Mainak Majumdar v Peninsula Health T/A Frankston Hospital

[2015] FWC 5667

[2015] FWC 5667[Note: An appeal pursuant to s.604 (C2015/6066) was lodged against this decision - refer to Full Bench decision dated 11 November 2015 [[2015] FWCFB 7679] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mainak Majumdar
v
Peninsula Health T/A Frankston Hospital
(U2015/760)

COMMISSIONER WILSON MELBOURNE, 24 AUGUST 2015

Application for relief from unfair dismissal.

[1] Dr Mainak Majumdar was employed by Peninsula Health at the Frankston Hospital between November 2009 and February 2015. Dr Majumdar came to be employed by Peninsula Health initially in a combined role as an organ donation specialist and an intensive care specialist.

[2] His employment was originally subject to a contract of employment for a fixed term being for a period of five years between 10 November 2009 and 9 November 2014. The fixed term contract was the subject of an agreed variation in 2012 because of changes to Peninsula Health’s funding arrangements. The variation means that the number of hours Dr Majumdar worked were reduced and his critical care role as an intensive care specialist was also removed, with the change meaning that Dr Majumdar continued to provide services in relation to organ donation.

[3] When the fixed term contract came to an end in November 2014, Dr Majumdar continued working for Peninsula Health, with his last day of employment being 23 February 2015.

[4] The circumstances of the matter include that towards the end of 2014, Peninsula Health took a decision to advertise a part-time medical specialist role which included responsibility not only for the Frankston Hospital’s organ donation activities, but also for some aspects of clinical intensive care. The overall position was for a 0.5 full time equivalent (FTE) level of employment, in comparison to the 0.3 FTE role in which Dr Majumdar was working.

[5] Dr Majumdar applied for the position, along with one other person, who ultimately was successful in obtaining the position. When Dr Majumdar was told that he was unsuccessful in applying for that position, the hospital regarded him as being no longer required. He was told that his services would no longer be required in either of two ways. The Applicant’s contention is that the first time he was advised his employment was being terminated was in a letter to him from Peninsula Health dated 29 January 2015. 1 The Respondent’s contention is that Dr Majumdar was informed his employment would cease on 9 February 2015, in a conversation between he and Professor John Botha, Peninsula Health Director of Intensive Care & Research.2

[6] Dr Majumdar argues that in all the circumstances he has been unfairly dismissed having been effectively made to apply for his own job. He argues that when he failed in the subsequent recruitment process, the Respondent then failed in its obligations to afford him procedural fairness in the way that it notified him of his termination of employment. It is said by Dr Majumdar that the advertising of his role, while he was still in that role and working on an ongoing, permanent basis; the selection of an external candidate for what he regarded as “his” position; and then Peninsula Health’s decision to dismiss him because it selected another person for the advertised role, can on no proper view be a valid reason. 3

[7] In contrast, the Respondent argues that Dr Majumdar’s dismissal was not harsh, unjust or unreasonable because his fixed term contract expired after five years, and he continued, by consent, in employment beyond the expiry date. While he was encouraged to apply for a new position for which he was qualified and suited, that position was different to the Applicant’s fixed term contract position. 4

[8] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any of these initial matters required such consideration.

[9] In relation to the elements within s.396, I find that Dr Majumdar’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise. Although Dr Majumdar’s earnings from Peninsula Health were greater than the high income threshold, his employment is subject to an enterprise agreement, so he is otherwise a person protected from unfair dismissal. 5

BACKGROUND

[10] Dr Majumdar was originally employed at the Frankston Hospital in November 2009 and his fixed term contract of employment refers to the “initial term” of employment being five years between 10 November 2009 and 9 November 2014. Dr Majumdar’s appointment was “to the part-time position of Hospital-based Medical Director of Organ and Tissue Donation and Specialist Physician in Intensive Care”. 6 His employment was subject to the terms of various documents, including the written contract of employment and certified agreement then applying, and any subsequent agreement.7

[11] The contract of employment provided for 20 hours of work per week, with 75% of Dr Majumdar’s time to be worked as the “Hospital-Based Medical Director Organ and Tissue Donation” (HBMD) and 25% of the time he worked as “Specialist in Intensive Care” (or “Intensivist”). With an expectation of 20 hours per week being 0.5 FTE, the parties referred to the HBMD role being equivalent to 0.375 FTE and the Intensivist role being 0.125 FTE. 8 The duties of each position were set out in position descriptions attached to the contract of employment. The summary of role and responsibilities of the HBMD were set out as follows:

“Summary of role

The Hospital-based Medical Director’s primary focus is to lead and drive at the local level the national effort to increase organ and tissue donation across Australia.

The Hospital-based Medical Director (HBMD) will be responsible and accountable for the end-to-end process to optimise organ and tissue donation for transplantation, including the education of hospital staff and obtaining consent. Specifically the HBMD position will be responsible for systems that will ensure:

1. that all potential cadaveric donors are properly recognised and evaluated, and the opportunity for donation is available; and

2. integrated management of the donation process to assure quality and national consistency of all procedures from donor identification to donor family follow up and aftercare.

Responsibilities

The HBMD will ensure that local hospital practice and systems are in line with nationally consistent policy and processes set by the Authority. In essence they are the local champion and driver of all aspects of the process and must be seen as part of the hospital team. They will have professional working relationships with relevant hospital departments.

• educating medical, nursing and allied health staff in Intensive Care Units (ICU), Emergency Departments (ED) and the health institution as a whole in accordance with programs set by the Authority;



• establishing and fostering professional relationships with medical and nursing personnel, particularly in the areas of intensive care, emergency, anaesthetics, neurology and neurosurgery;



• facilitating organ and tissue donation by working with hospital teams to identify potential donors and optimise actual donations;



• the consenting process with family members and, where appropriate, being the primary point of contact for the donor family in the hospital;



• liaison with OTDA for donor family support and follow up services such as bereavement counselling.



• championing the use of nationally consistent clinical triggers to improve the identification of potential organ and tissue donors;



• liaison between ICUs, EDs, Organ and Tissue Donation Agencies (OTDA) staff, eye and tissue banks in order to maximise opportunities for organ and tissue donation;



• reporting against the performance targets and goals set by the Authority;



• providing mentoring and support to nursing staff responsible for organ and tissue donation;



• managing the performance appraisal and development of nursing staff responsible for organ and tissue donation, in conjunction with senior nursing staff;



• providing ongoing feedback to medical and nursing staff involved in organ and tissue donation processes as required;



• undertaking ongoing professional development in relation to organ and tissue donation;



• providing expert knowledge and advice to donor coordinators and hospital staff upon request (including willingness to be available on an on-call roster for specialist questions to ensure 24 hour cover).

The HBMDs are responsible for implementation, monitoring and evaluation of national protocols and practices in their hospital.

HBMDs at major metropolitan hospitals will have responsibility to liaise with outreach private and regional hospitals.” 9

[12] The duties of the Specialist Intensive Care are set out in a generic Medical Specialist position description, with it providing the following overview of the position:

“Peninsula Health provides a comprehensive range of acute, rehabilitative, aged care, palliative, residential, psychiatric and community health services from 10 sites to a population of approximately 300,000 people at Frankston and surrounding suburbs and on the Mornington Peninsula.

Specific services provided include Emergency and Ambulatory, Medicine and Critical Care, Surgery and Anaesthetics, Women’s Children’s Adolescents (WCA), Aged Care Medicine, Rehabilitation, Palliative Care, and Psychiatry.

The SMS has main roles as follows:

1. Medical care of a defined group of patients, customers, or clients (“patients”) under his or her care; for inpatients this is denoted by allocation of patients according to a roster developed by the Clinical Director (CD) or Unit Head (UH);

2. Supervision and teaching of Registrars, Hospital Medical Officers (HMO’s), and Medical Students in the treatment of allocated patients;

3. Proactively dealing with Patient Safety, Clinical Risk (including involvement in Mortality Review for all patient deaths under his/her care), Quality Improvement, Customer Relations, and Infection Control issues as they relate to patients under his/her care: including the specific notification of all Incidents or Near Misses relating to patients under his/her care.

4. Supporting the development of an evidence based medicine (EBM) approach with his/her patients.

5. Supporting the development of relevant Research activities; and ensuring that all proposed research proposals are forwarded to the Human Research Ethics Committee for approval.

6. Supporting the development of a Training program for Registrars where applicable, for HMO’s in conjunction with the Manager HMO Support Unit and Director of Clinical Training, and Medical Students in conjunction with the Clinical Dean.

The SMS is also a member of and required to attend:

• Service meetings convened by the Clinical Director or Unit Head.



• Peninsula Health Medical Staff Association.” 10

[13] Dr Majumdar’s HBMD role was funded through the Commonwealth Government, and in particular DonateLife, the program operated by the Organ and Tissue Authority about which, Dr Majumdar’s evidence was that it “works with States and Territories, clinicians and the community sector to deliver the Australian Government’s national reform program to improve organ and tissue donation and transplantation outcomes in Australia”. 11

[14] The context of the DonateLife program and Peninsula Health’s role within the program is set out within the evidence provided by the Respondent in the following way:

“21. The OTA works with States and Territories, clinicians and the community sector to deliver the Australian Government’s national reform program to improve organ and tissue donation and transplantation outcomes in Australia. The OTA is an independent statutory agency within the Australian Government Health portfolio.

22. Australia’s national reform program aims to implement a world’s best practice approach to organ and tissue donation for transplantation.

23. The twin objectives of the national reform program are to:

(a) increase the capability and capacity within the health system to maximise donation rates; and

(b) raise community awareness and stakeholder engagement across Australia to promote organ and tissue donation.

24. The DonateLife Network comprises DonateLife organ and tissue donation agencies and hospital based staff in 72 hospitals across Australia to work specifically on organ and tissue donation. Under the leadership of the OTA’s National Medical Director, the DonateLife Network includes DonateLife Medical Directors in each State and Territory.

25. These Directors are responsible for delivery of the national reform program in their respective jurisdictions. These Directors manage hospital based staff who are medical and nursing specialists in organ and tissue donation, and DonateLife agencies who specialise in organ donor coordination, donor family support, education coordination, communication activities and data and audit.

26. As I understand it, the OTA, via the Victorian Department of Health, provides funding to hospitals to employ medical donation specialists (as well as nurse donation specialists) as part of the DonateLife Network. Peninsula Health receives funding for such a role.” 12

[15] When originally employed by Peninsula Health, Dr Majumdar had a dual reporting line. In respect of the HBMD role, he reported to a senior administrator for daily operational needs as well as to the State Medical Director of the DonateLife program. 13 For his Intensivist role, Dr Majumdar reported to Professor John Botha, Peninsula Health Director of Intensive Care & Research and also an Adjunct Clinical Professor with Monash University.14

[16] In 2012, the funding received by Peninsula Health for the HBMD role was reduced to the equivalent of 0.3 FTE.

[17] As a result, Dr Majumdar’s employment was varied by agreement, with the substance of the variation being that he would no longer perform the Intensivist role and that instead he would work only as the HBMD. Further, his overall hours of work were reduced to 24 per fortnight, the equivalent of 0.3 FTE, which stands in contrast to his earlier commitment for the HBMD role of 0.375. 15 Professor Botha reports that at the time of the variation to his position, Dr Majumdar from that time forward focused upon the HBMD role and that he ceased carrying out any specialist duties outside of his HBMD role.16

[18] By 2014, Professor Botha reports he had formed the view that the HBMD role was not working as well as it should. In particular he took the view that the trial was not connecting appropriately with what he saw as the clinical intensivist regime of the hospital. 17 He also formed the view that the arrangement, as it operated in Peninsula Health from 2012, was not best practice since the HBMD role was a stand-alone nonclinical position, in comparison with what he saw in other hospitals.18 In addition, Professor Botha’s evidence is that he was concerned that he may have insufficient staff to cover the likely sabbatical absences of a number of practitioners that were scheduled to take place from 2015 onwards. As a consequence, he initiated a proposal to the Peninsula Health executive to modify the HBMD position, with the objective of once again linking it with the clinical role. This would satisfy not only his objective to have the role to no longer be a stand-alone nonclinical position, but also to ensure that he had a specialist available and funded to cover the forthcoming sabbatical absences.

[19] He raised this proposal with Peninsula Health executive management team:

“Following the discussion about my proposal, I was authorised by the hospital executive to create a new position incorporating the functions required of the externally funded medical donation specialist role (at a 0.3 FTE time fraction), but including an additional senior medical role to be funded by Peninsula Health (as a 0.2 FTE time fraction). The position created was that of Senior Medical Staff Member, incorporating the medical donation specialist role and clinical service as a member of the Peninsula Health ICU consultant staff. … I advocated for this change and the creation of the new role. I believed that such a reshaped role was necessary to integrate Dr Majumdar’s then existing 0.3 FTE role (the HBMD position) into the broader clinical framework.” 19

[20] Professor Botha’s evidence is explicit that not only was this to be a new position, but also that it was to be the end of Dr Majumdar’s position as it then existed, and which would otherwise end on 9 November 2014. Correspondence between Professor Botha and the hospital’s management between 31 October 2014 and 10 November 2014 showing the motivations and approval processes for the position was submitted into the evidence. That correspondence shows Professor Botha as indicating that he thought the arrangement in Peninsula Health at the Frankston Hospital is unique and not consistent with what happens in other hospitals across the State. The correspondence also demonstrates that coverage of the sabbaticals and related costs were issues on his mind. Further, it highlights that Peninsula Health realised that it could not use the DonateLife funding to backfill sabbaticals. Finally, it indicates that the proposed changes were motivated, at least in part, by the need to respond to the fact that Dr Majumdar’s appointment was about to expire. In particular, within that chain of correspondence, Kelly Gillies, the Acting Executive Director-Human Resources wrote the following in an email to Professor Botha and other managers:

“Hello all,

As discussed with John, I have had a chat with a couple of others but agree that as this is the end of his contract, we are able to state that at the end of his contract the position will be changing as outlined below and that we encourage him to apply. If he is unsuccessful then his contract will conclude as scheduled.

Agree that as this is the end of his contract, and purely a change to this role only, a change impact statement would not be required.” 20

[21] A position description was drafted for the new role, and amongst its terms are the following extracts from the position summary and key responsibilities:

“Position Summary

Organ Donation Role

• The successful applicant will have experience and knowledge in organ donation.



• The successful applicant will work with the Director of Intensive Care and relevant clinicians to increase organ and tissue donation at Peninsula Health.



• Education around organ donation will be an integral part of this responsibility.

Clinical service as a member of the ICU consultant staff will be an integral aspect of this appointment.

Senior Medical Staff are valued members of the leadership team at Peninsula Health committed to upholding values of the organisation and meeting our goals.

The Senior Medical clinician delivers safe, evidenced based person centred care to a defined group of patients and clients within their scope of practice. They also act in a supervisory and mentoring capacity for Registrars, Hospital Medical Officers (HMOs) and medical students and their allocated patients.

Key Responsibilities

• Provide high quality evidence based clinical care within the designated scope of practice



• Promote a culture of continuous improvement by monitoring services and practice



• Lead and manage junior staff to achieve optimum health outcomes



• Be aware of and work in accordance with organisational policies and procedures



• Research and Education within the ICU and Peninsula Health” 21

[22] Professor Botha’s evidence is that approval for this new position was then given, although the precise date upon which approval was given is not indicated. For the reason that the last of the email exchanges referred to above between the Peninsula Health managers was on 10 November 2014, and that Dr Majumdar’s contract of employment was due to be completed on 9 November 2014, approval for the new position plainly was after the fixed term contract expired.

[23] The evidence of both parties is that notwithstanding the expiry of the fixed term contract, Dr Majumdar kept working in accordance with the arrangement that existed before the contract expired. He was aware that his contract had expired. He took the situation to be that his employment would continue until he was otherwise advised.

[24] Dr Majumdar’s evidence is that towards the end of November 2014, the possibility of there being a new position was brought up by Professor Botha. In particular his evidence included the following:

“12. In late early December 2014, after my contract had expired (with the result that I was now in ongoing employment) Dr John Botha, Director of Intensive Care of the Respondent, advised me that additional funding had been secured and my role would be increased from the existing 0.3 FTE workload to 0.5 FTE (as in the past). This would enable a 0.2 FTE clinical role to be added on to the organ donation specialist role. At that time Dr Botha said to me that the Respondent’s human resources department had advised him that the Respondent had to advertise this role, and that this was in accordance with the Respondent’s policy.

13. I expressed concern to Dr Botha that I was, in effect, being asked to reapply for my existing position. I advised that I was quite happy to resume clinical duties if the increase in hours could be funded. I also offered to interview for the clinical component of 0.2 that was in addition to my existing position. I received confirmation from both Peninsula Health and DonateLife that funding for my existing 0.3 FTE position was already secure till at least June 2016. I also clarified through DonateLife that the position description for my existing 0.3 FTE role was unchanged. In response, Dr Botha said that I should apply for the role as I was a strong candidate. I was very surprised that my role needed to be advertised, but I felt that I had no choice other to go through the process because Dr Botha required it. I therefore applied for the role.” 22

[25] With the exception of referring to Professor Botha telling him that the changes would be to “my role”, the evidence given by Professor Botha about this conversation is broadly consistent with that of Dr Majumdar.

[26] The parties also agree that Dr Majumdar encouraged by Professor Botha to apply for the position and that he was a strong candidate for the position.

UNDERTONE OF MOTIVES

[27] The position was advertised externally to the hospital and Dr Majumdar and one other candidate applied. Interviews were held with the two candidates on 18 December 2014. The interview panel comprised five people including Professor Botha, Dr Sussanah Ahern (Executive Director of Medical Services), Mr Brendon Gardner (Executive Director-Operations), Ms Jenny Abernathy (Operations Manager), Dr Rohit D’Costa (State Medical Director, DonateLife Victoria) and Dr Ian Carney (Deputy Director of Intensive Care). 23

[28] On 24 December 2014, Dr Majumdar enquired of one of the panel members, Mr Gardner about progress with the recruitment and was told by him that the panel had agreed both candidates were “equally employable” and that one member of the panel was in the process of doing reference checks. Dr Majumdar’s evidence is that Mr Gardner told him he should continue in his duties as usual until further notification. 24 Mr Gardner did not give evidence in these proceedings.

[29] In the end, Dr Majumdar was not successful in his application. He was informed of that fact on 9 January 2015 by Dr Carney, since Professor Botha was on leave at the time. Dr Majumdar’s evidence about how he was told he was unsuccessful includes the following:

“16. On 8 January 2015 Dr Carney sent me a text message, telling me he wanted to meet with me to discuss the outcome of the interview.

17. At this point I was very concerned about this process, and worried that I may not have been the preferred candidate. I had this potentially adverse decision of the panel hanging over my head. I kept reminding myself, however, that I was well qualified for the position and had performed well in the role. Why, in those circumstances, would the Respondent bring in an external person to replace me?

18. Because of my concerns, I sought the assistance of the Australian Medical Association (AMA). On 9 January 2015, I attended a meeting with Dr Carney in his office at Frankston hospital. Mr Rod Felmingham of the AMA accompanied me at that meeting. Dr Carney said that Dr Ahern had advised the Respondent’s Board that I was not the preferred candidate for the 0.5 FTE role. I was told that the role would go to someone else, but Dr Carney did not feel free at that stage to tell me that person’s name or qualifications or anything about them.

19. Dr Carney then told me that Dr Ahern would be back at work on 27 January 2015 and that a meeting would be convened at that time. I then asked Dr Carney, “What happens now?” Dr Carney’s response was that he recommended that I be guided by Mr Felmingham and undertook to keep the decision of the interview panel confidential “until this matter is resolved”. He also said that Dr Ahern had said that “as you are out of contract her feeling was that a month’s notice was sufficient”.” 25

[30] During this period Dr Majumdar kept working for the hospital. On 19 January 2015, he met with Professor Botha who confirmed that he had been unsuccessful. On 29 January 2015, Dr Majumdar received correspondence from Peninsula Health advising that his employment would cease on 9 February 2015. 26

[31] I understand it to be the case that the logic behind the notification that employment would finish on 9 February 2015 is that such date is one month after the date Peninsula Health says Dr Majumdar was told in the meeting with Dr Carney that his employment would end. However, Dr Majumdar contests that he was told his employment would end in the meeting on 9 January 2015. Instead he puts forward that he was told by Dr Carney that he should keep the decision of the interview panel confidential until the matter is resolved and that his colleague, Dr Ahern had said to Dr Carney that “as you are out of contract her feeling was that a month’s notice was sufficient”. 27

[32] The evidence does not disclose that in their discussion on 19 January 2015 Professor Botha made reference to a specific termination date for Dr Majumdar.

[33] On 3 February 2015, Professor Botha wrote to Peninsula Health staff advising the appointment of Associate Professor Andrew Davies to the role of Director Organ Donation and Intensivist, indicating that this was “a joint appointment through DonateLife and Peninsula Health” and that he would commence employment on 9 February 2015. The same advice indicated his thanks to Dr Majumdar “for his contribution as Director of Organ Donation over the past 5 years”. 28

[34] Dr Majumdar continued to work with Peninsula Health until 23 February 2015.

[35] As set out above, the Applicant’s contention in this matter is that he lost his employment having been “effectively made to apply for his own job”, and that the resultant termination of his employment, when he did not secure the ongoing position was, in all circumstances an unfair dismissal.

[36] I consider in detail the proposition which is put by the Applicant in this regard.

LEGISLATION

[37] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows;

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

CONSIDERATION

[38] The arguments put forward by the Applicant depend upon there being a contractual linkage between the position held by Dr Majumdar prior to 9 November 2014 and the position that was subsequently advertised by Peninsula Health and which he failed to win.

[39] A consideration of the evidence presented in this matter leads to the following findings which will inform my consideration of the Applicant’s proposition:

• Dr Majumdar’s original employment with Peninsula Health was subject to a fixed term contract expiring on 9 November 2014;



• While the original fixed term contract provided for the performance of a composite role, the contract was varied with the consent of both parties with effect from 1 July 2012 so that for the remainder of the term of the contract the only role to be performed by Dr Majumdar was the HBMD role;



• The term of the contract was unaltered by the variation and its expiry date continued to be 9 November 2014;



• There is no evidence of an explicit requirement on the part of Peninsula Health to first offer to Dr Majumdar a continuation of the original, but varied, position, being the restructured HBMD role, as advertised in December 2014;



• There is no evidence of an explicit requirement on the part of Peninsula Health to first offer to Dr Majumdar a further varied continuation of the HBMD role;



• Dr Majumdar’s fixed term contract of employment does not explicitly deal with the circumstances of employment performed after its expiry;



• The work performed by Dr Majumdar after 9 November 2014 was on the same terms and conditions as work performed on and before that date, save that the period of employment specified in the contract that clause 2.1 was no longer operable.



• One such term of employment that applied to Dr Majumdar both before and after the expiry date of the fixed term contract of employment was that his employment was subject to the AMA Victoria-Victorian Public Health Sector Medical Specialists Enterprise Agreement 2013, which commenced operation on 17 December 2013, and is a successor to the certified agreement referred to in the fixed term contract. 29

[40] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the legislative factors set out earlier.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[41] Even though Dr Majumdar was subject to a fixed term contract of employment there were no attempts on the part of Peninsula Health to discuss with him what would be his status after the expiry of the contract. Professor Botha’s evidence is that while he knew the position was coming to an end, he did not notify Dr Majumdar of that. While such may be an oversight it was because:

“… in November 2014, the OTA/Department of Health funded position plus intensive care add on was subject to the impending recruitment process”. 30

[42] Such a situation meant that there was no meaningful attempt by Peninsula Health to inform Dr Majumdar, a senior medical professional, of what his future employment may be.

[43] Then again, there were no attempts on the part of Dr Majumdar to raise the subject with Peninsula Health.

[44] What occurred, based on the apparent mutual conduct of the parties, was that Dr Majumdar moved from a fixed term appointment to ongoing employment, albeit an arrangement with an indeterminate future. That ongoing employment was subject to the terms and conditions of the enterprise agreement. It was also subject to the terms of the original 2009 written contract of employment, with the exception of the duration term, which had expired, as well as the terms of other documents referred to within the contract.

[45] In late November or early December 2014, Dr Majumdar learned that Peninsula Health was to advertise a restructured HBMD role.

[46] The fact that he knew at that time the position was to be advertised would reasonably have indicated to him that the ongoing status of the position in which he was then working was now open to question in some way. There is no evidence that would support a proposition that Dr Majumdar could have reasonably expected that Peninsula Health would keep doing the work he performed as HBMD as well as recruit a new and additional organ donation specialist.

[47] Even though he applied for the advertised position and though he had interviewed well, and was given positive feedback about his interview on 24 December 2014, by at least 9 January 2015 it would have been evident to him his ongoing status was not assured, and most definitely by 19 January 2015, when he had the conversation with Professor Botha, it was evident to him that the advertised position would be going to someone else.

[48] The evidence supports that Dr Majumdar was told by Dr Carney in the meeting on 9 January 2015 that he was not the preferred candidate for the advertised position. He was told that the role would go to someone else even though Dr Carney did not feel free at that stage to tell him the successful candidate’s name. 31

[49] The evidence before the Commission about the circumstances by which Dr Majumdar came to be told that he would not be working for Peninsula Health shows that he did not have finality on the subject until the correspondence from Peninsula Health on 29 January 2015.

[50] The only evidence before the Commission in respect of the meeting between Dr Carney and Dr Majumdar on 9 January 2015 is from Dr Majumdar himself and there is no reason that would lead me to not accept his evidence that he was not told conclusively in that meeting when his employment would be ending. Further, while there is evidence from both Dr Majumdar and Professor Botha about their discussion on 19 January 2015, the evidence does not resolve in favour of a finding that Dr Majumdar was told in precise terms that his employment would be ending or how much notice was being given of his dismissal.

[51] As a result, I find that while it was likely Dr Majumdar knew he would be finishing his employment with Peninsula Health, and sooner rather than later, he was not aware of when the finish date would be, until Peninsula Health’s correspondence to him dated 29 January 2015.

[52] Contractually, the evidence allows a finding that the role that was advertised by Peninsula Health in December 2014 was not that which Dr Majumdar occupied. While elements of the advertised position were duties that he performed, and those elements were then combined with other duties that he had once performed, the fact of the matter is that the position occupied by Dr Majumdar in November 2014 is not the one that was subsequently advertised. What was advertised was a position with an organ donation role, combined with clinical service. The position held by Dr Majumdar at the time only had an organ donation part to it.

[53] The evidence does not allow a finding that there was an unfair dismissal because Dr Majumdar was not offered the position that was advertised in December 2014.

[54] Looked at contractually, Dr Majumdar’s employment did not finish when the fixed term employment expired and he moved to some measure of ongoing employment with the hospital.

[55] Professor Botha denies that the fixed term date of the written contract existed purely for administrative convenience. 32 He accepts it was an oversight in not notifying Dr Majumdar that his contract was about to come to an end, and he doubts he would have told Dr Majumdar that his contract would soon end, had he thought to do so in early November 2014.33 While the evidence on such circumstances does not rise to the point of showing the contract’s term was merely there for administrative convenience, it does show that what occurred was a further consent variation to the contract to keep working in accordance with its terms. The evidence does not support that in that circumstance there was ever a promise of moving from the varied fixed term contract to some new contract that incorporated the advertised position. There was not a variation of the contract either explicitly or impliedly to the effect that Dr Majumdar would be employed in the advertised position.

[56] To the contrary, Dr Majumdar was told the position needed to be advertised and was encouraged to apply. Both elements, of advertisement and application, can only reasonably be seen as indicators of uncertainty. Dr Majumdar might apply, but then again he might not. He may be successful in his application, but then again may not. Neither contingency would lead to a finding that there was a promise or entitlement of Dr Majumdar to the advertised position.

[57] The circumstance which is before the Commission is one in which Peninsula Health had an ongoing need for the work being performed by Dr Majumdar but in which it had restructured the terms upon which the work was to be performed, so as to incorporate within the new role the HBMD functions, and select another person to perform the restructured role. There were several motivators for that, including the desire on Professor Botha’s part to optimise linkages of the HBMD part of the job with the hospital’s clinical setting, as well as to ensure coverage for forthcoming sabbaticals.

[58] Peninsula Health put forward that in context, and in accordance with the Commission’s authorities on the subject, this is a circumstance in which the question of whether there is a valid reason for the termination of an employee is, in effect, a neutral criterion. In this regard, Peninsula Health rely upon a finding by a Full Bench majority in the matter of UES (Int’l) Pty Ltd v Leevan Harvey, 34 (UES) in which it was found that a dismissal unrelated to the applicant’s capacity or conduct was a neutral matter. In that matter, it was found as follows:

“[27] The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s.396(a) to (c), FWA only needs to consider s.387(a) concerning whether there was a valid reason for a person’s dismissal related to the person’s capacity or conduct if one or more of the criteria in s.389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s.389 which have not been met can be taken into account in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s.387(h), being “any other matters that FWA considers relevant”.

[28] We think it unlikely that it was intended that FWA’s consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct would extend to the process for selecting the person for redundancy when:

(i) the process for selecting a person for redundancy is not relevant to FWA’s determination of an unfair dismissal remedy application if the s.389 criteria for a case of genuine redundancy are met, and

(ii) any unmet criteria in s.389 of the FW Act can be taken into account as part of s.387(h) in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable.

[29] To conclude otherwise would mean that where an employer met the s.389 criteria for a genuine redundancy the process for selecting the person for redundancy would not be a matter FWA would consider in respect of an unfair dismissal remedy application. However (unless the application was otherwise determined) an employer who did not meet the s.389 criteria because, for example, they failed to consult as required by s.389(b) of the FW Act would have both the failure to consult and the process for selecting the person for redundancy considered in any unfair dismissal remedy application.

[30] We recognise that statutory provisions concerning a valid reason for termination of employment connected with or related to an employee’s capacity or conduct and the issue of the selection process for redundancy were considered by the Full Federal Court in Kenefick v Australian Submarine Corporation Pty Ltd (No 2) and Cosco Holdings Pty Ltd v Thu Thi Van Do and Others and a Full Bench of the Australian Industrial Relations Commission in Windsor Smith v Lui. However, the legislative context in which each of those decisions was made was very different to that in the FW Act.

[31] In our view the evidence established that the reasons for Mr Harvey’s dismissal by UES was that UES no longer required his job to be performed by anyone because of changes in the operational requirements of its enterprise and it was not reasonable in all the circumstances to redeploy him. We earlier set out the evidence relevant to the changes in the operational requirements aspect of these reasons. In relation to the no reasonable redeployment aspect, the evidence was that Mr Harvey was a storeperson in Victoria and the only position available at the time was a sales representative position in Western Australia. But for the failure of UES to comply with its obligation under the relevant modern award that applied to Mr Harvey’s employment to consult about the redundancy, Mr Harvey’s dismissal would have been a case of genuine redundancy within the meaning of the FW Act. The evidence also established that the reasons for his dismissal were “sound, defensible and well-founded” reasons.

[32] The evidence in this case did not establish that there was any other reason for Mr Harvey’s dismissal. In other words, if there had been no changes in the operational requirements of UES’s enterprise or if relevant redeployment had been available, Mr Harvey would not have been dismissed. The valid reasons for Mr Harvey’s dismissal did not relate to his capacity or conduct in the requisite sense.” 35 (references omitted)

[59] In relation to the question of the criterion within s.387(a), valid reason, the majority found:

“[42] As we have already indicated, in our view the reasons for the dismissal of Mr Harvey by UES were not related to his capacity or conduct (including its effect on the safety and welfare of other employees). Accordingly, there cannot have been and was not a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case we regard it as a neutral matter with respect to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable.” 36

[60] I accept that in this particular case, and in light of the foregoing, the question of whether there was a valid reason on the part of potential health is a neutral factor in my consideration. This is a case where, because of changes in Peninsula Health’s operational requirements Dr Majumdar was surplus to requirements. His position was not funded for continuation, and in light of the fact that the HBMD functions were incorporated in the duties of a different position, it would have been necessary to place Dr Majumdar in another position, if one existed, for him to continue in employment.

(b) whether the person was notified of that reason;

[61] The language of the criterion in s.387(b), referring as it does to whether the employee was notified of that reason, which in context is the valid reason referred to in s.387(a), makes it plain that the need to notify person of the reason for their termination is in the context of a circumstance where a valid reason for the dismissal relating to the capacity or conduct has been found. In this particular case, where a neutral finding is to be made about the existence of a valid reason, the criterion is inapplicable. The same reasoning exists in respect of the criterion in s.387(c) which also refers to the person being given an opportunity to respond to any reason relating to their capacity or conduct. Such does not arise in the case of Dr Majumdar.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[62] In addition that the authorities on the subject of s.387(c) indicates that in relation to the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal, is consequential to a finding there is a valid reason for dismissal, which is not the case in this matter. 37

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

[63] In relation to the consideration of s.387(d) and whether there was any unreasonable refusal by the employer to allow a support person to assist at any discussions relating to dismissal, I note that Dr Majumdar had with him in the meeting with Dr Carney on 9 January 2015 a representative from the AMA who was there to assist him. The question of unreasonable refusal does not arise in any of the evidence on this matter.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;

[64] In relation to the criterion within s.387(e), Dr Majumdar’s dismissal does not relate to his unsatisfactory performance and so the question whether he had been warned about such performance does not arise. Part of Dr Majumdar’s case was that Professor Botha’s decision making about the restructuring of the position that finished in November 2014, together with the creation of the new position may have been influenced by the regard in which Dr Majumdar’s performance was held by Professor Botha. There is evidence on that subject, and it appears more likely than not that Professor Botha preferred someone other than Dr Majumdar to work in the role. The way he failed to speak with Dr Majumdar about his future prior to the end of the fixed term contract; his lack of openness about what would happen to Dr Majumdar if he did not win the position; and that he left it to others to relay to Dr Majumdar that he was not successful in his application when Professor Botha was on leave, reinforce this likelihood.

[65] However, it does not follow that Dr Majumdar’s employment came to an end for reason of unsatisfactory performance. This is for the reason that I have found that contractually there was no entitlement on part of Dr Majumdar to be offered the advertised position; that the position he did hold was subject to a fixed term; and that there is no evidence that the work performed by him after the expiry of the fixed term was anything other than subject to the prevailing needs of Peninsula Health.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[66] In relation to the criterion within s.387(f) and (g), which relate to the size of the employer’s enterprise and its access to dedicated human resource management specialists or expertise, the evidence is that Peninsula Health is a large employer, as well as having access to the necessary specialists or expertise.

(h) any other matters that the Fair Work Commission considers relevant.

[67] The criterion within s.387(h), requires consideration of any other matters that the Commission considers relevant in assessing whether in all the circumstances Dr Majumdar was unfairly dismissed. While the evidence leads to a finding that Dr Majumdar’s continued employment was surplus to requirements, and that by mid-January 2015, he could reasonably have been expected to have formed the view that his ongoing employment was under serious question, he was, nonetheless entitled to be given the period of notice allowed for within the 2013 Agreement. The hospital was very vague in the discussion between Mr Carney and Dr Majumdar on 9 January 2015 about the period of notice that he would receive when his employment finished. Mr Carney could have come forward to give evidence about the conversation, but did not do so.

[68] The letter of termination, issued on 29 January 2015, then stated that Mr Majumdar would only be entitled to one month’s notice, with the letter assuming that the notice had been given to Dr Majumdar on 9 January 2015.

[69] The totality of the evidence leads to a finding that Dr Majumdar’s termination of employment was not notified to him until 29 January 2015 and I find that it is from that date that the notice of termination should run.

[70] The AMA Victoria-Victorian Public Health Sector Medical Specialists Enterprise Agreement 2013 explicitly requires that three months’ notice of termination should be given to the person bound by the Agreement, providing in clause 38;

“38. TERMINATION OF EMPLOYMENT- NOTICE OF TERMINATION

38.1. Either the Health Service or a Doctor may terminate the employment by giving three months’ written notice to the other party, or any other period as agreed between the Health Service and the Doctor, subject to the requirements of the NES.

38.2. The Health Service may provide a payment in lieu of part or all of the notice period prescribed in clause 38.1.

38.3. Subject to financial obligations imposed on the Health Service by any Act, if a Doctor fails to give notice the Health Service shall have the right to withhold monies due to the Doctor with a maximum amount equal to the ordinary time rate of pay for the period of notice.

38.4. In calculating any payment in lieu of notice, the wages to be used will be those the Doctor would have received in respect of the ordinary time worked during the period of notice had the Doctor’s employment not been terminated.

38.5. The period of notice in clause 38.1 does not apply where the conduct of a Doctor justifies instant dismissal, or to those engaged for a fixed term, specific period of time or for a specified task or tasks.”

[71] I consider the fact that Dr Majumdar was not given such period of written notice as required by the Agreement, and that no other period was agreed between the parties, as matters that should properly be taken into account in assessing whether Dr Majumdar was unfairly dismissed in accordance with the criterion within s.387(h).

[72] Having given consideration to all of the criteria within s.387, and having found that the question of there being a valid reason for Dr Majumdar’s dismissal is a neutral consideration, the absence of the notice as required leads to a finding that he was dismissed unfairly.

[73] I now consider the question of remedy.

REMEDY

[74] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are set out in ss.390-392.

[75] Pursuant to subsection 390(3) an order for the payment of compensation to a person must not be made unless the Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[76] The issue of when reinstatement is inappropriate and the related question of the need for trust and confidence between the parties was recently considered at length by the Full Bench of the Commission in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter. 38

[77] I am satisfied in all circumstances that it would be inappropriate to reinstate Dr Majumdar and that instead I should give consideration to order the payment of compensation.

[78] As referred to above, I found that Dr Majumdar was given notice of termination of employment on 29 January 2015. He continued to work with Peninsula Health until 23 February 2015, 39 which is a period of more than three weeks but less than four weeks after having been given notice of his termination on 29 January 2015. He was entitled to have either have worked or been given payment in lieu of notice for slightly more than a further nine weeks, that is until 29 April 2015.

[79] At the time of dismissal, Dr Majumdar’s remuneration from Peninsula Health was approximately $104,000 per year. 40

(a) the effect of the order on the viability of the employer’s enterprise;

[80] There is nothing before me which would indicate that an order of compensation affects the viability of Peninsula Health.

(b) the length of the person’s service with the employer;

[81] Dr Majumdar’s employment with Peninsula Health was slightly more than five years.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[82] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters:

[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

“. . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.”

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the “anticipated period of employment”. This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the “anticipated period of employment” are deducted. An example may assist to illustrate the approach to be taken.”  41 (endnotes omitted)

[83] In Dr Majumdar’s case, the “anticipated period of employment” was the period remaining to 29 April 2015, being the expiry of the notice period that he was entitled to under the enterprise agreement applying to Peninsula Health. He finished with Peninsula Health on 23 February 2015, meaning that he had worked roughly a quarter of the notice period and was entitled to have worked the remaining period, which I calculate to be 72.2% of the total.

[84] At the time that Dr Majumdar finished with Peninsula Health, his part-time salary was $104,000 per year.

[85] In addition to working at Peninsula Health, Dr Majumdar also worked at two other hospitals, firstly the Peter MacCallum Cancer Institute and the Valley Private Hospital in Melbourne’s east.

[86] The evidence in relation to the latter employment is that Dr Majumdar worked for that hospital for about six to eight weeks in a whole year and that he was remunerated on the basis of a fee-for-service arrangement. There is no evidence before me about any such payments from that hospital coming to Dr Majumdar during the balance of the notice of his termination period from Peninsula Health.

[87] In relation to the Peter MacCallum Cancer Institute, Dr Majumdar is employed on a sessional basis as a specialist in intensive care. He has been in that position since 2010 and has been paid as a visiting medical specialist. The work he performs at the Peter MacCallum Cancer Institute depends upon a number of factors, including his availability and the needs of that Institute. Dr Majumdar’s oral evidence is that since the termination of his employment by Peninsula Health, has been free to work greater hours at the Peter MacCallum Cancer Institute. Evidence was provided to the Commission in the form of Dr Majumdar’s payslips from that Institute for the pay dates between 7 January 2015 and 8 July 2015. Analysis of those payslips shows the following:

• His year-to-date gross earnings to 4 January 2015 were $191,687.19, relating to a period of 187 days, or 13.36 fortnights, of the 2014/15 financial year;



• His year-to-date gross earnings from 5 January 2015 to 21 June 2015 were $186,871.21, relating to the period of 167 days or 11.93 fortnights, of the 2014/15 financial year;



• Dr Majumdar’s average fortnightly earnings in the first part of the financial year were $14,745.17, compared to $14,374.71 in the second part of the financial year.

[88] As a result of this analysis, I consider that, at least on an average basis, Dr Majumdar’s earnings from the Peter MacCallum Cancer Institute after his termination from Peninsula Health were not significantly distinguishable from those before his termination. Further, I consider that such variation as occurred in the payments received by Dr Majumdar from the Peter MacCallum Cancer Institute between the two periods is explained by the normal variations in that hospital’s call upon Dr Majumdar, rather than being explained by his greater availability as a result his termination by Peninsula Health.

[89] As a consequence of this analysis, I do not consider it desirable to make an adjustment for the earnings that Dr Majumdar received from the Peter MacCallum Cancer Institute, or indeed the Valley Private Hospital in making an assessment of the remuneration that Dr Majumdar would have received, or would have been likely to receive, if he had not been dismissed. That is, I consider the assessment of the loss incurred by Dr Majumdar from his dismissal by Peninsula Health should proceed on the basis only of the monies that he did not receive from Peninsula Health for the remaining period of the notice period he was due.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[90] As referred to above, Dr Majumdar continues to be employed by the Peter MacCallum Cancer Institute and the Valley Private Hospital.

[91] Despite my findings about the comparisons in the earnings from the Peter MacCallum Cancer Institute between the two periods of the financial year, Dr Majumdar’s evidence is that he has made himself more available for work to that hospital and will continue to do so.

[92] I consider that Dr Majumdar has made all necessary efforts to mitigate the loss suffered by him from his dismissal from financial health.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[93] In making an assessment of Dr Majumdar’s earnings between the date of his dismissal and the making of the order for compensation and when it is paid, it is appropriate I take into account the reasoning set out above in relation to assessment of his overall loss.

[94] That is, I consider that the earnings Dr Majumdar is receiving from sources other than Peninsula Health do not significantly vary, at least at the time of hearing, from those same sources prior to his dismissal.

(g) any other matter that the FWC considers relevant.

[95] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

CONCLUSION AND ORDERS

[96] After consideration of the foregoing issues, I find that Dr Majumdar was dismissed and that it was unfair within the meaning of the Act.

[97] I find that reinstatement is not an appropriate remedy in this case.

[98] I find that compensation is appropriate.

[99] The approach by the Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5). 42

[100] The Full Bench in the Haigh v Bradken Resources Pty Ltd 43 has recently clarified the assessment of compensation and connected issues that require dealing with, including the deductions of amounts for misconduct, and consideration of the compensation cap. So far as is relevant to this matter, the Full Bench found:

“[10] The frequently quoted case on compensation calculations is Sprigg v Paul Licensed Festival Supermarket in which a Full Bench of the Australian Industrial Relations Commission (AIRC) confirmed the following steps in determining compensation under the unfair dismissal provisions of the Workplace Relations Act:

“1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,

2. Deduct monies earned since termination,

3. Deductions for contingencies,

4. Calculate any impact of taxation,

5. Apply the legislative cap.”“ 44 (references omitted)

[101] In relation to the matter of contingencies, I find there are none that ought be taken into account in this matter. I take this view because of the relatively short period assessed for the “anticipated period of employment”.

[102] Having regard to the considerations established by s.392 of the Act and the criteria established by the Commission, I find that compensation should comprise a payment by the Respondent to the Applicant calculated as 72.2% of the salary and superannuation payments that would have been received by Dr Majumdar in a three month period.

[103] At the time that he was dismissed, Dr Majumdar’s part-time salary was $104,000 per year, and he would have been paid $26,000 in a three month period. Superannuation at the rate of 9.5% would increase that amount by a further $2,470, making a total of $28,470.

[104] 72.2% of that total amount is $20,555, which is the amount that will be awarded to Dr Majumdar as compensation.

[105] The above amount does not exceed the compensation cap applying at the time of dismissal.

[106] An order requiring Peninsula Health, to pay to Dr Majumdar the total amount of $20,555 taxed according to law, is issued in conjunction with this decision.

[107] In accordance with this decision, $18,772, less taxation, is to be paid directly to Dr Majumdar, and $1,783 is to be paid to his superannuation account.

COMMISSIONER

Appearances:

J. Tracey of Counsel for the Applicant.

N. Harrington of Counsel for the Respondent.

Hearing details:

2015.

Melbourne.

22 July.

 1   Exhibit A1, para 21

 2   Exhibit R2, para 59

 3   Exhibit A2, para 10

 4   Exhibit R3, para 2

 5   See s.382(b)

 6   Exhibit R2, attachment JB-1

 7   Ibid

 8   Ibid

 9   Ibid, attachment JB-1, pages 23-24

 10   Ibid, pages 18-19

 11   Exhibit A1, para 4

 12   Exhibit R2, paras 21-26

 13   Ibid, attachment JB-1, page 25

 14   Ibid, para 14

 15   Ibid, para 18

 16   Ibid, paras 18, 33-34

 17   Ibid, para 37

 18   Ibid, para 38

 19   Ibid, para 42

 20   Ibid, attachment JB-5, page 1

 21   Ibid, attachment JB-6, page 1

 22   Exhibit A1, paras 12-13

 23   Ibid, para 14

 24   Ibid, para 15

 25   Ibid, paras 16-19

 26   Application for unfair dismissal remedy - attachment

 27   Exhibit A1, para 19

 28   Ibid, attachment B

 29   Exhibit R2, para 19

 30   Ibid, paras 64-65

 31   Exhibit A1, para 18

 32   Exhibit R2, para 68

 33   Ibid, paras 65-66

 34   [2012] FWAFB 5241

 35   Ibid, at [27]-[32]

 36   Ibid, at [42]

 37   Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41]; see also Wadey v YMCA Canberra [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85]

 38   [2014] FWCFB 7198

 39   Exhibit R2, para 61

 40   Ibid, para 33

 41   Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

 42   See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

 43   [2014] FWCFB 236

 44   Ibid, at [10]-[12]

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