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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s.29 application for hearing of industrial dispute
Tasmanian Branch of the Australian Medical Association
(T11045 of 2003)
and
Minister Administering the State Service Act 2000
|
COMMISSIONER T J ABEY |
HOBART, 2 October 2003 |
Industrial dispute - alleged denial of due process in respect to non-reappointment - successive fixed-term contracts - reasonable expectation of continuing employment - recommendation
REASONS FOR DECISION
[1] On 9 September 2003, the Tasmanian Branch of the Australian Medical Association (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000, arising out of the alleged denial of due process in respect to the non-reappointment of Dr Quentin Forrest.
[2] The matter was listed for a hearing (conciliation conference) on 16 September 2003. Mr D Lowe appeared for the Association. Mr P Targett, together with Ms F Galloway and Dr P Renshaw, appeared for the Minister. A further conciliation conference was held on 19 September 2003. An initial attempt to resolve this matter through conciliation was unsuccessful and the matter was set down for hearing on 25 September 2003.
[3] By letter dated 6 June 2000 Dr Forrest was appointed to the position of Cardiologist at the Launceston General Hospital (LGH). The initial appointment was for a two-year contract, terminating on 7 August 2002.
[4] There then followed a series of short-term contracts ranging from one month to six months. The most recent contract commenced on 14 July 2003 and terminates on 13 October 2003.
[5] By letter dated 29 July 2003 the LGH Chief Executive Officer advised that the contract would not be renewed.
[6] The applicant submits that he had a reasonable expectation of continuing employment and there has been a fundamental denial of procedural fairness.
[7] The Minister contends that Dr Forrest is party to a fixed-term contract which is to expire through the effluxion of time. Further, Dr Forrest did not have a reasonable expectation of ongoing employment. By virtue of s.3(1) of the Act, the Commission does not have power to make appointments, and it follows, the Commission should refrain from interfering with the decision not to re-appoint.
[8] Evidence was taken from the following witnesses:
Dr Quentin Gilfillan Forrest; the applicant
Dr Peter John Renshaw; Director of Clinical Services at the LGH since 1989
Dr Paul McCann; Medical Practitioner and Acting Director of Clinical Services at the LGH for limited periods during 2003
Ms Elizabeth Stackhouse; CEO of the LGH
[9] In addition the personal file of Dr Forrest was tendered into evidence.1
[10] The following documents have a significant role in these proceedings:
- State Service Act 2000 [SSA]
- Department of Health and Human Services Tasmanian Visiting Medical Practitioners Agreement 2002 [VMO Agreement]
- Clinical Staff Credentialing and Appointments Committee Procedural Guidelines (Credentialing Guidelines)
The Contract of Employment
[11] Clause 7 of the VMO Agreement mandates that appointments shall be in accordance with s.37(3)(b) of the SSA. This means that it is mandatory for VMOs to be appointed "for a specified term or for the duration of a specified task".
[12] Dr Forrest was a party to five consecutive contracts covering the following periods:
- From commencement (2 August 2000?) until 7 August 2002
- From 8 August 2002 Until 11 November 2002
- From 12 November 2002 until 11 December 2002
- From 12 December 2002 until 11 June 2003
- From 14 July 2003 until 13 October 2003
[13] Each contract was expressed in largely similar terms. The most recent contract provides that the employee may terminate the agreement on the giving of three months' notice. The contract provides that the employer is to give at least three months' notice of an intention to renew the contract.
[14] This latter provision was common to all previous contracts, even those which were three months or less in duration. At no stage was this provision observed by the employer, even though there have been four successive contract renewals.
[15] All contracts other than the initial contract contained the following provision:
"If the Credentials and Clinical Privileges Committee recommends the employee's clinical privileges be reduced, withheld, withdrawn or otherwise varied to the extent that the employee is no longer able to fully and adequately perform the duties and fulfil the responsibilities of the position, the employer may give full effect to the recommendation pending the outcome of any appeal which the employee might institute against such a recommendation and the rights and obligations of the employee under this contract may in such a case be modified by the employer so far as is appropriate reflect the effect of the variation of privileges.
The employer may terminate this contract where the employer is satisfied that the employee has become the subject of a recommendation by the Credentials and Clinical Privileges Committee that his/her clinical privileges be reduced, withheld, withdrawn or otherwise varied to the extent that the employee is no longer able to fully and adequately perform the duties and fulfil the responsibilities of the position. Termination under this clause may not be effected until after the Credentials and Clinical Privileges committee's recommendation has been finalised (by no appeal having been lodged or any appeal having been determined)."
[16] In this context it is important to note that at no stage during Dr Forrest's period of employment have his clinical privileges been reduced or withdrawn.
[17] Clause 26 of the VMO Agreement relevantly reads:
"(a) Employment shall be terminated by three months notice given by either party or by the payment or forfeiture of three months' salary as the case may be.
(b) This shall not affect the right of the employer to dismiss an employee for serious misconduct or serious neglect of duty, in which case salary shall be paid up to the time of dismissal only.
(c) Employment shall be terminated where an employee fails to have their registration under the Medical Practitioners Registration Act renewed or has their registration or clinical privileges withdrawn.
(d) If in the opinion of the Director of Medical Services an employee is mentally or physically incapable of performing his or her duties he/she may recommend to the employer that the employee's appointment should be terminated.
(e) Any dispute arising out of the termination of employment shall be referred to the Tasmanian Industrial Commission pursuant to Section 29 of the Industrial Relations Act 1984."
[18] It follows that this clause must be read as forming part of the contract of employment.
Was There a Reasonable Expectation of Continuing Employment?
[19] Whilst the VMO Agreement mandates fixed-term contracts under the SSA, it is not entirely a comfortable fit. Clause 7 of Commissioner's Direction No. 1 of 2001 (issued 1 May 2001) relevantly has this to say about fixed-term contracts:
"Permanent employment is the usual form of employment in the State Service. However where necessary to meet the operational needs of an agency, fixed-term appointments are permitted for a specified term or for the duration of a specified task.
Fixed-term employment is to be limited to:
(a) Fixed-term employment arising out of the normal course of employment
Fixed-term appointments may be required in the normal course of employment to cover permanent employees who temporarily leave their assigned duties for defined periods for example, recreation leave, maternity leave, secondments or long service leave.
(b) Meeting short-term increased work-loads
Fixed-term appointments may be required for meeting work peaks associated with the activities of an Agency. Fixed-term employment for this purpose is not to exceed a period of six months unless exceptional circumstances exist.
...
(c) Projects having a specified term or a specified task
Fixed-term appointments may be required where projects involve work which is not part of the ongoing activity of the Agency and which has a definite time frame or specific outcomes. Such project-focused work is, by its very nature, not permanent, even though the work may be over an extended period of time, for example, externally funded projects. Only in exceptional circumstances, and with the approval of the Commissioner, is fixed-term employment arising from such projects to exceed a period of three years.
(d) Training schemes approved by the Commissioner
The Commissioner may approve training schemes involving fixed-term employment for the period of the training. Such schemes may involve no commitment to permanent employment in the State Service for example, traineeship and apprenticeship schemes."
[20] It is difficult to see how the employment of VMOs in the public hospital system fits within any of these categories. Certainly there was no evidence to suggest that Dr Forrest fell within any of these categories.
[21] The Commissioner's Direction goes on to say:
"It is important that a fixed-term employee is not given expectations of ongoing employment and that separate fixed-term employment contracts are used for each instance of fixed-term employment. Extensions or "rolling over" of fixed-term employment contracts are not permissible other than as specified in section 7.4 of this Direction."
[22] And later:
"Where it is apparent that a fixed term appointment is required to be extended the Head of Agency is to consider making a permanent appointment. If permanent appointment is not appropriate a Head of Agency may make one extension to an initial fixed-term appointment without advertising in the Gazette provided that the period of such an extension is not greater than the original period of appointment and the reasons for the fixed-term employment have not changed.
Subsequent extensions to this type of fixed-term appointment are to be advertised in the Gazette, unless, due to exceptional circumstances, the Commissioner approves otherwise."
[23] Clearly the four consecutive extensions (without advertising) of Dr Forrest's contract are at odds with this requirement.
[24] Section 45 of the SSA provides for the Minister to terminate the employment of a fixed-term employee "in accordance with the terms and conditions under which the employee is appointed".
[25] In Australian Education Union, Tasmanian Branch v MASSA, Shelley C said:2
"Employees employed under the terms of the State Service Act are able to make application to the Commission in relation to an industrial dispute. All employees of the state service, whether permanent or fixed-term, are able, under the terms of the State Service Act, to be given notice terminating their employment. There must, however, be a valid reason for the termination. If there is not, then the termination would be unfair. Section 50(3) of that Act specifically precludes an employee from seeking a review by the State Service Commissioner of a termination of employment decision, and notes that disputes in relation to the decision to terminate employment are to be dealt with by the appropriate industrial tribunal. The State Service Act does not differentiate between permanent and fixed-term employees in this regard. It refers to "employees" and the definition of "employees" in section 3 of that Act says:
"'employee' means a permanent employee or a fixed-term employee"
I find that this Commission has the jurisdiction to hear a dispute relating to the termination of the employment of an employee appointed to the state service as a fixed-term employee."
[26] And later:3
"The employer's submission to the effect that the employees were appointed to fixed-term appointments under the terms of the State Service Act does not stand up. The Commissioner's Directions are to be read as though they were the Act, and the circumstances of the fixed-term appointments, in a number of instances, are in breach of those Directions. It is fundamentally unfair for the employer to be in breach of its own employment policies and conditions and then to rely on them to support arguments as to the employment status of its employees. However, the fact that the employees were not appointed according to the terms of the Directions is not determinative, in itself, of the questions to be answered, it simply means that the employer is unable to rely upon its own flawed appointment processes as being determinative of a fixed-term employment status."
[27] I agree with the findings and observations of Commissioner Shelley.
[28] Section 30[3] of the Industrial Relations Act states:
"(3) The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with -
(a) the capacity, performance or conduct of the employee; or
(b) the operational requirements of the employer's business."
[29] The critical question is therefore, whether or not Dr Forrest had a reasonable expectation of continuing employment, notwithstanding the nomenclature attaching to his contract of employment.
[30] Throughout his evidence Dr Forrest repeatedly stated that he expected contract renewal to be almost automatic, provided he performed his work properly.4 His position is well captured in the following exchange under cross-examination:5
"So does that mean you were uncertain about getting your final contracts?---No, there is a clear understanding that subject to being satisfactorily re-credentialled there was a clear understanding that the contract would be renewed and there is a letter - - -
So subject to satisfactory re-credential?---Yes.
And what about following that?---Following that the way the whole hospital operates is that unless you are doing something bad or not doing something you should do, you automatically get a contract and some material make available to you later, there are satisfactory (sic) declarations from - - -
But you did express concern about whether you would or wouldn't get future contracts throughout that period, didn't you ?---After the date when I was told I would get another contract expired, yes.
So in August 2002 you had concerns about whether you would get future contracts?---The expectation has always been - I can't remember precisely to be honest but the expectation has always been that subject to doing your job properly contract renewal is automatic."
[31] Ms Stackhouse, when questioned on this issue said:6
"Thank you. And all VMOs, save and except the odd occasion where there might be a short term run over when someone is out of contract for one reason or another, all VMOs are under a contract of some description; is that a fair comment?---That's true, yes.
Is it common for them not to be renewed when they expire?---There has been one other instance that I've been involved in.
Well, I put the question I put to Dr McCann: The evidence we heard this morning was that if a VMO continues to carry out their work properly, for want of a better word, then there is an expectation that the contract would be renewed. Would you like to comment on that?---The contract renewal is really up to the determination of the credentialling committee.
I accept that. I am just - we have heard evidence this morning to the effect that there is this expectation that if you continue to do your job properly it is a reasonable expectation that it will be renewed. Now, I am not expressing a view on that, I am just interested in is that a reasonable conclusion or is it not?---It is probably the view of most visiting medical practitioners.
Is that view fair or misplaced?---Fair."
[32] Dr McCann initially declined to comment on this issue in that his direct experience in this area was limited to the mid nineties at the Royal Hobart Hospital. With that qualification he said:7
"I think in the early 90s VMOs were appointed for - many VMOs who were appointed had effectively appointments for life. And it was in that period that credentialling, clinical privileging and periodic review of credentialling was being introduced. And so there was a process that started where people had privileges and credentials looked at on appointment and at a five year interval."
[33] Mr Targett submitted that there was clear evidence that Dr Forrest was aware that his ongoing employment was not assured. He pointed to the following:
- A letter dated 15 August 2002 from Dr MacCarrick to Dr Forrest which included the following:
"1. I will forward your concerns regarding the lack of commitment to an extension of your contract (after completing the requirements of this re-credentialing process) to Ms Stackhouse."
- A letter dated 29 November 2002 from Ms Stackhouse to Dr Forrest stating, inter alia:
"Your contract of employment will be for a period of six months. At least three months prior to the end of the new contract a review of performance will be undertaken and a decision made at that time as to whether the contract will be extended for a further period."
- In relation to this correspondence, Dr Forrest said:8
"When you read that did you believe that there was any question over whether you would or would not be offered a further contract after the expiration of this one?---I believed that subject to satisfactory performance contract renewal would be automatic.
So there was still a question mark then?---There is always a question mark because if you don't perform satisfactorily your contract is not renewed.
So in that case all the way through your employment history for every contract there is a question mark whether it will or won't be renewed?---Providing one does one's job properly there is the expectation that contract renewal is automatic.
My question remains, all the way through your contracts there is a question mark over whether you will or won't get a another contract?---In my mind I have always thought I have done my job properly. That has never been questioned.
I don't question that. I honestly don't?---Okay. In that case I expect the contracts to be renewed."
- Correspondence dated 16 January 2003 from Dr Forrest to Professor Fassett:9
"At the top of page 272 and again I will just quote from that and this is your correspondence to Professor Fassett:
Unless you are able to substantiate questionable practices on my part then the question rises why does re-credentialling within a three month period of being re-credentialled is needed. It would appear reasonable to ask whether the bureaucratic process has been abused as a pay back for being a critic of your administration and being industrially active.
This is your correspondence?---It is.
Does that not in some way suggest you have concerns about your future employment?---No, I was being told - I heard through third parties that I was given a short term contract to shut me up and stop rattling the cage. I thought it was important to document that."
- Evidence of Dr McCann in relation to an approach by Dr Forrest on 20 June 2003:10
"Thank you?---And on my way into the hospital that morning I met Dr Forrest in the corridor and we had a discussion. It went on for some little time, I might add, and in the course of that discussion he asked me if they were trying to get rid of him and I indicated that yes they were and there were a number of people in the hospital who would prefer it if his contract was not renewed."
[34] Aspects of the Credentialing Guidelines also have some relevance to this question. I refer to the following:
"Clinical privileges are to be defined for all clinical staff appointed to the Launceston General Hospital, and will ordinarily be assessed every three to five years. The Director of Clinical Services will establish a process of regular, rolling reviews to ensure this review occurs."
"Visiting Medical Officers will be appointed for three years; with the exception of those 65 years and older where appointments will be reviewed annually."
[35] Re-credentialing in circumstances of a reappointment is described as a "Routine [periodic] review".
[36] In closing submissions, Mr Lowe said:11
"Historically engagement of VMOs has been a very routine matter. The value of the VMO service to the State health system of this State through its public hospital network is unparalleled by any other State. It works because there is trust on both sides and because there is give and take on both sides. And there is that flexibility within the provisions of the State Service Act operating in tandem with the 2002 agreement that ensures that you do have reasonable transition in relation to these matters.
We are not looking here at reasonable transition. What we are looking at here is where individuals for whatever reason have taken upon themselves to deny ongoing reappointment to one of this State's most eminent specialists."
[37] Mr Targett's closing submission included the following:12
"Commissioner, Dr Forrest has been and remains a fixed term employee under the Act. His employment contract, his fixed term employment contracts have commenced on a specific date and finished on a specific date as they are required to. The current contract expires on 13 October. He has been a fixed term employee, not for some machiavellian reason as people have been attempting to infer, but because it is a mandatory requirement. It is the law that he be a fixed term employee.
We, whether we like it or not, are bound by that. The clinical staff credentialling and appointments committee recommended to the CEO that she not offer a further contract to Dr Forrest. So the CEO didn't sit there in splendid isolation making this decision. It was a considered decision and a considered recommendation by the clinical staff credentialling and appointments committee. That recommendation was accepted by the chief executive officer, how could she do anything else, in reality.
...
The case for Dr Forrest in our submission must fail for the following principal reasons: Fixed term employee, the contract is coming to an end; the employer has advised it does not intend to offer a further contract; Dr Forrest has no grounds for stating that he can hold a reasonable expectation of continuous employment; at law Dr Forrest can only, could only be employed for a specified term; his employment history via the file clearly demonstrates he could not hold a reasonable expectation of continuous employment; and as I understand the request from Mr Lowe and Dr Forrest, they are asking this Commission to order further contract for Dr Forrest so that he can continue to work at the hospital."
[38] In submitting that the notion of an expectation of continuing employment was inconsistent with the concept of a fixed-term contract, Mr Targett did acknowledge all VMOs would be in the same position.13
Finding
[39] In AEU v MASSA Shelley C observed:14
"If a contract does run until the expiry date and it can be demonstrated that an employee had a reasonable expectation that the contract would be renewed, and it was not, then that could, depending upon the circumstances of the case, be a termination at the initiative of the employer and might be found to be a case of unfair dismissal. That is the claim in the instant case."
[40] This decision also referred to the judgement in Fisher v Edith Cowan University15 whereby a Full Bench of the Industrial Relations Court of Australia addressed the issue of evading responsibilities. The Full Bench referred to the ILO Termination of Employment Recommendation 1982.
[41] 3[1] of that recommendation states:
"Adequate safeguards should be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Termination of Employment Convention, 1982, and this Recommendation."
[42] In relation to the obligation to provide safeguards against the misuse of fixed-term contracts, the Full Bench said:
"Whilst on their face contracts of employment for a specified period of time may provide for consensual termination of the employment relationship by the effluxion of the period specified in the employment contract, that termination may, in certain circumstances, be a termination at the initiative of the employer. For example, if an employer arranged for an employee to render service under consecutive contracts of employment for specified periods of short duration, where the nature of the employment is appropriate for a contract of indeterminate duration, and the employee had no say in the terms of the agreement, it may be said that the contract served the purpose of the employer by providing additional control over the employee. In such circumstances if the employment relationship is terminated by the refusal of the employer to `roll-over' the employment contract, the termination may be seen as part and parcel of an initiative taken by the employer at the commencement of the contract of employment to reserve that power."
[43] It is clear that VMOs at the LGH are invariably on a fixed-term contract, normally of three years' duration.
[44] In relation to VMOs as a collective group, the evidence overwhelmingly points to a position whereby contracts are routinely renewed or rolled over. Indeed Ms Stackhouse could only identify one occasion when this had not occurred.
[45] Dr Forrest, as a VMO, is entitled to share this view. In his evidence he repeatedly states that, provided he continued to perform his role properly, he would reasonably expect his contract to be renewed on a routine basis.
[46] In my view this expectation of continuing employment was and is well founded.
[47] I accept that Dr Forrest may have become somewhat apprehensive from August 2002 onwards, but that does not mean his view as to continuing employment was misplaced.
[48] It is highly likely that his apprehension was based on a belief that certain individuals in the administration were not acting reasonably, given that no formal proceedings had been initiated against him.
[49] The series of short-term contracts were almost certainly contrary to the Commissioner's Direction No. 1 of 2001 and the hospital's own Credentialing Guidelines.
[50] Dr Forrest was clearly of the view that the short-term contracts were designed to "shut him up" as a consequence of his activism in relation to the administration.
[51] I am not required to make a finding as to whether Dr Forrest's views had substance. Suffice to say that it is not entirely surprising that Dr Forrest did hold these views, which in turn led to his apprehension.
[52] In all the circumstances I conclude that this apprehension does not negate Dr Forrest's well-founded view that his contract would, in the normal course of events, be routinely renewed.
[53] I find that in accordance with s.30[3] of the Act, Dr Forrest did have a reasonable expectation of continuing employment. It follows that failure to renew the contract amounts to a termination at the initiative of the employer. The question to be determined is whether or not the termination was unfair?
Was Dr Forrest Afforded Procedural Fairness?
Was There a Valid Reason for Termination?
[54] It is plainly obvious from a review of the personal file that there are a range of unresolved issues between Dr Forrest and the hospital administration. This is readily conceded by Dr Forrest who said:16
"In order to establish the service it was necessary to rob Peter to pay Paul."
[55] And later:17
"It should be said that in the first 12 to 18 months there were tensions involved in establishing the unit however it's run well in the last 12 months, not only in terms of its clinical performance but in terms of its day to day running."
[56] A recurring theme in Dr Forrest's evidence is that notwithstanding these tensions, no formal allegations or proceedings were put to or taken against Dr Forrest. He said:18
"I think the main point is that the inspection of this voluminous file indicates that there is no documentation that the administration raised concerns about my work."
[57] Ms Stackhouse said she made the decision not to offer Dr Forrest a further contract based on a recommendation of the Clinical Staff Credentialing and Appointments Committee [CSCAC].
[58] On 17 July 2003 Dr Forrest wrote to Ms Stackhouse:19
"I understand a meeting is proposed where the hospital is going to tell me what the major issues are against me. After discussions with Andy Maclaine-Cross, I wonder if the hospital would consider a format which included the tabling the objections in the first instance, followed by a second meeting where they could be discussed? The purpose of these discussions would explore the possibility of resolving any differences to our mutual satisfaction.
I note after I spoke to you today that you were going to check in your diary to see when there would be an opportunity for me to inspect my hospital file."
[59] There is nothing in the file or the evidence which indicates a response to this letter.
[60] On 29 July 2003 Ms Stackhouse wrote to Dr Forrest in the following terms:20
"I write to advise that it is not my intention to reappoint you to a position at the Launceston General Hospital following the expiry of your contract on 13 October 2003."
[61] Subsequently a meeting between Dr Forrest and the CSCAC was arranged for 18 August, which was subsequently changed to 1 September 2003. On 6 August Dr Forrest again wrote to Ms Stackhouse:21
"I am writing to you in your capacity as Chairperson of the Appointments and Clinical Credentialing Committee.
Would it be possible for you to provide grounds for my non-renewal of contract in writing prior to the scheduled meeting on August 18. This would allow me and my supporters to reflect on the reasons for non-renewal. This would serve in the much same way as an agenda does for any meeting.
Secondly, is the hospital's position non-negotiable? In other words, under what circumstances, if any, could the hospital see its way clear to offering a renewal of contract?"
[62] Dr Forrest did not receive a response to this letter.
[63] Whilst the proceedings of this meeting were "privileged" and therefore not disclosed, Dr Forrest did say that he was told that the reason for the non-renewal of contract was not based on clinical or ethical grounds. However a request that written reasons be provided for the non-renewal was denied.
[64] On 5 September 2003 Ms Stackhouse wrote to Dr Forrest in the following terms.22
"Further to my earlier letter, I confirm that you will not be re-appointed following the expiry of your contract on 13 October 2003."
[65] I am satisfied that a number of administrative and clinical issues identified in the personal file were dealt with in a normal and unremarkable manner.
[66] There is however no evidence of any formal proceeding, whether it be clinically or performance based, being instituted against Dr Forrest.
[67] Two things are absolutely clear.
[68] At no stage have clinical privileges been denied to Dr Forrest.
[69] No proceedings have been instituted alleging a breach of the Code of Conduct pursuant to the SSA.
[70] Clause 27 of the VMO Agreement reads:
"Grievance and Dispute Settlement Procedure
The objectives of this procedure are to promote the resolution of grievances and disputes by measures based on consultation, co-operation and discussion; to reduce the level of disputation; and to avoid interruption to the performance of work and the consequential loss of service to the community and of wages.
(a) In the first instance, the employee(s) and/or Association representative(s) shall attempt to resolve the grievance or dispute with the immediate supervisor.
(b) If the grievance or dispute remains unresolved, the matter shall be referred to senior management and the appropriate representative of the Association.
(c) It is agreed that steps (a) to (b) shall where practicable take place within seven days.
(d) If the grievance or dispute remains unresolved, the matter shall be referred to the Tasmanian Industrial Commission for hearing and determination in accordance with the provisions of Section 29 of the Industrial Relations Act 1984.
However, in the case of a grievance or dispute relating to a clinical or professional matter it shall be referred to the Review Committee for determination, whose decision for the purposes of this Agreement shall be final."
[71] I am satisfied that no attempt has been made to utilise this procedure to resolve outstanding issues with Dr Forrest. In this context Ms Stackhouse said:23
"Did it ever occur to you in relation to matters regarding Dr Forrest that you actually utilise those provisions within the Visiting Medical Practitioners Agreement?---In light of the context of what you have read I believe that was in respect of dismissal as opposed to the expiration of a contract."
[72] Section 4 of the Health Act 1997 requires that proceedings of the CSCAC not be divulged. Nonetheless the Committee does have Procedural Guidelines, which are published.
[73] This document outlines a number of General Principles, one of which reads:
"The process of staff credentialing and appointments is underpinned by the principles of natural justice given the significance of this process to professional practice."
[74] It is clear that the CSCAC has a pivotal role in initial appointments, credentialing and clinical privileging.
[75] It is not however readily apparent from the document that the committee has a role in relation to the renewal of contracts, other than in relation to credentialing and privileges, both of which are a pre condition to the renewal of a contract.
[76] In the instant case the committee has maintained Dr Forrest's credentials and privileges, but recommended that he not be re-appointed.
[77] In relation to the Downgrading of Clinical Privileges, the guidelines say this:
"Downgrading of Clinical Privileges
...
(ii) The rules of 'natural justice' must be followed. In essence this requires that a staff member is entitled to a hearing free of prejudice before any decision is taken that may affect their position. The rule are to act
a) fairly
b) in good faith
c) without bias, and
d) to give each party the opportunity of adequately stating their case and correcting or contradicting any relevant statement prejudicial to their case. This should include any relevant documentation examined by the committee.
(iii) A medical staff member has the right to nominate any person to attend a review meeting as support or advisor."
[78] And in relation to Appeals:
"It is acknowledged that the process of defining clinical privileges is a vital factor in determining the range of practices that are satisfactory and rewarding to that individual practitioner. It is also recognised that the denial of privileges may have a very real effect on the livelihood of a practitioner. For this reason the process is to be undertaken seriously and diligently."
[79] In Ms Stackhouse's letter of 29 November 2002, reference is made to a performance review to be undertaken at least three months prior to the end of the contract. Dr Forrest said this review did not take place.
[80] Ms Stackhouse said that there was further correspondence from the CSCAC in April and May seeking information relevant to a review. At the time of writing this decision, that correspondence has not been made available to the Commission.
[81] Nonetheless, it is difficult to envisage how a performance review can be undertaken without the presence of the person under review.
[82] Whatever the deliberations of CSCAC involved, Dr Forrest was not present at the meeting. Indeed he was not invited to be present.
[83] It was presumably this meeting, or meetings, which led to the recommendation not to renew Dr Forrest's contract. Notwithstanding that his credentials and privileges remained intact, non-renewal amounts to a denial of clinical privileges.
[84] By denying Dr Forrest the opportunity to participate in the manner outlined in the guidelines, the Committee has denied Dr Forrest procedural fairness.
[85] The meeting on 1 September is of little account. The decision had already been taken and conveyed to Dr Forrest. Again this is contrary to the guidelines.
[86] On each occasion that Dr Forrest has sought details of any allegations against him, he has been ignored.
[87] The CSCAC has failed to observe both the spirit and the letter of their own procedures.
[88] The combination of the above amounts to a fundamental denial of procedural fairness, and I find accordingly.
[89] As no reasons for the non-renewal have been provided, it is impossible for the Commission to conclude that there was a valid reason for the termination connected with capacity, performance or conduct of the employee, or the operational requirements of the employer.
[90] As I have already found that Dr Forrest had a reasonable expectation of continuing employment, failure to renew the contract when the position clearly remains available on an indefinite basis, amounts to an unfair termination at the initiative of the employer. I find accordingly.
Remedy
[91] Ms Stackhouse in her evidence observed: 24
"Most medical professionals are dissenting in their nature, in their discussion and I would have many lengthy and lively discussions with most of the medical staff."
[92] Without attempting to apportion blame, it may well be that the extent of the dissension between Dr Forrest and the hospital administration goes beyond what Ms Stackhouse considers the norm.
[93] Whatever these issues are, there does not on its face appear to have been any serious attempt to address them.
[94] Dr Forrest has repeatedly expressed a willingness to work through these issues in a constructive manner. Industrial fairness demands that he be given that opportunity.
[95] To facilitate this process I issue the following recommendation in the strongest possible terms:
RECOMMENDATION
1. Dr Forrest's contract of employment be extended at least until 31 January 2004.
2. That a process be established to address all the issues that may exist between Dr Forrest and the hospital administration in a fair and constructive manner.
3. Provided the issues referred to above are satisfactorily resolved, having regard to Ms Stackhouse's observation above, I would anticipate Dr Forrest being offered a further contract in line with normal arrangements for VMOs.
4. Nothing in this recommendation relates to clinical or ethical issues that are properly the province of the CSCAC.
[96] The file will remain open with leave reserved to either party to seek to have the matter re-listed should that be considered necessary.
Tim Abey
COMMISSIONER
Appearances:
Mr D Lowe for the Tasmanian Branch of the Australian Medical Association
Mr P Targett, with Ms F Galloway and Dr P Renshaw, for the Minister Administering the State Service Act 2000
Date and Place of Hearing:
2003
September 16, 19, 25
Launceston
1 Exhibit R1
2 T10628 of 2003, para 120 and 121
3 supra para 141
4 Transcript PN 60, 80, 101, 178, 199
5 Transcript PN 169 and following
6 Transcript PN 494 and following
7 Transcript PN 409
8 Transcript PN 183 and following
9 Transcript PN 207 and following
10 Transcript PN 370
11 Transcript PN 607
12 Transcript PN 659
13 Transcript PN 638 to 640
14 Para 118
15 41 AILR 3-540
16 Transcript PN 61
17 Transcript PN 165
18 Transcript PN 114
19 Exhibit R1 p. 422
20 Exhibit R1 p. 433
21 Exhibit R1 p. 439
22 Exhibit R1 p. 470
23 Transcript PN 474
24 Transcript PN 443 | 
