State of New South Wales (Western NSW Local Health District) v Kanajenahalli (No 5)
[2023] NSWPICPD 56
•7 September 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | State of New South Wales (Western NSW Local Health District) v Kanajenahalli (No 5) [2023] NSWPICPD 56 |
APPELLANT: | State of New South Wales (Western NSW Local Health District) |
RESPONDENT: | Mohan Kanajenahalli |
INSURER: | QBE TMF |
FILE NUMBER: | A1-W4275/21 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 7 September 2023 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 10 January 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – section 11A of the Workers Compensation Act 1987 – whether error in determining the question of reasonableness – Irwin v Director-General of Education Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997 (unreported) discussed; principles applicable to disturbing findings of fact on appeal – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 discussed and applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Perry, counsel | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr D Baran, counsel | |
| Stacks Law Firm | |
DECISION UNDER APPEAL | |
MEMBER: | Mr C Burge |
DATE OF MEMBER’S DECISION: | 10 January 2022 |
INTRODUCTION AND BACKGROUND
Dr Mohan Kanajenahalli (the respondent) was employed by the State of New South Wales (the appellant) at Dubbo Base Hospital from 29 April 2019 as an Unaccredited Trainee in Paediatrics and Child Health, under a contract for 12 months arranged through the Australian Health Practitioner Regulation Agency (AHPRA).
The respondent ceased work on 11 June 2019 and resigned from his employment on 12 June 2019. The respondent notified the appellant that he had suffered a psychological injury, described in the Injury Notification form as “burnout” and “depression.”[1] The claim was denied by the appellant.
[1] Application to Resolve a Dispute (ARD), p 26.
The respondent commenced proceedings in the Personal Injury Commission (the Commission) for weekly payments of compensation, treatment expenses and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The injury was described as an aggravation, acceleration, exacerbation or deterioration of a psychological disease and the injury was said to have occurred on the deemed date of 11 June 2019.
The matter proceeded to arbitration before a member of the Commission. The appellant cited a number of reasons for denying liability in its notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). However, when the matter came to arbitration the only issue in dispute was whether the respondent’s injury was caused by reasonable action taken by the employer in respect of performance appraisal or discipline, in accordance with s 11A of the 1987 Act.
The Member issued a Certificate of Determination on 10 January 2022, in which he determined that the respondent’s injury was not caused by reasonable action taken by the appellant in respect of performance appraisal or discipline.
The appellant appealed that decision. The appeal was allocated to me for determination on 9 November 2022. In the process of considering the appeal, it became apparent that the respondent was a resident of Queensland at the time of commencement of the proceedings and thereafter and his claim was a claim against the State of New South Wales.
Section 75(iv) of the Commonwealth of Australia Constitution Act (the Constitution) vests original jurisdiction in all matters between “States, or between residents of different States, or between a State and a resident of another State.” Section 77 of the Constitution provides that Parliament has the power to invest any court of a State with federal jurisdiction. Section 39 of the Judiciary Act 1903 (Cth) vests Federal jurisdiction in a court of the State in matters between a State and a resident of another State. As a result, in order for the Commission to have jurisdiction to determine the dispute between the parties, it must be shown that the Commission is a court of the State and thus invested with the relevant federal jurisdiction, or that it was exercising administrative, rather than judicial, power in determining the dispute.
This issue was not raised in the proceedings before the Member or in the appeal. In order to ensure that the parties were afforded procedural fairness, the matter was listed for oral submissions on this point. The parties were asked to address the question of whether the dispute was between the State and a resident of another State, whether the Commission is considered to be a court, and whether the power exercised by the Member was administrative or judicial in nature. The hearing took place by way of the Microsoft Teams audio-visual conferencing platform on 15 December 2022.
Both parties submitted that the Commission was not a court of the State of New South Wales and thus the power exercised by the Member and by me was administrative in nature. I issued an opinion on 18 January 2023 that the Member exercised judicial power in reaching his decision and that the Member’s Certificate of Determination dated 10 January 2022 was determined without jurisdiction.[2]
[2] State of New South Wales (Western NSW Local Health District) v Kanajenahalli [2023] NSWPICPD 1.
The respondent appealed to the Court of Appeal. The New South Wales Attorney General intervened in the proceedings. Both parties and the intervenor agreed that the Member’s determination was an exercise in administrative power.
On 30 August 2023, the Court of Appeal determined that in this particular case, the Member was exercising administrative power, and, in determining the appeal, I would be also exercising administrative power.[3] The matter was remitted to the President of the Personal Injury Commission for determination in accordance with law. In a determination issued on 31 August 2023, the Commission’s President, Judge Phillips, remitted the appeal to me to be heard and determined in accordance with the decision of the Court of Appeal.[4]
[3] Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202.
[4] State of New South Wales (Western NSW Local Health District) v Kanajenahalli (No 4) [2023] NSWPICPD 52.
Both parties were given the opportunity to seek leave to make any necessary further submissions in respect of this appeal. Neither party sought to do so.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the appeal to be determined on the papers and that an oral hearing is not required in respect of the determination of this appeal. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. Both parties assert that the decision is a final decision and therefore leave to appeal is not required.
THE RELEVANT EVIDENCE
A substantial part of the respondent’s evidence related to complaints by the respondent in respect of his treatment at Dubbo Base Hospital, principally by Dr Dominic Fitzgerald, Senior Staff Specialist, which the respondent described as demeaning, demoralising, ridiculing and humiliating. The respondent also cited occasions when he was the subject of racial remarks and bullying by staff. Those matters were not dealt with by the Member. The Member observed that there was no issue in relation to causation, no medical evidence addressing those matters and that the case really turned upon whether the actions of the appellant in respect of performance appraisal and discipline were reasonable. Neither party challenged the Member’s approach by way of the appeal or in a notice of contention. As a consequence, it is not necessary to summarise the evidence about those matters.
The statement evidence
The respondent’s statement
The respondent provided a lengthy statement dated 16 August 2021.[5] He provided a history of his past employment. He said that, after graduating with a master’s degree in paediatrics, he worked as a Paediatric Registrar in Bangalore for six years, followed by working in his own practice for five years. The respondent said he moved to Australia in 2010 and after satisfying residency requirements he worked at Joondalup Health Campus as a Residential Medical Officer for one year. He then worked as a senior Paediatric Registrar at St John of God Hospital, Perth, and as a Neonatology Registrar at King Edward Memorial Hospital and Princess Margaret Hospital until 2018. He added that he had also performed services for the Royal Flying Doctor service in complex cases. The respondent stated that he next worked in the Paediatric Department of Townsville Hospital in the area of Acute General Paediatrics from August 2018 until February 2019. He then accepted an offer from the appellant to commence as an Unaccredited Trainee in Paediatrics at Dubbo Base Hospital in accordance with a “Supervised practice plan agreement for international medical graduates” put in place by AHPRA. The respondent said that he commenced at Dubbo Base Hospital on 29 April 2019.
[5] ARD, pp 3–24.
The respondent stated that, from the commencement of his employment with the appellant, he received only limited orientation and that he was uncomfortable working without the knowledge of the hospital’s protocols and procedures, which were different to those in place at previous hospitals in which he had worked.
The respondent spoke of criticisms raised by Dr Fitzgerald in respect of his medical skills and past experience. The respondent said that staff also reported to him negative comments made by Dr Fitzgerald to them about his skills and the need for the respondent to be closely supervised. The respondent stated that Dr Fitzgerald’s criticisms were not consistent with the performance appraisals provided by his supervisors in prior employments. He said that the staff also treated him in a demoralising manner.
The respondent stated that:
“I was required to attend a meeting and was accused of performance issues where I was told that my knowledge was below-level and my neonatal skills were ‘just satisfactory’. I felt humiliated and demoralised. I have previously had good performance ratings and I felt completely unvalued and bullied. I felt that I had no alternative but to resign. I was threatened that if I did not resign the hospital would forward a very bad performance report to AHPRA.”[6]
[6] Respondent’s statement, [51].
The respondent described his psychological symptoms and the medical treatment he received in respect of those symptoms. The respondent responded to the statements relied upon by the appellant. His response to their evidence is summarised below.
The statement of Dr Dominic Fitzgerald, Senior Staff Specialist in Paediatrics
Dr Fitzgerald was the head of the Paediatrics Department at Dubbo Base Hospital. He provided a statement dated 20 September 2019.[7] Dr Fitzgerald noted that the respondent commenced employment with the appellant on 29 April 2019.
[7] Reply to Application to Resolve a Dispute (reply), pp 22–41.
Dr Fitzgerald said that he was part of the interview panel who interviewed the respondent when he applied for the position with the appellant. He stated that the respondent was employed as an Unaccredited Trainee. He explained that the Accredited Trainees were employed by the larger hospitals and were seconded to smaller hospitals as part of their training, whereas Unaccredited Trainees were not attached to any training scheme and were generally less experienced. Dr Fitzgerald said that there were four Trainee Registrars, including the respondent, but the other three were Accredited Trainees. He added that the two Trainee Registrars that the respondent mostly worked with were Stephanie Bowen and Jennifer Anderson and the respondent was directly answerable to five or six different Paediatricians, who were referred to as “Consultants”.
Dr Fitzgerald said that the respondent was initially rostered on day shifts, as those shifts were better supported for Trainees. He said that the respondent worked in a team, which consisted of a Consultant to whom the respondent reported, and a Junior Medical Officer who worked under the respondent. Dr Fitzgerald advised that there were various Consultants under which the respondent worked but the Junior Medical Officer he mostly worked with was Dr Rory Hampstead, who he described as being “very capable”.
Dr Fitzgerald noted that Dr Andrew White had supervised the respondent at his former employment in Townsville Hospital. He said Dr White advised him that there were some initial concerns with the respondent’s work which resolved after discussion with him and monitoring of his work.
Dr Fitzgerald described the respondent’s performance and ability in his employment with the appellant as impaired in almost all areas. He referred to the respondent’s difficulties with engaging with nursing staff by failing to communicate with them and failing to get back to them about follow-up medical plans. Dr Fitzgerald added that the respondent struggled to complete his work in a timely fashion.
Dr Fitzgerald referred to two “near misses” that occurred in the first two weeks of the respondent’s employment which were of concern. He said that the first was a child who had a chest infection, who was diagnosed and treated by the respondent. Dr Fitzgerald advised that the respondent intended to discharge the child, however, a nurse was concerned that the child’s heart rate was in the “red zone.” Despite the nurse’s observation, the respondent performed a limited review and then discharged the child. He said it was discovered that the respondent had not performed blood tests or spoken to the Consultant before discharge. He said that the child re-presented within 24 hours in a deteriorated state, at which time the respondent performed a urine test and allowed the child to again be discharged. Dr Fitzgerald said that the child once again re-presented 24 hours later, had almost died from a urine infection which led to septic shock, and had to be transported to intensive care in Sydney.
Dr Fitzgerald described the second case of concern. He advised that it was an appendicitis case, where the respondent and the Surgical Registrar failed to diagnose the patient. Dr Fitzgerald said that the patient was discharged but returned 24 hours later, was diagnosed with an infection in the gut, and underwent emergency surgery.
Dr Fitzgerald stated that, as a result of those incidents, a decision was made that the respondent required additional supervision. He said that the respondent was permitted to make a diagnosis, but in each case, he was required to double check his findings with a Consultant before discharging the patient. Dr Fitzgerald commented that such action may have been considered excessive overseeing or micromanagement, but patient safety was paramount and was the appellant’s top priority. Dr Fitzgerald considered that the appellant’s action in placing the respondent under supervision was fair and in the interests of safety, all the Consultants were in favour of the decision and the decision was discussed with the respondent. He said that the Registrars in the Paediatric Department are normally given a fair degree of autonomy and responsibility because of their level of expertise but the appellant could not assign the same responsibility to the respondent because of the two near misses. He advised that the level of responsibility afforded to the respondent from then was that of a first-year Registrar.
Dr Fitzgerald referred to the system in Queensland, where the respondent had previously worked and said that those patient observation practices were different and were, as far as he understood, more precise and more organised in the emergency arena in New South Wales.
Dr Fitzgerald advised that he had a detailed discussion with the respondent about his observation practices and it was at that time that he became aware that the respondent’s general knowledge and approach to medical issues such as a febrile child, were deficient. Dr Fitzgerald gave, as an example, the respondent’s unsatisfactory answer to Dr Fitzgerald’s questioning as to possible differential diagnoses. He said that that indicated to him that the respondent’s paediatric knowledge and ability to apply common sense was seriously lacking in respect of the diagnoses which he was expected to make every day.
Dr Fitzgerald stated that, despite the high level of support given and the discussions with the respondent, the respondent gave inadequate responses in respect of matters that he had discussed with the respondent one week earlier. Dr Fitzgerald formed the view that the respondent’s response was of great concern, and that his ability to formulate short term memories and adapt to situations was impaired and fell short of what would be expected in a “competently functioning doctor.”
Dr Fitzgerald said that the Registrars all worked a 12 hour shift and there was always support staff working with the respondent, including a Consultant between 8 am and 5 pm, who worked nearby. Dr Fitzgerald described the respondent as punctual, congenial and friendly, with only one occurrence of having spoken sternly to the staff.
Dr Fitzgerald advised that once every two or three days the nursing staff raised concerns about the respondent. He referred to a picture taken by a Senior Nurse between 10 am and 11 am of the respondent asleep in a chair during his shift, which he considered could not be explained by the respondent’s roster.
Dr Fitzgerald referred to complaints about the respondent’s abilities concerning consultations with patients, which included having to seek senior assistance, being slow and ineffectual, and having failed to sort out his patient list. Dr Fitzgerald said, however, that the respondent had no difficulties with neonatal patients, who did not require communication between the patient and the doctor, however, even in that area, the respondent was not proficient in inserting drips and taking blood samples.
Dr Fitzgerald stated that in many cases, the nursing staff would discuss patient issues with the Junior Medical Officer instead of the respondent which created a difficult situation, particularly if the Junior Medical Officer was Dr Hampstead, whose ability and competency exceeded that of the respondent. Dr Fitzgerald said that he considered demoting the respondent to a resident doctor, but that position was already filled.
Dr Fitzgerald said that it ultimately became apparent that the respondent had serious mental health issues, which resulted in the appellant’s Mental Health Team admitting the respondent to the appellant’s psychiatric ward.
Dr Fitzgerald reported that a number of meetings with the respondent were held to discuss issues with respect to his work performance, in which the respondent presented as attentive, keen and willing to improve. Dr Fitzgerald said, however, that the respondent had communication issues which he described as an extended “mmm” sound before answering questions and which led him to consider that the respondent was slow to process information. He added that the respondent’s English was not concise, and his answers were non-responsive to questions posed, which indicated to Dr Fitzgerald that the respondent was confused and mentally disorganised.
Dr Fitzgerald advised that a number of formal meetings with the respondent took place. He said that at those meetings, the respondent was given the opportunity to have a support person present but elected not to have one. Dr Fitzgerald advised that he and Ms Judith Keller (the Medical Administration Manager) met formally for the first time with the respondent on 10 May 2018 (sic, 2019) and informed him that the nursing staff and the Consultants had made a number of complaints about him. Dr Fitzgerald said that he told the respondent of the areas in which he was required to improve, the respondent appeared to accept that advice and he was given “clear paediatric guidelines” to read in his rostered week off.
Dr Fitzgerald stated that the respondent’s performance in the areas raised did not improve and he was performing at a level well below that of a Registrar and was “the worst registrar [Dubbo Base Hospital] had ever had”. A meeting was held on 28 May 2019 between Dr Fitzgerald, Ms Keller and Melanie Boyle (the Human Resources Partner) and it was determined that the respondent would be placed on an Improving Performance Action Plan (IPAP).
Dr Fitzgerald said that he, Ms Keller and Ms Boyle met with the respondent on 3 June 2019, at which time they informed the respondent that he was being placed on the IPAP. The respondent was advised to take the document away to read and sign. Dr Fitzgerald indicated that he could not recall the specifics of any discussion with the respondent at that meeting, but thought that he advised the respondent that if there was no improvement shown in his performance then his long-term employment with the appellant may be in jeopardy. Dr Fitzgerald indicated that the IPAP was created to assist the respondent to improve his performance and not with the intention of ending the respondent’s employment. He said he did not recall the length of time the IPAP was to remain in place, but it was to be regularly reviewed.
Dr Fitzgerald said that he met with the respondent a few days after the IPAP was issued, which he thought may have been to formalise the IPAP, and he also had a few other discussions with the respondent about differential diagnoses and doctors mentoring other doctors. He asserted that the respondent had an inability to learn quickly, and his short-term memory was impaired. He gave as an example the occasion when the child nearly died and the reasons for that were explained to the respondent, but one week later the respondent had forgotten what had been discussed. Dr Fitzgerald said that, in those circumstances, it was difficult to consider that the respondent would improve to the level required.
Dr Fitzgerald was unaware as to whether the respondent read the paediatric guidelines which he had been given, but it appeared to him that the respondent had not shown any improvement in his knowledge of that necessary information. Dr Fitzgerald formed the view that there were concerns about the respondent being able to perform the job because of his work issues, such as falling asleep on shift, lack of experience and lack of general and paediatric knowledge. He added that the appellant and the respondent had reached an “impasse” because of the respondent’s unwillingness to upskill during his time off. Dr Fitzgerald complained that since the two “near-death cases” the appellant was required to put in place supervision by Consultants, which was very disruptive to the functioning of the hospital. He expressed the view that the respondent had difficulty following instructions, and if the respondent had been allowed to work with little or no supervision, as the Registrars do, then someone would have died. He asserted that not one doctor or member of the nursing staff considered that it was safe for the respondent to perform his duties without a high level of supervision.
Dr Fitzgerald said that at the time of the meeting on 11 June 2019, the consulting team had reached a consensus that if an IPAP had been issued to a Registrar then it was not safe for that doctor to be working in that position. He said that he advised the consulting team that a process had to be followed in order to ensure the respondent was afforded procedural fairness. Dr Fitzgerald said he formed the view that the respondent needed constant supervision, which was unworkable.
Dr Fitzgerald said that at the meeting on 11 June 2019, he informed the respondent that there was a mismatch between job expectations and the work the respondent was doing. He said that he pointed out the respondent’s relative strengths, which were in the neonatal area, and suggested that the respondent should pursue employment in that area. He indicated that he provided the respondent with options of either resigning or being monitored by having a Consultant at every consultation, although Dr Fitzgerald was unsure of how that would work. He said that the respondent was offered counselling assistance through the Employee Assistance Program.
Dr Fitzgerald said that, at a meeting with Ms Keller, Ms Boyle and himself on 12 June 2019, the respondent tendered his resignation. Dr Fitzgerald said that the respondent was distressed and was referred to the Mental Health Team for assessment. Dr Fitzgerald added that the overriding factor to be considered in dealing with the issue was patient safety, and looking back at what had transpired, he could not see how the appellant could have handled the situation any differently.
The respondent’s response to Dr Fitzgerald’s statement
The respondent responded to the evidence of Dr Fitzgerald.[8] He described the standard of work that he performed in his past employment. He observed that, if he was as incompetent as Dr Fitzgerald asserted, it was difficult to see how he had performed in his prior employment without a single complaint about his work performance. He explained that he could not recall the first incident referred to by Dr Fitzgerald but described what occurred in the second incident. He stated that he had requested the child’s parents to agree to the child being admitted, but they were not willing to do so. He said he explained the warning signs to the parents and told them to bring the child to the Emergency Department immediately if he developed those signs. He said this was recorded in the patient’s notes. He added that the Surgical Registrar, whose team were required to diagnose and admit the patient, did not have any concerns about the child. The respondent asserted that it was unfair to blame him and that it highlighted the mistrust and humiliation that he was receiving.
[8] Respondent’s statement, [83]–[109].
The respondent advised that, after he resigned his employment with the appellant, he was offered a position in paediatrics at Townsville Hospital, which he could not commence because of his psychological condition. He queried why Townsville Hospital would re-offer him work if he was incompetent.
The respondent explained that the “mmm” sound referred to by Dr Fitzgerald was a speech defect he had from childhood. The respondent said that none of the minutes of the meetings to discuss his performance were provided to him, which he said the appellant was required to do.
The statement of Ms Judith Keller, Medical Administration Manager
Ms Judith Keller provided a statement dated 18 September 2019.[9] She confirmed that the respondent was employed by the appellant as an Unaccredited Trainee – Paediatric Registrar, whose duties were the same as the three Accredited Trainees, except that he only worked day shifts because of concerns about his ability. She explained that the respondent worked in a team with two others, the Consultant on duty (to whom the respondent reported) and a Junior Medical Officer. She said that the respondent worked the same number of hours as all of the other Registrars.
[9] Reply, pp 1–13.
Ms Keller said that she was not in a position to comment on the respondent’s work ability, attitude or performance. Ms Keller said that she was unaware of any complaint by the respondent that he was overworked, and he made no complaint to her in respect of being bullied, stressed or isolated.
Ms Keller stated that she was aware that there had been multiple complaints made to Dr Fitzgerald by Consultants and nursing staff in relation to the respondent’s work performance, which led to a number of meetings with the respondent and the implementation of the IPAP. Ms Keller said that the first meeting was on 10 May 2019, in which the respondent was told that there had been complaints against him and that he needed to improve. Ms Keller advised that she had made a typed record of the minutes of the meeting and had provided those to Mr Fitzgerald and Ms Boyle.
Ms Keller said that the respondent did not improve in the areas required and a further meeting was held on 28 May 2019 attended by Dr Fitzgerald, Ms Boyle, and herself. It was decided that the respondent would be placed on an IPAP. Ms Keller indicated that a meeting with the respondent took place on 3 June 2019 in which the IPAP was instigated. She said that the respondent denied that he was fatigued but admitted to being stressed about the meeting. Ms Keller added that the respondent was offered a support person for the meeting, but did not have one, and was also offered a referral to the Employee Assistance Program.
Ms Keller stated that, at the meeting, Dr Fitzgerald told the respondent that he needed to markedly improve in communication, general paediatric practices, making diagnoses and other issues. He was further told that if he did not improve, there would be no other option than to terminate his employment. Ms Keller said that the respondent returned the signed IPAP on 6 June 2019.
Ms Keller advised that more issues were raised in respect of the respondent’s performance between 3 June and 9 June 2019, which resulted in a further meeting between Dr Fitzgerald, Ms Boyle, the respondent and herself. Ms Keller stated that Dr Fitzgerald informed the respondent that he was not meeting expectations and the respondent had two options, which were to resign or otherwise be stood down pending a risk assessment, which would result in the termination of his employment. Ms Keller reported that the respondent was very distressed during the meeting and was concerned about his future career. She said that Dr Fitzgerald offered to support the respondent in any way he could to assist with his career. She said that Dr Fitzgerald advised the respondent that it would be better for his career to resign, rather than be terminated. The respondent indicated that he would resign. Ms Keller advised that she had recorded and typed the minutes of the meeting.
Ms Keller stated that the respondent came to her office later that day and asked for help with a resignation letter. Ms Keller gave him a draft letter the following day and, because of concerns for his welfare, a mental health review was arranged with the appellant’s Mental Health Team.
The respondent’s response to Ms Keller’s statement
The respondent stated that none of the minutes of the meeting were sent to him by Ms Keller and they should have been provided to him.[10]
[10] Respondent’s statement, [137]–[147].
The statement of Ms Melanie Boyle, Human Resources Partner
Ms Boyle provided a statement dated 12 September 2019.[11] She stated that she first became aware of issues with the respondent’s performance in a meeting with Dr Fitzgerald and Ms Keller on 28 May 2019. She said that she was informed that Dr Fitzgerald and Ms Keller had met with the respondent on 10 May 2019 to discuss the respondent’s work performance and concerns about clinical risks that had occurred in the first weeks of his employment. She advised that the supervision of the respondent’s work had been increased and he was required to meet with a Consultant prior to putting a treatment plan in place. Ms Boyle stated that Dr Fitzgerald informed her that within the first two weeks of the respondent’s employment, it was identified that the respondent’s skills and abilities were potentially a risk to patient safety.
[11] Reply, pp 14–21.
Ms Boyle indicated that she was approached in order to advise Dr Fitzgerald and Ms Keller of the proper processes to follow in relation to managing the respondent’s performance. She said that she attended a meeting with the respondent, Dr Fitzgerald and Ms Keller in which the respondent was handed the IPAP. She advised that Dr Fitzgerald explained the document to the respondent in detail, informed the respondent that there were a number of concerns about his performance and that he was not functioning at the level required in his role in General Paediatrics.
Ms Boyle stated that she handed the respondent policy documents titled Managing for Performance and Managing Complaints or Concerns about Clinicians and she also gave him a brochure about the Employee Assistance Program. She added that the respondent was informed that there would be a review meeting on 7 June 2019. She said that during the meeting the respondent was very quiet and did not raise any concerns.
Ms Boyle advised that at the next meeting on 7 June 2019, Dr Fitzgerald informed the respondent that the appellant had received feedback from the Junior Medical Officers, nursing staff and Consultants that they had concerns about the respondent’s skills, knowledge and ability to arrive at differential diagnoses. She said that the respondent was advised that there would be a further review meeting on 11 June 2019. She observed that the respondent was again very quiet during the meeting.
Ms Boyle confirmed that at the further meeting that took place on 11 June 2019 the respondent was advised that:
(a) his differential diagnoses fell well short of the level required;
(b) it would be potentially dangerous for patients if the Consultant’s input was not taken into account, and
(c) requiring input from the Consultants placed significant pressure on the Consultants and Paediatrics team in circumstances where the increased supervision was unsustainable.
Ms Boyle said that Dr Fitzgerald explained that the options available to the respondent were to either resign, or he would be stood down pending a risk assessment and possible termination of his employment.
Ms Boyle stated that the respondent’s mood changed dramatically when those options were put to him, and he became significantly distressed and concerned that his career would be over. She said that Dr Fitzgerald encouraged the respondent to think positively and consider a career in, for example, neonatal medicine and advised the respondent that he would offer his assistance to the respondent with a future career plan.
Ms Boyle recalled that Dr Fitzgerald advised the respondent to take some time to consider his position and provide his response when he was able. She said that the respondent was offered the assistance of the Employee Assistance Program and, as result of the respondent’s distress, she spoke with the counsellor from the program and requested the counsellor check on the respondent’s welfare.
Ms Boyle advised that the respondent met with Dr Fitzgerald, Ms Keller and herself and handed in his resignation. She said that, at that meeting, Dr Fitzgerald suggested to the respondent that he should consult the Mental Health Team and Dr Fitzgerald arranged for the team to come and assess the respondent. Ms Boyle said that she subsequently became aware that the respondent was thereafter admitted into the Acute Mental Health Unit of the hospital for a period 10 days. She advised that the respondent then lodged a workers compensation claim.
The respondent’s response to Ms Boyle’s statement
The respondent made little comment about the evidence of Ms Boyle, other than to say that at all times when he met with Ms Boyle, he was very quiet because he was depressed and concerned about raising any issues.[12]
[12] Respondent’s statement, [123]–[127].
The relevant documentary evidence
The respondent relied upon the letter of offer of employment dated 16 January 2019 forwarded to the respondent by NSW Government Health.[13] The letter referred to the respondent’s appointment as an offer of temporary employment in the role of a Junior Medical Officer with the position description of an Unaccredited Trainee in Paediatrics and Child Health at Dubbo Base Hospital. The document recorded that the respondent would be paid at the award rate of a Registrar, 4th year.
[13] ARD, pp 476–479.
A more detailed job description which was not signed and did not identify the respondent, was attached to the reply. It did, however, describe the position of an Unaccredited Trainee and the requirements attached to that position and also recorded the award classification applicable to the position, which was that of a Resident Medical Officer – Registrar. The requirements of the position included:
(a) skills in communicating with patients and colleagues;
(b) completing necessary documentation including patient histories;
(c) participating in end of shift handovers;
(d) collaborating with colleagues;
(e) exercising good judgment, initiative and problem solving, and
(f) committing to personal and professional development.
In accordance with the supervision and performance monitoring requirements, the position required the Trainee to attend regular meetings with the Head of the Department and supervision was to be provided by the Paediatric Consultants.
Two documents produced by AHPRA bearing the same tile of “Supervised practice plan and supervisor’s agreement for international medical graduates” were in evidence. The first was signed by the relevant parties in January 2019[14] and the second in April 2019.[15] The documents essentially contain the same information, however, as the respondent’s employment was delayed until April 2019, the second plan clearly appears to be the document applicable to the respondent’s term of appointment.
[14] Reply, pp 112–125.
[15] Reply, pp 126–139.
The plan set out the following details:
(a) the identified international medical graduate was the respondent;
(b) the respondent’s position title was that of Paediatric Registrar;
(c) the principal supervisor was Dr Dominic Fitzgerald, Paediatrician, and
(d) the proposed co-supervisors were Dr Jacqueline Askwith, Paediatrician and Dr Gina Mariano, Paediatrician, both of Dubbo Base Hospital.
The plan explained what was required of the respondent and indicated that:
(a) the respondent would meet face to face with the principal supervisor on a weekly basis;
(b) the meetings were to be primarily in person, but where the principal was not present, they would be contactable by telephone, or the respondent could contact a co-supervisor;
(c) the respondent was able to consult with the co-supervisor face to face whenever required, and
(d) the respondent was required to consult the co-supervisor in respect of the management of all patients, either face to face or by telephone.
Guidelines were also issued in respect of the supervised practice plan.[16] The guidelines indicated that all international medical graduates were to be supervised.
[16] Appellant’s Application to Admit Late Documents (AALD), pp 52–60.
The appellant also produced the NSW Health Code of Conduct published on 16 December 2015.[17] The document set out the core values of NSW Government Health, which included matters such as collaboration, openness, respect and empowerment and the requirements that staff were to:
(a) demonstrate honesty and integrity;
(b) act professionally and ethically, and
(c) maintain security and professional relationships with patients.
[17] Appellant’s AALD, pp 38–51.
An unsigned, undated IPAP produced by the appellant was in evidence.[18] The plan identified that the respondent was not performing at a level that was consistent with a Paediatric Registrar, which was apparent from “near miss” situations resulting directly from the respondent’s clinical management. The actions which had been taken were described as meetings with the respondent, tuition on surgical cases by Dr Fitzgerald in person and clear discussion about cases, which had been completed but would be reviewed on an ongoing basis. Further action was to be implemented immediately to reduce patient risk, which involved a review in person by the Consultant Medical Officer or a discussion shortly afterwards and no patient was to be discharged without such discussion. The review date was said to be “ongoing.” It was also suggested that the respondent read the clinical practice guidelines in respect of acute abdominal symptoms within two weeks and the respondent was advised that there was to be a review on 4 June 2019.
[18] Reply, pp 87–91.
The plan also identified that the respondent was having difficulties in listening to and communicating with medical and nursing staff. The suggested action was for the respondent to stop, listen and respond appropriately to nursing staff, which action was to be implemented immediately and reviewed on an ongoing basis.
Difficulties were also identified in respect of the respondent not having sufficient paediatric skills to perform an examination on a patient, inability to provide a common-sense differential diagnosis or list the most likely diagnoses, and recognising when a patient is classified as within the “red flag” zone. The proposed action to be taken immediately was for the respondent to discuss the case management of a patient with the Consultant Medical Officer or on call doctor after each patient assessment.
The supervisor’s progress notes and comments indicated that the respondent had not displayed material improvement in his medical knowledge or clinical skills and otherwise recorded complaints and adverse observations made by other [unidentified] staff in relation to the respondent’s skills and conduct.
THE MEMBER’S REASONS
The Member briefly recorded the procedural history of the matter. He noted that the only issue in dispute was whether the respondent’s injury was caused by reasonable action taken by the appellant (in particular, the conduct of Dr Duncan (sic) Fitzgerald) in respect of performance appraisal and/or discipline, in accordance with s 11A of the 1987 Act. The Member also noted that it was agreed that the respondent had suffered prior psychological symptoms in 2015 and 2018 and that, while there was disagreement as to the diagnosis of the respondent’s psychological condition, nothing turned on that fact because the appellant had admitted that the respondent had suffered a work-related injury. The Member referred to the evidence relied upon by both parties and advised that he had taken that evidence into account when making his determination.
The Member reviewed various authorities dealing with the application of s 11A of the 1987 Act. He observed that the respondent raised aspects of his employment other than matters of performance appraisal and discipline that were causative of the injury, however, the Member considered that in the light of his findings, it was not necessary to deal with that assertion. The Member remarked that the respondent’s allegations of racism and bigotry were not addressed in any of the medical evidence.
The Member discussed the various authorities dealing with the question of “reasonableness”, which he said was an objective test involving questions of fairness. The Member observed that, in his view, the actions of the appellant were not reasonable.
The Member accepted the submission made by the appellant that being in charge of a hospital requires the application of stringent standards, particularly in the area of paediatric medicine. The Member said, however, that that consideration must be dealt with in the context of the respondent being employed as a Trainee, who required significant supervision. The Member pointed out that the respondent’s employment at Dubbo Base Hospital only lasted 6 weeks. He observed that Dr Fitzgerald had referred to two incidents in which the standard of care applied by the respondent, who was a Trainee, was considered lacking and could have had serious consequences. The Member considered it was notable that the appellant had adduced evidence in the form of a supervision plan put forward by AHPRA but had not relied upon its own policies and procedures regarding how it deals with issues relating to the performance of its trainee doctors.
The Member referred to the statement evidence of Ms Keller, who recounted what had transpired at the numerous meetings held with the respondent in relation to complaints about his performance and the need for him to improve. He noted in particular that, at the meeting on 3 June 2019, the respondent was advised that he would be placed on an IPAP, which was explained to the respondent, and he was given a copy. He further noted that on 11 June 2019 further performance issues were raised with the respondent. The Member observed that the respondent was advised that he was not meeting expectations and his only options were to either resign, or he would be stood down while a risk assessment was conducted, which would result in the appellant terminating his employment.
The Member noted that Dr Fitzgerald stated that, at the meeting on 11 June 2019, the respondent was advised that he was not meeting the expectations of the job, which was to assume responsibilities and perform the work with minimum oversight. Further the respondent was advised by Dr Fitzgerald that his options were to either resign or more rigorous monitoring by a Consultant would be conducted at every patient consultation. The Member observed that there was a conflict between Dr Fitzgerald’s evidence and that of Ms Keller as to what had transpired at that meeting. He said that he preferred the evidence of Ms Keller because she had taken down notes and then typed the minutes of the meeting.
The Member concluded that the appellant’s approach in relation to the respondent’s performance appraisal and discipline, particularly at the meeting on 11 June, could not be considered reasonable. The Member took into account that the respondent was a Trainee, had only been employed from the end of April 2019, was placed on an improvement plan on 3 June 2019 and then, eight days into the plan was essentially advised that he should resign, or his employment would be terminated. The Member described the meeting on 11 June 2019 as presenting a “fait accompli” that the respondent’s employment was to be terminated. He explained that the outcome of the risk assessment had already been determined and the respondent had been advised that the outcome would be unfavourable before the assessment had even been conducted.
The Member conceded that the appellant had a responsibility to ensure that standards of care were maintained. He considered, however, that the treatment of the respondent was not reasonable in the context of Ms Keller’s evidence that the respondent’s employment would be terminated regardless of his performance during a risk assessment process. The Member said that it was not clear how the respondent could have demonstrated that he had met the appellant’s expectations within the eight days when the performance improvement plan was in place for such a short time. He considered that in his view, to make a determination within such a short timeframe could not be considered reasonable conduct on the part of an employer. The Member added that it was “noteworthy” that there was no evidence before the Commission as to the public hospital’s system for dealing with performance issues for Trainees, so that it was unclear whether the appellant had followed those procedures. He pointed out that it was the appellant’s onus to establish that it acted reasonably if it relied upon the defence under s 11A. He reiterated that he was of the view that the appellant’s conduct was not reasonable and thus the defence under s 11A relied upon by the appellant failed.
The Member proceeded to make orders in respect of the claim for weekly payments, the treatment expenses and the lump sum claim.
The Certificate of Determination issued on 10 January 2022 records:
“The findings in [sic, and] orders are as follows:
1. The [respondent] suffered a psychological injury in the course of his employment with the [appellant], with a deemed date of injury of 11 June 2019.
2. At the date of injury, the [respondent’s] pre-injury average weekly earnings exceeded the statutory maximum amount pursuant to section 34 of the Workers Compensation Act 1987.
3. The injury referred to [at] (1) above was not caused by the reasonable conduct of the [appellant] with respect to performance appraisal and/or discipline.
4. As a result of the injury referred to [at] (1) above, the [respondent] was totally incapacitated for employment from 25 July 2019 to 6 September 2021.
5. The [appellant] is to pay the [respondent] weekly compensation at the maximum weekly entitlement pursuant to section 34 of the Workers Compensation Act 1987 as follows:
(a)25 July 2019 to 30 September 2019 at $2,177.40 per week;
(b)from 1 October 2019 to 31 March 2020 at the rate of $2,195.70 per week;
(c)from 1 April 2020 to 30 September 2020 at the rate of $2,224 per week;
(d)from 1 October 2020 to 31 March 2021 at the rate of $2,242.40 per week, and
(e)from 1 April 2021 to 6 September 2021 at the rate of $2,282.90 per week.
6. The [appellant] has to pay the [respondent’s] reasonably necessary medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.
7. The claim for permanent impairment is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following:
Date of injury: 11 June 2019 (deemed)
Body systems referred: Psychological/psychiatric injury
Method of assessment: Whole Person Impairment
8. The documents to be referred to the Medical Assessor to assist with their determination to include the following:
(a)this Certificate of Determination and Statement of Reasons;
(b)Application to Resolve a Dispute and attachments;
(c)Reply and attachments;
(d)[Respondent’s] Application to Admit Late Documents dated 28 October 2021 and attached documents, and
(e)[Respondent’s] Application to Admit Late Documents dated 18 November 2021 and attach[ed] documents; [appellant’s] Application to Admit Late Documents dated 23 November 2021.”
GROUNDS OF APPEAL
The appellant brings five grounds of appeal as follows:
(a) Ground One: The Member misdirected himself as to the matters to be weighed in assessing whether or not the appellant’s actions were reasonable;
(b) Ground Two: The Member significantly mischaracterised the status of the respondent by concluding that the appellant’s action was unreasonable because the respondent was a Trainee;
(c) Ground Three: In preferring the evidence of Ms Keller, the Member overlooked or did not advert to the fact that Ms Keller’s evidence provided only support for the necessity of the appellant’s actions;
(d) Ground Four: The Member failed to conduct the essential task of weighing the interests of the worker against the objective of the appellant, and
(e) Ground Five: The Member erred in fact in stating that the appellant had not placed into evidence its own policies and procedures for dealing with the issues relating to the performance of trainee doctors.
LEGISLATION
Section 11A(1) of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
SUBMISSIONS
Both parties provided written submissions and the appellant filed submissions in response to the respondent’s submissions. The appellant’s submissions in response largely consist of a re-iteration of the submissions already made, except in respect of Ground Five of the appeal, in which the appellant responds to a submission made by the respondent which it previously did not have the opportunity to address. The appellant’s submission is summarised below.
As to Ground One
The appellant’s submissions
The appellant submits that the Member incorrectly recorded the observations of Geraghty CCJ in Irwin v Director-General of Education[19] in relation to what is required when assessing whether the actions taken were reasonable. The appellant says that it is significant that Geraghty CCJ said that “[t]he test of ‘reasonable’ is objective and must weigh the rights of employees against the objective of the employer.” The appellant points out that the Member misquoted the passage by recording that the test requires that the rights of the employee be weighed against “the object of the employment” rather than the “objective of the employer.” (emphasis added)
[19] Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported (Irwin).
The appellant asserts that in Commissioner of Police v Minahan,[20] the Court of Appeal approved Geraghty CCJ’s observation. The appellant submits that the Member proceeded on the basis that the Court of Appeal had approved the incorrect version recorded by the Member, which infected his reasoning process. The appellant contends that the difference between “employer” and “employment” is not simply one of semantics and the Member’s error “pervades his reasoning throughout his consideration of the question of reasonableness.”[21]
[20] [2003] NSWCA 239 (Minahan).
[21] Appellant’s submissions, [9].
The appellant submits that it is clear from the evidence of Dr Fitzgerald that the employer’s objective was to address the very real threat to the patients’ lives in circumstances where the respondent’s incompetence was shown to be an “intractable problem.” The appellant says that Dr Fitzgerald’s genuine fear that a patient would die if no action was taken was not challenged by the respondent and not rejected by the Member. The appellant asserts that the objective of the employer was to deal with an unsafe situation, Dr Fitzgerald had consulted the staff and stated that it was the view of all staff that it was unsafe to allow the respondent to perform the Registrar’s duties without significant supervision.
The appellant contends that the objective of the employer is a different consideration entirely to the objective of the employment, the Member has not shown that he was aware of the distinction and took the incorrect approach, which discloses a significant error on the part of the Member.
The respondent’s submissions
The respondent submits that even if there is a difference in the meaning of the words “employer” and “employment”, the Member gave careful consideration to the authorities, including Court of Appeal authority by which the Member was bound, in determining whether the appellant had discharged its onus. The respondent describes the difference between the two words as “the exemplar of semantics” and says that the Member did not fall into error.
The respondent asserts that the Member was at all times determining the question of reasonableness in the context of the appellant’s s 11A defence. The respondent says that the Member did not apply an incorrect test, or ask himself the wrong question, and there is nothing in his reasoning that would suggest that the Member applied some other test that was inconsistent with the authorities handed down over many years. The respondent refers to the Member’s observation that the respondent had only been working for the appellant for six weeks, his findings that the outcome of a risk assessment had already been determined and that the risk assessment had been found to be unfavourable before it had even been undertaken.
The respondent contends that this finding is not challenged in the appeal.
The respondent submits that the Member’s reasons at [34]–[36] clearly balance the interests of the employer with those of the respondent and the Member objectively applied the proper test when he found that the employer’s conduct in respect of both performance appraisal and discipline was unreasonable.
The respondent contends that there is no substance to this ground of appeal and no persuasive submission that demonstrates that the Member led himself down a path of reasoning that discloses error in the application of the proper test, which would be an error of law. The respondent asserts that the reasoning was adequate and showed that the appellant’s conduct could not in any way be considered reasonable. The respondent asserts that Ground One of the appeal should fail.
As to Ground Two
The appellant’s submissions
The appellant submits that the Member “critically understate[d]” the issues facing the appellant when he observed that he accepted that the appellant must have stringent standards. The appellant refers to the Member’s conclusion that the respondent was retained as a Trainee requiring significant supervision. The appellant says that the Member considered that fact considerably outweighed the appellant’s interests. The appellant asserts that the Member seriously misdirected himself and disputes that the respondent was retained as a Trainee. The appellant says that the respondent had over 20 years of experience and was engaged by the appellant on that basis, not on the basis that he required significant supervision. The appellant says that Ms Keller’s evidence, which was accepted by the Member, showed that the supervision provided was inadequate to address the respondent’s shortcomings.
The appellant submits that the evidence established that it was unsafe for the appellant to retain a Registrar who required a high level of supervision. The appellant says that although the respondent was retained as a Trainee, he had a long history of experience, and the observations made by the nursing and medical staff indicated that it was imperative that the appellant take action. The appellant contends that the Member erred by considering that the respondent was a Trainee with little experience rather than a practitioner with lengthy experience. The appellant submits that the Member fell into significant error in that regard.
The appellant adds that the respondent’s low level of competence requiring supervision showed that the appellant’s action supported, rather than diminished, the reasonableness of the action taken on 11 June 2019 and indicated that the respondent was likely to remain a serious risk to patients.
The respondent’s submissions
The respondent submits that the evidence was uncontroverted as to the nature and classification of the respondent’s employment. His position title was an Unaccredited Trainee in the Paediatrics Unit, and he was paid the award rate for that job classification. The respondent says that the position description was “a 12 month position working under the supervision of staff specialists and visiting medical officers.” The respondent says that, as a Trainee, he was required to attend the wards daily with the Consultants and contribute to the teaching of junior officers and medical students. The respondent adds that there were specific supervision arrangements in the document of appointment, which involved regular meetings with the Department Head and supervision by Paediatric Consultants. Further, the respondent was required to exercise independent judgment, initiative and problem solving in consultation with supervising medical staff.
The respondent submits that the document appointing him, together with the evidence of Dr Fitzgerald and others, was incontrovertible and it was irrelevant that he had prior experience. The respondent contends that it is wrong to assert that the respondent was employed exclusively as a Paediatric Registrar, and it was wrong to submit that he did not require significant supervision. The respondent says that the appointing document required the respondent and the appellant to sign a supervised practice plan and set out the learning objectives which included a series of face-to-face meetings with the principal supervisor. The respondent refers to the additional plan which was signed by Dr Fitzgerald and required direct observation and assessment by supervisors.
The respondent disputes the appellant’s submission that the Member misdirected himself in concluding that the respondent was employed as a Trainee who required significant supervision. The respondent says that his position in the employ of the appellant was classified as an Unaccredited Trainee and submits that it is contrary to the evidence and simply wrong to assert that the respondent was engaged as a Paediatric Registrar. The respondent adds that it is also contrary to the evidence and wrong to assert that the position did not require significant supervision. The respondent points to the documentary evidence pertaining to the respondent’s contract of employment, together with the evidence of Ms Keller and Ms Boyle.
The respondent submits that the Member did not misdirect himself when he found that the appellant had retained the respondent as a Trainee who required significant supervision. The respondent says that it was clear that he was retained by the appellant on that basis.
The respondent adds that even if the respondent had been employed as a Registrar, that fact did not excuse the appellant’s conduct in respect of performance appraisal and/or discipline. The respondent submits that in any event, it was apparent within a short time that the respondent required training and supervision, but instead the appellant commenced the process of performance appraisal and/or discipline. The respondent contends that the Member did not err, and this ground of appeal must fail.
As to Ground Three
The appellant’s submissions
The appellant refers to the Member’s observation that he found that the appellant’s conduct was not reasonable on the basis of the evidence of Ms Keller. The appellant points to Ms Keller’s evidence that:
(a) she was present at the meeting on 10 May 2019 when the respondent was informed of the number of complaints against the respondent from nursing staff and Consultants;
(b) at the meeting on 10 May 2019, the respondent was advised of the areas in which he was required to improve, and
(c) the respondent’s performance did not improve over the following three weeks.
The appellant describes its response to the respondent’s perceived shortcomings as “measured.” The appellant refers to the meeting between Ms Keller, Dr Fitzgerald and Ms Boyle on 23 May 2019, when it was determined to place the respondent on a performance improvement plan, and the meeting on 3 June 2019 when the plan was put in place. The appellant submits that the reasonableness of that action is supported by the evidence of Ms Keller. The appellant further submits that Ms Keller’s evidence in relation to the meeting on 11 June 2019 is supportive of the appellant’s actions being reasonable in that it showed that the appellant had done all that it could reasonably have done in the circumstances to accommodate the respondent.
The appellant refers to the Member’s conclusion that followed his summation of Ms Keller’s evidence, in which the Member said:
“In my view, the approach taken by the [appellant] to the [respondent] concerning performance appraisal and discipline, particularly with regards to the meeting on 11 June 2019 and the background to it, cannot be said to be reasonable.”[22]
[22] Kanajenahalli v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 8 (reasons), [32].
The appellant asserts that it must be concluded that the “background” referred to by the Member is the evidence of Ms Keller summarised by the Member. The appellant submits that the “background” consisted of a series of meetings conducted by the appellant in which the appellant drew the attention of the respondent to his shortcomings and the attempts to address those performance problems. The appellant asserts that the Member failed to disclose how that background supported a finding that the actions of the appellant were in fact unreasonable. The appellant submits that, in the absence of any such explanation, the Member has fallen into error.
The appellant submits that in accordance with Ms Keller’s evidence, which the Member preferred, the appellant gave the respondent an insight into what the outcome of a risk assessment might mean. The appellant contends that, conversely, had the appellant not disclosed what may eventuate if the respondent remained in the employ of the appellant, then that would be likely to be considered unreasonable. The appellant says that the evidence of Ms Keller and Dr Fitzgerald leaves no doubt that the respondent was given a choice.
The appellant concludes that the evidence of Ms Keller was directly in support of the reasonableness of the appellant’s actions and the Member’s observation that her evidence gave particular support to the conduct being unreasonable was devoid of any process of reasoning. The appellant asserts that the Member thus fell into error.
The respondent’s submissions
The respondent submits that the Member was entitled to prefer aspects of Ms Keller’s evidence on the basis that Ms Keller had taken minutes of the meetings, which she typed afterwards. The respondent says that the Member preferred Ms Keller’s evidence over that of Dr Fitzgerald to the extent of the discrepancies the Member identified.
The respondent refers to the Member’s reasons in which the Member took note of the fact that there was a meeting on 28 May 2019 in which the IPAP was formally put in place and, after only a few days (on 3 June 2019) the respondent was informed and entitled to believe that the plan would assist him to improve his performance and acquire more skills. The respondent asserts that, at that stage, there was no suggestion that the respondent’s employment was at risk. The respondent refers to the evidence of Ms Keller, which the Member noted, that it was then only days later (11 June 2019) when Dr Fitzgerald issued the respondent with two alternatives. Namely, to resign or be stood down pending a risk assessment which would result in the appellant terminating the respondent’s employment.
The respondent refers to the evidence of Dr Fitzgerald, which the respondent describes as a “more sanitised” version of what transpired. The respondent submits that it was entirely open to the Member to prefer the evidence of Ms Keller in respect of this aspect of the evidence on the basis that she had recorded and then typed the minutes of the meeting. The respondent asserts that there was no suggestion that Ms Keller’s evidence was inaccurate, and the appellant cannot now suggest that there was any inaccuracy.
The respondent describes as inconceivable the notion that the appellant’s conduct was reasonable in circumstances where the respondent was told that he was to enter into a performance improvement program and then only days later be threatened with facing termination if he did not resign. The respondent submits that this ground of appeal has no substance and should fail.
As to Ground Four
The appellant’s submissions
The appellant refers to its submissions under Ground One of the appeal and reiterates that the Member misquoted Irwin and as a consequence mischaracterised the task he was to undertake. The appellant submits that the Member was required to take into account the appellant’s objective of taking the action which caused the respondent’s distress. The appellant points to the Member’s reasoning at [27] of his reasons, when he observed that:
“… I accept, that the [appellant] being in charge of a hospital means that it must have stringent standards within which its medical professionals must operate. That is particularly the case in a paediatric setting.”
The appellant submits that those reasons were the total consideration by the Member of the objective of the appellant’s action and the Member failed to give proper consideration to the “dire predicament” in which the appellant found itself. The appellant submits that, when weighing the competing considerations discussed in the authorities such as Irwin and Shore v Tumbarumba Shire Council,[23] the Member was required to look at the appellant’s perception that it needed to take action in order to save the lives of patients, which he did not do. The appellant asserts that the situation was not one in which the appellant was simply required to apply stringent standards. The appellant says that urgency was required to take action to prevent the “life-endangering actions and omissions” of the respondent.
[23] [2013] NSWWCCPD 1.
The appellant submits that the Member failed to give consideration to those matters and failed to take them into account, thereby falling into error.
The respondent’s submissions
The respondent contends that the appellant’s allegation of error has no substance. He submits that the correct test was satisfied regardless of which authority was relied upon. The respondent takes issue with the description of the appellant’s situation as a “dire predicament.” The respondent asserts that the Member took into account the appellant’s concerns and compared those to the respondent’s rights, but with the overall adherence to the fundamental task he was required to perform, which was to determine the reasonableness of the action, in particular the notion of fairness.
The respondent repeats his submission in relation to the unfairness of the short period of time within which the improvement plan was instigated and the threat just days later that his employment would be terminated if he did not resign. The respondent asserts that the appellant was required to follow the improvement plan but had no intention of following it through.
The respondent submits that there can be no doubt that the Member weighed up the competing interests of the parties in his determination of what was reasonable in all the circumstances. The respondent asserts that no attempt was made by the appellant to establish that its behaviour was factually reasonable or in accordance with policy. The respondent points out that the appellant has not raised any challenge on appeal in relation to that lack of evidence. The respondent submits that this ground of appeal should fail.
As to Ground Five
The appellant’s submissions
The appellant submits that the Member erred by observing that the appellant had not adduced evidence of its own policy and procedures in respect of handling performance issues relating to trainee doctors. The appellant points out that it is the State of New South Wales and that the NSW Health Code of Conduct published by the NSW Government Ministry of Health was annexed to its AALD filed in the Commission and dated 23 November 2021.
The appellant points to various parts of the document indicating the employees who are covered by the code, which includes temporary or casual appointments and students or those undertaking training or education in NSW Health. The appellant also refers to the code of conduct imposed by the document requiring the appellant to deal with employees in a manner that promotes harmonious and productive working relationships and to take a collaborative team approach. The appellant submits that the Member made no findings that either Ms Keller or Dr Fitzgerald breached that code.
The appellant further refers to the IPAP issued by the appellant, which shows the policy and procedure that the appellant followed in dealing with the respondent, including what actions were to be taken. The appellant says that those documents were before the Member and the Member was therefore in error by proceeding on the basis that those documents were not in evidence.
The appellant submits that:
“The document also reveals, with clarity, the serious issues confronting the appellant created by the [respondent’s] continuation in the role of paediatric registrar. It was these serious issues that necessitated the action taken by the appellant on 11 June 2019, action which in the circumstances could not be seen as other than reasonable.”[24]
[24] Appellant’s submissions, [45].
The appellant asserts that the Member’s contrary conclusion was arrived at through a process of reasoning that was affected by error. The appellant concedes that, in accordance with the decision of O’Grady DP in Greater Southern Area Health Service v Walsh,[25] the fact that the appellant followed its own policies and procedures is not sufficient of itself to establish that it acted reasonably. The appellant submits, however, that it is clear that the appellant followed its own policies and procedures and thus the Member’s erroneous observation that it was noteworthy that there was an absence of that evidence influenced his conclusion that the appellant’s actions were other than reasonable.
[25] [2010] NSWWCCPD 98, [102].
The appellant submits that the Member did not give consideration to that evidence and thereby fell into error.
The respondent’s submissions
The respondent asserts that the code of conduct referred to by the appellant bore no relevance to Dubbo Base Hospital’s own policies and procedures, in particular those relating to issues of the performance of an unaccredited trainee doctor. The respondent further asserts that, while they are not determinative of the s 11A issue, they may be relevant.
The respondent submits that in the circumstances of this case, the NSW Health Code of Conduct does not apply, as there was never any allegation that the appellant had breached the code, which deals with matters such as honesty, integrity, ethics and conflicts of interest. The respondent says that the Guidelines for Supervised Practice for International Medical Graduates are more appropriate, although not directly applicable. The respondent contends however, that in any event, the guidelines should have been followed when the performance plan was initiated.
The respondent submits that, looking at the conduct objectively, the IPAP was put in place in order to achieve an appropriate balance between the respondent’s skills and the risk to patients, however, the plan was then “summarily abandoned” by the appellant. The respondent contends that that action was entirely unreasonable and there were no policies identified at all which showed that the appellant’s conduct, as reported by Ms Keller, was appropriate or in accordance with any policy.
The respondent asserts that the Member’s determination was soundly based on the appellant’s own evidence which disclosed that the respondent’s psychological injury was caused, either wholly or predominantly, by unreasonable actions in respect of performance appraisal and discipline taken by the appellant.
Appellant’s submissions in reply
In addition to reiterating its substantive submissions, the appellant disputes that it “summarily abandoned” the IPAP plan. The appellant asserts that it gave the respondent the opportunity for “a number of weeks” to benefit from the plan.
THE RELIEF SOUGHT
The appellant submits that the Member’s determination should be revoked in accordance with s 352(6A) of the 1998 Act and a new determination in favour of the appellant be made in its place.
The respondent asserts that the Member’s determination was not affected by error of fact, law or discretion and the appeal must be dismissed.
CONSIDERATION
The Member noted the absence of medical evidence to support the respondent’s allegations that his injury was caused by being ridiculed, demeaned and humiliated. The Member determined that, in the absence of such evidence, the admitted injury was wholly or predominantly caused by the appellant’s actions in respect of performance appraisal and/or discipline. The Member’s conclusion was consistent with the appellant’s submissions to the Member at arbitration. The appellant has not raised any issue in this appeal in relation to that finding and the respondent has not lodged a notice of contention in respect of the Member’s determination.
It is also apparent that there is no challenge to the categorisation of the appellant’s actions as performance appraisal and/or discipline.
The remaining issue raised in this appeal is whether the Member erred in determining whether the actions taken with respect to performance appraisal and/or discipline by the appellant were reasonable.
The relevant actions taken by the appellant can be identified as:
(a) within the first two weeks of the respondent’s employment, Dr Fitzgerald discussed the respondent’s performance with him;
(b) on a number of unspecified occasions Dr Fitzgerald met with the respondent to provide instruction to the respondent and to discuss matters such as differential diagnoses and observation practices and to test the respondent’s knowledge;
(c) on 10 May 2019, the respondent was advised of complaints against him, and he was told he needed to improve;
(d) on 28 May 2019, a meeting took place between Dr Fitzgerald, Ms Boyle and Ms Keller in which they decided that they should implement an IPAP;
(e) on 3 June 2019, a meeting was held with the respondent to discuss and put in place the improvement plan in which the respondent was advised that he needed to markedly improve his performance and, if he did not improve, his employment could be terminated. The respondent returned the signed the IPAP on 6 June 2019;
(f) a meeting was held to “formalise” the IPAP probably on 7 June 2019,[26] and
(g) on 11 June 2019, a meeting took place with the respondent to deal with further complaints made during the period from 3 June 2019 to 9 June 2019. At this meeting the respondent was provided with a choice of resigning or being stood down pending a risk assessment following which the respondent’s employment could or would be terminated.
[26] Ms Keller’s statement, [55], Ms Boyle’s statement [22], Dr Fitzgerald’s statement, [77].
The appeal
Ground One: The Member misdirected himself as to the matters to be weighed in assessing whether or not the appellant’s actions were reasonable
The appellant refers to the extract from Geraghty CCJ’s observation in Irwin, which was misquoted by the Member as requiring an assessment of the rights of employees against the “object of the employment”, rather than the “objective of the employer.” The appellant asserts that the objective of the employment is a very different consideration to that of the objective of the employer, which was to address the very real threat of danger to the life of the patients. The appellant contends that the Member must have taken the view that the Court of Appeal decision in Minahan endorsed the erroneous version of the quote from Irwin, and that notion has led the Member into error.
The Member referred to other relevant Compensation Court authorities of Ivanisevic v Laudet Pty Ltd[27] (a decision of Truss J) and that of Armitage J in Ritchie v Department of Community Services[28] in which their Honours adopted the same approach as Geraghty CCJ in Irwin. He quoted a relevant passage from Minahan, in which Foster AJA (with Sheller and Santow JJA agreeing) cited those cases with approval.[29]
[27] Unreported, 24 November 1998.
[28] [1998] NSWCC 40.
[29] Minahan, [42].
It is apparent that the Member had the correct approach in mind when he observed that:
“… it is important to examine the relevant factual material and decide on an objective basis whether or not the [appellant’s] actions on which it seeks to rely can be said to be reasonable.
[The appellant] submitted, and I accept, that the [appellant] being in charge of a hospital means that it must have stringent standards within which its medical professionals must operate. That is particularly the case in a paediatric setting.
I accept that submission, however, it must be placed within the context of the [respondent] having been retained at Dubbo Hospital as a trainee who required significant supervision.”[30]
[30] Reasons, [26]–[28].
It follows that the Member did not apply the incorrect test, as asserted by the appellant, and did not fall into error. Ground One of the appeal fails.
Ground Two: The Member significantly mischaracterised the status of the respondent by concluding that the appellant’s action was unreasonable because the respondent was a Trainee
The appellant disputes that the respondent was a “Trainee” and as such, required significant supervision. The appellant asserts that the respondent had many years of experience as a Paediatric Registrar and that was the basis upon which the appellant employed the respondent.
There is no evidence that the respondent was employed on the basis of his “many years” of experience as a Paediatric Registrar. Dr Fitzgerald’s evidence was that he interviewed the respondent for the position of an Unaccredited Trainee and the respondent was employed on that basis. Dr Fitzgerald also advised that, prior to working in Townsville, the respondent had not worked as a Paediatric Registrar.[31]
[31] Dr Fitzgerald’s statement, [71].
The respondent’s job title on appointment, as described in the AHPRA agreement, was that of an Unaccredited Trainee – Paediatrics. This was also the respondent’s job title described by Ms Keller and, in the letter of offer of employment directed to the respondent, the position was said to be as an Unaccredited Trainee in Paediatrics and Child Health.
The appellant further asserts that the Member erred by observing that the respondent, as a Trainee, was an employee who required “significant supervision.”[32] The appellant submits that it was erroneous of the Member to consider that the appellant’s responsibility in terms of supervising the respondent was the same level of responsibility that it was required to assume in respect of a “genuine” Trainee.
[32] Reasons, [28].
The AHPRA agreement imposed certain obligations on the appellant. In particular:
(a) the respondent’s principal supervisor (Dr Fitzgerald) or, if he was not available, the co-supervisors (nominated as Dr Jacqueline Askwith and Dr Gina Mariano) were to meet with the respondent on a weekly basis;
(b) the respondent was to be able to consult with the co-supervisors whenever required, and
(c) the respondent was required to consult with his co-supervisors in relation to the management of all patients.
Further, in accordance with the guidelines issued in respect of the supervised practice plan, all international medical graduates were to be supervised. According to all of that evidence, the position held by the respondent was one in which the appellant was required to provide quite particular supervision, regardless of the respondent’s background experience.
The appellant adds that the level of supervision which the respondent required because of his lack of competence supported the reasonableness of the appellant’s actions. In the circumstances of the appellant’s obligations referred to above, the degree of supervision required does not lend itself to being supportive of the notion that the appellant’s actions, particularly in respect of what transpired at the meeting on 11 June 2019, were reasonable.
The appellant says that the respondent’s lengthy experience and the nursing and medical staff’s observations of his competency levels were “determinative factors”. The appellant does not explain how the respondent’s past experience is at all relevant to the question of whether the appellant’s actions were reasonable. The respondent’s inability to perform to the standard required by the appellant, which ought to have been to the standard expected of the position in which he was employed, was the problem the appellant was, or should have been attempting to address, regardless of his past experience.
The appellant’s assertion that the respondent was not employed as a Trainee is clearly wrong. In that context, and for the reasons set out above, the appellant’s assertion that the Member erred by observing that the respondent, as a Trainee, was an employee who required “significant supervision” cannot be accepted. Both the findings of fact that the respondent was a “Trainee” and required “significant supervision” were available to the Member on the basis of the evidence before him.
It is well accepted that an appeal from a factual determination of a Member of the Commission under s 352(5) of the 1998 Act can only succeed in the circumstances distilled by Roche DP in Raulston v Toll Pty Ltd.[33] That is, if:
(a) “other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong”, or
(b) by establishing that “material facts have been overlooked, or given undue or too little weight” in determining the inference to be drawn, or
(c) the available opposite inference to that drawn by the Member was so preponderant that the decision must be wrong.[34]
[33] [2011] NSWWCCPD 25, [19].
[34] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, 506.
The appellant’s submissions do not disclose error on the part of the Member of the type described above. The appellant has failed to establish that the Member erred in the manner required and this ground of appeal fails.
Ground Three: In preferring the evidence of Ms Keller, the Member overlooked or did not advert to the fact that Ms Keller’s evidence provided only support for the necessity of the appellant’s actions
The appellant refers to Ms Keller’s evidence of her involvement in the actions taken by the appellant in respect of the respondent’s performance. The appellant says that the Member’s conclusion that he accepted the evidence of Ms Keller was surprising, given that her evidence was wholly supportive of the appellant’s case.
I do not accept that the evidence of Ms Keller was “wholly supportive” of the appellant’s case. As the Member noted, there was some inconsistency in respect of her evidence and that of Dr Fitzgerald. Dr Fitzgerald gave evidence that the respondent was told at the meeting on 11 June 2019 that the respondent’s employment could be terminated following a risk assessment. Ms Keller’s evidence, which she said was taken from the recorded minutes of the meeting, was that the respondent’s employment would be terminated following the assessment. The Member noted that difference and accepted that Ms Keller’s evidence was likely to be more accurate because it was contemporaneously recorded.
The Member accepted the evidence of Ms Keller as to when the meetings were scheduled and what occurred at each meeting. The Member considered that the time frame between the first meeting on 10 May 2019, the implementation of the IPAP and the pressure put on the respondent to resign was too short. Ms Keller’s evidence as to what transpired at the meetings when those meetings occurred did not assist the appellant.
The appellant submits that Ms Keller’s evidence showed that the appellant had done all it could in order to address the issue. There is an absence of detail of the nature and extent of the complaints made, particularly between the implementation of the IPAP on 3 June 2019 and the abandonment of the IPAP on 11 June 2019. In those circumstances, Ms Keller’s evidence does not show that the appellant had done all it could do in the situation in which it found itself.
The appellant submits that the Member failed to disclose how the “background” to Ms Keller’s evidence supported the Member’s finding that its actions were unreasonable. The Member’s reference to “background” was in the context of “the meeting on 11 June 2019 and the background to it”[35] which, he said, could not be reasonable. In that context, the “background” is clearly a reference to the preceding events leading up to the meeting on 11 June 2019 and was relevant.
[35] Reasons, [32].
The Member determined that the appellant’s conduct was not reasonable because:
(a) the respondent was a Trainee;
(b) there was no evidence of the procedures required in dealing with the performance of a Trainee, so that it could not be said that the appellant complied with those procedures;
(c) the respondent commenced his employment at the end of April 2019, an IPAP was initiated by 3 June 2019 and on 11 June 2019, eight days later, he was told he should resign or his employment would be terminated just six weeks into his employment;
(d) it was unclear how the respondent could have shown improvement within the eight days when the plan was in place;
(e) on the basis of Ms Keller’s evidence, the outcome of the risk assessment was pre-determined, and
(f) “to deliver a judgment of that plan within so short a timeframe can in no way be said to be reasonable conduct by an employer.”[36]
[36] Reasons, [35].
While the timeline of events and the matters discussed at the meetings set out in Ms Keller’s evidence were instructive, it could not be said that her evidence was “wholly supportive” of the appellant’s actions being reasonable in circumstances where the Member considered that the actions were not reasonable for the reasons set out in the preceding paragraph.
The appellant’s assertion of error is not made out, and this ground of appeal fails.
Ground Four: The Member failed to conduct the essential task of weighing the interests of the worker against the objective of the appellant
The appellant submits that the Member, when weighing the rights of the employee against the objective of the employer, was required to take into account that the appellant needed to take urgent action in order to save the lives of its patients. The appellant says that the Member failed to do so. The appellant submits that the Member merely referred to the requirement for the appellant to have “stringent standards” but did not take into account that the appellant had to act quickly in order to save lives.
The only actual life-threatening events described by Dr Fitzgerald were the two incidents that occurred in the first two weeks of the respondent’s employment. In addition, Dr Fitzgerald identified issues with the respondent’s listening and communicating skills, providing differential diagnoses, performing a satisfactory examination, and recognising paediatric vital signs. The proposed remedial action in respect of the clinical skills issues was for the respondent to discuss case management of each patient with a Consultant or fellow on call. I note that this requirement was embodied in the AHPRA agreement and in the Supervised Practice Plan Guidelines for Unaccredited Trainees in any event.
There are no details of the generalised complaints made about the respondent’s performance or their seriousness said to have been made between 3 June and 9 June 2019 that spurred the appellant to immediately cease the IPAP. The IPAP had only been introduced on 3 June 2019, formalised on or about 7 June 2019 and ceased on 11 June 2019.
In those circumstances, I do not believe that the Member erred by describing the appellant’s objective as maintaining “stringent standards.”
The appellant did not offer any objective of the employer other than the very real proposition that the appellant was required to keep its patients safe. There is no explanation as to why that objective could not have been achieved by proceeding with the IPAP in circumstances where the appellant was required to comply with the supervision requirements of the AHPRA agreement and the Supervised Practice Plan Guidelines for Unaccredited Trainees.
In the context of the evidence and in applying the various relevant authorities, the Member gave sufficient consideration to the objective of the employer and to the rights of the respondent. He drew a conclusion that the appellant’s actions were not fair, particularly in relation to withdrawing the IPAP so quickly and suggesting the two remaining options available to the respondent.
It was open to the Member to arrive at that conclusion after considering the evidence and applying the relevant authorities. His reasoning discloses no error and this ground of appeal fails.
Ground Five: The Member erred in fact in stating that the appellant had not placed into evidence its own policies and procedures for dealing with the issues relating to the performance of trainee doctors
The appellant points the NSW Health Code of Conduct and the IPAP as evidence of its own procedures. The appellant submits that the Member made no finding as to whether Ms Keller or Dr Fitzgerald breached the code which was applicable to the respondent.
The appellant did not submit to the Member that the NSW Health Code of Conduct was relevant in terms of the reasonableness of the appellant’s actions with respect to performance appraisal and/or discipline.
The law with respect to raising an argument on appeal in circumstances where that argument was not raised below was summarised by McColl JA (Ward JA and Tobias AJA agreeing) in Mamo v Surace as follows:
“A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so.”[37]
[37] [2014] NSWCA 58, [75].
In any event, while the document was applicable to the respondent, it set out the policy and procedure in respect of ethical conduct in the workplace. The intent of the code was expressed as follows:
“The intent of the Code is to provide a framework to promote ethical day-to-day conduct and decision making.”[38]
[38] Code of Conduct, [1.1], appellant’s AALD, p 44.
As the respondent submits, there was no suggestion that the respondent had acted in an unethical manner, or that the Code of Conduct was relevant to managing the performance of a doctor in the employ of the appellant in respect of issues relating to skills and knowledge. It is difficult to see how that document constitutes a policy or procedure for “dealing with the issues relating to the performance of trainee doctors.”
The IPAP document was not a document that listed the policy of the appellant or set out the procedures to be followed by the appellant in implementing a plan to improve the performance of its Trainees. Once again, no such submission was made to the Member at arbitration. The pro forma document which the appellant completed listed the issues to be addressed, the actions taken, the proposed action to be taken, and the timeframe within which the action would be instigated and reviewed. In many of the proposed actions, the timeframe for commencing the action was “immediately” and the timeframe for completion was “ongoing.” There was no set end date for the IPAP and in most cases no date for review of the respondent’s performance. The document cannot be considered evidence of the appellant’s policies and procedures to be adopted or evidence that the appellant had complied with its policy or procedural obligations.
There was no evidence adduced in the form of “Managing for Performance” and “Managing Complaints or Concerns about Clinicians”, which Ms Boyle said were documents handed to the respondent at the first meeting, and potentially would have been on point.
It cannot be said that the Member erred by observing that the appellant had not placed into evidence its own policies and procedures in relation to the performance of trainee doctors. Ground Five of the appeal fails.
CONCLUSION
The appellant has failed to establish error on the part of the Member and the appeal fails.
DECISION
The Member’s Certificate of Determination dated 10 January 2022 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
7 September 2023
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