Rudakova v The Congregation of Religious Sisters of Charity of Australia Trading as St VINCENT'S Private Hospital, Sydney
[2019] FCCA 3717
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUDAKOVA v THE CONGREGATION OF RELIGIOUS SISTERS OF CHARITY OF AUSTRALIA TRADING AS ST VINCENT'S PRIVATE HOSPITAL, SYDNEY | [2019] FCCA 3717 |
| Catchwords: INDUSTRIAL LAW – Where employment of a medical practitioner was terminated by her employer – whether adverse action within s.340 of the Fair Work Act 2009 (Cth) – whether employer met the reverse onus in s.361 of the Fair Work Act – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 360, 361 |
| Cases cited: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 |
| Applicant: | GRUBER MARIANNA RUDAKOVA |
| Respondent: | THE CONGREGATION OF RELIGIOUS SISTERS OF CHARITY OF AUSTRALIA TRADING AS ST VINCENT'S PRIVATE HOSPITAL, SYDNEY |
| File Number: | SYG 3439 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 20 November 2018 21 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rollinson (direct brief) |
| Counsel for the Respondent: | Ms Raper |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3439 of 2017
| GRUBER MARIANNA RUDAKOVA |
Applicant
And
| THE CONGREGATION OF RELIGIOUS SISTERS OF CHARITY OF AUSTRALIA TRADING AS ST VINCENT'S PRIVATE HOSPITAL, SYDNEY |
Respondent
REASONS FOR JUDGMENT
These Proceedings
The Applicant, Dr Rudakova, has alleged that her former employer, St Vincent’s Private Hospital, Sydney (the Hospital), contravened s.340 of the Fair Work Act 2009 (Cth) (the Act) by terminating her employment because she exercised a workplace right by making a complaint in relation to her employment.
Dr Rudakova commenced employment with the Hospital as an intern in January 2017. Her contract was for a fixed period from 23 January 2017 to 4 February 2018.
On 21 July 2017 the Hospital terminated Dr Rudakova’s employment for what was said in the letter of termination to be serious misconduct. As discussed below, this letter detailed the Hospital’s findings in relation to two complaints about Dr Rudakova’s conduct, one made by the then junior medical officer (JMO) representative (the Dr A complaint), the other by a private psychiatrist (the Dr B complaint).
Statutory Provisions
Section 340(1) of the Act prohibits a person from taking “adverse action” against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Section 341(1) of the Act is as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body, or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument, or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Under Item 1 in s.342(1) dismissal of an employee by an employer constitutes adverse action.
Section 361(1) of the Act provides:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
It is also relevant to have regard to s.360 of the Act, which provides:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
To take advantage of the statutory presumption in s.361(1), an applicant must plead the relevant proscribed particular reason or intention and all the material facts concerning the alleged contravention (see Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [13] – [19]).
Dr Rudakova’s Points of Claim did not clearly allege that the Hospital dismissed her for a reason that would constitute a contravention of s.340 of the Act. However, as understood by the Hospital in pre-hearing submissions and as confirmed by counsel for Dr Rudakova during the hearing, her contention in these proceedings is that her employment was terminated because she exercised a workplace right by making a complaint in relation to her employment in a letter of 27 May 2017 sent to Professor Abdullah Omari, Head of Vascular Medicine and senior staff specialist who was also the Director of Prevocational Education and Training at the Hospital (the DPET). In that letter (the grievance) Dr Rudakova alleged that she was bullied by her medical supervisor and a hospital staff member at a meeting of 25 May 2017. She also complained about perceived shortcomings in her training and the support provided to her.
The Hospital accepted that in this case the so-called reverse onus under s.361 of the Act arose (that is, the onus to rebut the statutory presumption in s.361). However it submitted that it had proved “otherwise” within s.361 of the Act.
The Factual Background
The parties prepared chronologies. They were in general agreement as to the sequence of events.
Between 2012 and 2016 Dr Rudakova, a graduate of the University of Washington, U.S.A., completed the degrees of Bachelor of Medicine and Bachelor of Surgery as an international student at the University of Sydney.
As part of the Commonwealth Government’s Medical Internship Program, the Hospital, a private hospital, established an intern program for medical interns. It commenced in 2017. Medical interns are first year junior medical officers (JMOs) who are provisionally registered as medical practitioners. Under the intern program, an intern completes five “rotations” or terms (normally within 12 months) and is then eligible for general registration.
Dr Omari was the Hospital’s DPET at all relevant times, with responsibility in relation to the training program and managing and supporting prevocational trainees (including interns).
Dr Rudakova’s first term or rotation at the Hospital was in psychiatry. Her designated clinical supervisor for that rotation was Associate Professor Elizabeth Scott, the Medical Director of USpace, the Hospital’s mental health unit for young adults aged 16 - 30.
Dr Rudakova completed her psychiatry rotation on 23 April 2017.
On or about 24 April 2017, Dr Rudakova commenced an ENT (Ear, Nose and Throat) rotation. At that time her designated supervisor was Associate Professor Nigel Biggs, the Head of the Department of Otolaryngology, Head and Neck Surgery.
Dr Rudakova claimed that she emailed Dr Omari on 30 April 2017 raising concerns about a lack of training, insufficient supervision and a lack of clarity regarding protocols during her psychiatry rotation. However there is no email of that date in evidence.
On 17 May 2017 Dr Omari and Ms Anne Fallon met with Dr Rudakova, her support person and a note taker. Ms Fallon was the Hospital’s Manager of Education, Development and Training and also the JMO Manager. Relevantly, her roles involved facilitating and providing training, feedback and support for interns, communication with interns regarding the intern program and ensuring that the Hospital complied with the requirements of the Health Education and Training Institute (HETI), the intern training accreditation authority for NSW.
Ms Fallon’s evidence is that Dr Omari, as DPET, had asked to meet with Dr Rudakova to address concerns that had been raised about her by her term supervisors and some patients and their families. The notes of this meeting are in evidence. Both Dr Omari and Dr Rudakova raised concerns during the meeting. Consistent with the HETI management guide for DPETs entitled “Trainee in Difficulty”, Dr Omari proposed a prevocational trainee action plan (action plan) for Dr Rudakova.
The then CEO of the Hospital, Mr Robert Cusack, had ultimate responsibility to HETI in relation to interns. After the meeting of 17 May 2017 Ms Fallon told Mr Cusack that there were concerns about Dr Rudakova’s clinical ability, that she had met with Dr Rudakova and was concerned that she did not appreciate or acknowledge the concerns about her performance.
On 19 May 2017 Dr Biggs and Ms Fallon met with Dr Rudakova. Dr Biggs raised concerns about her performance during the ENT rotation. Dr Rudakova raised concerns that she felt “ill supported”. Ms Fallon made notes of this meeting, which are in evidence.
On or about 21 May 2017 Dr Rudakova emailed Dr Omari two letters of that date. One letter was in response to the concerns about her psychiatry rotation that had been brought to her attention at the meeting of 17 May 2017. The other was in response to concerns in relation to her ENT rotation raised at the meetings of 17 May and 19 May 2017.
On 25 May 2017 Dr Biggs and Ms Fallon met with Dr Rudakova to discuss the draft action plan in light of the issues that had arisen in Dr Rudakova’s ENT rotation. Ms Fallon’s meeting notes are in evidence.
On 26 May 2017 Dr Omari advised Mr Cusack that he had concerns about Dr Rudakova’s clinical knowledge and performance. He had contacted the HETI Program Co-ordinator, Accreditation and Faculty Unit (on 23 May 2017) seeking advice about how to manage the concerns about Dr Rudakova’s performance (and did so again on 29 May 2017).
On Saturday 27 May 2017 Dr Rudakova emailed the grievance to Dr Omari. In essence, she claimed that she had been bullied by Dr Biggs and Ms Fallon at the meeting of 25 May 2017. She claimed that “numerous unjustified criticisms” had been levelled against her by Dr Biggs (her then supervisor), that he had adopted an “inappropriate attitude” in telling her that it was not her role as an intern to negotiate the draft of the action plan and that he had blamed “everything” on her “communication” issues. Dr Rudakova also claimed that her employment had been repeatedly threatened for voicing her “objection” to the draft action plan.She criticised aspects of her training and support in the ENT rotation. This email is discussed further below. On the same date, Dr Rudakova emailed Ms Fallon seeking an apology from her and from Dr Biggs for what she claimed was the “inappropriate” and “threatening” manner she had been treated “on Thursday” (apparently a reference to the meeting of 25 May 2017) or a referral to Human Resources (HR) at the Hospital.
On Sunday 28 May 2017 Dr Omari informed Mr Cusack of Dr Rudakova’s grievance and the fact that she wanted it to be referred to HR.
On 29 May 2017 Mr Cusack asked Ms Bernadette Taoro, the Hospital’s then HR Manager, to conduct a formal investigation into Dr Rudakova’s grievance. Around the same time, Ms Taoro received emails from Mr Cusack and Ms Fallon attaching feedback they had received in respect of Dr Rudakova’s performance.
On 30 May 2017 Dr Omari sent Mr Cusack, Ms Taoro and Dr Malcom Pell (Consultant Neurosurgeon and Chair of the General Clinical Training Committee which oversaw the medical internship program at the Hospital) copies of emails Dr Rudakova had sent to Carolyn Marsh, the Executive Manager of the Medical Workforce at St Vincent’s Public Hospital, on 29 May 2017 in relation to her grievance against Dr Biggs and Ms Fallon.
Ms Taoro spoke to Dr Rudakova by telephone on 30 May 2017 and directed her to keep her grievance confidential and to not discuss it with anyone outside HR (in particular anyone in either St Vincent’s Public Hospital or St Vincent’s Private Hospital).
Ms Taoro also emailed Dr Rudakova on 30 May 2017 requiring her to attend a formal meeting on 31 May 2017 in relation to her grievance. The email informed Dr Rudakova that she was welcome to bring a support person to the meeting on 31 May 2017. It reminded her that the investigation process would be treated by the Hospital as confidential. She was asked to do likewise and was informed that failure to do so could result in disciplinary action.
On 30 and 31 May 2017 Dr Rudakova sent Ms Taoro copies of her emails to Dr Omari of 21 May 2017.
In the meantime, on 30 May 2017 a private psychiatrist based outside Sydney, whose patients were admitted to USpace on a regular basis, wrote to Dr Scott (as Medical Director of the USpace Unit) with a complaint in relation to the experience of a patient in the USpace Unit.
The parties agreed that there should be a non-publication order in respect of the names of any patients referred to in evidence. I made such an order. Accordingly this patient is referred to as Patient B. Similarly, her private psychiatrist is referred to as Dr B and the complaint as the Dr B complaint. The Dr B complaint related to the interaction between Dr Rudakova and Patient B, a 17 year old girl with mild intellectual impairment suffering from bipolar mood disorder with psychotic features, who had been admitted to USpace for 10 days in April 2017 for diagnostic review and stabilisation of a hypomanic episode. Patient B was said by her psychiatrist to be “vulnerable by virtue of acute mental illness and intellectual disability”.
The complaint, made by Patient B’s mother to Dr B, was that Dr Rudakova had spoken to Patient B privately, inspiring and urging her to seek knowledge of her birth parents and saying that “she had the right to know”. According to Dr B, the patient was “so impressed by [Dr Rudakova]’s advice that on discharge she became angry, distressed and insistent on being allowed to trace and contact her family of origin”. Dr B expressed the view that the behaviour of the staff member (Dr Rudakova) was “unprofessional, undermining of the parents’ rights, and demonstrated a breech (sic) of professional boundaries with [the] patient”.
Dr Scott sent a copy of the Dr B complaint to Mr Cusack, Dr Omari, Ms Fallon and Ms Kate Harel (the USpace Nurse Unit Manager) on 30 May 2017. Dr Scott also sent Mr Cusack, Dr Omari and Ms Fallon a copy of an email to her of 29 May 2017 from Dr Geoffrey McDonald, a consultant psychiatrist at the Hospital, documenting concerns about Dr Rudakova’s attitude and behaviour that he had become aware of during her psychiatry rotation.
On 31 May 2017 Ms Taoro met (separately) with Dr Biggs, Ms Fallon and Dr Rudakova in relation to the Dr Rudakova grievance. Dr Biggs, Ms Fallon and Dr Rudakova each reviewed and signed their statements.
Mr Cusack sent Ms Taoro the Dr B complaint on 31 May 2017 for investigation.
On 2 June 2017, Ms Harel informed Dr Scott, Dr Omari, Mr Cusack and Ms Fallon that Dr B had previously contacted her, on 2 May 2017, with feedback about the concerns of the mother of Patient B about Dr Rudakova.
On 5 June 2017 Ms Taoro provided a written report to Mr Cusack into the investigation in relation to Dr Rudakova’s grievance. The investigation found that the bullying claims against Dr Biggs and Ms Fallon were unsubstantiated and that the training and support for Dr Rudakova at that time had been in accordance with HETI guidelines. However it was recommended that the action plan for Dr Rudakova should include further prescribed training and support and that she should have additional support meetings.
On 7 June 2017 Ms Taoro met with Dr Rudakova to explain the outcome of the grievance investigation. She provided Dr Rudakova with a letter of that date informing her of the outcome.
On 7 June 2017 Dr Biggs sent an email to Dr Ron Bova, an ENT consultant at the Hospital, to arrange new supervision arrangements for Dr Rudakova in her ENT rotation. Dr Bova became Dr Rudakova’s supervisor.
On 8 June 2017 Dr Titus Auyeung, who was the JMO representative at all relevant times, made an oral and written complaint to Ms Sarah Coleman, the Hospital’s Workplace Planning and Development Manager, about communications from Dr Rudakova, in particular in relation to her discussion of her grievance (which she had been told to keep confidential). This is referred to as the Dr A complaint and is discussed below.
On 12 June 2017 Dr Rudakova emailed a letter dated 9 June 2017 to Ms Taoro and Mr Klaips (another HR employee of the Hospital) in which she expressed dissatisfaction with the “calibre” of the investigation of her grievance.
On 13 June 2017 Ms Coleman wrote to Dr Rudakova confirming that she was required to attend a formal investigatory meeting on 15 June 2017 in relation to complaints received about her. The letter detailed two allegations: the Dr B complaint and the Dr A complaint.
On 15 June 2017 Dr Rudakova attended the formal investigatory meeting with Ms Coleman and Ms Taoro. A solicitor from DibbsBarker was present as Dr Rudakova’s support person. Dr Rudakova also presented a written response to the complaints about her.
Later on 15 June 2017 Dr Auyeung emailed Ms Coleman in response to a request for clarification about aspects of his complaint.
Sometime in June or July 2017, Ms Taoro was provided with a record of a telephone conversation of 19 June 2017 between Ms Coleman and Dr Scott about the validity of the Dr B complaint.
On 20 June 2017 Dr Rudakova met with Ms Coleman about concerns she had in relation to Dr Omari, in particular the way he had been communicating with her. She did not make a formal complaint, but told Ms Coleman that she was going to consider her options and confirm what outcome she wanted.
On 20 June 2017 Mr Cusack participated in a teleconference with Ms Taoro and Ms Anna Clarke, National Director of Human Resources, to discuss preliminary findings of Ms Taoro’s investigation into the complaints against Dr Rudakova and the issuing of a show cause letter.
On 27 June 2017 Ms Taoro and Ms Coleman met with Dr Rudakova and her solicitor and gave her a show cause letter which stated that she was suspended with pay until the concerns about her conduct (which were detailed) were finalised.
On 28 June 2017 Dr Rudakova sent Mr Cusack a number of emails in relation to the complaints against her and also about the investigation into her grievance.
On 30 June 2017 DibbsBarker, Dr Rudakova’s then solicitors, responded to the show cause letter.
On 3 July 2017 Dr Rudakova and her solicitor attended a meeting with Ms Taoro and Ms Coleman in relation to the show cause letter and the response.
On 5 July 2017 Ms Taoro had a follow up conversation with Dr Scott regarding the Dr B complaint.
On 6 July 2017 Ms Taoro, in conjunction with Ms Coleman, prepared an investigation report into the complaints against Dr Rudakova.
Mr Cusack, who had been on leave from 30 June 2017 to 9 July 2017, received the final investigation report into the complaints against Dr Rudakova and related documentation on 10 July 2017. On that day he also met with Ms Taoro and Adjunct Professor Jose Aguilera, Director of Nursing and Clinical Services, to discuss Dr Rudakova.
Sometime between 10 July 2017 and 14 July 2017, Mr Cusack spoke to Dr Scott about her concerns about Dr Rudakova.
On 21 July 2017 Mr Cusack and Dr Aguilera met with Dr Rudakova. Mr Cusack informed Dr Rudakova of his decision to terminate her employment and provided her with a copy of a letter of that date confirming his decision.
On 9 August 2017 Dr Rudakova made an application to the Fair Work Commission under s.365 of the Act.
Sometime in August 2017 Dr Rudakova secured employment as an intern JMO at Hornsby Hospital commencing on 17 August 2017.
On 26 October 2017 the Fair Work Commission issued a certificate under s.368 of the Act.
Dr Rudakova commenced these proceedings on 9 November 2017.
The Circumstances said to enliven the s.361 Statutory Presumption
Relevantly, the statutory presumption in s.361(1) of the Act that adverse action was taken for a particular reason arises if it is alleged that a person took action for a particular reason and that taking that action for that reason would constitute a contravention of Part 3-1 of the Act, unless the respondent proves otherwise.
It is not in dispute that in making her grievance Dr Rudakova exercised a workplace right to make a complaint in relation to her employment within s.341(1)(c)(ii) of the Act (see Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346 at [29]). The Hospital admitted that in dismissing Dr Rudakova it took adverse action against her (see s.342(1), Item 1).
While, as indicated, the Hospital did not dispute that the reverse onus under s.361(1) of the Act arose, there was a distinct lack of clarity and completeness in Dr Rudakova’s pre-hearing allegations in relation to the alleged “particular reason” for the termination of her employment, notwithstanding the requirements of s.361(1)(a) of the Act (and see Hall at [13] – [19]).
Dr Rudakova was at all times legally represented in relation to these proceedings. A Federal Circuit Court Form 2 claim form (which applies to a claim under the Act alleging dismissal in contravention of a general protection) was filed to start these proceedings. This form requires an applicant to specify the workplace right claimed. It was stated: “s.341(1)(ii) (sic) workplace right – right of employee to make complaint in relation to her employment”. It was explained that Dr Rudakova had been notified of the two complaints against her and, after what was described as an “inadequate” investigation by her employer, was suspended from duty and called on to show cause why her employment should not be terminated and that she had provided a detailed reply. Reference was made to the fact that she was notified on 21 July 2017 that her employer had made findings adverse to her regarding both complaints and that her employment was terminated. Dr Rudakova did not clearly allege that she was dismissed for a particular reason. Rather, it was asserted that the decision to terminate her employment was reached after an unfair procedure based on inadequate evidence and was unjust and unreasonable.
The parties agreed that the matter should proceed by way of Points of Claim and Points of Defence. Dr Rudakova’s Points of Claim commenced by describing what are now referred to as the Dr A and Dr B complaints. In the context of recounting the Dr B complaint, it was pleaded generally that Dr Rudakova had notified the Hospital management of certain grievances arising from her rotation in the ENT unit relating to lack of adequate training and supervision, lack of clarity regarding protocols she was expected to follow and unreasonable criticism of her by supervising medical staff which was said to amount to bullying.
Under the heading “Investigation and dismissal”, Dr Rudakova asserted that she had been called on to show cause why her employment should not be terminated on account of the matters raised in the two complaints against her, that she had responded through her solicitors, that the response had demonstrated that the complaints were factually unfounded and that no disciplinary action was called for and that, in any event, she had offered an apology. The Points of Claim referred to the fact that the Hospital informed Dr Rudakova by letter of 21 July 2017 that it had made various adverse findings, had found the complaints to be substantiated and had terminated her employment with immediate effect.
Under the heading “Grounds”, it was asserted that the decision to dismiss Dr Rudakova was “harsh, unfair and unwarranted” in that she was denied procedural fairness as numerous findings in the termination letter were not put to her with an opportunity to respond, that her responses had shown that the factual basis for the complaints was flimsy or non-existent and that whatever adverse matters had been established could not reasonably justify her dismissal.
The Points of Claim then alleged generally that the complaints, investigation and dismissal “coincided with” Dr Rudakova having notified to Hospital management her own “justified” grievances regarding the behaviour of supervising staff towards her in the ENT unit and otherwise. It was claimed that these grievances were “not adequately investigated or resolved” and that the fact that they were “pending” amounted to “extenuating circumstances as regards any shortcomings in her conduct during that period, as alleged in the complaints” but that the Hospital “had no regard to this”.
The “motive” for the dismissal was said to be as follows: “The substantial motive for the dismissal of [Dr Rudakova] was resentment at her grievances and the desire to defend the position of senior staff against her and remove a troublesome employee”.
On this basis Dr Rudakova’s dismissal was said to constitute adverse action contrary to s.340 of the Act.
Dr Rudakova’s pre-hearing written submissions stated that her claim in these proceedings was that the termination of her employment was adverse action that was prohibited by s.340 of Act. There was no reliance on any other legal basis for these proceedings.
Those submissions placed reliance on s.341(1)(c)(ii) of the Act and contended that the Hospital, through Mr Cusack, took the adverse action of dismissing Dr Rudakova “because”, that is “for the reason that” or for reasons that included the reason that, she had exercised her workplace right to make a complaint to her employer in relation to her employment. It was submitted that in these circumstances the reverse onus on the Hospital arose.
Dr Rudakova’s written submissions also contended that the investigation of the complaints against her had “coincided” with the raising of her own complaints, said to be about the management by the Hospital of her rotations as an intern JMO in the psychiatry and the ENT units, which amounted to the exercise of a workplace right. This “process” was said to have begun in April 2017.
The written submissions for the Hospital proceeded on the basis that Dr Rudakova’s allegation was an assertion that she had exercised a workplace right within s.341(1)(c)(ii) of the Act by making a written complaint on 27 May 2017 regarding the meeting of 25 May 2017.
In order to ensure that there was no uncertainty in relation to the “particular reason” or “particular intent” alleged, at the hearing I sought clarification as to the exercise of a workplace right intended to be alleged by Dr Rudakova. In oral submissions counsel for Dr Rudakova accepted that the characterisation of the claim in the Hospital’s pre-hearing submissions was the “correct characterisation” of the asserted exercise of workplace rights. That is, that the written complaint of 27 May 2017 was the formal raising of Dr Rudakova’s grievance and that the asserted exercise of a workplace right within s.341(1)(c)(ii) of the Act consisted of the sending of this letter of 27 May 2017 to Dr Omari.
In other words, it was confirmed by counsel for Dr Rudakova that the allegation in these proceedings was that the Hospital dismissed her for reasons that included the reason that she raised her grievance of 27 May 2017.
In these circumstances, the Hospital took no issue about any prior lack of clarity in pleading or particularisation of the asserted prohibited particular reason. It accepted that the circumstances were such that the so-called reverse onus under s.361 of the Act arose, but pleaded that it had discharged that onus.
I am satisfied that Dr Rudakova had a workplace right, in that she was able to make a complaint or inquiry in relation to her employment within s.341(1)(c)(ii) of the Act and that she “exercised” that workplace right in emailing her grievance of 27 May 2017 to Dr Omari. Despite the initial lack of clarity, I am satisfied that, on the basis explained by counsel for Dr Rudakova, it is alleged that the Hospital took the action of terminating Dr Rudakova’s employment (which was adverse action) for a particular reason, being the making of her grievance, and that taking that action for that reason would constitute a contravention of Part 3-1 of the Act such as to put the onus on the Hospital to displace the statutory presumption under s.361(1) of the Act.
I note for the sake of completeness that insofar as counsel for Dr Rudakova may have appeared to suggest in cross-examining Mr Cusack that the relevant exercise of a workplace right extended beyond the grievance email of 27 May 2017, that was not the basis accepted in submissions. In any event, Mr Cusack not only gave unchallenged affidavit evidence that other complaints made by Dr Rudakova and referred to in her evidence were not part of the reason for her dismissal, but also provided cogent reasons for rejecting the broader contentions put to him in cross-examination.
For the reasons that follow, I am satisfied that the Hospital has met the so-called reverse onus and has rebutted the statutory presumption in s.361 of the Act.
The Evidence
Dr Rudakova did not file any affidavit evidence. However she filed a witness statement on 20 September 2018. She adopted this statement as her evidence in chief under oath. She was cross-examined.
The Hospital relied on affidavits of;
a)Mr Cusack, the former CEO of the Hospital who was the decision-maker in relation to the termination of Dr Rudakova’s employment;
b)Ms Taoro, the former Human Resources Manager for the Hospital;
c)Ms Fallon, the former Manager of Education, Development and Training and also the JMO Manager for the Hospital; and
d)Dr Pell, Consultant Neurosurgeon at the Hospital and Chair of the General Clinical Training Committee.
Mr Cusack, Ms Taoro and Ms Fallon were cross-examined. Dr Pell was not required for cross-examination. The evidence is discussed below where relevant.
Legal Principles
Counsel for Dr Rudakova submitted that the issue presented by ss.340 - 342 and 360 - 361 of the Act was “what was the reasoning actually employed by the decision-maker in taking the adverse action?”. It was contended that the “test” was to this extent subjective, rather than objective, and that to displace the statutory presumption under s.361 of the Act a prohibited reason must be proved by the employer not to have been a substantial or operative reason for the adverse action. Reliance was placed on the authorities of General Motors-Holden Pty Ltd v Bowling (1976) 136 CLR 676, Board of BendigoRegional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (Barclay) and Construction, Forestry, Mining and Energy Union vBHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243. The only specific reference was to the Headnote to BHP Coal in the Commonwealth Law Reports.
Given the timing of events preceding Dr Rudakova’s dismissal and the factual connection between Dr Rudakova’s grievance and the Dr A complaint (which was seen by the Hospital as a breach of confidentiality and of a direction in that respect in relation to the grievance), as the Respondent recognised, an issue arose as to the relevance of this factual and temporal connection to a consideration of whether it had rebutted the statutory presumption in s.361 of the Act.
The Hospital referred to the reasoning in Barclay and BHP Coal in support of the proposition that a respondent could discharge the reverse onus in s.361 without proving that the reason for the adverse action was “entirely disassociated” from the exercise of workplace right in question.
Barclay (sometimes referred to as Bendigo) concerned an assertion of adverse action within s.346 of the Act. Chief Justice French and Crennan J stated (at [42]) that determining why an employer took the adverse action against an employee involved consideration of the decision-maker’s “particular reason” for taking adverse action (see ss.360 and 361) and also (in the circumstances of that case) consideration of the employee’s union position and engagement in industrial activity as referred to in s.346 of the Act.
Similarly, in the context of the present s.340 allegation, it is necessary to consider the decision-maker’s particular reason or reasons for terminating Dr Rudakova’s employment and to consider her grievance of 27 May 2017.
In Barclay, French CJ and Crennan J continued at [43] – [45]:
43. Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker’s reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression “because” into a legislative predecessor to s 346, in place of the previous statutory expression “by reason of”, rendered irrelevant the state of mind of the decision-maker.
44. There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
45. This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(footnotes omitted)
The onus of proving that the exercise of workplace rights by an employee was “not an operative factor” in his or her dismissal must be discharged by the employer “on the balance of probabilities in the light of all the established evidence” (Barclay at [62] per French CJ and Crennan J).
Notably, both the earlier decision of the High Court in Bowling and Barclay made it clear that it was erroneous to treat the onus imposed on an employer by s.361 of the Act as being made heavier or rendered impossible to discharge because an employee affected by adverse action happened to be an officer of an industrial association (Bowling at 612 per Gibbs J and at 616 – 617 per Mason J) or to be engaged in industrial activity (Barclay at [60] – [62] per French CJ and Crennan J).
As the Hospital pointed out, in Barclay at [62] French CJ and Crennan J accepted that an employer could discharge the onus of proof under s.361 of the Act without proving that the reason for the adverse action in issue was “entirely dissociated from an employee’s union position or activities”. Their Honours suggested in Barclay (at [62]) that it would be an error:
… to treat an employee’s union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee’s union position or activities. Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling. The onus of proving that an employee’s union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.
Similarly, it would be an error to treat an employee’s exercise of a workplace right as necessarily a factor which must have had something to do with adverse action by an employer or which must be “entirely disassociated” from adverse action for the statutory presumption to be displaced by an employer.
In BHP Coal French CJ and Kiefel J rejected the view that if adverse action was “connected to” a proscribed reason (in that case an industrial activity), such proscribed reason must be taken to be a reason for the adverse action (at [15]). Further, as stated in BHP Coal at [20]:
In Bendigo, French CJ and Crennan J pointed out that it is erroneous to treat the onus imposed on the employer by s 361 as being heavier, or different, if adverse action is taken while an employee happens to be engaged in industrial activity. Their Honours said that it is incorrect to conclude that, because the employee’s union position and activities were inextricably entwined with the adverse action, the employee was therefore immune, and protected, from the adverse action. Such an approach would destroy the balance between employers and employees which the Act seeks to attain and which is central to s 361.
(footnotes omitted)
Chief Justice French and Kiefel J observed in BHP Coal at [22] that a “connection, in fact” between adverse action and a proscribed reason (in that case an industrial activity) “cannot itself” provide the reason why the decision-maker took the adverse action in question, although it may “necessitate some consideration as to the true motivations” of the decision-maker (and see RailPro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424 at [87] per Perry J).
Thus, the central question for the court is “why was the adverse action taken?” (Barclay at [5] and [44] per French CJ and Crennan J). The actual operative reasons of the decision-maker (in this case Mr Cusack) at the time of the adverse action (the termination of Dr Rudakova’s employment) are the focus of the inquiry (see Barclay at [101] and [127] per Gummow and Hayne JJ and at [140] and [146] per Heydon J and BHP Coal at [7] and [19] per French CJ and Kiefel J and at [85] per Gageler J). As French CJ and Kiefel J pointed out in BHP Coal at [7], “the enquiry involves a search for the reasoning actually employed by the [decision maker]” (and see Barclay at [146]). The court is concerned to determine “the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made” (see State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32] describing the principles that emerge from Barclay and BHP Coal). This requires an inquiry into the mental processes of the decision-maker.
In BHP Coal French CJ and Kiefel J also referred to the fact that in Barclay Gummow and Hayne JJ had explained at [121] and [126] that it is misleading to use the terms “objective” or “subjective” to describe the inquiry and pointed out that to speak of “objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker” (see BHP Coal at [9]). The determination is one of fact (see Barclay at [41] and [45] per French CJ and Crennan J and at [101] per Gummow and Hayne JJ and BHP Coal at [7] per French CJ and Kiefel J) and is to take into account all the facts and circumstances of the case and available inferences.
In Barclay French CJ and Crennan J observed (at [45]) that that it would generally be extremely difficult for an employer who had taken adverse action to displace the statutory presumption in s.361 without direct evidence from the decision-maker about his or her reasons. Such direct evidence as to why adverse action was taken, if accepted as reliable, is capable of discharging the onus of proof under s.361 (see Barclay at [45] per French CJ and Crennan J and at [71] per Gummow and Hayne JJ and BHP Coal at [38] per Hayne J). However, as was also pointed out by French CJ and Crennan J in Barclay at [54], “mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts” (see also Gummow and Hayne JJ at [79] and Heydon J at [141] in Barclay, pointing out that “[e]xternal circumstances could put into question the reliability or credibility” of mere declarations by a witness as to his or her “mental state”). Even if a decision-maker does give evidence that he or she acted solely for non-proscribed reasons, other evidence (including contradictory evidence of the decision-maker) may “render such assertions unavailable” (Grant at [32]).
Hence, as Gummow and Hayne JJ stated in Barclay at [127]:
… In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
Section 360 contemplates that there may be multiple reasons for a respondent taking adverse action in relation to an applicant. However the statutory presumption does not arise just because a prohibited reason merely enters into an employer’s mind (Bowling at 612 per Gibbs J and at 616 per Mason J and Barclay at [62] per French CJ and Crennan J and at [104] per Gummow and Hayne JJ). As Gageler J stated in BHP Coal at [85], a reason will not be proscribed if it is not “an operative and immediate reason” for taking the adverse action (and see Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150 at [27] per Jessup J).
In this case the court must assess whether the Hospital has established that the exercise of the workplace right by Dr Rudakova in making her grievance of 27 May 2017 played no operative part in the decision to terminate her employment (see BHP Coal at [93] and Endeavour Coal at [28]).
Dr Rudakova’s Grievance
The alleged exercise of workplace rights was Dr Rudakova’s grievance of 27 May 2017. Dr Rudakova’s grievance letter of 27 May 2017 was sent to Dr Omari and copied in to Dr Biggs, her ENT term supervisor, and Ms Fallon. It is appropriate to set it out in full. It is headed “Re: meeting Thursday 25th of May 2017 and related concerns” and is as follows (errors in original):
Dear Professor Omari,
Thank you for referring me to the Employee Assistance Program (EAP) after my distressing meeting of 25th May with Dr Nigel Biggs and Ms Anne Fallon where my employment at [the Hospital] was repeatedly threatened for voicing my objection to the draft of the action plan, which again included no provisions of training or supervision for my regular job requirements.
I would like to take this opportunity to bring attention of all involved parties to the SVPH Bullying and Harassment in the Workplace Policy. While I was not able to access the SVPH Bullying policy from my home computer, I looked up the definition of bullying from NSW Government SafeWork website and the treatment by my supervisor and JMO manager so far has fit the definition of bullying in several ways as follows:
“Workplace bullying is repeated and unreasonable behaviour directed towards a worker that creates a risk to health and safety.
Unreasonable behaviour include
· Offensive language or comments
· Unjustified criticism
· Withholding information that is needed for work”
I maintain that numerous unjustified criticisms have been levied against me by my supervisor which has created a risk to my health and safety, as outlined in a letter to you of 21st of May 2017 including but not limited to:
1. That I text out of work hours, when in fact it was my superior who initiated this trend.
2. That I “refused” a verbal handover from the previous intern. When, in fact, the previous intern and I in agreement postponed the handover until the beginning of the actual rotation and this point was clearly explained to my supervisor during the first meeting.
3. Unreasonably criticising me for not knowing that discharge paperwork on patients is a regular part of my job duties and how to perform this, while providing me no training on this process.
4. Withholding training information necessary for me a confident IV fluid prescriber in all circumstances, but instead unreasonably criticising me for not already having this information as a new graduate straight out of medical school.
5. Unreasonably criticising me for not knowing how to correctly collect my very first ever sample of Arterial Blood Gas [AGB], while having never provided any training or supervision on the matter.
6. Unjustly criticising me for an allegation that was falsity – that did not happen – that I walked into Dr Biggs (sic) office without acknowledging his staff.
7. Unreasonable criticism that I spend insufficient time in operating theatres, when in fact I spend as much time in theatres as my ward responsibilities will permit me.
Furthermore at the 25th of May meeting I took offence at Dr Biggs telling me that it was not my role as an intern to negotiate the Draft of the Prevocational trainee action plan and that if HETI was not happy with the ENT training program then HETI would intervene. This inappropriate attitude places me between a “rock and a hard place” being that Dr Biggs advises that I am below the expected level of where an intern should be at my level of training, yet the action plan includes no provisions for training i.e. anything different. This means that I am prone to make more mistakes and Dr Biggs will continue to place the criticism squarely on me. I find this set-up unreasonable.
Dr Biggs further advised that the intern training system has been in place for 20 years at SVH; however, that is not a comparable analysis. There are REGISTRARS at the public hospital and much more support. I am alone at the private and at the mercy of the RMO who may or may not be helpful or available as was demonstrated with the ABG incident. Therefore, the private internship system has to be fundamentally different from the public system, since reliance on registrars and additional support is not available at the private.
Another point that came up during the 25th May meeting are the HETI ENT Term Description “Expectations of Prevocational Trainee”. Dr Biggs advised that because the different ENT pathologies such as “acute airway obstruction” cannot guaranteed to be seen during the 10 weeks, the “expectations” are not really expectations. I would like clarity on those items which I definitely can “expect” to learn and reach competency in during this term and an action plan on how this will happen.
Additionally, I take issue with Dr Biggs blaming everything on my “communication”. Facts show, that I have had zero complains from the nursing staff, the allied health staff or the patients. In fact, I have developed positive relationships. It is unreasonable, in fact offensive, for Dr Biggs to blame my supposed “communication issues” for when I show up at the surgical bay pre-operatively and am not able to interject myself into the workflow of the nurses to ask them to teach me how to place an indwelling catheter on a patient. It is not my communication issues but rather the fact that [the Hospital] has never had an intern before and the nursing staff are not used to accommodating the needs of a trainee. The only “communication issue” that is happening, if we are to call it that, is the fact I dare challenge a system that is not working and is putting worker health at risk, patient health at risk and is exposing the hospital to risk of litigation. In my view, that is not at all a “communication issue” but “forthright integrity”.
At this point, I would like to ask the hospital RiskMan analysis system to be involved in this process. It is my understanding that [the Hospital] has a culture of a no blame and that the RiskMan process is designed to minimize risk. We are at the point of risk minimization.
Thank you for your assistance.
Sincerely,
Dr. Marianna Rudakova
The matters said in the grievance to amount to unjustified criticism all related to concerns raised about Dr Rudakova’s performance in her ENT term.
In a separate email of the same date sent to Ms Fallon (copied in to Dr Biggs and Dr Omari), Dr Rudakova rejected an offer of access to a clinical psychologist at the expense of the Hospital and sought an apology from Ms Fallon and Dr Biggs for the manner in which she had been treated on 25 May 2017 or a referral to the HR services in charge of employee grievance resolutions.
It is not necessary in these proceedings to determine whether this grievance was in fact justified. I have had regard to the context in which Dr Rudakova made the allegations in this letter, the nature of the grievance and the manner in which the grievance was resolved by the Hospital in considering whether I am satisfied that the fact Dr Rudakova made this complaint was not an operative reason for her dismissal.
Dr Rudakova clearly feels aggrieved and that the termination of her employment was unfair and unwarranted. However this is not an unfair dismissal or breach of contract case. I have borne in mind her perception of events preceding her dismissal by the Hospital, particularly her view that she was dismissed because she made complaints about bullying by Hospital staff and raised training and support issues in relation to her ENT rotation, while keeping in mind the need to consider whether the proven facts contradict the evidence of Mr Cusack.
The Dr B complaint
Dr Rudakova’s psychiatry rotation was completed and assessed as satisfactory as at 23 April 2017. However, on or about 30 May 2017 Dr B, a private psychiatrist, made a written complaint about Dr Rudakova to Dr Scott, the Medical Director of USpace (the Dr B complaint).
Dr Scott sent Mr Cusack, Ms Fallon, Dr Omari and Ms Harel a copy of Dr B’s complaint. Dr Scott advised that she had not had the opportunity to follow this up with the person involved (Dr Rudakova) who was therefore unaware of the complaint at that time.
The Dr B complaint is relevantly as follows:
Recently one of my patients was admitted as an impatient to your unit at St. Vincent’s: Private Hospital. She is a 17 year old girl with mild intellectual impairment suffering a major mood disorder (Bipolar mood disorder with psychotic feature). She was admitted for diagnostic review and stabilisation of hypomanic episode.
My Patient was adopted in her infancy from [place of birth] and raised by her foster mother, who is her “Mum”. At the time of admission to U-Shape (sic) she had no knowledge of her birth parents and her Australian parents felt this was a matter to be raised with her when she had recovered her mental wellbeing and was eighteen years old. The issue of her maturity is confounded by her intellectual disability.
After discharge from U-Shape (sic) (admission 10 specified days in April 2017]) my patient’s mother brought to my attention a matter of complaint which she asked me to communicate to you and Kate Harel, the nurse unit manager.
My patient’s mother alleges that a female staff member at U-Shape (sic) by the name of Marianna [Dr Rudakova] had spoken to my patient privately inspiring and urging her to seek knowledge of her birth parents, saying that “she had the right to know”. My patient, who is vulnerable by virtue of acute mental illness and intellectual disability, was so impressed by Marianna’s advice that on discharge she became angry, distressed and insistent on being allowed to trace and contact her family of origin. My patient’s adoptive parents gave in as they feared for her mental wellbeing if the (sic) opposed her wishes. Contact had been made and in the short term, the outcome of this had been fortunately favourable.
While the outcome was favourable both the patient’s mother and I feel a complaint was in order as the behaviour of the staff member called “Marianna” was unprofessional, undermining of the parent’s rights, and demonstrated a breach of professional boundaries with my patient.
Thank you for your assistance in resolving this matter.
The Dr A complaint
On 8 June 2017 Dr Titus Auyeung, the then JMO representative, made an oral and written complaint to Ms Coleman in HR about Dr Rudakova (the Dr A complaint).
The JMO representative at the Hospital was a junior medical officer who provided support and guidance to other JMOs if issues arose and who could act as a liaison point between management and the JMOs.
In Dr Auyeung’s email to Ms Coleman of 8 June 2017 he provided details of communications between himself and Dr Rudakova. He explained that as JMO representative he regularly caught up with other interns and asked how they were going and whether they had issues and concerns. He had met with Dr Rudakova and another intern on 1 June 2017 to see how they were doing, but claimed that he and the other intern “ended up listening to [Dr Rudakova] comment negatively about the ENT team, the lack of structure, and poor support she had”.
Dr Auyeung detailed aspects of Dr Rudakova’s comments in that meeting and the contrary views expressed by the other intern present (who had previously completed the ENT rotation). Dr Auyeung claimed that after the other intern left, Dr Rudakova had continued to discuss with him certain “complaints” she had about staff who she said had failed to teach her things and support her at the Hospital. He claimed that she told him that it was “confidential”, without clarifying whether he would be comfortable with the information and while knowing that he was the JMO representative.
Dr Auyeung claimed that while Dr Rudakova was telling him about her complaints, he tried to stop her multiple times as he said he did not want to get involved. He had thought that that was the end of it, but on Friday 2 June 2017 Dr Rudakova had telephoned him multiple times during the day (in what he said in his email was a “rude way”) and demanded that he call her. Dr Rudakova had called him twice after work hours and then sent him what he regarded as “rather rude and disrespectful” text messages. He elaborated on his concerns about the impact on him of Dr Rudakova’s conduct.
In the exchange of text messages between Dr Rudakova and Dr Auyeung of 2 June 2017, Dr Rudakova referred to the fact that she was writing a statement for HR and, in relation to a question about who she had told (which, it is not disputed, related to discussion of her grievance), stated “…I’m going to say I told you in confidence as the JMO rep. just an FYI”. She advised Dr Auyeung he was “not to discuss it with anyone (and not Anne [Ms Fallon] not Nigel [Dr Biggs] not Abdullah [Dr Omari] if they for some reason bring it up) unless HR says it’s ok, simly (sic) say you were advised it was a confidential matter handled by HR and you don’t have any details and can’t discuss”. Dr Auyeung responded that he would rather not be involved and if she did not have to mention him could she please not do so. Dr Rudakova explained that in her statement she had said that she told no one which “…is not true because I told you…” She continued:
If it comes out and they start investigating on how it “came out” the source will be self evident because I only told you and then I will be in even more heartache… because I am signing a statement and right now it says that I told no one. I feel like I doubly have to tell them now lol because you never pick up your phone and so as a result you force (sic) to create all this physical evidence of all you knowledge of the situation lol.
Dr Auyeung replied to Dr Rudakova that he had been told part of what had happened, but not the entire story, that when she “started reading [her] email” he had told her to stop, but that as the JMO representative he had heard her out as he thought he needed to do so. He expressed concern about the attitude of her previous message. He indicated that he expected respect from Dr Rudakova.
Dr Rudakova’s texted response was to query where the disrespect was, to say that she was trying to have a conversation with him and that she had to get a statement done and that it had to be truthful and so out of respect for him she was letting him know what she needed to write before she did so.
Evidence about events preceding the dismissal
It is necessary to consider in more detail the events preceding the dismissal outlined at [16] – [60] above as part of the overall facts and circumstances of the case (see Barclay at [127]).
Mr Cusack, the then CEO of the Hospital, also fulfilled the role of a Director of Medical Services (or equivalent) for the purposes of the HETI accreditation requirements and had ultimate responsibility to HETI for interns. He was the person who made the decision on behalf of the Hospital to terminate Dr Rudakova’s employment.
Mr Cusack was regularly consulted and kept up to date with the progress of interns, although he did not have an active role in their day to day management. He was sometimes sent emails or otherwise kept informed about issues that arose. He was responsible for approximately 1200 staff and 400 medical specialists at the Hospital.
Mr Cusack was introduced to Dr Rudakova in January 2017 when she started work as an intern at the Hospital. There is no evidence that he became aware of any issues raised by or about Dr Rudakova before Ms Fallon and Dr Omari raised concerns with him in May 2017.
In cross-examination Dr Rudakova agreed that during her psychiatry rotation Dr Scott had “informally” raised concerns with her about her interactions and how they impacted patients (in particular her interaction with vulnerable patients). Dr Rudakova acknowledged that in her psychiatry end of term assessment (which was assessed as satisfactory) her communication skills with vulnerable and distressed patients had been identified as an area for improvement.
Insofar as Dr Rudakova asserted that the “process” of complaints by her began in April 2017 with an email complaint of 30 April 2017 to Dr Omari, in her witness statement Dr Rudakova stated that this email was “not to hand”. When asked at the hearing about the correctness of this statement, she claimed that she had sent a copy to her counsel. In cross-examination she explained that she did not have a copy of that document with her, but suggested that she could “pull it up on her phone”. Her counsel advised the court that he did not have it to hand. He did not tender any such document, but nonetheless sought to rely on Dr Rudakova’s evidence that she had emailed Dr Omari on 30 April 2017 raising concerns about “lack of training, insufficient supervision and lack of clarity regarding protocols during [her] Psychiatry rotation”.
Accepting for present purposes that Dr Rudakova sent an email to Dr Omari on 30 April 2017, there is no evidence that such email was brought to the attention of Mr Cusack. I accept Mr Cusack’s unchallenged evidence that he did not recall Dr Rudakova making any such complaint and was not aware of any such complaint at the time he made the decision to terminate her employment. As I accept that Mr Cusack was not aware of any such complaint I am satisfied that he did not take it into account in his decision to terminate Dr Rudakova’s employment.
As indicated, in May 2017 both Ms Fallon and Dr Omari advised Mr Cusack that there were concerns about Dr Rudakova’s clinical knowledge and performance. Ms Fallon’s evidence in cross-examination was that this was on or shortly after 17 May 2017 and followed the meeting of 17 May 2017 called by Dr Omari. I accept Ms Fallon’s evidence, consistent with the meeting notes, that the purpose of the meeting of 17 May 2017 was for Dr Omari, as DPET, to advise Dr Rudakova of concerns that had been raised by both her psychiatry and ENT term supervisors in relation to communication and, in particular, inappropriate overstepping of boundaries, as well as some concerns raised by patients and their families and (consistent with the HETI “Trainee in Difficulty” Guide) to seek to identify and understand any potential underlying issues and to assist in the development of an action plan to address the concerns. It is apparent from the meeting notes that specific concerns about Dr Rudakova’s activities during the ENT term were also raised with her and that she raised concerns about the extent of the support and training provided to her in the ENT term.
Dr Rudakova expressed the view that she had been “called into [this] meeting where Professor Omari aggressively criticised [her] and said he was initiating a ‘performance action plan’”. Insofar as Dr Rudakova’s claim that she was “called into” this meeting might be seen to imply that she was given no notice of the meeting, in her letter of 9 June 2017 about the outcome of the investigation into her grievance Dr Rudakova stated she was informed of the meeting of 17 May 2017 on 12 May 2017. She had a support person present. In other words, Dr Rudakova was, on her own evidence, given notice of the meeting. Further, adoption of an action plan was in accordance with the HETI guide for assisting trainees in difficulty.
As attested to by Ms Taoro, Ms Fallon had approached her on 12 May 2017 advising that there were some concerns about the performance of an intern (identified as Dr Rudakova) and that they were putting her on a “trainee plan”.
The notes of the meeting of 17 May 2017 and Ms Fallon’s affidavit evidence, which she maintained in cross-examination, are contrary to Dr Rudakova’s assertion in her witness statement that Dr Omari “aggressively criticised” her. Ms Fallon’s evidence was that Dr Omari was not aggressive during that meeting in the words he spoke, his body language or his demeanour.
In cross-examination Dr Rudakova agreed that various issues (referred to in the meeting notes) had been raised with her at this meeting. She explained some of her responses.
At this meeting Dr Omari clearly raised a number of concerns with Dr Rudakova. Dr Rudakova stated that she would reply in writing to the concerns raised about her conduct “after reflection”. Dr Rudakova made a number of complaints about her training and suggested that more supervision, clearer protocols and better orientation were required. Despite Dr Rudakova’s asserted perception that there was aggressive criticism of her, in cross-examination she acknowledged that Dr Omari wanted to work with her to address performance issues he had raised and to work out a way, constructively, to assist her.
During the meeting of 17 May 2017 performance issues were raised with Dr Rudakova about both her psychiatry and ENT terms and that she was also given the opportunity to raise her own concerns. Dr Omari suggested positive responses (to be incorporated in an action plan), including that texting with interns after work hours should be limited, that Dr Rudakova should have more face to face time with her supervisors in her ENT rotation, that a process for open communication should be introduced, that she should be notified during office hours of ward rounds for the next morning, that she should have a weekly meeting with Dr Biggs and Ms Fallon, that there should be clarification of the reporting structure for her and that her other concerns about clarity and structure should be discussed in her meeting with Dr Biggs.
In an email to Mr Cusack of 26 May 2017 Dr Omari confirmed that there were concerns about Dr Rudakova’s performance. This advice was provided to Mr Cusack before Dr Rudakova sent her grievance letter of 27 May 2017. On 29 May 2017 Mr Cusack was copied in to emails between Dr Omari and the Program Coordinator of the Accreditation and Faculty Unit at HETI (which had commenced on 23 May 2017) in which Dr Omari sought advice about how to manage concerns about Dr Rudakova’s performance.
Mr Cusack’s evidence is that he was told by Dr Omari and Ms Fallon about concerns about Dr Rudakova’s clinical ability and performance (which were issues raised in the meeting of 17 May 2017). In cross-examination Mr Cusack explained that he believed he received the notes of that meeting as part of the HR process. However that does not in itself support any inference that the fact Dr Rudakova made a complaint in relation to her employment in this meeting or in her 21 May 2017 response to the issues raised at this meeting was an operative reason for her dismissal. This was not, in any event, a pleaded allegation.
Ms Fallon also gave evidence about the meeting with Dr Rudakova and Dr Biggs of 19 May 2017. A copy of the file notes of the meeting are in evidence. I accept that, consistent with the notes of the earlier meeting of 17 May 2017 and all the evidence before the court, this meeting occurred in circumstances where it had been agreed, in response to Dr Rudakova’s request for more structure and the provision of a position description and other material, that she should meet regularly with Dr Biggs (her ENT supervisor) with Ms Fallon in attendance.
Dr Rudakova did not refer to this meeting in her witness statement. In cross-examination she accepted that at the meeting of 19 May 2017 Dr Biggs had expressed concern with respect to her performance. She denied that (as the meeting notes record) she had tried to interrupt Dr Biggs. She stated that she had not been given an opportunity to respond and disputed generally the accuracy of Ms Fallon’s evidence (and the meeting notes) in relation to what occurred at this meeting.
Ms Fallon’s recollection in cross-examination was that there were times Dr Rudakova was very disrespectful during this meeting in circumstances where Dr Biggs was trying to assist and support her and was pointing out some of the areas in which she could improve, with communication being one of them.
The file note of the meeting on 19 May 2017 on its face suggests what could be seen as a combative response on the part of Dr Rudakova and I accept Ms Fallon’s evidence in this respect. It is consistent with the fact that Dr Rudakova was recorded as explaining in that meeting that “part of [her] directness” was “cultural” as she was Russian and informed her supervisor that “you will have to accept this. There is no malice behind my directness”.
Relevantly, the notes for the meetings of 17 and 19 May 2017 reveal that concerns about Dr Rudakova’s clinical performance, interactions, communication, understanding of her role and other skills were raised with her by senior Hospital staff before her grievance of 27 May 2017. This is not a case in which complaints about an applicant’s performance relied on as reasons for dismissal were only made after the exercise of a workplace right by the applicant.
Dr Rudakova responded to the concerns raised at the meetings of 17 and 19 May 2017 in two letters emailed to Dr Omari dated 21 May 2017. One response related to concerns about her performance in the psychiatry rotation raised at the meeting of 17 May 2017. The other related to concerns about her performance in the ENT rotation raised at both meetings. Some of the concerns raised about her performance in the ENT rotation also appear in Dr Rudakova’s grievance of 27 May 2017 and are described by her as “unjustified” criticisms.
Dr Rudakova provided copies of her responses of 21 May 2017 to Ms Taoro on 30 and 31 May 2017 in connection with the investigation of her grievance. Mr Cusack acknowledged that in the grievance report Ms Taoro had stated that she had received the minutes of these meetings and had noted that weekly meetings between Dr Rudakova and her supervisor (such as the meeting of 19 May 2017) had been agreed to and were essentially support meetings.
It has not been alleged that what occurred at the meetings of 17 and/or 19 May 2017 or that what was contained in the letters of 21 May 2017 constituted the exercise of a workplace right by Dr Rudakova that was a reason for her dismissal.
On 25 May 2017 Dr Rudakova attended another meeting with Dr Biggs and Ms Fallon. This meeting was the subject of her grievance letter of 27 May 2017.
The notes of the meeting of 25 May 2017 are in evidence. They state that issues about Dr Rudakova’s performance were raised by Dr Biggs. However characterised, the “criticisms” raised with Dr Rudakova at this meeting (as described in the meeting notes and the grievance) related to concerns raised with her by her ENT supervisor about her ENT term, not events that occurred while she was undertaking her psychiatry rotation. Her complaints about training and supervision responded to the ENT rotation criticisms.
The meeting notes suggest that Dr Rudakova made direct and what at times appeared to be combative responses and that she attributed asserted performance shortcomings to deficiencies in the training provided by the Hospital.
In her evidence Dr Rudakova expressed “surprise” that Dr Biggs and Ms Fallon had made “many criticisms” of her “performance and behaviour” during the ENT rotation at the meeting of 25 May 2017 which she said she had been told was a “routine meeting to discuss her progress”. She admitted in cross-examination that despite her view that the meeting of 25 May 2017 was merely a “check in meeting” with her supervisor, it had been open to her supervisor to raise with her any concerns he had with respect to her performance and behaviour. She then suggested that what “surprised” her was that she was “badgered”. She claimed that the concerns were presented in an “extremely hostile” manner. She did not accept that she had difficulty in accepting criticism and learning from it or that there was a pattern of seeking to challenge, rather than to listen to, feedback.
The file note of that meeting is consistent with the evidence of Ms Fallon that Dr Rudakova was not accepting feedback that was being provided to her constructively by her supervisor and that she interrupted Dr Biggs. Dr Rudakova clearly saw her behaviour differently. She was of the view that she was not given an opportunity to respond (as she told Dr Biggs, complaining that his outline of concerns and feedback was “not a discussion, it is a monologue”).
According to Dr Rudakova, Ms Fallon and Dr Biggs were concerned about the fact she was challenging the draft action plan. According to the meeting notes, Dr Rudakova told Dr Biggs she could not communicate with him, that she was not satisfied with and would not sign the draft action plan and that she wanted to meet with Dr Omari.
Insofar as Dr Rudakova was of the view that this was a routine meeting to discuss her “progress” and ENT mid-term assessment, it appears that it was also to address issues raised at an earlier meeting and to discuss the draft action plan provided to Dr Rudakova.
Ms Fallon has explained that it was at the request of Ms Coleman of HR that during that meeting she had brought to Dr Rudakova’s attention that she was still in the probationary period under her contract of employment. It is understandable that, as an intern on probation, Dr Rudakova may have seen such an express reminder of her probationary status as threatening. However, it is not necessary to determine precisely what occurred at this meeting or whether it amounted to bullying, as Dr Rudakova claimed. Dr Rudakova has not alleged that her employment was terminated because of what occurred during this meeting, in itself. Relevantly, this was another occasion on which concerns were raised about Dr Rudakova’s performance (albeit in relation to her ENT rotation) before she lodged her grievance.
In an email of 25 May 2017 to Dr Biggs, Ms Fallon and Dr Omari, Dr Rudakova suggested that a few points about the draft action plan required clarification. She asked for more supervised training and support as part of the action plan and also asked “Please stop reminding me that my position is terminatable (sic)”. She claimed to be experiencing symptoms of depression.
In subsequent emails Dr Omari reminded Dr Rudakova that the action plan was a draft and that they wanted to work with her to formulate a mutually agreeable strategy. Dr Rudakova complained about what were said to be veiled threats by Ms Fallon about termination and claimed that she had been advised by Dr Biggs that she had to sign the action plan by 26 May 2017.
Dr Omari suggested that he and Ms Fallon should meet with Dr Rudakova to provide her with information about further support.
On 26 May 2017 Dr Rudakova emailed Dr Omari advising that she was ill and unable to attend work. She suggested they should meet regarding the draft action plan the next week. Dr Omari agreed and suggested that Dr Rudakova would be assisted by confidential counselling paid for by the Hospital in relation to her recent feelings of distress. Ms Fallon emailed contact details for a clinical psychologist.
Dr Rudakova sent her grievance letter to Dr Omari on Saturday 27 May 2017.
Mr Cusack acknowledged that he was aware of the grievance. His evidence was that he did not take it into account in deciding to terminate Dr Rudakova’s employment as it was not relevant to the reasons for the dismissal and also that he had disregarded it in accordance with Ms Taoro’s advice in the meeting of 10 July 2017. His evidence in this respect is considered further below.
On 29 May 2017 Mr Cusack asked Ms Taoro to conduct a formal investigation into Dr Rudakova’s grievance of 27 May 2017. As set out in the chronology, Ms Taoro met separately with each of Dr Biggs, Ms Fallon and Dr Rudakova in the course of investigating Dr Rudakova’s grievance. They each signed a statement about the interview, after being given the opportunity to review a draft. Ms Taoro also received various emails from Mr Cusack and Ms Fallon which she understood were sent to her for the purpose of providing background as to why Dr Omari, Dr Biggs and Ms Fallon had met with Dr Rudakova and had sought to put in place an action plan. This included information from Ms Fallon relevant to concerns expressed by and about Dr Rudakova, attaching copies of medication charts said to demonstrate issues with Dr Rudakova’s prescribing practices on her ENT rotation and feedback from the intern who had conducted the handover prior to her ENT rotation. Mr Cusack sent Ms Taoro copies of Dr Omari’s correspondence with HETI about the Hospital’s performance concerns about Dr Rudakova and a copy of an email Dr McDonald, a consultant psychiatrist at the Hospital, had sent to Dr Scott on 29 May 2017 in relation to Dr Rudakova’s conduct and performance during her psychiatry rotation.
Dr McDonald’s email was referred to in Mr Cusack’s evidence about his reasons for dismissing Dr Rudakova. In his email of 29 May 2017 Dr McDonald outlined concerns about Dr Rudakova’s attitude and behaviour that he had become aware of during her psychiatry rotation. Dr McDonald commented that he had initially defended Dr Rudakova in response to expressions of discontent by nurses (as she appeared interested and seemed to know more about psychiatry then most interns), but stated that as time progressed he realised that Dr Rudakova “seemed impervious to the obvious hierarchical fact that she is the intern and I am the consultant” and that she was “uncomfortable taking direction or advice”. He saw this as a significant problem for a young inexperienced doctor. Dr McDonald gave as an example the fact that Dr Rudakova “became irritated” with him when he was reluctant to commence a particular drug she saw as appropriate for a patient, that a phone call on the subject had degenerated into them both trying to talk over the other and that the patient, who was very sensitive, had an “emotional meltdown” after speaking with Dr Rudakova. Dr McDonald stated that he had later attempted to discuss this with Dr Rudakova, but that she “seemed disinterested (at best) and basically terminated the conversation”.
Dr McDonald also referred to the fact that Dr Rudakova had initiated a particular drug for a patient who had reported that “the intern told me to tell Dr McDonald that I really want this medication, because otherwise Dr McDonald would just cease it”.
Finally, Dr McDonald stated that before he first spoke to Dr Scott about his concerns he had confidentially discussed Dr Rudakova with the acting USpace nurse unit manager and the USpace registrar who had concurred that her attitude and behaviour had been inappropriate on several occasions.
Ms Taoro provided a written investigation report to Mr Cusack of 5 June 2017 in relation to Dr Rudakova’s grievance. It was prepared in tabular form. It outlined to each of Dr Rudakova’s allegations, the responses (in particular from Dr Biggs and Ms Fallon), Dr Rudakova’s further responses and documentary evidence, including minutes of the meetings held before as well as on 25 May 2017 and emails from other hospital staff in relation to Dr Rudakova’s claims. For example, in response to Dr Rudakova’s claim that there had been no complaints from nursing staff or patients (relevant to her assertion that she had been subject to “unjustified” criticism which she considered constituted bullying), Ms Taoro’s report referred to evidence that Dr Scott had tried to contact Dr Rudakova to provide her with feedback on three occasions and that Dr Rudakova had refused to meet with her, to the complaint from Dr McDonald about Dr Rudakova undermining his decision-making and to reports from patients in USpace and their families expressing concerns about Dr Rudakova. The report also referred to documentary evidence that was contrary to Dr Rudakova’s assertions about deficiencies in her training and support.
Ms Taoro found that Dr Rudakova’s bullying claims were unsubstantiated and that the training and support provided to Dr Rudakova (and the investigation) had been in accordance with HETI guidelines. Ms Taoro explained in her evidence that it was apparent to her from the grievance investigation that the HETI process for identifying and managing “Trainee in Difficulty” was being followed by Dr Rudakova’s supervisors.
The grievance report recommended that the action plan for Dr Rudakova should include further prescribed training and support. As Ms Taoro observed, the proposed amendments to the action plan were broadly in line with the requests that had been made by Dr Rudakova. In addition, Ms Taoro recommended that Dr Rudakova should have another role clarification meeting with her ENT supervisor and that such meeting should be documented.
On 6 June 2017 Mr Cusack advised Ms Taoro that her report looked comprehensive and clear. His evidence was that he was satisfied with Ms Taoro’s investigation and did not intervene or have any further involvement in the handling of the grievance.
On 6 June 2017 Ms Fallon informed Dr Rudakova that she and Dr Omari would like to meet with her on 7 June 2017 to follow up from the meeting of 17 May 2017 and to address an amended draft action plan which incorporated Dr Rudakova’s feedback.
Ms Taoro met with Dr Rudakova on 7 June 2017 and gave her a letter of the same date to explain the outcome of the grievance investigation. In essence, the letter recorded the findings that Dr Rudakova’s complaints that Dr Biggs and Ms Fallon had bullied her at the meeting of 25 May 2017 were unsubstantiated, that her various complaints about unreasonable or unjust criticisms were unsubstantiated and that, contrary to Dr Rudakova’s assertions, there was evidence that particular training and role clarification had been provided to her.
The Hospital submitted that the court could be satisfied that Dr Rudakova’s grievance was not inextricably entwined with the adverse action and, in any event, was not an operative factor in taking adverse action having regard to Mr Cusack’s direct evidence; the absence of a basis on which it could be suggested the alleged prohibited reason (the grievance) was a substantial and operative reason for Dr Rudakova’s dismissal; the temporal disconnect between the alleged grievance and the termination; the fact the termination occurred after an internal investigation; the fact the “real reason” for the termination was clear and did not offend the Act; and the fact this was confirmed by Dr Rudakova’s subsequent conduct.
I have had regard to all the evidence in considering whether I am satisfied that the Hospital has established “otherwise” within s.361 of the Act.
As discussed above, the onus of proving that a proscribed reason was not an “operative” factor in taking adverse action is to be discharged on the balance of probabilities in light of all the established evidence (French CJ and Crennan J in Barclay at [62]). Gummow and Hayne JJ in Barclay at [104] referred to the issue in terms of whether the proscribed reason was a “substantial and operative” reason for taking the adverse action. Justice Gageler in BHP Coal referred to an “operative and immediate” reason (as did Jessup J in Endeavour Coal). I have borne in mind that a mere connection in fact between adverse action and a proscribed reason does not in itself mean that such proscribed reason must be taken to be an operative reason for the adverse action, although it may necessitate some consideration as to the true reasons of the decision-maker (BHP Coal at [20] – [23]).
Having regard to the temporal and limited factual connection between the grievance and the subsequent termination of Dr Rudakova’s employment I have given consideration to the “true motivations” of the decision-maker (BHP Coal at [22]), although I note that the dismissal followed a HR investigation which was conducted after, and separate from, the finalised grievance investigation.
As indicated, Mr Cusack, the decision-maker, gave affidavit evidence and in response to cross-examination about his reasons that was direct, consistent, logical and convincing. He explained that he considered that the Dr B complaint was made out, having regard to the evidence before him from Dr B, Dr Scott and Dr McDonald and that it was objectively serious because of the very poor outcomes that could have arisen as a result of Dr Rudakova’s conduct. The basis for this reasoning was elaborated on in the termination letter. Mr Cusack was also of the view that the conduct in question reflected a pattern of behaviour of overstepping professional boundaries despite the intervention of senior colleagues. Mr Cusack accepted that the Dr A complaint was of less seriousness (although, contrary to Dr Rudakova’s submission, he did not describe it as “trivial”), but explained his opinion that the Dr A complaint was also consistent with a pattern of behaviour in which Dr Rudakova was not doing what she was required to do and that her conduct did amount to a breach of a directive to maintain confidentiality. Mr Cusack did not merely declare innocent reasons. He explained the basis for his reasons, in particular in the detailed termination letter.
In addition, Mr Cusack asserted that the Hospital did not take the adverse action because Dr Rudakova had exercised a workplace right in making the formal grievance of 27 May 2017 (or indeed because she made other asserted complaints) or otherwise exercised a workplace right in any manner described in her witness statement. Mr Cusack’s evidence in this respect went beyond mere assertion of a negative. He not only explained that he did not have regard to the making of the grievance in deciding to dismiss Dr Rudakova, he also explained that the grievance was not relevant to his decision to dismiss Dr Rudakova because it was not relevant to the matters in issue and that he had had regard to Ms Taoro’s advice.
As indicated, what Mr Cusack said in relation to his reasons was entirely consistent with the contemporaneous documents, in particular the letter of termination, which he explained reflected his reasons for the decision. Further, other documentary evidence (including the subpoenaed material tendered as an exhibit with no objection by Dr Rudakova and the evidence of Ms Fallon and Ms Taoro) supports the inherent plausibility and coherence of Mr Cusack’s evidence as to the reasons he terminated Dr Rudakova’s employment. The reasons, as explained in the termination letter and Mr Cusack’s evidence, do not in any way offend the purpose of the general protections provisions of the Act.
Further, in addition to the Dr B complaint, the evidence revealed that Dr Rudakova had been the subject of various complaints with regard to her performance regarding her treatment of patients in USpace during her psychiatry rotation as recorded in documents provided to Mr Cusack. In addition to the minutes of the meeting of 17 May 2017, Dr McDonald’s email, Dr Omari’s written concerns and the record of discussion with Dr Scott, the material before Mr Cusack included a summary of comments by overnight patients in USpace recording that Dr Rudakova (referred to as Marianna) was “inappropriate with everyone” and a separate complaint, apparently involving another patient, that she made inappropriate and negative comments which the patient reported made him or her feel degraded, violated, shocked, interrogated and judged. Another file note reported a lack of empathy on the part of Dr Rudakova and that she had pressured a patient to undergo a particular review, although the patient had said that she did not want to do so.
Dr Rudakova conceded in cross-examination that during her psychiatry rotation Dr Scott had raised complaints with her regarding her performance, albeit “informally”. When Ms Coleman contacted Dr Scott on 19 June 2017 in relation to the Dr B complaint and asked whether she believed Patient B when she stated that Dr Rudakova had urged her to seek her birth parents, Dr Scott stated that she did. Dr Scott was also recorded as stating that Dr Rudakova had difficulty in seeing how her interactions impacted on those in a vulnerable state and found it hard to regulate what she said. Dr Scott had spoken to Dr Rudakova regarding this issue in relation to a separate patient complaint, but felt that she had failed to learn from the experience.
It is apparent not only that Dr B (Patient B’s private psychiatrist) considered Patient B’s complaint credible, but also that there was a record before Mr Cusack of other complaints of the same nature and that Dr Scott advised that, in her medical opinion, Patient B’s diagnosis would not make it more likely that she would lie about the interaction with Dr Rudakova (as had been suggested in the response of Dr Rudakova’s solicitors). Further, Dr Scott did not consider Patient B sophisticated enough to lie.
Moreover, Mr Cusack himself also spoke to Dr Scott. I accept his evidence that Dr Scott told him that she had received complaints from three other patients about Dr Rudakova’s conduct during the psychiatry rotation, that on each occasion these complaints had been raised with Dr Rudakova, but that she had continued to overstep professional boundaries. This amounted to an opinion in that respect from Dr Scott, a senior doctor who was the Medical Director of the USpace unit and Dr Rudakova’s supervisor in her psychiatry term. I note that while Dr Rudakova satisfactorily completed her psychiatry term, the Dr B complaint had not been made at that time.
Insofar as counsel for Dr Rudakova took issue with Mr Cusack’s reliance on evidence from Patient B as reported through her parents and Dr B (as hearsay), the issue is not whether a court could or would be satisfied on the evidence before it that the reported incident in fact occurred, but rather what were the true reasons of Mr Cusack and the reasoning he actually employed in deciding whether to terminate Dr Rudakova’s employment. As set out above, he provided a logical, consistent and coherent account of his reasoning, explained his view that in the face of Dr Rudakova’s denial of the Dr B complaint it was appropriate to ask Dr Scott about this incident and about any other complaints and concerns about overstepping professional boundaries, as well as to have regard to Dr Scott’s reported comments and the email from Dr McDonald in relation to whether other similar patient complaints or issues about overstepping professional boundaries had arisen.
It is the case that the decision to terminate Dr Rudakova’s employment was not entirely disassociated from her grievance in a temporal and factual sense. Mr Cusack was aware of the grievance at the time he terminated Dr Rudakova’s employment. The formal Dr B complaint was made on 30 May 2017 while Dr Rudakova’s grievance was under investigation and before Ms Taoro prepared her report on the grievance. This was acknowledged by the Hospital in Ms Coleman’s letter to Dr Rudakova of 13 June 2017.
The Dr A complaint arose after the grievance. It related to an asserted breach of confidentiality in relation to the grievance, including both Dr Rudakova’s workplace complaints and the bullying complaints she made about Dr Biggs and Ms Fallon in her grievance. Dr Auyeung’s emails to Ms Coleman made it clear that it was his concern about what he saw as Dr Rudakova’s inappropriate interactions with him that led him to complain, not the fact of her grievance or any other complaint she had made about the Hospital or its staff. The issue of a breach of confidentiality and of a direction not to disclose her grievance was distinct from the facts or circumstances in which the grievance was lodged.
The suggestion that the termination of Dr Rudakova’s employment was in part because of her grievance about alleged bullying by Hospital staff and complaints about Hospital training and support is to be seen in light of the fact that the concerns she raised in her grievance were not of the same nature as the matters Mr Cusack said he took into account. The fact that Dr Rudakova complained of bullying, disputed specific criticisms made at the meeting of 25 May 2017 about her performance in the ENT rotation and criticised aspects of the training and support provided to her had no necessary bearing on whether the Dr A and Dr B complaints were made out or her employment should be terminated in the circumstances outlined in the termination letter.
Contrary to any inference that the Hospital decided to rid itself of a troublesome intern who raised and maintained a grievance against Hospital staff and in relation to training and support, it is notable that the communications to Dr Rudakova, both before and after her formal grievance, reveal attempts by the Hospital not only to raise serious concerns with her about her performance and behaviour, but also to try to help her to overcome perceived deficiencies. The introduction of an action plan was consistent with the HETI Guide in relation to dealing in a supportive manner with a “Trainee in Difficulty”. The communications between Dr Rudakova and the Hospital staff immediately after the meeting on 25 May 2017 are consistent with the fact that the Hospital was trying to address concerns in an appropriate way. The Hospital addressed its concerns and also the concerns Dr Rudakova raised about her own training and supervision by proposing modifications to the action plan to enhance her training and supervision. It also changed her ENT supervisor.
Counsel for Dr Rudakova appeared to submit that there were cogent reasons why her version of events in relation to the Dr B and Dr A complaints should be preferred, that the matters complained of were either not made out or did not provide a basis on which her employment should be terminated. Even if Mr Cusack’s reasons were misguided or harsh, this would not mean that the Hospital could not or would not meet the reverse onus. It is not necessary for the court to determine whether Dr Rudakova’s dismissal was fair or reasonable (as appeared to be contended in the Points of Claim and submissions).
However, I do not find persuasive Dr Rudakova’s submission that the asserted reasons for her termination (the Dr A complaint and the Dr B complaint) were unjustified complaints or matters of low seriousness that were only raised after she made her grievance which could not genuinely have been assessed as amounting to serious misconduct that warranted dismissal. She appeared to be of the view that, but for the Dr A complaint and Dr B complaint, she was otherwise competent and without performance concerns at the Hospital. On this basis it was suggested that the court would not accept that the Hospital met the reverse onus.
Performance concerns, including overstepping professional boundaries, communication issues and patient concerns had been discussed with Dr Rudakova informally during her psychiatry term and at two meetings prior to the meeting of 25 May 2017 which was the subject of the grievance (the meetings of 17 May 2017 with Dr Omari and Ms Fallon and the meeting of 19 May 2017 with Dr Biggs and Ms Fallon). This evidence is contrary to any assertion that the Dr A and/or Dr B complaints were retaliatory. While the Dr B complaint was made formally after Dr Rudakova’s grievance, it had previously been raised orally with the nurse unit manager. It was a complaint made independently by an external private psychiatrist.
Insofar as it was intended to be suggested that the complaints against Dr Rudakova had been in some way manufactured, apart from the extensive material before Mr Cusack, the Hospital drew the court’s attention to aspects of the material produced by the Hornsby Ku-ring-gai Health Service in answer to a subpoena in relation to Dr Rudakova’s employment as an intern at Hornsby Hospital and Manly Hospital from 17 August 2017.
It was anticipated in her offer of employment at Hornsby Hospital that Dr Rudakova would complete her internship on 4 February 2018. This did not occur. The subpoenaed material reveals that similarly significant complaints and performance issues were raised about Dr Rudakova at Hornsby Hospital. While Dr Rudakova suggested that what happened at Hornsby Hospital was a “fallout” from what happened at St Vincent’s, the material produced in answer to the subpoena is extensive.
As counsel for the Hospital pointed out, in December 2017 concerns about Dr Rudakova’s performance, including her clinical and attitudinal behaviours, a perception that she resisted reasonable directives, her communication (both written and oral), documentation, clinical acumen, prioritisation of jobs, patient assessment and record keeping issues, as well as supervision concerns, were raised by her supervisor and other staff at Hornsby Hospital.
Senior doctors, including the Acting DPET at Hornsby Hospital, met with Dr Rudakova to raise these concerns and to explain support strategies. Dr Rudakova’s responses to the concerns were seen as raising issues about her insight. Dr Rudakova also raised concerns about her supervising registrars and accused a senior staff member of bullying her (which was not confirmed on investigation).
The Hornsby Hospital acting DPET made a mandatory report to the Australian Health Practitioners Regulation Agency (AHPRA) on the basis that it was believed that Dr Rudakova met the criteria for “placing the public at risk of harm because of practice that constitutes a significant departure from accepted professional standard”. Dr Rudakova saw this as a “vexatious” complaint. Her evidence is that no conditions were imposed on her registration.
However, a detailed risk assessment was prepared at Hornsby Hospital (which was described as relating to professional and clinical performance concerns about Dr Rudakova in the areas of deficits in knowledge, lack of initiative and the need for more reminders than peer interns at a similar level and stage of training; documentation not appearing to accurately summarise consultations, discussions or clinical management decisions; communication (on the basis of a concern that Dr Rudakova appeared to be dismissive, abrupt and rude); and a concern that despite explanations and support by supervising staff, Dr Rudakova was apparently resistant to reasonable directives around clinical decisions or tasks given and had an apparent inability to sufficiently self-reflect or demonstrate self-awareness (insight) that concerns raised with her had been established). Dr Rudakova was suspended from clinical duties on 2 January 2018 pending further clarification. Hornsby Hospital advised Dr Rudakova that there were sufficient concerns that the organisation could no longer safely support the supervision requirements to rectify or mitigate its concerns.
It appears that the suspension was lifted in February 2018 after an updated risk assessment, which referred to some progress having been made in supportive performance management, despite ongoing and some new concerns, which were detailed. Dr Rudakova then undertook an Emergency Medical Care rotation at Hornsby (initially in a supernumerary position) and was then moved to Manly Hospital.
While hotly disputed by Dr Rudakova, aspects of a subsequent reference from a doctor at Manly Hospital (where she re-did her surgery rotation and did a “relief” term) also suggested (in general terms) some ongoing concerns.
Dr Rudakova eventually completed the requisite 5 rotations as an intern in August 2018.
In the present context, what is to be taken from this material is of a limited nature. However it is relevant to any suggestion that it should be inferred that the performance concerns that were raised at the Hospital (and the Dr B and Dr A complaints) were obviously unjustified and manufactured, such that they should not be taken to be the actual reasons for her dismissal.
Issues about Dr Rudakova’s conduct and performance were raised at Hornsby Hospital, including in relation to a failure to follow directions and a lack of insight into professional boundaries, which were similar in nature to the matters Mr Cusack said were the basis for his decision to terminate her employment. The documents from Hornsby Hospital show that another employer had serious concerns about Dr Rudakova’s performance to the extent of placing her on non-clinical duties after a risk assessment.
On all the material before the court I am satisfied that Mr Cusack did consider that the Dr B complaint and the breach of confidentiality aspect of the Dr A complaint, were made out. As the Hospital submitted, to the extent that it is relevant to engage in an inferential assessment of all the circumstances in considering whether the Hospital met the reverse onus, such an assessment reveals matters consistent with Mr Cusack’s asserted reasons.
It is not in dispute that if made out, the complaints which gave rise to the dismissal were objectively serious. Dr Rudakova appropriately conceded in cross-examination that she knew when she was employed by the Hospital that she had an obligation to obey lawful and reasonable directions and to act in accordance with the applicable Code of Conduct, which included an obligation to behave respectfully and to communicate respectfully with others. She also acknowledged that she knew that it was essential to being an intern that she have the ability to receive feedback concerning performance and to take directions to improve performance and that it was essential that she knew her limits and did not make clinical decisions that she was not experienced to make as an intern. As the Hospital submitted, it is clear from Mr Cusack’s evidence and the termination letter that these obligations and the essential criteria for the position of an intern formed part of the reasoning for the decision to terminate Dr Rudakova’s employment.
Further, Dr Rudakova accepted that if the Hospital believed that she was untruthful in her responses to the Dr A and/or Dr B complaints as part of the investigation process and/or that she had disobeyed a lawful and reasonable direction, then this was very serious and could give rise to the termination of her employment. Mr Cusack’s acceptance of Patient B’s version of the incident with Dr Rudakova (rather than the version of events given by Dr Rudakova) and of Dr Auyeung’s account of their interaction (rather than that of Dr Rudakova), as well as his belief that Dr Rudakova had disobeyed a lawful and reasonable direction, were part of his reasoning.
In relation to the Patient B, the admission notes prepared by Dr Rudakova did not record a conversation of the nature asserted by Patient B (according to her mother and Dr B). However Dr Rudakova conceded under cross-examination that if the Hospital had preferred the account of Patient B’s mother as to what happened with Patient B (as accepted by Dr Scott and Dr B), namely that Dr Rudakova had spoken to the patient privately and inspired and urged her to seek knowledge of her birth parents, saying that she had “a right to know”, then this was very serious misconduct and would be overstepping the bounds of a medical role to that of a non-medical role. Dr Rudakova accepted that such conduct could also place such a vulnerable mental health patient at risk, given that the conduct was motivating the young patient to embark on a course of conduct which could have complex outcomes which the patient might not be able to handle.
Dr Rudakova also conceded that if the Hospital was of the view that she had not accurately recorded her communications with this mental health patient (Patient B) and/or was untruthful about her interactions with her this would be serious misconduct and, in particular, that to be untruthful to protect her own interests over those of a patient would be serious misconduct.
I note that Dr Rudakova’s own description of herself in her letter of 21 May 2017 replying to concerns about her performance in her psychiatry term included a belief that she could “inspire” mental health patients to be proactive. This letter pre-dated the Dr B complaint of 30 May 2017. Dr Rudakova conceded that there was a similarity between this description of herself in her actions with respect to mental health patients and the nature of the Dr B complaint. As Mr Cusack explained in the termination letter, it was not suggested that Dr Rudakova provided information to Patient B which was the catalyst for her seeking out her birth parents (as appeared to be suggested by her solicitor’s letter). Rather, the allegation pertained to “whether the patient was encouraged to do so and whether that communication [fell] within acceptable professional boundaries”.
As to the Dr A complaint, Ms Taoro, who had undertaken the formal investigation of the complaints, believed that Dr Rudakova had deliberately disobeyed a direction not to discuss her grievance with third parties. There is no evidence that Dr Rudakova raised with Dr Auyeung her claimed intention that he be her support person in some future meeting. She had already attended the meeting about her grievance on 31 May 2017 before she communicated with Dr Auyeung on 1 – 2 June 2017.
Notwithstanding that there was some temporal and factual connection between Dr Rudakova’s grievance and her subsequent dismissal, as French CJ and Crennan J stated in Barclay at [62], an employer can discharge the onus of proof under s.361(1) of the Act without proving that the reason for the adverse action in question was “entirely dissociated” from the alleged proscribed reason.
On all the evidence, I am satisfied that the Hospital has established on the balance of probabilities that the fact that Dr Rudakova had raised her grievance played no operative part in the mind of Mr Cusack when he terminated her employment. Rather, I accept that Mr Cusack’s considered view was that Dr Rudakova had engaged in conduct that amounted to serious misconduct and, as explained in the termination letter and in his direct evidence, that this was the reason he terminated her employment.
Dr Rudakova was a first year medical intern who was still on probation at the time her employment was terminated. Her conduct, within a very short period of the start of her internship, had been found by her superiors to reveal performance difficulties, to have placed a patient at clinical risk and to involve overstepping appropriate professional boundaries. This may well have raised an issue as to whether Dr Rudakova was either incapable, due to lack of insight, or unwilling, to follow directions, to accept feedback or to learn from her mistakes, as counsel for the Hospital suggested. Whether or not that is so, I accept Mr Cusack’s direct evidence in relation to his reasons for terminating the employment of Dr Rudakova. I am satisfied that it has been established that Dr Rudakova’s grievance was not an operative reason for Mr Cusack’s decision on behalf of the Hospital to take adverse action against her.
The only claim in these proceedings is a claim of a contravention of the general protections provisions of the Act. The evidence before the court is such that I am comfortably satisfied by the Hospital that the termination of Dr Rudakova’s employment was not for a prohibited reason and that the substantive and operative reasons of the decision-maker did not include the fact of the Applicant exercising a workplace right in making a complaint in relation to her employment.
It has not been established that the Hospital contravened s.340 of the Act. Hence it is unnecessary to determine whether, had there been a contravention, Dr Rudakova would have been entitled to the relief sought.
The application should be dismissed.
I certify that the preceding three hundred and zero (300) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 19 December 2019
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