T12011
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DECISION APPEALED - SEE T12264 TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Dr Christine Anne Armstrong and St Luke Medical Service Pty Ltd
Industrial dispute - alleged unfair termination of employment - application dismissed REASONS FOR DECISION [1] On 5 April 2005, Dr Christine Anne Armstrong (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with St Luke Medical Service Pty Ltd (the respondent) arising out of her alleged unfair termination of employment. [2] The matter was listed for hearing on 21 April 2005 (Conciliation Conference), 30 June 2005 at the Magistrates Court, 19 King Edward Street, Ulverstone, Tasmania and 28 July 2005 at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania. [3] Mr B McTaggart, Barrister-at-Law, sought and was granted leave to appear on behalf of the applicant. Mr C Cunningham, Simmons Wolfhagen, Barristers and Solicitors, sought and was granted leave to appear on behalf of the respondent. [4] The applicant commenced work with the respondent on 17 May 2004. Her agreed remuneration was the greater of $90/hr or 65% of gross billing. Her normal working week was 32 hours. These and other conditions were detailed in a contract prepared by the applicant and signed by Dr Safwat Saba on behalf of the respondent (Exhibit A.1). At all times the applicant acknowledged the respondent as her employer. [5] The applicant took leave from 9 to 18 March 2005. On 23 March 2005 she returned to work where a significant disagreement took place with regard to Dr Saba, for the respondent, having reviewed a Care Plan for a specific patient of the applicant in her absence, contrary to an alleged existing agreement. It was not disputed Dr Saba had reviewed other care plans during the applicant's absence. [6] The particular patient had an appointment with the applicant that same day. The applicant refused to see this patient and transferred her appointment to Dr Saba's list of patients for the day. Mr Cunningham informed the Commission that on discovering the applicant's intent, Dr Saba put an ultimatum to the applicant: should she not see the patient in question that action would bring about a cessation of their working relationship. The applicant's response was "so be it!" [7] Mr Cunningham stated that Dr Saba subsequently attempted to recover the situation. He argued that Dr Saba had not terminated the applicant's employment. The applicant insisted her employment had been verbally terminated and packed up her belongings to leave forthwith. [8] Mr Cunningham asserted that Dr Saba asked the applicant to work four weeks notice, which was a requirement of the contract. The applicant refused to work a notice period as she claimed she had been fired. What followed that day, and subsequent days, was a series of discussions, telephone calls, negotiations and offers attempting to entice the applicant to work two weeks to cover patients already booked to see her. Offers were also made to further her employment on a trail basis. The various propositions put to the applicant were finally rejected on 28 March 2005. [9] Mr McTaggart asserted that the applicant claimed there were, indeed, two incidents of unfair dismissal. The first incident occurring on the 23 March 2005, triggered by the applicant's refusal to see a patient, and the other on the 25 or 28 March 2005, having her two-week extension cancelled. The applicant seeks reparation for lost income and for unfair dismissal. BACKGROUND Details of the case put by the Applicant: [10] On 23 March 2005 the applicant returned to work from a short break. She discovered Dr Saba had reviewed a Care Plan for at least one of her patients. It was alleged Dr Saba's actions were contrary to an agreement that each doctor only develop Care Plans for their own patients. She asserted the Care Plan document itself had a number of factual errors in it, not the least of which was the omission of her name as the patient's General Practitioner. During the hearing Dr Saba acknowledged the errors in the Care Plan document. [11] By her own admission the applicant was upset about the situation. She expressed her anger to Ms Martin, the Practice Manager. In evidence the applicant's husband, Mr Armstrong, judged his wife to be stressed and upset on the afternoon of 23 March 2005. [12] The patient, Mrs R, for whom the aggrieving Care Plan had been reviewed coincidentally had an appointment with the applicant that same day. The applicant informed Ms Martin that she refused to see Mrs R and would transfer her from her own to Dr Saba's patient list on the practice's computer data base. The applicant asserted she performed the transfer. Ms Martin, in evidence, contradicted the applicant and asserted in fact that it was she who had carried out the procedure under the applicant's direction. [13] On Wednesday, 23 March 2005 at 8:57 am, the applicant e-mailed Dr Saba to notify him of the patient transfer (Exhibit A.4). The applicant asserted she received a telephone call soon after from Dr Saba in reaction to this first e-mail. The applicant gave no details of the conversation. Dr Saba refuted the occurrence of this alleged telephone call. Ms Martin had reason to doubt the applicant's assertion, claiming it was she who brought Dr Saba's attention to the unfolding situation at a later stage that morning and in her presence he had accessed the e-mails. [14] A further e-mail to Dr Saba at 11:34 am on that same day reinforced the applicant's refusal to attend to Mrs R. (Exhibit A.5). [15] At about this point in time Dr Saba telephoned the applicant twice, in the presence of Ms Martin, where he asserts the applicant hung up on him. He telephoned a third time at which point the ultimatum regarding the applicant attending to Mrs R was put. The applicant asserts Dr Saba and Ms Martin came to her room some 10 to 15 minutes after the last telephone conversation. This time lapse was disputed in evidence given by Dr Saba, Ms Martin and Mrs Saba. They each agreed they left Dr Saba's room and went directly to the applicant's room some few metres away immediately after the last telephone call. [16] The applicant was in the process of packing up her belongings when Dr Saba and Ms Martin entered her room. [17] It is not disputed at this juncture Dr Saba reiterated his ultimatum in the presence of Ms Martin. It is also not disputed Dr Saba asked the applicant to work out four weeks notice, nor is it disputed she refused to do so. Both the applicant and Dr Saba agree that Dr Saba stressed he had not terminated the applicant's employment and that the applicant consistently maintained he had. There ensued discussions, offers and negotiations over a period of allegedly 40 minutes. At about that time Dr Saba left to attend to Mrs R. [18] During that afternoon the applicant agreed with Ms Martin to work on for two weeks to attend to those patients who had already been booked to see her. She made it clear this was not her giving notice, but showed her concern for her patients. Throughout the day there were more offers made and withdrawn or rejected, in the main using Ms Martin as the go-between. [19] The applicant sent a letter (Exhibit A.9), through Ms Martin, to Dr Saba confirming her intention to stay on for two weeks. Dr Saba hand wrote a reply on the letter reiterating he had not asked the applicant to leave that day and further that he wanted her to stay for a month. Dr Saba followed this up with a typed letter (Exhibit A.10). [20] The applicant returned to the surgery on the following day, 24 March 2005. She asserted throughout the day offers were put to her, which she claimed reduced the conditions of her employment for the two weeks she had agreed to work. She sought clarification from Mrs Saba, who agreed to telephone her that evening with a response, which she did. The applicant was not at home that evening to receive the call. [21] The applicant alleges Mrs Saba telephoned her on 25 March 2005 and informed her that she was not to return to the practice and she would be paid until 8 April 2005. The applicant's husband gave evidence he listened to the conversation on speakerphone, and that Mrs Saba had been informed he was listening. Mrs Saba rejected the applicant's interpretation of the conversation and denied being informed of Mr Armstrong's presence. [22] It is not disputed Mrs Saba telephoned the applicant again on 26 March 2005, to increase the previous remuneration offer. The applicant also alleged her husband again listened to the conversation on speakerphone. [23] The applicant alleged she spoke to Mrs Saba on Sunday, 27 March 2005 to inform her that she would not accept the latest offer. The applicant, under cross-examination, was quite sure the conversation took place on the Sunday, however, both Mrs Saba and Mr Armstrong in evidence concurred the conversation took place on Monday, 28 March 2005. Details of the case put by the Respondent: [24] Mr Cunningham, for the respondent, did not challenge the overall development of the dispute outlined by the applicant, however there were significant differences in the detail. [25] Ms Martin and Dr Saba gave evidence it was she, Ms Martin, who brought Dr Saba's attention to the applicant's intended course of action regarding Mrs R before he had read the e-mails sent to him by the applicant. [26] The significant variation in the recollections of the events surrounding the ultimatum was the applicant's insistence she was told her employment "is" terminated while Dr Saba equally insists he said "will be". [27] Dr Saba asserted on two occasions the applicant hung up on him when he tried to discuss the situation with her. This was supported by evidence from Ms Martin. At the third attempt to talk to the applicant Dr Saba laid down the ultimatum with respect to the applicant attending to Mrs R. [28] Dr Saba, supported by Ms Martin and Mrs Saba, and indeed, the applicant herself asserted he expressed on a number of occasions he did not want the applicant to leave. [29] Again supported by evidence from both Ms Martin and the applicant Dr Saba asserted he tried a number of times to convince the applicant to work out the four weeks notice. [30] Dr Saba also asserted he "begged" the applicant to see Mrs R, which was confirmed by Ms Martin in evidence. He asserted he offered to "double her pay" to entice her to stay, which was confirmed by both the applicant and Ms Martin. [31] Dr Saba raised the issue of the impact of the applicant's remuneration package on the profitability of the practice. He also asserted he would be "stupid to fire her ..." because of her popularity with the patients, while he was studying for his "Fellowship" and compounded by his own workload. [32] Late in the examination-in-chief Dr Saba revealed there had been ongoing negotiations between himself and Mr Armstrong, on the applicant's behalf, with regards to renegotiating the contract of employment. These discussions appear to have broken down in mid-February not long before the applicant commenced her leave. [33] Ms Martin, in her evidence, asserted the applicant had informed her early on 25 March 2005 that she, the applicant, would not be returning to the practice. Ms Martin's understanding was the decision was the applicant's. [34] Mrs Saba, in her evidence, asserted she did speak to the applicant on 25 March 2005. In her view, the gist of the conversation was that both she and Dr Saba did not want to lose the applicant. However, if there were going to be friction over the next two weeks it would be preferable if the applicant did not return to the surgery and that she would be paid up until the 8 April 2005. Mrs Saba also asserts she suggested to the applicant she may want to take time off to let things settle. [35] Mrs Saba asserted the applicant, in response to the scenario alluded to above, had already made up her mind not to go back to the practice. This assertion is in concert with Ms Martin's evidence. The applicant denied this and asserted she only made up her mind not to return later in the weekend. [36] It was not disputed Mrs Saba made a further telephone call to the applicant on 26 March 2005 to increase a remuneration offer for the proposed two weeks work. [37] Mrs Saba and Mr Armstrong both assert the applicant and Mrs Saba had a telephone conversation on Monday, 28 March 2005 wherein the applicant finally declined all offers. The applicant disputes the date, her recollection being 27 March 2005, a Sunday. AUTHORITIES Sanders v Snell, High Court of Australia (1998) HCA 64, ALR 491 Birrell V Australian National Airlines Commission (1984) 5 FCR 447 The Course of Evidence, Seventh Australian Edition - The Rule in Browne v Dunn (1893) FINDINGS [38] The event claimed by the applicant to have caused the whole sequence of events on 23 March 2005, namely, Dr Saba having reviewed one of her patient's Care Plans, on the surface appears minor. [39] The reaction to the situation by both parties seemed excessive. The subsequent frenetic negotiations around remuneration and conditions of employment beyond the instant contract appeared incongruous following an alleged unfair dismissal. Fortuitously, when directly questioned by the Commission, Dr Saba alluded to negotiations between himself and the applicant's husband, as her agent, which were in train prior to the instant situation. The said negotiations were regarding the applicant's ongoing terms of employment. It was not challenged that these negotiations had been going on since November the previous year and cumulating in an impasse midway through February 2005. That situation may well help to explain why seemingly minor issues fuelled the reactions of both parties to the incidents on 23 March 2005. [40] It should be noted that neither party brought this background of protracted negotiations around the applicant's employment terms and conditions to the Commission's attention voluntarily. [41] It has been acknowledged the respondent was the employer. The tenor of the e-mail sent by the applicant to Dr Saba at 8.57 am (Exhibit A.5) on 23 March 2005 was uncompromising. It did not request an explanation with respect to Dr Saba's actions in reviewing Care Plans for some of the applicant's patients. The content of the e-mail did not offer to discuss the matter or initiate a solution. The e-mail quite curtly signalled the applicant's unilateral intended action. [42] The applicant's uncompromising behaviour towards her employer, firstly changing appointments without consultation, then refusing to attend to a legitimate patient without discussion and, further, by hanging up the telephone when he called on two occasions in response to her e-mails is critical in the instant case. The tenor of the communications, the applicant's response to the ultimatum of "so be it", and her actions of immediately packing up her belongings left little scope for anything other than a confrontation. [43] On several occasions the applicant was adamant her version of occurrences were correct. During evidence there were a number of instances where the applicant's recollection of events differed, not surprisingly, from those of Dr Saba's and his witnesses. Her recollection of the specific day on which she finally decided to reject the offers from the respondent was vigorously challenged. She insisted she was correct. However, it was proven she was mistaken. Even her husband's evidence concurred with the respondent. [44] The applicant's assertion that Dr Saba contacted her soon after she sent the first e-mail at 8.57 am on 23 March 2005 was challenged and could not be substantiated. In this instance her recollection of the conversation was vague, unlike the rest of her evidence. However, there is contrary convincing evidence to suggest the first telephonic contact took place around 11.30 am. I conclude there was no call made by Dr Saba to the applicant at around 9.00 am of the morning in question. [45] The applicant's assertion she was told not to return to work by Mrs Saba during the conversation of 25 March 2005 is implausible. Mr Armstrong supported the applicant's recollection. It was asserted Mr Armstrong listened to the conversation with Mrs Saba's approval. I believe there is sufficient doubt as to the veracity of this assertion. I accept Mrs Saba's evidence that a position was put to the applicant regarding minimizing the stress and unpleasantness in the surgery. It would make little sense for Mrs Saba to tell the applicant not to return to work one day and offer her improved conditions the following day. [46] The applicant was adamant that she changed Mrs R's booking on the computer's appointment system. Ms Martin attested she did the transfer on the applicant's behalf. Little hinges on this incident. I do not see any reason for Ms Martin to falsify such a minor thing. In my view it does, however, reflect on the veracity of the applicant's rigid recollection of very specific occurrences throughout examination-in-chief and cross-examination. [47] It was admitted the ultimatum was given in a hurried and somewhat frantic manner. It is also a fact Dr Saba's first language is not English, which may have been a factor in the applicant's understanding of what was said. It has also been acknowledged the applicant herself was upset, angry on the day of the incident. The applicant was adamant the ultimatum was worded in the present tense "...if you do not see this patient our employment relationship is ended". (my emphasis) The respondent asserted he said, "will be". [48] I do not accept the applicant's unequivocal recollection of the exact wording of the respondent's ultimatum. [49] Counsel for the applicant attempted to paint a less than favourable picture of Dr Saba both ethically and professionally. Dr Saba did admit to making errors on the Care Plan under question. The ethics of the timing of the Care Plan review for the particular patient was interrogated. Dr Saba's failure to attain "Fellowship" was alluded to as reflecting his professionalism. Dr Saba's answers to the assertions made by Counsel for the applicant were direct, consistent, logical and plausible. [50] I do not accept the applicant's assertion that her refusal to see Mrs R was prompted on "ethical" or "professional" grounds. There was no evidence given that the applicant's refusal to attend to Mrs R would in any way impact on the alleged ethical or professional failure of Dr Saba. Aspects of Dr Saba's actions could correctly have been challenged on procedural grounds in the first instance. Evaluation of alleged ethical or professional transgressions could have been conducted prior to the applicant's unilateral action. However, the applicant had decided on a course of action without the benefit of dialogue. [51] It was admitted Dr Saba gave the applicant an ultimatum. There is also no doubt Dr Saba tried to recover the situation on a number of occasions, to no avail. Throughout the period under discussion it is not disputed Ms Martin, Mrs Saba and Dr Saba all assured the applicant that the respondent did not want her to leave. Why did she not accept these assurances? [52] The face-to-face confrontation took place soon after 11.30 am on the day in question. The patient, Mrs R, was to be seen sometime later that day. The ultimatum put to the applicant hinged on her not attending to the patient in question. It is acknowledged she was "pleaded" with on a number of occasions to relent and deal with the patient. Whether "is" or "will be" was used, the fact is the occurrence of not seeing the patient had not eventuated at the time she alleged her employment had been terminated. The applicant had decided to leave, packed up her belongings well before the ultimatum had been triggered. There was time, if the applicant chose, to change her mind and attend to her patient. She chose not to. There was time to discuss a compromise with her employer. There was no evidence educed which indicated the applicant was summarily dismissed or told to leave forthwith. [53] The applicant was asked on a number of occasions to work four weeks notice, in accordance with the contract, she refused. Her insistence that her employment had been terminated does not alleviate her obligation, and that of the respondent to offer four weeks notice. There is no facility in the contract the applicant herself authored for transmittal of four weeks notice to payment in lieu or, indeed, forfeiture in lieu. [54] It appears the respondent accepted the applicant would not work four weeks notice and attempted to negotiate a two-week buffer to have those patients already listed attended to. By her own evidence and that of her husband, the applicant finally rejected the latest offer on Monday, 28 March 2005. There were many offers made by the respondent. There was obviously consideration by the applicant, but no acceptance of the offer. It follows no contract existed beyond the original contract of July 2004. SUMMARY [55] Section 30(6) of the Industrial Relations Act 1984 states:
[56] The applicant was directed to perform a legitimate function, consistent with her role as a doctor, by the respondent. She refused. The applicant, by her unilateral decision not to attend to a particular patient, created the situation where the respondent had every right to put to her an ultimatum. The applicant was clearly informed of the consequence of her action. She was repeatedly asked to relent prior to the patient's appointment time. Again she refused. [57] I find the applicant repudiated her contract of employment and was not unfairly dismissed in the first instance. [58] As to the second allegation of unfair dismissal, no contract was entered in to beyond the original contract therefore I dismiss this aspect of the application. [59] And I so Order.
James P McAlpine Appearances: Date and place of hearing:
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