Ivanoff
[10] Ibid, Attachment 1, AHPRA Correspondence, dated 25 October 2019, titled “Notice of decision to take immediate action’
[11] Ibid
[12] Exhibit R1, Attachment JM-4, Form F50 Notice of Discontinuance, dated 19 November 2019
[13] Exhibit A1
[14] Ibid, Attachment 5, Letter to AHPRA dated 19 May 2020, tiled “Background for Dr Ivanoff”
[15] Exhibit A1. Attachment 4, Letter from AHPRA dated 22 July 2020
[16] Exhibit A1, Attachment 6, AHPRA Letter dated 30 October 2020
[17] Exhibit A1, Attachment 8, Outline of Case Document (Final Hearing), see Part B - Chronology of events
[18] Ibid
[19] Ibid
[20] Exhibit A1, Attachment 7, Finding Into Death Without Inquest (Coroner Report) dated 31 October 2022
[21] Exhibit A1, Attachment 2, Email from Applicant to John Ryan, dated 5 December 2022
[22] Exhibit A1
[23] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[24] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[25] Ibid at [40].
Printed by authority of the Commonwealth Government Printer
<PR750334>
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