Robert Douglas Hutchinson and Health Services Union of Australia v Dorevitch Laboratory Services Pty Ltd T/As Dorevitch Pathology

[1995] IRCA 345

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  VI 2688 of 1994  

B E T W E E N:

ROBERT DOUGLAS HUTCHINSON
& HEALTH SERVICES UNION OF AUSTRALIA
Applicant

A N D

DOREVITCH LABORATORY SERVICES PTY LTD
t/as DOREVITCH PATHOLOGY 
Respondent

REASONS FOR DECISION

1 August 1995  PARKINSON JR

The applicant was employed by the respondent as a Medical Scientist at its
pathology laboratory situated at Hamilton Hospital.  He had previously been
employed at that location by the previous operator of the laboratory since 1990.  Upon transfer of the business, the applicant was employed by the respondent. However, he no longer retained the title of department head after the respondent took over the operation of the laboratory.

The applicant was supervised by a manager, Mrs Stephens, and ultimately by the laboratory medical officer, Dr Layton.  These persons had also previously been  engaged by the former employer of the applicant and there had been an ongoing working relationship between them.

The incident which resulted in the termination of the applicant’s employment arose out of a full blood analysis performed at the laboratory on 6 December 1994.  That analysis was performed in part by the running of a portion of the blood sample through a machine called a Coulter machine. This machine has the capacity to analyse various aspects of blood profile, including the haemoglobin levels in the sample under scrutiny. Together with this test, a film was made on a slide for separate visual examination and analysis by a medical scientist. 

In the present circumstances the Coulter test results reported abnormally low levels of haemoglobin in the patient.  The patient was a child of 4 years of age and, whereas the normal haemoglobin range was 11-14, in this case the result was 4.2. The evidence is clear that the applicant did not run the Coulter test on that day, but rather that it was performed by  another scientist, Mrs Edwards.  The applicant did however perform the analysis of the blood film and, in conjunction with the Coulter result, reported and sent the report for verification. His report (Exhibit F8) identified that the blood film together with the Coulter result indicated marked anaemia. The test results were subsequently verified by Mrs Stephens, although the circumstances surrounding their verification are in dispute between the parties.

The patient’s  medical officer queried the result, and the patient presented the following day for retesting. The second test identified normal haemoglobin levels. The evidence was that the Coulter test had apparently malfunctioned, probably as a result of what was described as a short sample, being too small a quantity of blood being expirated into the machine.  The result was that an incorrect result was provided to the medical officer treating the patient which, whilst it did not have any serious consequences in this instance, did have the potential for mishap.

The issues in dispute between the parties relate to the processes followed by the applicant in reporting on the test results, including the checking and reporting procedures followed by the applicant both at the time of the testing and subsequently, and the veracity or accuracy of the information given to Mrs Stephens prior to the verification of the report results, and to Dr Layton during the course of subsequent investigations.

I turn now to my findings of fact in this matter and my decision as to the validity of the reason for the termination of the employment.

S170DE(1)- Valid Reason

In this proceeding there is a fundamental issue raised by the respondent in relation to its capacity to rely upon the accuracy of information given by its scientist employees.  The respondent’s case was not that the mistake had been made, but rather that there had not been a sufficient or appropriate response by the applicant. Further, the respondent says that the applicant had either attempted to cover up the mistake, or was simply indifferent to it, viewing it as minor and of little consequence. The indifference, it was said, manifested itself during the testing stage and also in the subsequent investigation stage after the mistake had been discovered. These were the stated reasons for the termination of the employment.

In this case it is my view that there was a breakdown in the procedure of verification of results at all stages of the process in the laboratory. From Mrs Edwards, who all parties acknowledge ran the Coulter test and, apparently for some reason, did not query the abnormal result initially, to the applicant who did not recheck or clarify with Mrs Edwards, to the verification stage where no recheck of an abnormal result was undertaken by Mrs Stephens. The evidence of Ms Taaffe, a medical scientist with expertise in haematology who was called by the applicant, was that the figures on the Coulter print-out of 6 December would have indicated to an experienced haematologist that there was an error. 

The evidence was that the applicant was the most experienced scientist in the laboratory as far as haematology was concerned. Mrs Stephen’s evidence was that she relied upon the applicant’s expertise in this regard. The evidence was that the applicant was aware of this reliance and was aware of his relative expertise in the area. In this sense, if one accepts the evidence of Mrs Stephens that she queried the result with the applicant and that he said it had been rechecked, no fault can be laid at the feet of Mrs Stephens, notwithstanding that in an ideal world the process of results being verified by a person who is unable to identify that there may be inherent inconsistencies within the blood analysis which founds the report, would not recommend itself. However, this laboratory is a small laboratory with a limited number of medical scientists. In the circumstances of this workplace it is expected that all staff would exercise their expertise to the maximum in the performance of their duties, in view of the staffing limitations.

The report drawn  by the applicant by reference to the Coulter results and the blood film observations indicated that the results were all consistent with extreme anaemia. It is clear on the evidence that the applicant did not check the Coulter result with Mrs Edwards. He looked at the blood film only. There is, however, discrepancy in the evidence as to the steps which the applicant represented he had taken to check the result at the time of the testing.

The evidence of  both Mrs Stephens and Dr Layton was that the applicant had informed them both that he had ‘rerun the test’. This, it was said, meant that he had represented that he had rerun the Coulter test. In the case of Mrs Stephens, her evidence was that the applicant informed her of this when she queried the apparently abnormal result with him during the course of the verification process.  Dr Layton gave evidence that the applicant told her that he had rerun the test in the presence of Mrs Stephens on 7 December 1994 in the course of Dr Layton’s investigations into the incident.

The applicant denied that this question was ever asked of him by either person prior to the termination interview on  14 December 1994.   He did not dispute the interpretation to be placed on the question if it had been asked.  I accept that the proper interpretation of such a query would be that it related to the Coulter test. I turn now to consider the issue as to whether the question was asked by either Mrs Stephens or Dr Layton.

I have carefully considered the evidence and have been struck by various anomalies which are without explanation if the question had not been asked and replied to as suggested by the respondent.  In particular, these relate to the process adopted by Dr Layton in investigating the error.  Her evidence was that a standard laboratory investigation protocol was followed by her.  Her evidence, together with that of every other witness in the proceeding, was that the Coulter machine was the most likely place for the error to have been made.  This, she said, is where she starts her investigation and, it is reasonable to conclude, why she asked the applicant whether he had rerun the test (see T.359).

It was as a result of that answer that the investigation process moved on to the next level, that is to check whether there had been a mix-up in the samples actually tested. No inquiries were made of Mrs Edwards at the first stage of the investigation. There were no steps taken in relation to the Coulter machine until later in the process, after the sample was recovered by Mrs Stephens.  In my view, the evidence from all parties reveals that the logical first stop for the investigation was the Coulter machine, and I think it unlikely that Dr Layton would have simply overlooked this step and moved to the next stage without querying whether this test had been rerun.

I am also satisfied that there was inconsistency and equivocation in the evidence of the applicant, in particular in relation to the following matters. There was no evidence of the applicant that he had raised the issue of there being insufficient blood for a retest at any of the meetings with Dr Layton or Mrs Stephens on 12 or 14 December 1994. Further, the applicant was at first non-committal in his evidence as to what was the appropriate protocol for anomalous results and as to the conclusions he drew from his observations of the blood film, saying that there was a discrepancy but it was not sufficient to warrant changing the report.

Further, the evidence of the applicant was that he checked to ascertain whether there was sufficient blood remaining to repeat the Coulter test. His evidence was that there was not.  The evidence of Mrs Stephens was that there did remain sufficient blood, and that she in fact repeated the test herself without dilution, and that the result was apparently normal. The print-out results of this test were tendered and became Exhibit F9.  Further, the evidence of Dr Layton was that when she looked at the original blood film in her opinion it was not consistent with the Coulter results and did not identify cells of the type described by the applicant.

Having regard to the inconsistencies in the evidence of the applicant and the anomaly referred to above, I prefer the evidence of Mrs Stephens and Dr Layton. I am satisfied that the applicant was asked whether he had re-run the tests by both Mrs Stephens and by Dr Layton, and that his response to that question was that he had. 

As to the appropriate protocol to be followed in circumstances where an abnormal result is obtained, I am satisfied that the applicant was required to rerun the sample or to check that it had been rerun with the person who had originally done the Coulter test.  Further, I am satisfied that the protocol demanded that Dr Layton be notified by the applicant as to the abnormal result before the test was sent for verification.

Having regard to all of these matters, I am not satisfied that the applicant took all necessary steps appropriate to his experience and level of competency to ascertain that the results were accurate. 

Alleged cover up or indifference

The applicant denied any cover up or indifference. He submitted that the respondent’s employees acted to terminate his employment on the basis of a mistake for which he was not solely responsible, and on the basis of allegations of cover-up or indifference which were not true. He submitted that the respondent’s reaction was in part motivated by hostility towards him because he raised issues as to his award entitlements.

I have no doubt that in this case there was tension between the applicant and Mrs Stephens and Dr Layton. I am also satisfied that part of this tension did result from the applicant seeking to assert his entitlements, and that there was some resentment in this regard by the manager of the facility, Mrs Stephens. This tension manifested itself in the applicant by a reluctance on his part to submit to the supervision of the aforementioned persons.  This reluctance may well have been  part of the reason for the conduct of the applicant in not immediately attending to requests for information during the course of the events in question.

The applicant explained his failure to provide the samples and results to the pathologist Dr Layton as arising because of work load and his absence from the laboratory.  Whilst I accept that the applicant was absent from the workplace on at least one day during the investigation period, the evidence is that the applicant took no steps, beyond his first attempt, to provide the samples and results to Dr Layton.  This was despite requests by Mrs Stephens, at her own initiative and on the initiative of Dr Layton.  It is apparent that it would be normal procedure as part of the investigation of such an incident that such information be provided promptly to the supervising pathologist, and that usually such an incident would have been brought to her attention by the medical scientist concerned, in this case the applicant.

Further, on his own evidence the applicant reviewed the slides during the period when the investigation had commenced and, whilst he was sufficiently concerned to take this step, he failed to provide the material to Dr Layton.

I am satisfied that the applicant did not take sufficient steps to ensure that the information was provided to Dr Layton within a reasonable time. Whilst I am not satisfied that the applicant was engaged in any type of cover up, I am satisfied that he did not treat the incident with the seriousness it deserved, nor did he treat the request made by Dr Layton with any diligence. This attitude on the part of the applicant, combined with the other circumstances of the incident, entitled the respondent to be concerned as to the diligence of the applicant in the performance of his tasks.

For the reasons set out herein,  I am satisfied that the respondent had valid reason to terminate the employment of the applicant, and that the reason was related to the conduct of the applicant.

S170DC  and S170DE(2) - Harsh, Unjust or Unreasonable

The decision to terminate the applicant’s employment was made by Dr Layton and was effective consequent upon her not being satisfied with the explanations provided by the applicant at the interviews on 12 December 1994. 

The applicant submits that the termination of the employment was harsh, unjust or unreasonable because of a failure by the respondent  to adequately investigate the circumstances of the allegation, and because of a failure to inform the applicant of all of the information the respondent had in its possession, or to give him adequate opportunity to reply to the allegations. In particular, the submission relates to a failure in the respondent to inform the applicant at any time that the original blood sample had been rerun by the respondent and produced a normal result.

It is appropriate at this point to consider the requirements of disclosure relevant to the issue of procedural fairness. It is clear on the authorities that the question of whether the outcome would have been different had information been provided is not determinative. See in this regard Byrne & Frew v Australian Airlines Ltd (1994) 120 ALR 274 at 276.40 per Black CJ and at 328.45 per Gray J.  However, that does not mean that every piece of information acquired by the respondent in the course of the investigation into the circumstances must be provided to the applicant for procedural fairness requirements to be met. As is clear from Byrne, in particular the decision of their Honours Beaumont and Heerey JJ, and the decision of his Honour Justice Northrop in Johns v Gunns Limited (Industrial Relations Court of Australia, 18 May 1995, unreported) at page 25,  the question of whether procedural fairness has been accorded is dependant upon the overall circumstances.  In my view, the question of whether the matter was relevant to the matters under discussion and the explanations of events sought and provided, is appropriate for consideration in determining whether procedural fairness has been accorded both for the purposes of S170DC and any requirement pursuant to S170DE(2).

In this case the information complained of would only have been of relevance if the applicant had informed the respondent at the time of the interviews that there was not sufficient blood in the sample to rerun the test, because the applicant’s evidence was that there was insufficient blood left to rerun the Coulter machine test.  By the time of the interviews, the parties were clear that the original test had not been run by the applicant. Further, the applicant had clearly stated that he had not rerun the test. There  was no issue at that point of time in relation to the samples. 

In my view, this matter was not of material significance and only assumed relevance in the proceedings when the applicant gave the explanation that he had looked to re-running the test in accordance with protocol, but that there was not sufficient blood remaining in the collection tube.

I am satisfied that the respondent, in specifying the questions and issues of concern in relation to the applicant’s conduct, together with adjourning the interview until a union representative could be present, accorded the applicant a sufficient opportunity to be heard in relation to the allegations made as to his conduct surrounding the circumstances of the 6 December incident. I am satisfied that the applicant and his representative clearly understood the nature of the allegations as to the applicant’s conduct and work performance, and that these matters were put to him as clearly and specifically as could reasonably be expected in circumstances where to a large extent the respondent was relying upon the answers of the applicant to explain his actions and conduct on the relevant days. I am not satisfied that there has been a failure to comply with the requirements of S170DC or any procedural fairness requirements of S170DE(2).

Other issues of work performance

In the course of the proceedings the respondent sought to rely upon allegations of past problems with the applicant’s work performance as going to the decision taken by the respondent to terminate the applicant’s employment. The applicant disputed the detail of some of these allegations, however I am satisfied that these matters had previously been the subject of discussion and counselling with the applicant, and that the evidence of the respondent as to these matters was substantially accurate.

Nevertheless it is clear that such matters were never put to the applicant as being taken into account by the respondent as relevant to the decision to terminate his employment. The applicant says that these matters were taken into account by the respondent in determining to dismiss him, and that on that basis they ought to have been put to him. Dr Layton frankly admitted that whilst these matters were not at the forefront of her mind, she was conscious of them at the time she decided to terminate the employment. The evidence was, however, that the conduct of the applicant was such that the termination would have proceeded on the basis of the current issue alone (see: T374.20). I do not accept that the previous issues of work performance were operative matters in the decision to terminate the employment of the applicant. The events of 6 and 7 December 1994 were the matters of relevance.

I am also satisfied further that the events of 6 and 7 December, including the concerns expressed by Dr Layton as to ongoing supervision, were the matters which were operative considerations in the attempts to find alternative employment for the applicant in other areas of the respondent’s organisation.  I am not satisfied that the applicant’s previous work history played any role in the attempt by Mr Mak to find an alternative position being unsuccessful. I find that the offer made by the respondent was to attempt to find alternative and suitable employment for the applicant, and did not constitute a withdrawal of the termination decision by the respondent. I am not satisfied that there was not a genuine attempt by Mr Mak to find a suitable alternative position for the applicant in the respondent’s organisation. I am not satisfied that there was a failure by the respondent to have regard to the personal circumstances of the applicant in coming to its decision to terminate the employment. I accept the evidence of Dr Layton in this regard. 

Whilst I recognise that the consequences of the decision of the respondent and indeed this decision, impact harshly upon the applicant, the issue of whether the termination decision itself is harsh is not solely determined by the personal factors affecting the employee. Other factors, including the nature of the employment and its responsibilities and the responsibilities of the employer in this regard, are relevant. In this case, I am not satisfied that the termination of the employment was harsh, unjust or unreasonable.

For the reasons set out in this decision I dismiss the application.

I certify that this and the preceding fourteen (14) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.

Associate:
Date:   1 August 1995

Solicitors for the applicant:  Wilson Potter Nicholson
Counsel appearing for the applicant:  Mr I Fehring

Solicitors for the respondent:  Minter Ellison
Counsel appearing for the respondent:  Mr R McGarvie

Dates of hearing:  12 & 13 April, 22 & 23
  May, 19 June 1995
Written submissions:  29 June 1995
Date of judgment:  1 August 1995