Decision Appealed - See T13167

 

TASMANIAN INDUSTRIAL COMMISSION

 

Industrial Relations Act 1984
s29 application for hearing of industrial dispute

 

Dr Stephen Bennett
(T12919 of 2007)

 

and

 

Minister Administering the State Service Act 2000
(Department of Health and Human Services)

  

COMMISSIONER J P McALPINE

HOBART, 6 June 2008

 

 

Industrial dispute - termination of employment – application dismissed

 

REASONS FOR DECISION

 

[1] On 11 April 2007, Dr Stephen Bennett (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000 (Department of Health and Human Services) (the Minister) re A dispute in relation to termination of employment.

[2] The matter was listed for hearing/directions at Edward Braddon Commonwealth Law Courts Building, 39-41 Davey Street, Hobart, Tasmania, on 17 July 2007; hearing/conference 1 August 2007; hearing/further directions 5 October 2007; hearing/further directions 3 December 2007; and hearing on 5, 6 and 7 December 2007.

[3] Appearances:Mr C Green, Page Seager, Barristers and Solicitors for the applicant; Ms L Wilkins (17.7.07) and Mr P Turner for the Minister.

Witnesses

 

Dr Stephen Bennett - applicant

Mrs Philippa (Pip) Robyn Leedham - Director Primary Health

Ms Mary Jean Bent - Deputy Secretary, Community Population and Rural Health

Ms Siobhan Harpur - State Manager, Aged, Rural and Community Health (ARCH)

Miss Susan Jane Powell - District Manager South East (until January 2006)

Dr George Cerchez - Senior Medical Officer, Medical Advisor

Ms Teresa Christine Banman - Manager, Conduct and Review

Mrs Judith Mary Clingeleffer - Administrative Officer

Ms Lynette Maree Carling Green - Practice Manager

Dr Ruth Marion Kearon - Medical Advisor

Dr Michelle Klok - Medical Practitioner

Dr Sally Dunbar - Specialist Medical Practitioner

[4] The Clarence Community Health Centre (CCHC) was part of the public health service.  It housed the only State operated general medical practice.  It was staffed mainly with part-time medical practitioners.  Generally, the particular doctor would nominate the sessions they were prepared to work, and a roster was developed from this.

[5] The applicant had been employed as a medical practitioner with the CCHC since 1988.  Initially he was employed on a full-time basis, followed by a period of 13 years part-time.  In 2004 he returned to a contracted 62 hours per fortnight.

[6] On 12 April 2006 the applicant was suspended on full pay pending an enquiry into alleged breaches of the State Services Code of Conduct (CoC) (Exhibit A35).  On the basis of the enquiry’s findings, the Secretary of the Department terminated the applicant’s employment some 11 months later on 19 March 2007. (Exhibit M04(B71))

[7] The applicant challenged the grounds upon which his employment was terminated and has alleged unfair dismissal.  He sought reinstatement as a remedy.

 

BACKGROUND

 

CHRONOLOGY OF EVENTS

[8] The matter, in its journey to reach the conclusion it finally arrived at in April 2007, developed over a number of years and through a myriad of incidents, individual and related.  In arbitrating the matter it has been necessary to gain an appreciation of the chronology of events.

 

2003 – 2004

[9] An operational review of the CCHC took place during 2003, the outcome of which recommended a part-time Senior Medical Officer (SMO) be appointed and supported by a new non-medical position, that of Practice Manager (PM).  The applicant acknowledged he was openly opposed to this proposed arrangement.

[10] At that time the applicant sought assurance from the then State Manager of ARCH, Mr P Morris, the SMO position would remain a full-time post. In his response of May 2004, Mr Morris (Exhibit M04(B6.B)) stated that “… it is the intent that this position be advertised as a full time conjoint position with the University …”

[11] The applicant also questioned the appointment of a full-time PM. In August 2004, after a practice meeting, a letter was sent to Mr Morris on behalf of a number of the staff at CCHC expressing scepticism about the proposed PM position.

[12] Ms Lynne Green was appointed as the PM in November 2004.  In her statement she asserted, soon after her appointment the applicant met with her in his room where he told her he was not in favour of her appointment and in his view the PM position should be part-time and temporary.

[13] Ms Green also alleged the applicant told her that she would find difficulty in gaining permanency within the Agency should she not organise the reclassification, to a higher level, of the reception staff.  She further asserted that the applicant repeated his views some months later.  Neither statement was refuted.

[14] Ms Green reported the applicant’s conduct to her Manager, Ms Le Mesurier.  Ms Green also claimed the applicant refused to communicate with her during the time he acted in the SMO position, other than to sign timesheets.  This was not refuted.

[15] In December 2004, expressions of interest were sought to temporarily fill the vacant SMO position.  The advertisement (Exhibit A05) stated the position was to be filled “Period: 10 December 2004 – 10 March 2005 or until the position is filled on a permanent basis”.

 

January - May 2005

[16] The selection panel, consisting of Dr Cerchez, Dr Chapman and Mr Armstrong, recommended on 11 January 2005, the applicant “… be appointed to position (sic) of acting Senior Medical Officer … for a fixed term period commencing from 10^th January 2005 until 10^th March 2005 …”. (Exhibit M03(A))

[17] A Contract of Service document (Exhibit M03(C)), which is the formal instrument of appointment, signed by the applicant on 3 March 2005 at (2) stated:

 

“Employment will be for the period commencing 10 January 2005 and terminating on 10 March 2005 or earlier depending on the permanent filling of the position ...”

[18] The applicant was re-appointed to the position at the termination of this period.  The new Contract of Service document (Exhibit M03(D)) signed by the applicant on 26 April 2005 at (2) stated:

 

“Employment will be for the period commencing 11 March 2005 and terminating on 10 May 2005 or earlier depending on the permanent filling of the position …”

[19] Through this same period the recruitment process for a permanent appointment was being pursued, but with no suitable candidates emerging.

[20] The applicant took extended leave from 19 May until 19 August 2005.  He asserted he continued to perform the duties of Acting SMO from 12 to 18 May 2005.  This was not disputed.

[21] On 31 May 2005 a further advertisement campaign was undertaken to fill the SMO vacancy on a permanent basis.  No suitable candidates emerged.

 

July 2005

[22] As result of a dearth of suitable candidates for the SMO position, Dr G Cerchez offered to temporarily assume the role of SMO in July 2005.  His offer to work part of each week at CCHC was accepted by the Agency.  Dr Cerchez’s appointment, similar to the applicant’s previous appointments, was for a specific period “1 August 2005 and terminating 31 October 2005 …”. (Exhibit M03(J))

[23] Dr Cerchez was at that time, and still is, the Senior Medical Advisor for Primary Health Care and had been for some 10 years.  He was also a member of the SMO selection panel and advised the Agency on operational improvements.  He asserted that this role brought him into contact with numerous General Practitioners in a variety of situations.  He further asserted that he also continued to work in general practice.

 

August 2005

[24] On his return from extended leave on 22 August 2005, the applicant was informed by Ms Green that Dr Cerchez had been appointed to the SMO position.  He described his reaction at p116, L5 of transcript:

 

“…I was disturbed when she told me that it wasn’t in fact a permanent appointment to the position, as we had understood, that it was a temporary appointment, and that it was a part-time appointment coming down two days a week from Launceston to perform the duties of the senior medical officer position.”

[25] Dr Cerchez, who had little to do with the applicant prior to his appointment as SMO, in his evidence recollected his first interaction with the applicant on 24 August 2005.  At p373, L5 – 20 of transcript:

 

 “… during a doctors’ meeting where Dr Bennett overtook the agenda of the meeting and insisted that before we start on the business of the meeting that he discuss in front of all the other doctors the method of my appointment and his objection to the way in which I was appointed … about half to three quarters of the meeting was taken up with that discussion, which was largely led by Dr Bennett.”

 

“After that meeting I sat with Dr Bennett for at least an hour and discussed with him the way we might work together …  And he agreed at the end of that discussion to give me a go … after about half a day I was disappointed that his behaviour and his attitude changed completely despite that verbal agreement and things started to get difficult from that time on.”

[26] In her evidence Dr M Klok, witness for the applicant, expressed her view of the applicant’s persistence; at P281, L35 – 45 of transcript:

 

 “Would you agree with the proposition that Dr Bennett is garrulous? Dr Bennett can be very forthright in his views. He is certainly persistent …

 

And he is more than persistent; he is extraordinarily dogmatic I would suggest? I would agree that he can be dogmatic …

 

And at meetings of doctors which you have at the centre, I understand, from time to time, this is a point of course when Dr Bennett was there, he could dominate the meetings by speaking? Yes, that is the case.”

[27] And further at p282, L5 of transcript:

 

“In other words, effectively take them over just by dint of the fact that he talks a lot? I do agree, and I have found that meetings before Dr Bennett's suspension could be extremely difficult.”

[28] The applicant complained to Ms S Harpur, State Manager ARCH, regarding the process of appointing Dr Cerchez and voiced his opposition to the position being part-time and with little clinical content.  Ms Harpur noted on a copy of the applicant’s email to her of 30 August 2005 (Exhibit A09), that there were no concerns raised by any of the other medical or administrative staff about the appointment.

[29] At the end of August 2005, Dr Cerchez took leave and appointed Dr R Kearon to the position of Acting SMO in his absence.  The applicant objected to this appointment asserting he should get the role because, in effect, he was still the Acting SMO, and further, that he was more experienced than Dr Kearon (Exhibit M04(B1)). The applicant, in a number of emails, alleged discrimination.

[30] Dr Cerchez in his evidence outlined his reasons for preferring Dr Kearon to the applicant to act as SMO. At p381, L20 -45 of transcript:

 

“Was there any reason why you did that rather than appoint Dr Bennett? Yes, there was. Dr Bennett had indicated prior to that time his objection to Sue Cherry, the doctor that we were trying to recruit from Sydney. She hadn’t yet joined us … and I was fearful that if I left Dr Bennett as the senior medical officer, he would … dissuade her from coming. … and basically that concerned me, that the 10 days that I was away … he would use his acting senior medical officer role to sabotage that appointment. So I, as I have the ability to do, appointed Ruth Kearon as an acting senior medical officer. That was the reason behind that action.”

[31] During the time Dr Cerchez was on leave the applicant did indeed make contact with Dr Cherry. (Exhibit M07)

[32] In August 2005 a proposition was put by the Agency to appoint Dr Cerchez as SMO for a further two years.  The applicant opposed the proposition.

[33] Dr Cerchez complained to Ms Harpur, in a copied email, about the applicant’s disruptive behaviour in openly challenging his appointment. (Exhibit A10)

 

September 2005

[34] In early September 2005, the applicant met with the Minister questioning the validity of Dr Cerchez’s original three-month appointment and the proposed extension of two years. He also put himself forward as the appropriate choice to be the Acting SMO until the position was filled permanently. (Exhibit M04(B6.A))

[35] It was acknowledged by most of the witnesses that, at that time, there was difficulty in attracting doctors to the practice, as indeed there still is today.  To this end, Dr Cherry, an interstate General Practitioner, was made on offer of employment by the Agency.

[36] On 9 September 2005, prior to Dr Cherry taking up her substantive role at CCHC, the applicant emailed her, raising doubts about the validity of Dr Cerchez’s appointment and, as a consequence, also raised doubts about the validity of her own appointment together with a number of other negative assertions regarding the Agency. (Exhibit M07)

 

“I have not communicated with you before as your original enquiry for a medical position was not appropriately directed to me as acting SMO.(I have been on leave from May to August.)”

 

“… there is a question about the validity of the current appointment of Dr Cerchez … and hence the validity of your appointment.”

 

“… I believe Dr Cerchez encouraged and approved your appointment in ignorance of the guidelines.”

 

“There is a long and complex history of administration interference and inappropriate, unaccountable, non consultative decision making with regards to this practice.”

 

“I will forward a copy of the email to administration (10/5/2005) as a consequence of your original enquiry being mis-handled”

[37] The applicant copied the email to all the other doctors and senior managers.

[38] It transpired that the communication to Dr Cherry followed the applicant’s request that Dr Cerchez review his decision to appoint Dr Cherry, which he refused to do. (Exhibit M07)

[39] Dr Cerchez remonstrated with the applicant over his “unauthorised” action in contacting Dr Cherry. (Exhibit M07)  He sought a private meeting with the applicant to discuss the issue.  The applicant refused to meet with him privately, but sought to convene a doctors’ meeting and include senior managers to debate the issue.

[40] Under cross-examination the applicant confirmed that he had never previously spoken to Dr Cherry, that his email to her would have come “out of the blue” and that he chose to send the email when Dr Cerchez was on leave and Dr Kearon was the Acting SMO in his place.

[41] The applicant also confirmed he had not discussed sending the email with either Dr Cerchez or Dr Kearon.  The email was sent at 5.02 pm on a Friday afternoon.  In response to her being copied in on the email to Dr Cherry, Dr Kearon subsequently emailed the applicant expressing her concern at his action.

[42] The applicant asserted that “Dr Cerchez misinterpreted and misunderstood” the email to Dr Cherry.  He also conceded that at the time of writing the email he felt he should have been the Acting SMO.  He further asserted that he had discussed the ethics of sending such an email with a friend and was concerned “it may be misconstrued”.

[43] It was not disputed that the applicant continually copied in an array of staff and colleagues on emails.  It was argued that the applicant inappropriately copied sundry people in emails for his own ends, despite being first requested then directed to desist by senior Agency staff.  It was asserted there was little regard to the appropriateness of content or relevance of the correspondence to the recipients.

[44] In his evidence the applicant admitted, at p140, L45 of transcript, that on a particular occasion he had sent what was deemed to be an inappropriate email to colleagues as a result of having his morning “disturbed” by the actions of Dr Cerchez.

[45] Arising from the applicant’s email to Dr Cherry, Dr Cerchez formally requested the applicant cease copying in other staff on issues regarding his appointment.  The applicant responded in his email of 13/09/05 (Exhibit M07) “The forwarding of emails relevant to my colleagues will continue … the “clandestine” manner in which your “appointment” has been made is the problem …”

[46] On 14 September 2005, an offer was made to the applicant to attend a meeting, facilitated by Mr J Ramsey, the then Secretary, with other senior management figures and Dr Cerchez to work through his concerns about Dr Cerchez’s appointment.  The applicant declined, telling the Secretary the meeting was “premature”.  He asserted he was waiting on a response to the “issues” from the Agency.

[47] In his reply to Mr Rod Meldrum, who made the initial offer of the meeting on the Secretary’s behalf, the applicant made the excuse that he was too busy attending to clinical matters to attend a meeting.  However, he suggested the meeting be reconvened at a later stage with all the doctors of the CCHC present.

[48] The applicant, in his response to the investigator James Cumming Investigation Services regarding the matter, he said:

 

“I considered it and I actually felt that as I was actually challenging Dr Cerchez’s appointment it was inappropriate to have a meeting with him and as I was not satisfied with Siobhan Harpur’s responses to my questions I was going through the process of appealing the process further, so there was no point in that meeting.”

[49] Dr M Sarma, a doctor in the practice and one of the addressees the applicant copied in on his emails, responded to him on 15 September 2005 regarding the offer of a meeting (Exhibit M12) thus:

 

“3. My general concern now is that ongoing workplace conflict means time spent resolving it, defending personal interests and networking for support. A specific concern is that this has cost us in personal, professional, productivity, morale, patient and teaching terms.

 

5. Dr Cerchez and DHHS management staff at the highest level have offered an opportunity to discuss all the concerns involved. I think these are appropriate first steps to resolving the matters. I think this is in effect a rapid SMPIA s.14 grievance procedure process.

 

7. I think it is appropriate to accept and attend the meetings offered as this offers a rapid and potentially constructive path to sharing information and resolution of concerns.”

[50] On 26 September 2005, Dr Cerchez sought advice from the Secretary of the Department, Mr J Ramsey, on a way forward in dealing with the applicant. (Exhibit A13)

 

“It is now 2 weeks since Dr Bennett has seriously broken several State Services Guidelines, representing himself as a person in authority to an interstate recruit, as well as copied confidential emails, externally and internally, despite repeated requests not to do so.”

[51] On the same day, the applicant emailed the PM: (Exhibit A13)

 

“You may be unaware that the probity and validity of the current “SMO position” appointment is under review at the highest level.

 

I suggest for the time being it would be wise for you to keep a look out for a locum for that period.”

[52] Dr C Breheny, Manager Internal Investigations, conducted a review of the SMO appointment process, as it applied to Dr Cerchez, in August 2005. She published her findings on 27 September 2005.  She concluded: (Exhibit A7(addendum 1))

 

“I would recommend informing Dr Bennett that his concerns are being taken seriously, but an initial assessment of the matters he raised has not revealed any improper actions on the part of the officers involved.  Dr Bennett should be strongly encouraged to agree to meet to discuss his concerns …”

[53] The applicant was informed of Dr Breheny’s conclusions, but did not accept them citing that he had not seen the terms of reference for the investigation and questioned the basis upon which she had come to her conclusions.  He sought a further external investigation.

 

October 2005

[54] In early October 2005, a number of issues arose regarding the applicant’s behaviour.  Dr Cerchez sent the applicant an email on 3 October 2005 outlining the issues on foot (Exhibit M07), viz:

• Misrepresenting himself as a person of authority
• Sending personal emails to doctors despite being requested to desist
• Copying confidential emails to other doctors despite requests to desist
• Failure to follow management directives
• Lack of team approach to the management of the CCHC
• Undermining Dr Cerchez’s appointment with doctors and staff
• Harassment of employees
• Harassment of Dr Cerchez and causing subsequent stress
• Undertaking a system of time-off-in-lieu inconsistent with the award and the needs of the CCHC
• Bypassing the PM and giving instructions to the reception staff

[55] Dr Cerchez requested a private meeting to respect his, the applicant’s, confidentiality as these were matters relating to his performance. There was no evidence put to the Commission that this requested meeting took place.

[56] It was confirmed the applicant sought advice from his Industrial Adviser, Mr R Cameron-Tucker of the Australian Medical Association (AMA), on 12 October 2005.

[57] On 7 October 2005, the applicant was forced to apologise to Ms Green for his behaviour towards her. In an email to Dr Cerchez (Exhibit M04 (B6A)) he said;

 

“ … I can see that I have vented my frustrations with the general Health Centre issues and politics unfairly to her personally …” “… I want to assure you and re-assure Lynn that henceforth I will be conscious of her sensitivity to me and assiduous in my effort to avoid upsetting her unfairly ever again”

[58] On 19 October 2005 the applicant sought advice from his lawyer, Mr C Green.

[59] The information upon which advice was given to the applicant was not put before the Commission.  On the basis of his interpretation of the legal advice given by Mr Green, the applicant refused to meet with Dr Cerchez to discuss any issue until such time “as every grievance” had been resolved.  The applicant required that any topic Dr Cerchez wanted to discuss with him should be put in writing for his consideration. (Transcript p331 L5)

 

“ … were your instructions not to meet at all or not to meet only with reference to those elements that you had in dispute? --- The instruction was not to meet with him, but to ask him to put his concerns in writing.

 

So not to meet at all?---Well, it wasn’t qualified … that there was – it was----

 

But that’s how you interpreted it? – Yes.”

[60] On 18 October 2005, Ms Green asserted she had an issue with the applicant blocking out a significant number of appointments without consultation.  She and Dr Cerchez went to the applicant’s room to discuss the issue with him.  Dr Cerchez asserted he waited until there was a lull in the applicant’s appointments, knocked on his door and began to enter the room.  On entering he observed the applicant talking on the telephone and withdrew, closing the door behind him.  Dr Cerchez and Ms Green waited outside the applicant’s door, awaiting an opportunity to talk to him.  They were joined by Ms M Le Mesurier, SE District Manager ARCH.

[61] In their incident statements Dr Cerchez, Ms Green and Ms Le Mesurier asserted that as they were talking outside the applicant’s room, when the door suddenly opened and the applicant rushed out.  Dr Cerchez attempted to speak to him.  The applicant would not wait and speak to Dr Cerchez.  Dr Cerchez alleged the applicant “hip and shouldered” him out of the way. (Exhibit M04(B6))  Both Ms Green and Ms Le Mesurier witnessed the incident and confirmed that physical contact took place, sufficient to put Dr Cerchez off balance.

[62] The applicant’s version of this aspect of the incident, as related to the investigator Mr Scott, was that Dr Cerchez and Ms Green “stamped” into his room.  During cross-examination the applicant would not except he had used the word ‘stamped”.  He would not accept the transcript as being accurate unless he verified it by listening to the tape.  Later, in cross-examination, he acknowledged that it was indeed only Dr Cerchez who entered his surgery and that Dr Cerchez had withdrawn as he had described in his statement of evidence.

[63] The applicant stated that he came out of his room at speed.  When he saw the three people waiting outside his door, he felt Dr Cerchez had been eavesdropping on his telephone conversation.  He claimed to have been intimidated and felt harassed.  He asserted his way was blocked by the group of three.  He pushed past them.  He rejected the testimony of the three witnesses that he pushed Dr Cerchez.

[64] On 25 October 2005, Dr Cerchez registered a formal complaint regarding the applicant’s alleged behaviour in refusing to comply with managerial directions and refusing to meet and discuss matters.

[65] Ms Harpur stated that she had tried to speak to the applicant over a period of time to address his issues.  Eventually she wrote to the applicant, on 25 October 2005, requesting him to cease copying in colleagues and others in his conflict with Dr Cerchez via email. She urged him to meet with Ms D Dunn, HR Relationship Manager, and herself to affect some resolution.  The meeting was scheduled for 3 November 2005.

[66] On 26 October 2005, Ms Harpur confirmed Dr Cerchez’s initial three-month appointment and subsequent extension “until the recruitment process is complete” (Exhibit M04(B4)) in a memorandum to CCHC staff.

[67] The following day, 27 October 2005, the applicant raised a formal complaint against Ms Harpur for being party to the process of initially appointing Dr Cerchez as SMO, which he maintained was flawed, and for his not being able to apply for the SMO position which was advertised in July 2005. (Exhibit M04(B3)){FGA01}

[68] The process of recruiting a permanent SMO commenced on 27 October 2005.

[69] On 28 October 2005, the applicant submitted a further complaint against Ms Harpur for being party to the process which extended Dr Cerchez’s temporary appointment for a further three months. (Exhibit M04(B4)){FGA02}  He concluded the FGA01 and 02 complaint forms by requesting an external investigation be conducted.

 

November 2005

[70] On 3 November 2005, the pre-arranged meeting was held at which Ms Harpur, Ms Dunn and the applicant were in attendance.  The purpose of the meeting was to explore the various issues of concern expressed by the applicant over the previous few months. The applicant insisted he record the proceedings. He offered no explanation to the parties as to why a recording was necessary.  However, the tape-recorder malfunctioned so no recording was made.

[71] At the conclusion of the meeting the applicant handed over three sealed envelopes to Ms Harpur.  The contents of the first envelope, was a document which covered eleven points previously raised by him requiring answers of Ms Harpur. The second, a Freedom of Information request. The third, an explanation of a grievance concerning Dr Cerchez.

[72] Immediately following the meeting, it was asserted, Ms Harpur and Ms Dunn compiled their understanding of the content of the meeting in the form of minutes. (Exhibit A07(Addendum 3))

[73] When presented with the minutes the applicant would not accept them as being a true representation of the proceedings.

[74] Dr S Dunbar, a witness for the applicant, sent an email on 4 November 2005 to the other doctors in the practice seeking support for her opposition to the appointment of a part-time SMO. (Exhibit M9)  No evidence was educed as to the response, if any, by the other doctors.

[75] On 14 November 2005, the applicant filed a formal complaint against Dr Cerchez and Ms Green. (Exhibit M04(B5)){FGA03}

[76] The applicant alleged that he was harassed by both Dr Cerchez and Ms Green, on a number of occasions on 18 October 2005, with respect to pursuing issues about patient bookings.

[77] On 16 November 2005, Mrs Leedham, it appeared from her evidence through frustration, directed the applicant, in writing (Exhibit A07(Addendum 4)), to:

 

“… meet with Dr Cerchez as his line manager …

 

… acknowledge Dr Cerchez ongoing role as his supervisor …

 

… respond positively to any managerial directions Dr Cerchez may give …”

[78] The applicant’s response, on 21 November 2005, was “I will consider the issues you raise in consultation with my advisor”. (Exhibit A07(Addendum 5))

[79] On 30 November 2005, Mrs Leedham reiterated her directions of the 16^th, adding that “Failure to comply with this direction may result in procedures being initiated against you for Breach of the Code of Conduct.” (Exhibit A07(Addendum 6))

[80] An email was sent by Dr Dunbar, from her private email address under “Sally Lock”, to the applicant on 21 November 2005 expressing concern about the lack of candidates for the SMO role. (Exhibit M08)  She wrote:

 

“… requires practice management and teaching experience so obviously George would qualify.

 

It seems to me that we need to urgently distribute the ad to anyone who might be able to do the job full (or nearly full) time.  Otherwise if George is the only suitable applicant, he will get the job working just 2 days a week as he does now.  We don’t have a leg to stand on if there are no alternative applicants.

 

Closing date is Dec. 2^nd so there isn’t much time.

 

… Any ideas as to how to distribute the ad?”

[81] The applicant acknowledged that he had actively canvassed alternative applicants for the role, but without success.

 

December 2005

[82] On 5 December 2005, the Agency appointed CaseAction, an external consultant, to investigate the applicant’s grievances regarding Dr Cerchez’s appointment together with the grievances arising out of the various incidents on 18 October 2005. {FGA01, 02 & 03}

[83] On 6 December 2005, the applicant responded to Mrs Leedham’s directive correspondence of 16 and 30 November 2005. (Exhibit A07(Addendum 8))  The applicant replied, his advice was that her directive was inappropriate as there were outstanding grievances against Dr Cerchez.

[84] On 7 December 2005, Dr Cerchez accused the applicant of “booking and cancelling bogus patients”. (Exhibit M14)  He alleged that while other doctors treated 14 patients the applicant only treated four in the same timeframe.  Under cross-examination Dr Cerchez stated at p386, L40 – 45 of transcript:

 

“Can you tell the Commission what you mean by bogus patients? Again through the course of a day there were about 10 patients who would appear on the appointment book and then later in the day not attend or not appear.”

 

“… – on more than one occasion, the practice manager rang that patient and they were unaware they had an appointment. So what other conclusion could you draw that it was other than dishonest, that people whose name actually appeared on the appointments were not aware they had an appointment?”

[85] During cross-examination, Dr Cerchez could not identify any specific patients Ms Green had allegedly contacted in the aforementioned circumstances.

[86] The applicant accused Dr Cerchez of defamation and sought a retraction.

[87] In December 2005, the CCHC practice changed from processing Medicare claims manually to processing them electronic.  The applicant refused to comply with the initial request to “sign up” to facilitate his use of the electronic system.  He cited the potential for personal liability.  He sought specific indemnity from the Secretary or the Minister.  He was informed by senior managers in the Agency, that specific indemnity was not required.  The argument was protracted over a number of months.

[88] All other doctors in the practice signed up to the new process as requested by the Agency.

[89] With respect to the security issue, the evidence of Dr Klok was that she put her trust in the administration staff, as she had done with the manual system.  She also saw the electronic system as an advantage to the doctors because it eliminated paperwork in the form of DB1 and DB2 vouchers.

[90] When questioned over the billing arrangements at the practices at which the applicant currently works, Hopkins Street and Grosvenor Street, the applicant asserted the following at p356, L20 – 25 of transcript:

 

“These two jobs that you currently run, have you sought and received indemnity? Not of the same nature, Commissioner, no, I’ve signed the arrangements.

 

So you’ve signed it there? Yes.

 

Okay. I guess that was a condition of employment I would’ve thought? Yes. Also the nature of the employer, people I have a more intimate knowledge of.”

 

January 2006 

[91] On 5 January 2006, Dr Cerchez emailed the applicant to highlight the fact that he had some $25,000 of outstanding manual Medicare billings unprocessed. This, he claimed, resulting from the applicant continuing to process claims manually and assiduously checking for errors.  On the same day the applicant rejected Dr Cerchez directive to use the electronic claiming system. (Exhibit M07)

[92] Evidence was given by a number of the witnesses, that the applicant’s pedantic review of the DB1 and DB2 vouchers before they were processed caused considerable administrative problems.

[93] Dr Cerchez in his evidence stated, at P390, L 10 of transcript:

 

“… it was his assumption the records were inaccurate, but why did they suddenly become so inaccurate at that point in time when for 17 years prior to that they were not inaccurate, it was the same lady who is a very careful, very good administrator doing the batches. So I’d have to have some explanation of why they suddenly became unreliable when for 17 years they were okay.”

[94] The applicant admitted that he became very particular about checking the DB1 and DB2 vouchers at the time he was asked, and refused to use the electronic system for billing.

[95] Mrs J Clingeleffer, in her evidence, explained the difficulty the applicant caused by his fastidious checking of the Medicare vouchers. Contrary to the applicant’s claim of “one sixth of the work they used to do”, she stated at P400, L10 of transcript:

 

“I think I had got to the stage that I had been trying to adjust these and alter these and fix them for Dr Bennett and it was just such a time-consuming process, which was really going nowhere and I’m afraid I just got to frustration stage with them and I did swear at Dr Bennett, which I apologised after.” 

[96] The applicant blamed the backlog of paperwork on his “clinical load” and the fact that “administration” had held up processing the vouchers.  He did not accept that his refusal to participate in electronic processing was a factor.

[97] A situation arose on 9 January 2006, where the practice car was to be allocated to a particular person for the week.  The applicant objected to this and put considerable pressure, according to the correspondence, on Mrs J Murphy, the Administrative Assistant responsible, in a series of detailed emails, all requiring responses.  Eventually the recipient of the brunt of the applicant’s persistence, Mrs Murphy, wrote:

 

“Look Steve I don’t have time for this … Why don’t you look after the client’s and I will worry about the transport for staff …”

[98] There was no evidence educed that any other doctor had an issue with the temporary transport arrangements.

[99] On 11 January 2006, Dr Cerchez directed the applicant to cease booking his own appointments, to follow the practice protocol and allow the reception staff to do the booking.  The applicant refused, by email on 12 January 2006, and asserted the directive was discriminatory because it was only directed at him, not the other doctors.  He also asserted that because the directive had not been discussed “with a full quorum of doctors … it is not a reasonable directive”. (Exhibit M07)

[100] The applicant registered a formal complaint on 17 January 2006, against the former South East Manager ARCH, the former State Manager ARCH, the current South East Manager ARCH and the current State Manager ARCH, in which he alleged the failure of the named personnel to address his request for a reclassification dating from November 2004. (Exhibit M04(B7)){FGA04}

[101] On 18 January 2006, the applicant registered a formal complaint against Dr Cerchez. (Exhibit M04(B8))FGA05} This complaint referred to an earlier compliant which had been withdrawn by the applicant some months before.

[102] The applicant alleged discrimination with respect to the appointment in August 2005 of Dr Kearon as the Acting SMO.  He also alleged intimidation and harassment in the way in which Dr Cerchez handled allegations that he, the applicant, had insulted other doctors in the practice with reference to qualifications.  This appears to have been an aftermath of the Dr Cherry issue where one of the applicant’s complaints was that Dr Cherry did not have a particular qualification.

[103] In January 2006, the practice software was upgraded resulting in the loss of a convenient method of transferring digital images into patient’s files.  The applicant objected to this.  He would not accept the PM’s explanation or suggestions on how to alleviate the inconvenience.

[104] Nine emails changed hands over the period 18 and 19 January 2006. (Exhibit M07 (pp 67–75))

[105] The matter was escalated to Ms Harpur by the applicant.

[106] On 23 January 2006, Ms Harpur asked the applicant to desist copying in all the other doctors and to accept the PM’s approach.  The applicant refused to comply with the request. There was no evidence educed to suggest the other doctors had any issues with the software changes.

[107] On 19 January 2006, CaseAction presented its report addressing three formal complaints. (Exhibit M04(B6)){FGA01, 02 & 03}

[108] CaseAction concluded that the applicant’s opposition to the appointment of Dr Cerchez as SMO had no foundation and that the process of appointment had adhered to the requirements of the State Service Act 2000 (SS Act) and the State Service Commissioner’s Directions.  Further, it concluded that the incidents with respect to booking patients which occurred on 18 October 2005 highlighted the fact the applicant did not comply with practice protocol.

[109] CaseAction also concluded that the applicant had made physical contact with Dr Cerchez at his office door on that same day.

[110] Finally, CaseAction concluded that the Agency should ascertain if action was warranted against the applicant under CD5 or 6.

[111] On 25 January 2006, the applicant submitted an Application for Review, R042, to the OSSC. (Exhibit M04(B9))

[112] In the application the applicant claimed that he has been denied the opportunity to apply for the SMO position in June 2005 because he was on leave. {ref FGA01}  He further asserted that he had been denied an interview for the role when it was most recently advertised in November 2005 and had not been given an explanation for this denial.

[113] Mrs Leedham, in her evidence, with regard to the applicant not being short listed, at P322, L15 said:

“There was a face-to-face discussion where Professor Nelson and I met with Dr Bennett to explain why he hadn't been short-listed for interview.”

[114] There was also evidence educed to the effect the applicant had canvassed information from other panel members.

February 2006

[115] On 1 February 2006, Mrs Clingeleffer complained to Ms Le Mesurier that the applicant had almost $39,000 in outstanding claims for Medicare.

[116] Ms Green submitted a formal complaint against the applicant on 7 February 2006. (Exhibit M04(B11))  In the complaint she alleged the applicant had blocked out eight appointments and instructed the reception staff to direct any patient enquiry to him.

[117] Ms Green asserted this action was contrary to the general practice in the surgery.  She further stated that the applicant shouted at her in front of staff and patients and told her to “keep out of his bookings”.  This incident was witnessed by Mrs Clingeleffer and a Mrs S Moore.  Ms Green asserted the applicant was undermining her position as PM.

[118] Mrs Leedham wrote to the applicant on 7 February 2006, enclosing a copy of the CaseAction investigation into his complaints of 26 October, 27 October and 14 December 2005. (Exhibit M04(B10))  He was given five working days to respond.

[119] The applicant sought an extension of 14 days, but was refused and asked to respond by close of business on 15 February 2005.

[120] The applicant filed a formal complaint against Dr Cerchez on 16 February 2006. (Exhibit M04(B13)){FGA06}

[121] The applicant alleged defamation in an email that Dr Cerchez had sent to him on 5 January 2005.  The applicant’s response to Dr Cerchez’s allegations centred on Dr Cerchez’s part-time SMO position. (Exhibit A40)

 

“… Unless you are involved in the practice seeing the full range of complex patients you have a poor comprehension of the issues and difficulties.”

[122] On 17 February 2006, the next day, the applicant filed a formal complaint against Dr Cerchez and Ms Green alleging harassment. (Exhibit M04(B14)){FGA07}

[123] On 19 February 2006 the applicant submitted an Application for Review to the OSSC, R043. (Exhibit M04(B15))  The applicant requested a review of the Agency’s decision that he was unsuccessful in his application for the SMO position.  He also asserted that it was inappropriate that Mrs Leedham was on the selection panel as she had been party to appointing Dr Cerchez as the Acting SMO in July 2005. He further objected to the position emerging as a “job share”, which he claimed suited Dr Cerchez.

[124] On 23 February 2006, James Cumming Investigation Services published its report (Exhibit A57) on the potential State Services CoC breach by the applicant, with respect to his alleged refusal to comply with a “Lawful and Reasonable” direction. The report concluded as follows:

• The Director Primary Health had the authority to give direction to the applicant.
• The Director Primary Health gave the direction in an attempt to advance a resolution between the applicant and Dr Cerchez.
• The directive was not unlawful.
• The applicant failed to comply with the directive.
• It recommended the Agency seek a legal opinion of the definition of “reasonableness”.

[125] The report publishers also flagged that a more specific inquiry may be required.

[126] Mrs Leedham provided the applicant with decisions regarding his three formal complaints {FGA01, 02, 03} on 24 February 2006 (Exhibit M04(B16)) and 25 February 2006 (Exhibit M04(B17)).  I note that both letters were exactly the same except for the date.  This followed the report by CaseAction and the applicant’s response to it.  The applicant’s assertion that Dr Cerchez’s initial appointment was invalid was rejected.  His assertion that the extension to Dr Cerchez’s initial appointment by three months was discriminatory was rejected.

[127] With regard to the incident on 18 October 2005, where the applicant allegedly made physical contact with Dr Cerchez, Mrs Leedham found the applicant’s behaviour to be both unacceptable and unprofessional.  She informed the applicant that a complaint made by Dr Cerchez against him for allegedly refusing to follow “reasonable management instructions” was the subject of an investigation by James Cumming Investigation Services.

[128] On 25 February 2006, the applicant submitted an Application for Review to the OSSC, R045 (Exhibit M04(B17)).  The applicant requested a review of the Agency’s decision to refuse a 14-day extension to the five working days given to respond to Mrs Leedham’s conclusions, asserting lack of procedural fairness.

 

March 2006

[129] Mrs Leedham wrote to the applicant on 6 March 2006 confirming her initial conclusions of the 24 and 25 February 2006 and noted she had not received any additional comments from him.

[130] The OSSC provided a Record of Outcome to the two reviews requested by the applicant, R042 and R043 (Exhibit M04(B22)), on 9 March 2006. The points to be considered were: 

• his exclusion from the SMO interview process;
• perception of bias of the selection panel;
• alleged downgrading of the SMO position; and
• transparency of fixed-term appointment procedures.

[131] The applicant withdrew both applications.  The OSSC discontinued proceedings.

[132] On 23 March 2006, the applicant filed a formal complaint against Ms Green for  allegedly interfering with his appointment schedule. (Exhibit M04(B25)) {FGA08}

[133] The alleged incident took place two months previously on 23 and 24 January 2006.  The applicant alleged the practice was under great stress at the time and he decided to manage his appointments as he saw fit.  He acknowledged he did not consult with the PM.  He also acknowledged that he gave direct instructions to the reception staff.  The applicant actively opposed the efforts of Ms Green in her attempting to gain control of the situation.

[134] A Record of Outcome was provided by the OSSC in response to the applicant’s request for a review, R045, because of the lack of time provided to him to review the CaseAction report (Exhibit M04(B24)) on 24 March 2006.  It transpired that the parties had agreed that a mediation session be conducted by an external mediator in an attempt to resolve those issues which had built up to that point in time.

[135] In evidence provided under cross-examination the applicant acknowledged the intent of the mediation.  At P270, L5 – 20 of transcript:

“And the intention was to put into writing all of the issues that were between you and Dr Cerchez, and Ms Green, and then against you and the department and the like, so that all of those things could come to mediation; that was the intention, was it not? That was the suggestion of the State Service Commissioner, yes, that's right.”

“So whatever you wanted to put on the document was going to be up for grabs at the mediation? That would have been the intention.”

[136] The applicant was challenged as to the reasons he withdrew from the mediation.  His response at P353, L30 – 45 of transcript:

 

 “But of course there was the mediation in the Office of the State Service Commissioner which you didn’t want to go through with ….‑‑‑The mediation I withdrew from, Mr Turner, it had not been categorised what that mediation was about specifically.

 

THE COMMISSIONER:

So therefore you did know the context of what was going to go on?‑‑‑I didn’t know what the issues were, Commissioner, no.” 

[137] And further at P354, L5 – 25 of transcript:

 

… were outstanding grievances and the Commissioner looked at that and had put forward the suggestion now here.

 

So wrapped them all up and put them together?‑‑‑Well, it wasn’t specified what they were, he didn’t know what they were, and my application to him, Commissioner, had been for one specific issue.

 

But his resolution was that you should meet, get everything out on the table, whatever it happened to be, and from what you said yesterday that was agreed by the parties and you were one of the parties?‑‑‑We agreed at that time …”

 

“Right?‑‑‑And there was a timetable set and, as was my prerogative, I considered the issue and I made a decision to withdraw from that process and I had also withdrawn that application, Commissioner.”

[138] The OSSC discontinued proceedings.

[139] On 24 March 2006, the applicant filed a formal complaint against Mrs J Clingeleffer, the Office Assistant. (Exhibit M04(B26)){FGA09}

[140] The applicant alleged Mrs Clingeleffer had sworn at him during an argument about billing to Medicare.  Mrs Clingeleffer later apologised in writing for her language during the confrontation with the applicant.

[141] In his evidence, Dr Klok stated that Mrs Clingeleffer was a quiet, unassuming person.

[142] It was stated by Miss Powell, in her proof of evidence (Exhibit M19), that Mrs Clingeleffer had been subjected to extreme frustration in trying to do her job, caused by the applicant’s pedantic scrutiny of the manual Medicare forms, and that her outburst was “very out of character for her”.

April 2006

[143] The applicant submitted a formal complaint on 5 April 2006, against the Deputy Secretary of the Agency, Ms M Bent. (Exhibit M04(B28)){FGA10}  The substance of this complaint was that an earlier complaint, that of 18 January 2006 {FGA05}, had not been resolved within 20 days as required by the departmental Grievance Procedure.

[144] On 6 April 2006, the applicant suspended the pay group link with Medicare.  The pay group link is the means by which the business for whom a particular doctor works, automatically receives payment from Medicare for consultations performed by that doctor. It is my understanding that it is an essential element in the recovery of practice finances. The applicant chose not to inform Ms Green of his intentions.  As PM Ms Green has the responsibility for ensuring the finances are appropriately dealt with.  Further, the applicant also acknowledged he chose not to inform the SMO.

[145] The applicant sent an email to Ms Bent informing her of his actions. (Exhibit M02)  In the email he stated that he had “suspended the Pay Group Link … simultaneously applied to have the link re-established”.  The reason he gave Ms Bent for his actions was to “… enable me to review and renew the documentation”.

[146] As it transpired the content of his email to Ms Bent was not factual.  The applicant had not “simultaneously applied for the link to be re-established”.  The link was only re-established some days later after intervention by the Agency.

[147] It was the applicant’s evidence that there were irregularities which necessitated his severing the link.  He stated at p149, L5 – l35 of transcript:

 

“My concern, Commissioner, was that I had done the checking, that there were some irregularities, and I – it – and because of the resistance I was getting to making these corrections to the accounts from the practice manager I decided to renew the pay group link details.”

 

”I took unilateral action myself …”

 

“ felt it was an issue which required confidentiality …”

 

“… I didn’t tell the practice manager …”

[148] The applicant indicated that his justification in communicating his actions to Ms Bent rather than the PM or SMO was: (p149, L35 of transcript)

 

 “… I had some correspondence with her (Ms Bent) about this Medicare issue. It appeared to me that she was assuming responsibility for the Medicare issue, and I felt that she was the appropriate senior manager of the department, most senior, to let her know that.”

[149] The applicant offered no supporting evidence for the presumption that Ms Bent should be the person to whom he communicated in this matter, nor any reason for not informing Dr Cerchez.  He inferred he could not rely on Ms Green, and stated he was getting “resistance” from her. However he did not qualify this statement.

[150] The Agency was made aware of the applicant’s actions by Medicare.

[151] On 7 April 2006, Ms Harpur was charged by Ms Bent to urgently follow up on the matter with the applicant.  His behaviour in severing the pay group link was of “significant concern”.  Ms Harpur tried on several occasions throughout Friday, 7 April 2006 to contact the applicant on his mobile phone.  She was unsuccessful, but left messages for him to contact her.

[152] On Monday 10 April 2006, Ms Harpur continued to try and contact the applicant by phone and by fax, he did not respond.  When she did eventually contact the applicant she offered to meet him to seek an explanation for his actions.

[153] Ms Harpur asserted the applicant refused to meet with her to discuss the pay group link anomaly citing, in his view, Ms Bent did not have the authority to delegate the matter to her.  The applicant acknowledged that this was his position.

[154] In his evidence, the applicant confirmed he changed the mailing address from the practice to his home address.  He did not explain how this action would assist in resolving “irregularities”.

[155] When asked the question regarding the applicants actions, the evidence of Dr Cerchez stated: (p382, L30 - 45 of transcript)

 

 “Dr Bennett has suggested that he wanted to change some details, as I apprehend his evidence. Have you any observation to make about that?‑‑‑It’s nonsense.

 

Why?‑‑‑Because it’s a simple form, it’s a simple piece of communication to Medicare, I am going to work for this company or this group of doctors, please pay them the money….. There’s no detail that needs changing and if you did need to change it, you wouldn’t withdraw it you would just change it. … once you’ve assigned your Medicare income to a practice, even if you change address … the money is assigned to your practice.  it defies logic and it’s absolute nonsense to say that there’s some detail that he needed to withdraw his pay link.”

[156] The Conduct and Review Unit of the Agency provided Dr M Forrest with a Minute on 12 April 2006, seeking he endorse the suspension of the applicant from his role at CCHC. (Exhibit M04(B29))  On the same day the applicant was suspended from duty, in a letter from Dr Forrest. (Exhibit M04(B30))

[157] Ms Harpur wrote to the applicant on 19 April 2006, informing him of the outcome of the investigation into his complaint against Dr Cerchez in regard to the alleged defamation on 5 January 2006. (Exhibit M04(B32)){FGA06}

[158] Ms Harpur found the allegations unsubstantiated and urged the applicant to meet Dr Cerchez to discuss outstanding issues.

[159] Ms Harpur again wrote to the applicant on 19 April 2006, informing him of the outcome of the investigation into his complaint of harassment against Dr Cerchez and Ms Green with regard to an incident on 2 February 2006. (Exhibit M04(B33)){FGA07}

[160] Ms Harpur concluded there was no evidence to support the applicant’s complaint.

[161] The applicant submitted an Application for Review to the OSSC on 21 April 2006, R052, challenging the conclusions confirmed by Mrs Leedham regarding the 18 October 2005 incidents. (Exhibit M04(B34)){FGA03}  The applicant was sent the confirmation of Mrs Leedham’s conclusions on 4 April, 2006.

[162] Ms Dunn, the Agency’s HR Relationship Manager, wrote to the applicant on 26 April 2006, and informed him of the outcome of the investigation into his complaint of 18 January 2006. (Exhibit M04(B35)){FGA05} The complaint related to two separate incidents in September and October the previous year, 2005.

[163] Ms Dunn concluded the first complaint regarding discrimination against the applicant, because Dr Cerchez had appointed Dr Kearon as acting SMO in September 2005, had no basis.

 

 “There is no evidence to show that at that time Dr Cerchez knew you were challenging his appointment.”

[164] Dr Kearon was appointed as Acting SMO at the beginning of September 2005. The applicant’s first grievance against Dr Cerchez’s appointment was dated 27 October 2005.

[165] The second allegation was with respect to alleged harassment and intimidation by Dr Cerchez, when he challenged the applicant over remarks regarding qualifications he had allegedly made at a meeting of doctors, which Dr Cerchez took to be derogatory to some doctors.  Ms Dunn found:

 

“… allegations of intimidation and harassment are not upheld for the following reasons: 

• There is no evidence to suggest this
• There were no witnesses to the telephone conversation between yourself and Dr Cerchez
• At a meeting held on the 3^rd November 2005 you advised Siobhan Harpur and myself that you would not be lodging a compliant because there were no problems at the time with your relationship with Dr Cerchez
• During my interview with you on the 24^th February you advised that you lodged this and the discrimination compliant because of the complaint lodged against you concerning the events of the 18^th October 2005.”

[166] On 24 April 2006, the applicant formally sought reconsideration of Ms Harpur’s determination of 19 April 2006, regarding Dr Cerchez’s alleged defamation (Exhibit M04(B36)){FGA06}, asserting she was not objective.

[167] Although the applicant sought an external review of the decisions, Dr Forrest, the Secretary of the Department, appointed Mr C Shirley, HR Consultant Relationships Management Team, CPRH, to facilitate the review. (Exhibit M04(B37B))  His undated response concluded the applicant’s assertions were not sustainable, highlighting the fact that the applicant had provided no evidence to substantiate his claim. (Exhibit M04(B37A)){FGA06}

[168] Also on 24 April 2006, the applicant sought a reconsideration of the other determination on 19 April 2006, regarding alleged harassment by Dr Cerchez and Ms Green. (Exhibit M04(B37)){FGA07}

May 2006

[169] The applicant was informed on 1 May 2006 an investigation was to be launched regarding his alleged breach of the CoC. (Exhibit M04(B38))  The document specified the sections of the CoC in question and outlined the applicant’s alleged breaches.

[170] Dr Forrest wrote to the applicant on 4 May 2006, regarding his formal grievance of 5 April 2006. Exhibit M04(B39)){FGA10}  This grievance centred around the resolution of a grievance of 18 January 2006 not being completed within 20 days as stipulated in the Grievance Procedure. In his response Dr Forrest highlighted the following:

 

“… reasons exist for the time taken to progress the complaint process. The first was your lack of availability to meet Debbie Dunn … Until 24 February 2006.”

 

“Another factor in the delay to resolve this grievance was the outcome of the conciliation conference held by the State Services Commissioner on 16 March 2006 in which all parties agreed to participate in mediation … when the Department received advice of your request for discontinuation of actions with the OSSC, Debbie Dunn’s investigation … was suspended”

 

“As the investigations are complete and a copy of the findings have been sent to you I consider this matter now resolved … no further action is required”

[171] Dr Forrest wrote to the applicant on 23 May 2006, informing him he had suspended all action relating to the internal grievance management process which he initiated. (Exhibit M04(B43))  The reason given was that the matters being investigated under CD5 were of such serious concern that they took priority over other issues.

[172] On 29 May 2006, the OSSC handed down a Record of Outcome, R052, of a complaint initiated by the applicant regarding Mrs Leedham’s findings over the 18 October incident. (Exhibit M04(B45)){FGA03}  The matter was discontinued at the request of the applicant.

 

June 2006

[173] On 6 June 2006, the applicant applied to the OSSC seeking a review of the Secretary’s decision to suspend the internal grievance process, R063. (Exhibit M04(B47))  The OSSC handed down a decision on 23 June 2006, with respect to R063 dismissing the application. (Exhibit M04(B48))

[174] On 26 June 2006 the applicant was offered an interview, with regard to the CD5 investigation, in accordance with the CD5 prescriptive. A few days later, on 30 June 2006, he was reminded of the ongoing investigation and again asked if he would attend an interview and if he wished to provide documentary evidence.  The applicant was further informed that he would be supplied with a list of questions prior to the interview, although this is not required by CD5.

 

July 2006

[175] On 10 July 2006, the applicant again wrote to Dr Forrest asking him to reconsider the suspension of the internal grievance process (Exhibit M04(B49)), despite the OSSC’s determination of matter R063.

[176] On 14 July 2006, to initiate the investigation by James Cumming Investigation Services, the applicant was provided with 65 questions for his consideration.  He responded on 20 July 2006 seeking more specific details.

 

August 2006 

[177] On 23 August 2006, the applicant applied to the OSSC for a review of Dr Forrest’s handling of the CD5 investigation in regard to his opportunity to participate in the investigation, R021. (Exhibit M04(B53)) There was no evidence educed that suggested the applicant was denied participation in the investigation from his notification in June up until his application to the OSSC in late August.

[178] Dr Forrest wrote to the applicant on 31 August 2006, informing him of the CD5 investigation outcome. (Exhibit M04(B55))  After a conciliation conference brokered by the OSSC, this letter was withdrawn to facilitate the applicant’s participation in the investigation.

 

September 2006

[179] At the conclusion of the conciliation conference convened by the OSSC, R021, regarding the applicant’s participation in the CD5 investigation then on foot, the parties signed a Memorandum of Understanding (MOU) on 8 September 2006. (Exhibit M04(B56))  The salient points in the document are:

 

“… the parties agreed to the following points:

• Dr Bennett will advise the Agency in writing of his decision to either accept or decline the opportunity to be interviewed by close of business on 15 September 2006.
• If Dr Bennett decides to be interviewed … an interview with him between 18 September and 22 September 2006.
• The parties agreed that any further documentation being provided to Dr Bennett was not a pre-condition to accepting or declining the opportunity to be interviewed.
• If Dr Bennett accepts being interviewed, the findings to date, that were forwarded to him in correspondence from the Secretary dated 31 August 2006 will be withdrawn.”

[180] The agreed interview took place on 21 September 2006.  The applicant was supported by his Industrial Advocate.  Prior to the MOU being agreed upon, the applicant had been given 65 questions intended to make up the core of the interview.  It was asserted by Mr Cumming, the investigator, that the provision of intended questions prior to an expected interview was a concession to the applicant.

[181] At the intended interview the applicant refused to be interviewed.  He refused to answer any of the 65 questions provided.  The applicant chose to make a statement, which subsequently formed part of the investigator’s report.

 

October 2006 

[182] The OSSC provided a Record of Outcome for R021 (Exhibit M04(B57)) confirming the parties had agreed on a MUA, signed on the 8 September 2006, as to additional opportunities for the applicant to be interviewed with respect to the CD5 investigation.

 

January 2007

[183] The applicant was sent the CoC Investigation Findings on 8 January 2007. (Exhibits M04(B58) & (A63))  A summary of the outcome is as follows:

 

Allegation 1.1; Not acknowledging the role and authority of Dr Cerchez as SMO.

Deemed in breach of CoC s9(13)

 

Allegation 1.2; Not acknowledging the role and decision making authority of Ms L Green as PM.

Deemed in breach of CoC s9(13)

 

Allegation 1.3; Unilaterally cancelled the pay group link.

Deemed in breach of CoC s9(13)

 

Allegation 1.4; Failed to process manual claims in a timely manner.

Deemed in breach of CoC s9(13)

 

Allegation 2.1; Failed to comply with direction of Ms M Bent with respect to electronic billing.

Deemed in breach of CoC s9(6)

 

Allegation 3.1; Not appropriately invoicing patients.

Deemed in breach of CoC s9(1)

[184] The applicant was provided with detailed reasoning behind each of the findings and was invited to respond by close of business on 26 January 2007.

[185] On 16 January 2007, the applicant applied to OSSC for a Review of Decision, R043, seeking an extension of time be given to respond to the CoC Investigation of some five weeks. (Exhibit M04(B59))  The OSSC deemed the applicant should be given a further two and a half weeks to prepare his response. (Exhibit M04(B61)) Despite the determination by the OSSC, the applicant wrote again to Dr Forrest seeking an extension to 2 March 2007. (Exhibit M04(B65))

[186] The applicant submitted a formal grievance against Ms Green on 29 January 2007, for an incident which allegedly occurred some five months earlier, on 31 August 2006. (Exhibit M04(B62)){FGA11}

[187] It was alleged Ms Green had removed the applicant’s property from his consulting room and disposed of it in the dust bin.

[188] Miss Powell, in her proof of evidence (Exhibit M19), stated that the applicant had been given the opportunity to remove his personal property.  She also asserted the applicant did take some items, but left others.  It was arranged that he would come to the CCHC at a given time to retrieve the remaining property.  He failed to attend the appointment.  The applicant’s remaining property was couriered to his home, but was returned to the CCHC.

[189] Arrangements were subsequently made for the applicant to meet and discuss delivery of his property.  Again, he failed to keep the appointment.  The property was again sent to his home, this time he accepted it.  Miss Powell claimed that since the applicant had received his property “he has been persistently writing to me querying who authorised the removal of certain items from his material …”

[190] No evidence was adduced as to the specifics of the applicant’s allegations.

[191] On 31 January 2007, the applicant submitted a grievance {FGA12} against Dr Cerchez. (Exhibit M04(B63)) He accused Dr Cerchez of misrepresenting himself to Medicare to obtain information relating to his, the applicant’s, tenure with CCHC.

 

February 2007

[192] The applicant responded to the CoC Investigations Findings on 8 February 2007. (Exhibit M04(B65))  He alleged that he was denied access to relevant material and, as such, he qualified his response by saying:

 

 “Therefore my response should be viewed as preliminary and should not be the final basis upon which you make your assessment. (Exhibit M04(B65))

[193] Dr Forrest responded to the applicant’s grievance {FGA11} on 20 February 2007, in regard to the removal of his property from the consulting room in August 2006. (Exhibit M04(B66))  Dr Forrest makes it clear that the applicant’s personal property had been boxed up at the time and had been available for his collection.

[194] The applicant submitted an Application for Review to the OSSC, R046, on 26 February 2007. (Exhibit M04(B67))  The applicant sought a review of the decision of Dr Forrest not to supply him with the documentation he requested, and not to accept his response as “preliminary”.

 

March 2007

[195] On 1 March 2007, the applicant submitted an Application for Review to the OSSC, R047. (Exhibit M04B(68)){FGA11}  The applicant sought a review of the Secretary’s determination, resulting from his grievance of 20 February 2007, that his property was not destroyed as he had claimed in August 2006 and was available for his collection.

[196] The OSSC handed down a Reason for Decision in response to the applicant’s Application for Review, R046, on 14 March 2007, concerning the refusal of the Secretary to provide documentation. (Exhibit M04(B70)) In the decision the OSSC found:

 

“[8] CD5 makes no provision for review during the process …

 

[9] Therefore I am of the view that it would be inappropriate and undesirable to make a finding on this issue prior to a determination being made by the Head of Agency, as it may prejudice and pre-empt any review rights the applicant has at the end of the process.

 

[14] I do not believe there is any obligation on the Head of Agency to repeatedly respond to matters and issues that have been addressed previously or have been dealt with by the appropriate Industrial Tribunal, State Service Commissioner, or for that matter the person or body that may be prescribed.”

[197] In correspondence dated 19 March 2007, Dr Forrest notified the applicant of his Determination of CoC Investigation (Exhibit M04(B71)) and outlined his reasons for the various conclusions he had come to.  He also refuted the various arguments proffered by the applicant in his response to the earlier findings of 8 January 2007.

[198] Dr Forrest rejected the applicant’s assertion that he had been denied access to materials relevant to his defence. The substance of the letter was that it confirmed the applicant had been found to have breached the State Service CoC in a number of instances.  Dr Forrest made the point in his letter that the applicant’s conduct was adjudged under CD5 of 2005. He concluded by informing the applicant his employment was terminated.

[199] A Reason for Decision was handed down by the OSSC on 26 March 2007, with respect to the applicant’s Application for Review, R047, regarding the removal of personal items from a consulting room. (Exhibit M04(B72)){ref FGA11}  The OSSC fund no impropriety and dismissed the application.

 

May 2007

[200] The Secretary sent the applicant an Outcome of Internal Grievance on 15 May, 2007, relating to his grievance of 31 January 2007. (Exhibit M04(B73)){FGA12}  Mr Hoult indicated that this grievance was address by Dr Forrest by way of letter on 21 September 2006.  Mr P Hoult, who replaced Dr Forrest as Secretary of the Department, responded again by dismissing any impropriety on Dr Cerchez’s part and deeming the matter closed.

[201] The applicant replied to Mr Hoult’s letter on 28 May 2007. (Exhibit M04(B74))  In his response he asserted the investigation into his grievance of 31 January 2007 had not been fully consistent with departmental Guidelines.

 

June 2007

[202] The applicant was sent a letter by Mr P Hoult on 1 June 2007. (Exhibit M04(B46))  The applicant was informed that a grievance {FGA12} raised by him on 31 January 2007 had been dealt with in Mr Hoult’s previous letter to him on 15 May 2007, and would not be reconsidered.

 

Progress of Complaints by the Applicant

[203] The applicant initiated a number of grievances, sought reconsideration of a number of grievance investigation outcomes determined by the Agency and requested a number of reviews by the OSSC.

[204] In an attempt to develop some order and relativity the Commission has identified the applicant’s Formal Grievance applications (FGA) as FGAxx; and the OSSC reviews and outcomes are designated by the OSSC’s own R0xx nomenclature.

[205] The following is a summary of the progress of each of the matters:

 

FGA01 (Exhibit M04(B3))

27/10/05 The applicant asserted he was not given the opportunity to apply for the SMO position in June 2005 and further that the appointment process of Dr Cerchez was flawed.

25/01/06 formed part of OSSC review R042, which also included a complaint that he had been denied an interview, without explanation for the SMO position in December 2005.

19/02/06 formed part of OSSC review R043

24/02/06 Mrs Leedham notified the applicant that FGA01 had no foundation

09/03/06 Applicant withdrew R042.

09/03/06 Applicant withdrew R043.

 

FGA02 (Exhibit M04(B4))

28/10/05 The applicant complained about the initial extension to Dr Cerchez’s position beyond 31/10/05.

24/02/06 Mrs Leedham notified the applicant FGA02 had no foundation.

 

FGA03 (Exhibit M04(B5))

14/11/05 The applicant complained about a number of events which took place on 18/10/05.  He alleged harassment by Ms Green by her reversing his blocked out appointments; he alleged intimidation by Dr Cerchez for approaching him regarding the alleged booking anomalies; and he alleged a coordinated campaign to harass him.

24/02/06 Mrs Leedham notified the applicant FGA03 had no foundation.

25/02/06 formed part of OSSC review R045

24/03/06 Applicant withdrew R045.

 

FGA04 (Exhibit M04(B7))

17/01/06 The applicant complained his request for reclassification of November 2004 had not been dealt with.  His complaint was against the former S.E. Manager (ARCH), the former State Manager (ARCH), the current S.E. Manager (ARCH) and the current State Manager (ARCH).

23/05/06 Investigation into outstanding complaints suspended by the Head of Agency while CoC investigation is in progress. (Exhibit M04(B43))

 

FGA05 (Exhibit M04(B8))

18/01/06 Reinstatement of complaint, originally dated 11/10/05, alleging discrimination by Dr Cerchez for appointing Dr Kearon as the acting SMO in September 2005. Complaint against Dr Cerchez’s appointment and 2 years extension.  Alleged harassment by Dr Cerchez regarding him allegedly insulting other doctors with regard to qualifications.

26/04/06 Ms Dunn notified the applicant FGA05 had not been substantiated.

 

FGA06 (Exhibit M04(B13))

16/02/06 The applicant alleged defamation by Dr Cerchez regarding his booking patients artificially.

19/04/06 Ms Harpur notified the applicant FGA06 had not been substantiated. (Exhibit M04(B32))

24/04/06 Applicant sought reconsideration of the Agency’s findings on FGA06. (Exhibit M04(B36))

Undated response from Mr Shirley confirming the original decision.

 

FGA07 (Exhibit M04(B14))

17/02/06 The applicant made a complaint against Ms Green for not processing DB2 forms to his satisfaction; a complaint against Dr Cerchez for alleging reception staff were threatened by him; also that Dr Cerchez told him not to interfere with the reception staff.  He alleged harassment by Ms Green and Dr Cerchez.

19/04/06 Ms Harpur notified the applicant there was no evidence to support the allegations put forward in FGA07. (Exhibit M04(B33)

 

26/04/06 Applicant sought reconsideration of the Agency’s findings on FGA07.

Undated response by Mr Shirley confirmed Ms Harpur’s conclusions. (Exhibit M04(B37A))

 

FGA08 (Exhibit M04(B25))

23/03/06 The applicant complained Ms Green reversed appointment times he had blocked out without consultation.

 

FGA09 (Exhibit M04(B26)

24/03/06 Complaint Mrs Clingeleffer swore at the applicant.

Resolved

 

FGA10 (Exhibit M04(B28))

05/04/06 Complained of the failure to resolve 18/01 complaint within 20 days.

04/05/06 Dr Forrest notified the applicant FGA10 had been addressed and no further action would occur.

 

OSSC, R052 (Exhibit M04(B34))

21/04/06 Complaint with regard to the handling of the 18/10 investigation by CaseAction.

29/03/06 Applicant withdrew R052.

 

23/04/06 Head of Agency suspended investigations into the applicant’s grievances while CoC investigation was on foot. (Exhibit M04(B43))

 

OSSC, R063 (Exhibit M04(B47))

06/06/06 Suspension of internal grievance procedures by Agency.

23/06/06 OCCS dismissed R063.

 

OSSC, R021 (Exhibit M04(B53))

23/08/06 The applicant alleged he was not given the opportunity to be interviewed as part of the CD5 investigation.

02/10/06 Resolution discontinued.

 

OSSC, R043 (Exhibit M04(B59))

16/01/07 Applicant requested an extension of time to respond to the CD5 report.

29/01/07 Partial resolution discontinued

 

FGA11 (Exhibit M04(B62))

29/01/07 The applicant alleged removal of his property from his office in August 2006.

20/02/06 Dr Forrest notified the applicant FGA11 had been addressed and no further action would occur.

01/03/07 formed part of OSSC review R047 (Exhibit M04 (B68))

26/06/06 OSSC dismissed R047.

 

FGA12 (Exhibit M04(B63))

31/01/07 The applicant alleged that Dr Cerchez had illegally obtained information from Medicare regarding his activities.

15/05/07 Mr Hoult notified the applicant FGA12 had been addressed and no further action would occur.

 

OSSC, R046 (Exhibit M04(B67)

26/02/07 The applicant alleged the agency would not accept his response to the CD5 investigation as “preliminary”.

19/06/06 OSSC dismissed R046.

 

ARGUMENT ON BEHALF OF THE APPLICANT

[206] Mr Green, for the applicant, maintained the applicant was summarily dismissed.  He asserted the onus of proof of misconduct lay with the Agency.  He cited Briginshaw v Briginshaw (1938) 60 CLR 336:

 

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.”

[207] Further:

 

“But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.”

[208] Mr Green argued that the Agency had failed to conduct a full and extensive investigation into the applicant’s alleged breach of CD5 and the State Service CoC by:

• The failure of the Head of Agency to meet the applicant meant the investigation was not thorough or complete. 
• The errors contained in the letter dated 19 March 2007 meant there were not reasonable grounds to find the applicant guilty of misconduct.
• The Head of Agency failed to take into account the applicant’s length of service and his unblemished record.
• The Head of Agency failed to take into account the impact on the applicant’s long-term patients.

[209] Mr Green further argued that failure of the Head of Agency to meet the applicant was in breach of:

1. the Industrial Relations Act 1984;

2. The Commissioner’s Direction No.5 of 2005; and

3. Natural justice.

[210] And further that the Head of Agency:

•  Made findings of fact without evidence
• Made findings of fact contrary to the weight of evidence
• Failed to seek a legal interpretation of “reasonable directions”
• Refused to provide relevant documentation sufficient to enable the applicant to understand the allegations against him
• Failed to provide documentation to allow the applicant to provide a comprehensive response to the decision to terminate his employment
• Misapplied the provisions of CD5 in relation to the completion of the investigation, failed to act fairly and denied the applicant procedural fairness.

[211] Mr Green argued that termination of employment was a disproportionate response to the alleged misconduct.

[212] Mr Green asserted the practice of the applicant to see private patients was deemed as misconduct and was a reason for the applicant’s termination.  He further argued that it was custom and practice for CCHC doctors to attend to private patients.  He cited an undated Memorandum from a Dr J Catchpole defining the process by which CCHC doctors may see private patients.

[213] Mr Green cited the authority Byrne v Australian Airlines Ltd (1995), where McHugh and Gummow JJ said:

 

“Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable.”

[214] Mr Green further cited B. Rose v Telstra Corporation Limited (1998) which found that a termination of employment may be:

• “Harsh because of the personal and economic situation of the employee or disproportionate to the gravity of the misconduct.
• Unjust because the employee was not guilty of misconduct.
• Unreasonable because it was draw on inference which would not reasonably have been drawn from the material before the employer.”

 

and that each of the three matters was relevant in the instant case.

[215] Mr Green claimed that the termination was harsh because the applicant was denied continuation of his service to public patients.  The applicant made reference, and was supported by witnesses, Drs Klok and Dunbar, that he had long-term commitments to certain patients.  He argued that the Head of agency did not raise any concern over the applicant’s clinical care of patients.

[216] Mr Green addressed each of the accusations made against the applicant:

 

Accusation 1.1

[217] The Head of Agency found generally that the applicant did not acknowledge the role and decision making authority of Dr Cerchez.

[218] Mr Green asserted the directions provided to the applicant by Dr Cerchez were not reasonable.  He noted the investigator advised the Agency get a legal opinion on “reasonable” direction.  He further noted there was no evidence that this was done.  He asserted the action of the applicant to “decline” to meet Dr Cerchez was based on legal advice, verification of which was not sought by the Agency.  He argued that Mr Targett, an HR specialist employed by the Agency, advised the applicant to “act in accordance with that advice.”

[219] Mr Green asserted the Agency failed to give appropriate weight to the applicant’s concerns about harassment and victimisation by Dr Cerchez.  He asserted the Agency suspended investigation of the applicant’s grievances.

[220] Mr Green asserted that the Head of Agency declined to investigate the applicant’s formal grievances against Dr Cerchez.

[221] On the issue of the applicant’s refusal to follow Dr Cerchez’s direction to participate in the electronic Medicare billing, Mr Green argued that this was justified because Dr Cerchez had not addressed the applicant’s concerns over indemnity.

[222] Mr Green asserted that the applicant’s process of booking his own appointments was custom and practice, which was also a practice followed by Drs Klok and Dunbar.  He asserted the Head of Agency did not give sufficient weight to the custom and practice of the CCHC doctors to change their appointments as necessary.

[223] With regard to the applicant being directed to desist from copying in other doctors in emails, Mr Green cited the fact that Dr Cerchez included other doctors in his emails.  However, he did concede that the applicant acknowledged his breach of the email policy at a meeting with Ms Harpur and Ms Dunn.

[224] Mr Green’s position was that, it is denied the applicant refused to meet Dr Cerchez.  He cited the “well-established principle” that an employee has the right to have a representative accompany them when meeting their manager in relation to matters that affect their employment.  Mr Green cited the Grievance policy, in that an employee raising a grievance has the right to be accompanied during all discussions relating to the grievance.

[225] Mrs Leedham directed the applicant to “respond positively to any managerial instruction or direction that may be provided”.  Mr Green argued that this directive was imprecise and poor human resources management.

[226] The applicant was accused of dishonesty by Dr Cerchez with respect to booking “bogus” patients.  This was done by necessity through an email; the applicant refusing to meet Dr Cerchez face to face.  Mr Green argued, that the style of this email reflects the type of communication and decision making visited upon the applicant by Dr Cerchez.

[227] Mr Green argued that the Medicare monies left unclaimed while the applicant was suspended could have been reclaimed by actions of the Agency in getting the applicant, while on suspension, to process the claims.

 

Accusation 1.2

[228] Mr Green’s denied the applicant refused to accept the authority of Ms Green, the PM.

[229] Mr Green asserted the PM was “imposed” upon the staff of CCHC, without consultation and that the duties and responsibilities of the position were not adequately explained.

[230] Mr Green argued that Drs Klok and Dunbar supported the applicant’s process of booking patients.  He asserted the Head of Agency had given no weight to this.

[231] Mr Green argued that the applicant did not refuse to comply with Ms Green’s request, that he be the “Red Dot” doctor.  He claimed the applicant actually performed the role on the specific day in question.  It follows, he said, that there was no need for Ms Green to direct the applicant to discuss the matter with Dr Cerchez.

[232] Mr Green cited a statement made by Ms P McCall in support of the applicant’s handling of the patient bookings on 24 January 2005.  Her statement also condemns Ms Green’s “interference”.  Ms McCall was not called as a witness therefore her view of events could not be tested.  Mr Green questioned why these supportive statements had not been provided to the Head of Agency following a grievance initiated by the applicant over the incident.

[233] Mr Green asserted that for the Head of Agency to rely on the applicant’s actions before and after the 24 January 2005 to prove a CoC breach when the incident on that day was, in his view, the reason for an adverse finding was contradictory and unfair.

[234] Mr Green asserted that according to Drs Klok and Dunbar and the applicant, the PM does not have the authority to override the doctors when they make their own patient booking.  He asserted the Head of Agency ignored this position.

 

Accusation 1.3

[235] Mr Green asserted it was open to the applicant to alter his Medicare details.  He also asserted that the department unnecessarily expended resources on the issue of the applicant severing the Medicare link because the applicant had offered to discuss the matter with the Head of Agency after he was suspended.

 

Accusation 1.4

[236] It was denied the applicant delayed processing Medicare accounts. It was not challenged that the applicant asserted there was a three-month delay in providing his accounts.

[237] It was asserted by Mr Green, that it was appropriate the applicant checked the accounts.

[238] Mr Green also highlighted that Ms Bent, on 3 April 2006 (Exhibit M02), had directed the applicant to complete processing of the accounts by 15 April 2006.  The applicant was suspended on 12 April 2006.

 

Accusation 2.1

[239] It was asserted the applicant was directed by Ms Bent to commence using the electronic Medicare billing system, and refused.  Mr Green stated the applicant was never directed by Ms Bent and that he “was happy to use the electronic signature” provided he was given a copy of the accounts to be transferred.  The applicant also stipulated in the same letter, as a condition of him participating, “an appropriate letter signed by the Minister or the Secretary will resolve the issue”.  Mr Green asserted the Head of Agency deemed the applicant’s response of 22 March 2006 to be a refusal, and did not consider the applicants letter of 5 April 2006. (Exhibit M02)

 

Accusation 3.1

[240] Mr Green asserted the Agency could not provide a Memorandum from October 2000 upon which they relied to terminate the applicant’s appointment.  He stated that the Agency was aware the applicant had refused to abide by a Memorandum of October 2000, attempting to curtail private practice by doctors at CCHC, and asserted the Agency provided no further direction.  He also claimed that an undated, unsigned Memorandum from Dr Catchpole possibly from 2001, a previous SMO, endorsed the practice of CCHC doctors having private patients.

[241] Mr Green put the proposition that the onus was on the Agency, at the time of the initial Memorandum, to act upon the applicant’s refusal to comply and not some five and a half years later.  He asserted it was unfair and prejudicial for the Agency to rely on a Memorandum unseen by the Head of Agency or the applicant.

[242] Mr Green asserted that the Head of Agency should have accepted the applicant’s initial response as preliminary, in the main, because he was denied a meeting with the Head of Agency at which he would have been accompanied by his legal advisor.  He cited Abey C in Geoffrey Billett v Minister Administering the State Service Act 2000, T12651 of 2006 where he was concerned with the failure to interview an employee during a CD5 process; the matter was complex, had compelling versions of events and the potential for mistakes.

[243] Mr Green sought the Commission consider CD5 of 2007, with respect to the Head of Agency not being at liberty to delegate his powers or functions to others.  He conceded it should be looked at as best practice and that CD5 of 2005 has sway over this matter.

[244] It was asserted by Mr Green that the Head of Agency did not have all the associated documentation before him when he made the decision to terminate the applicant’s employment. He further argued that the letter from Dr Cerchez, intimating he wanted to withdraw from his position of SMO, influenced the decision to suspend the applicant. He stated that his client was disadvantaged because he was not made aware of the existence of such a document.

[245] Mr Green asserted that the employment relationship was the provision of services to patients. Misconduct goes to essence of the employment relationship.  Valid reason should be sound, defensible and well-founded.  He noted that Mr Turner, for the Minister, had said CD5 was met in spirit if not in precision.

[246] Mr Green argued that the Agency had breached s30(7) of the Act by action of the Head of Agency not meeting the applicant. He also claimed the applicant was denied important documentation.  The Head of Agency rejected this in his reply.  The applicant, he explained wanted to meet the Head of Agency with Mr Green, his legal representative “so we can explore these issues”.

[247] Mr Green asserted the treatment of the applicant over the development of the matter showed a lack of understanding of the grievance policy by the Agency and local management. He further argued that there was a conflict of approaches: the grievance policy on one side and HR process on the other.

[248] Mr Green claimed that the applicant was not given the opportunity to address Dr Cerchez’s concerns regarding the bogus bookings.  He made much of the fact that internal communications declared that Dr Cerchez should pass any inflammatory email through HR before issuing them.

[249] The position was put by Mr Green that since Dr Cherry was not called to give evidence the applicant’s email to her had no effect. He further proposed that the communication to Dr Cherry had no malicious intent.

[250] Mr Turner, for the respondent, when he addressed the matter of the physical contact on Dr Cerchez by the applicant on the 18 October 2005, referred to it as an “assault”. Mr Green asserted his applicant was vindicated by the censure expressed by Mrs Leedham which referred to the applicant “moves too quickly around the practice”.

[251] Mr Green claimed the grievance procedure at 2.6 gives the person initiating the grievance the right to be represented and the right to be protected against victimisation. He also stated that the resolution procedure should be completed within 20 working days. This, he said, was denied the applicant.

[252] Mr Green stated that directing a person who claims victimisation, to meet with the manager who is alleged to have perpetrated the victimisation, will always lead to conflict.

[253] It was alleged that the Agency exacerbated the issue when the applicant severed the pay group link. The applicant had offered to explain the situation to the Head of Agency, but was not given the opportunity. It was also raised as a sign of good faith that the applicant had highlighted that Medicare had given incorrect advice to the Agency with respect to loss of income.

[254] Mr Green asserted the applicant was unfairly treated because there was no evidence that alternative duties were considered by the Head of Agency as was dictated in CD5.

 

ARGUMENT ON BEHALF OF THE MINISTER

[255] Mr Turner stated that in his case there were five sentinel documents:

• A letter from Dr Forrest to the applicant giving notice of the intended CoC investigation, dated 1 May 2006. (Exhibit M04(B38))
• The investigation report by James Cumming Investigation Services of 21 November 2006. (Exhibits M05 & A62)
• A letter from Dr Forrest to the applicant, dated 8 January 2007, informing him of the investigation findings and seeking a response. (Exhibit M04(B58))
• The applicant’s response to Dr Forest’s letter (Exhibit M04(B58)), dated 8 February 2007. (Exhibit M04(B65))\
• The termination letter from Dr Forrest to the applicant, dated 19 March 2007. (Exhibit M04(B71))

[256] Mr Turner opposed Mr Green’s assertion of process irregularities, and at PN114 of transcript he said:

 

 “It matters not whether the process or processes embarked upon which led to the termination of employment were infected by error or not … And I observe that section 37 is under a heading concerning criteria and is not of a mandatory from and criticisms have been made in relation to the Commissioner’s direction etcetera.”

[257] Mr Turner contended, at PN115 of transcript, that any deficiency in process:

 

“… doesn’t afford ultimately any relief as a matter of law because we say that the decision to terminate was a proper valid decision”

[258] In response to a question by the Commission, Mr Turner confirmed the hours worked by the applicant in the practice have since been re-allocated to other doctors.

[259] Mr Turner argued that to evaluate if the termination was unfair or not one must assess if the applicant’s behaviour against a standard of reasonable industrial behaviour. He argued that the same test should apply in establishing if there was a valid reason for the termination.

[260] Mr Turner asserted there had been adherence to CD5, but he qualified this by suggesting there had been substantial compliance, if indeed there was not strict adherence.

[261] Mr Turner cited s30(2) of the Act which reads as follows:

 

 “….the Commission must ensure fair consideration is accorded to both the employer and employee concerned, and that all the circumstances of the case are taken into account … ”

[262] Mr Turner urged the Commission to consider the totality of the applicant’s actions over the period of the matter. He asserted the High Court has enjoined that:

 

“When considering reasons for an administrative decision-make, the reasons under challenge must be read as a whole … It’s onerous to adopt a narrow approach… ” (Transcript p439 L15 - 25)

[263] Mr Turner dismissed Mr Green’s contention that there was a confusion of approaches in dealing with the applicant’s issues between the HR practitioners and the grievance procedure process.

[264] Mr Turner asserted that the Agency had complied with all aspects of CD5, in particular s4.4 through to s4.8, which prescribes how an investigation is to be conducted. He asserted there was no obligation on the Head of Agency to accept the applicant’s response to the findings as “preliminary”.

[265] In the email to Dr Cherry, Mr Turner asserted the applicant, with the carefully crafted inference, claimed that he was the SMO. He further asserted the applicant was misleading about the pay group link being contemporaneously reinstated after he had severed it, in his email to Ms Bent.

[266] The applicant’s email to Dr Cerchez of 11 October 2005 (Exhibit M07 (pp28 – 30)), was also copied in to some 15 others: including, CCHC staff, senior managers, the Head of Agency and the Minister.

 

“I believe you have lost your objectivity and have embarked on a campaign to harass and intimidate me. I’m not alone in these concerns. I’ve asked your superior to relieve you of the administrative and medical supervision pending assessment of a formal complaint”

[267] Mr Turner proceeded to outline the respondent’s view of the alleged assault on Dr Cerchez on 18 October 2005. The applicant in an email to Dr Cerchez alleged “Your group entered my room”.  It was later admitted in cross-examination by the applicant that it was only Dr Cerchez who entered his room, and that he withdrew immediately he observed the applicant on the phone.

[268] The applicant had asserted “When I left my room Dr Cerchez, Ms Green and Ms Le Mesurier were blocking the doorway and George was in my direct pathway. Now I felt harassed. I felt he had been eavesdropping on my conversation.”  However. It was Ms Green’s evidence that “Dr Cerchez asked the applicant if we could have a word, but before Dr Cerchez could complete the sentence, the applicant interrupted him and said it was his lunch break or something similar. Dr Cerchez started to speak again when the applicant used his shoulder and hip to push Dr Cerchez aside. (Transcript p443 L35 – 40)

[269]   Ms Le Mesurier confirmed Ms Green’s observation of the incident in her statement.

[270] Mr Turner argued that the applicant:

 

“… will seek to manipulate matters and events to suit himself …”

 

“… he portrays himself as a victim.  The behaviour is not the behaviour of a victim; the behaviour is the behaviour of a bully.”

(Transcript p444 L10 – 20)

[271] With regard to severing the pay group link, Dr Cerchez said in evidence that he saw the only reason in the action was to “provoke a reaction”, presumably from him and the Agency.

[272] Mr Turner asserted that the applicant refused to accept any changes in the workplace; he refused to accept the validity of the appointment of Dr Cerchez; and he refused to accept the role of the PM. He claimed it was utterly incredulous that someone in the position of the applicant would consider it appropriate to take it upon himself to discuss with administrative staff and support staff their conditions of employment. He gave examples such as the issues with the templates, the photos, refusal to accept rostering arrangements et cetera.

 

“And he did not want to be accountable for his time, for the bookings – wanted to control them ….” (Transcript p445 L30)

[273] Mr Turner attempted to illustrate, in his view, the querulous nature of the applicant.  He cited a discussion under cross-examination with regard to the applicant allegedly being denied an interview for the SMO role by Mrs Leedham. He posed the question:

 

“… was a report of the panel, together with a note to the professor whom you contacted. Do you remember that? And do you remember seeing the report of the panel?

 

… since the email that you sent to Dr Cerchez, in which email you said that Pip Leedham had excluded you from the interview process, you have become aware of documents which demonstrate that to be false” (Transcript p446 L10 - 20)

[274] The applicant responded:

 

“Well, there are other documents.” (Transcript p445 L25)

[275] Mr Turner continued: (Transcript p445 L25 - 35)

 

“That doesn’t answer the question”.

 

“We’ve got these other documents in the ether somewhere that evidently need to be produced.”

 

So we go through a bit more of the process, Commissioner, and we get to a question on page 334:

 

Let’s get to the point of this, and I thought it was pretty simple: do you adhere to the view that you were excluded from the interview process by Pip Leedham?‑‑‑I have still questions which have been unanswered.

 

Well, do you agree or disagree with what you said in the email of that date, 5 January?‑‑‑The evidence that’s been presented makes that statement less certain. However, I haven’t been shown, and I haven’t obtained, all the information to satisfy myself 100 per cent – …” 

[276] Mr Turner asserted “he’s got to be satisfied 100 per cent that he’s wrong …” –

 

“So your position is –

 

At the time, thinking it to be correct and notwithstanding the other documents which I’ve seen, I am still of the view that it is correct?‑‑‑I am of the view that the correctness of that has been shaken, Mr Turner.” (Transcript p446 L40 - 45)

[277] Mr Turner depicted the applicant as always wanting something further: (Transcript p447 L5 - 20)

 

“No, there must be other documents.” So the modus of Dr Bennett … Commissioner, is if he doesn’t like a decision, ignore it, but give the justification for it. It wasn’t accepted by all of the doctors.”

 

“We didn’t discuss it at a meeting. It impacts on patient care.”

 

“You’re not validly appointed; you’re biased,” and to attack the process by which the decision is reached: “You haven’t taken into account all the things that you have to take into account, Mr Cummings. You should have interviewed these other people.”

[278] Mr Turner asserted that the preceding were typical of the applicant’s retorts when outcomes did not suit him, and further asserted: (Transcript p447 L20 - 25)

 

“ … the picture which emerges is that of a querulous man who is seeking to make the workplace intolerable for particularly Dr Cerchez and Ms Green. And the volume of complaints and the content of same as set out in the chronology is illustrative of administrative harassment of others, in my submission. … it is Dr Bennett who is the bully in these events, …”

[279] Mr Turner said that contrary to the applicant’s assertion that his continuing use of the manual billing system caused minimal impact on the administration, he made the point that a parallel system of accounting with commensurate deployment of resources was necessary to maintain the flow of accounts.

[280] Mr Turner argued that the applicant’s reasoning for not signing up to use the electronic Medicare lodgement was fallacious since he had no hesitation in giving the required commitment to both the Grosvenor St and Hopkins St practices, with whom he was later engaged.

 

“ … So too we have the punctilious checking of batches, which Dr Bennett agreed he did assiduously, following Dr Cerchez coming, but not before…..” (Transcript p448 L5)

[281] The applicant under cross-examination (Transcript p226 L15) stated:

 

“Does your behaviour to your superiors and to others in the practice impact on patient care?...Yes.”

[282] And: (Transcript p448 L15)

 

“Do you recognise now that your behaviour in late 2005 and early 2006 impacted adversely on your superiors and your other co-workers in the practice?...Yes.”

[283] Mr Turner asserted that the applicant’s refusal to accede to mediation was indicative of him wanting there to be conflict and non-resolution of the matters. Further, the applicant was an obdurate employee, where no material change in his behaviour had been evident.

[284] Mr Turner stated that Mr Green has taken the Commission to a number of authorities, relating principally to the relationship between the employer and the employee, which does not have superimposed upon it a code such as the SS Act. He pointed out that there was not only a contract of employment but also the existence of the relationship between the Crown and employees defined under the SS Act; which was highly regulated by the SS Act; in effect adding another relationship which must be considered.

[285] Mr Turner pointed out that under CD5, cl.4.8, there has to be an opportunity for the applicant to be heard however that manifests itself. He stated that the choice belonged to the applicant and the opportunity had been extended.

[286] Mr Turner stated that in the first letter from Dr Forrest to the applicant, being the instigation of the investigation, a copy of CD5 was included, so it was made plain to the applicant what the process was going to be.

[287] Mr Turner asserted that Mr Green had touched upon an issue concerning the preliminary nature, as the applicant wanted it to be, of his response. He argued the applicant had the opportunity to respond. How he responded was a matter for the applicant, the Head of Agency had no obligation to treat the response as preliminary, and that should be the end of it.

[288] Mr Turner stated that the grievance raised by the applicant, which alleged the Agency had withheld relevant documentation, he cited Dr Forrest’s response: (p472 L30 of transcript):

“In relation to the remaining items on your list I am of the view that the findings of the investigation do not rely on the information you requested. The information was therefore not included in the investigation report and I see no reason to provide it to you. This should not have any impact on your capacity to respond.”

[289] Mr Turner addressed the issue of the initial investigation, in respect to the applicant allegedly refusing direction from Mrs Leedham and also Dr Cerchez, where it was recommended by the investigator that a legal opinion be sought on the definition of “reasonable”. He challenged the necessity of this and suggested that possibly the people who received the materials and who were actually dealing with the applicant thought there was no reason to seek legal advice.

[290] Mr Turner challenge Mr Green’s view that the Agency was at fault for not requesting the applicant complete outstanding Medicare claim paperwork during his suspension. He argued the applicant had no obligation whatever to perform any of his duties whilst suspended from duty.  He also argued to suggest that somehow the state could have imposed the obligation upon the applicant was not a logical conclusion.

[291] Mr Turner drew the Commission’s attention to the issue of the alleged assault of 18 October 2005. He asserted he was not raising the issue on the basis that it was a justification for the decision to terminate, but to illustrate the way in which the applicant mischaracterises circumstances and events. He argued that the applicant’s portrayal of the event was dishonest.

[292] Mr Turner stated that for Mr Green to suggest there can never be a meeting between the Manager, Dr Cerchez, and the applicant to even discuss things that have nothing whatever to do with the subject of the complaint was a nonsense.

[293] Mr Turner responded to the claim by Mr Green, that it was not the applicant’s fault that Medicare was wrong in the advice it gave to the Agency after the applicant severed the pay group link, by asserting it was the applicant who caused Medicare to get it wrong in the first place. If the link had not been cancelled, Medicare would not have made an error.

[294] With regard to the applicant continuing to attend to private patients, Mr Turner challenged Mr Green’s proposition that the applicant was just going to continue the practice that was in existence, and therefore it was not fair to rely upon it. He argued that the practice continued, and that the respondent was not relying upon something that occurred in 2000, but which occurred in recent times.

[295] Mr Turner argued that Mr Green’s interpretation of when the Head of Agency declined to meet the applicant “at this time”, it gave the applicant an expectation that a meeting would occur, could not be reasonable deduced.

 

FINDINGS

[296] This matter has great complexity about it, due mainly to the diversity of influences at play and the efflux of time.  Did the applicant have a legitimate claim to the SMO position?  How much of an influence on the development of the matter was advice, both legal and industrial upon which he acted?  Did the applicant’s ongoing behaviour impact on the final decision to terminate his employment?  Was the CD5 investigation conducted properly?  Did the applicant receive sufficient consideration during the CD5 investigation?  All are questions which need to be considered in addressing the matter of the unfair dismissal.

 

Witness Credibility

[297] The question of the credibility of witnesses is fundamental when evaluating evidence of one against the other when no independent verification is available.

[298] The applicant spent considerable time on the witness stand and exhibited remarkable stamina. He is obviously a very strong and driven character, particularly intelligent. His testimony was considered, extremely detailed and verbose.

[299] The applicant persistently refused to answer questions directly, even when specifically asked to.  He continually loaded his answers with self-protecting gloss; to the point where one had to question the veracity of his answers.  In answering questions that may have shown him in a poor light the applicant took the questioner, normally Mr Turner, but the Commission as well, on a circuitous journey through irrelevances, more often than not, delivering a non-answer.

[300] When presented with documentation, much of which the applicant had generated, he perused it for a theatrically long time before accepting a question.  In my view this was simply a ploy to frustrate the flow of interrogation.

[301] It was shown that the applicant was prone to exaggeration when it suited his position. He continually qualified his answers to the point where his response bore little relevance to the question.

[302] In summary, I could not be confident in accepting the applicant’s responses were reliable.

[303] Ms Harpur I found to be clear and direct, as was Mrs Clingeleffer and Dr Kearon.

[304] Mrs Leedham, Ms Banman and Miss Powell, I believe answered honestly and without bias.

[305] Drs Dunbar and Klok were protective of the applicant and their responses reflected this.  However, I believe they responded to what was asked of them openly.

[306] Dr Cerchez and Ms Green, in the main I found their responses to be open and honest.  There were times when their evidence was imprecise and I accept that as being by dint of the time lapsed since the various incidents, not an intent to mislead.

 

Legitimacy of the SMO Role

[307] The genesis of the matter on foot appears to have been the applicant’s assertion that he had a legitimate claim to the Acting SMO position which was taken over by Dr Cerchez in August 2005.

[308] The evidence shows that advertising for the Acting SMO role clearly stipulates “until a permanent appointment is made”.  Communications within the Agency confirmed to the reader that the advertised appointment was intended to cover the SMO position until a permanent SMO had been appointed.  Had these communications been the only documentation, the applicant would have rightfully had expectations that his temporary appointment should continue under the circumstances.

[309] However, three significant documents emerged to cast uncertainty on the applicant’s claim.  The first document was the recommendation of the selection panel which sought to appoint the applicant for a fixed period in time.  There was no evidence to intimate the applicant knew of the existence this particular document.  However, it does indicate the Agency’s intent.

[310] The second and third documents, which are the Agency’s formal “Contracts of Service”, are for specific time frames and clearly state “… or earlier depending on the permanent filling of the position.” The applicant signed both of these documents. There has been no evidence educed to intimate the applicant did not understand the content of these documents, nor evidence to say that he did not accept the terms of the appointment as presented at the time.

[311] Although inconsistent with the initial advertisement, the Agency has the right to manage temporary vacancies as it sees fit.

[312] In September of 2005, the Agency, of its own volition, charged Dr Breheny Manager Internal Investigations, to investigate the matter of the legitimacy of Dr Cerchez’s appointment. Dr Breheny, in her investigation report of September 2005, makes it quite clear that Dr Cerchez’s appointment was legitimate, having tested it against established Public Service procedures.

[313] The applicant would not accept her findings and, as a consequence, this matter was given an extended life. In my view his reason for rejecting Dr Breheny’s findings is baseless if one simply reads Dr Breheny’s conclusions.

[314] The applicant’s insistence, over numerous months and many written communications, that he should enjoy an ongoing appointment as the Acting SMO despite the outcome of Dr Breheny’s objective investigation is, in my view, unfounded.

[315] Parallel with his claim to be the legitimate Acting SMO, the applicant objected to the appointment of a part-time SMO.  Evidence, both written and oral, confirm the applicant had a long term objection to the SMO position being part-time. Evidence was educed to show the applicant and Dr Dunbar had actively sought to proffer alternatives to the appointment of Dr Cerchez for the SMO role and particularly opposed the part-time nature of the role.

[316] No evidence was educed to suggest other doctors in the practice, at the time of Dr Cerchez’s appointment, held similar views to the applicant and Dr Dunbar.

[317] In her communication with the applicant, Dr Dunbar clearly states that Dr Cerchez had all the attributes required of an SMO.  As it turned out the applicant and Dr Dunbar were not successful in their endeavours to find alternative candidates.

[318] Mr Green, in his submission, suggested that the longevity of the applicant’s tenure with CCHC and his standing as a spokesperson for the other doctors gave some validity to his opinions.  There is no evidence that the applicant was the spokesperson for the doctors in the practice at the time in question.  Although there was a letter of support signed by some of the staff. (Exhibit A44)  The letter was in the vein of supporting the applicant’s return to CCHC in light of the Agency’s view he was a disruptive influence, not intimating he was their spokesman.

[319] Much as the applicant has the right to his opinion, his active opposition to and derogation of Dr Cerchez as the part-time SMO is devoid of any legitimacy.  The Agency, in my view, has the responsibility to manage and operate it’s facility as it sees fit.  The Agency is held responsible for the overall effectiveness of the facility, not the applicant.

[320] Throughout the extensive range of exhibits and evidence there appears to be confusion as to whether the applicant’s main objection was that of the appointment process of Dr Cerchez to SMO or the fact that he was a part-time SMO or, indeed, a merger of the two issues as it suited his argument.

[321] During the final day of hearing, when challenged, the applicant said that he now acknowledged Dr Cerchez as the SMO.  At what point this Damascene conversion took place, the Commission is not aware.

 

Behaviour

[322] I now turn to the applicant’s behaviour, in an industrial context, over the duration of this matter.  Various actions of the applicant gave rise to the CD5 investigation.  I am interested in his behaviour outside of that sphere.

[323] I take note of Dr Cerchez’s assessment of the applicant’s behaviour in the context of his, Dr Cerchez’s years of experience in dealing with doctors. At P374, L15 – 40 of transcript, Dr Cerchez pondered the situation:

 

“I’ve worked in a lot of general practice … – I’ve probably worked with over 150 doctors, some of whom are rural doctors and rural doctors have a characteristic that makes them very independent, very …., they are stubborn, and they are not easy people to deal with, and yet for the last 10 years I’ve worked with this group … – I’ve never had any major issues ….I was quite surprised when a lot of the things that Dr Bennett was doing were very, very difficult to understand. I am a doctor, I think like a doctor, I behave like a doctor and yet I couldn’t understand a lot of what was going on because it just seemed contrary to how all the other doctors I’ve known and all the other doctors I’ve worked with behaved, … – I still have trouble understanding the logic … when I work with people I try and understand what’s going on with them. And this comes from being a doctor I guess, you try and work out what’s driving them, what their drivers are, what their motivations are, and work with that to get them to change, and I was never able to achieve any of that with Dr Bennett. He tended to obstruct anything that led to change …”

[324] I have no reason to doubt the genuineness of Dr Cerchez’s statement.

[325] At a very early point in the matter, the applicant made unauthorised contact with Dr Cherry in the throes of her accepting a position with CCHC.  It was and still is a widely accepted dictum that there was a dearth of GPs in the State.  The applicant’s behaviour can be seen in no other vein than as an attempt to dissuade the doctor from joining CCHC, and at the very least cast doubt in her mind about the stability of her proposed engagement.

[326] I agree with Mr Turner that the applicant’s communication was structured to deceive.  It is my view the communication, prima face, would lead a reader to believe that the applicant was writing from a position of authority, to the point where he officiously stated “I will forward a copy of the email to administration (10/5/05) as a consequence of your original enquiry being mishandled”. He took on the mantle of a position which was not open to him, that of senior management.

[327] The email dated 10 May 2005 to which the applicant referred I take as being Dr Cherry’s original enquiry. I note that the 10 May 2005 was the last day of the applicant’s tenure in the Acting SMO position. It is not unreasonable to postulate that the “administration” to which he referred, processed the enquiry in the absence of an SMO.

[328] He attested that he sought counsel from a friend as to the ethics of his action, because he feared that it would be misconstrued. No evidence was adduced as to the vein of the opinion proffered by the applicant’s confidant. However, it is evident, whatever the opinion was it did not dissuade the applicant from emailing Dr Cherry.

[329] Despite his own sense of the potential for a misunderstanding, the applicant attempted to deflect criticism by blaming Dr Cerchez for “misinterpreting” and “misrepresenting” his actions, I find this simply craven.  I find his reasoning inept and devoid of principle. I reject Mr Green’s protestations that there was no malice intended by the applicant’s action.

[330] I also reject Mr Green’s proposition that since Dr Cherry was not called as a witness, the applicant’s communication to her had no negative effects. The proposition is devoid of logic. Regardless of Dr Cherry’s feeling or lack of them over the issue, it did not detract from the calumny of the applicant’s action.

[331] Compounding the duplicity of the applicant’s action is the fact that Dr Cerchez, his senior manager, had already rejected the applicant’s overtures to reconsider offering Dr Cherry a position. In my view this demonstrates the applicant’s wanton disregard for Dr Cerchez authority.

[332] I interpret the applicant’s action as a betrayal of the Agency’s trust by a senior doctor. However, I am at a loss as to why the Agency, at that point, did not formally censure the applicant for his action.

[333] I turn to the incident on 18 October 2005, where after observing irregularities with the applicant’s bookings Dr Cerchez and Ms Green sought to speak with him. Evidence showed that the applicant portrayed Dr Cerchez’s entrance into his room as “your group entered my room”. He later conceded it was only Dr Cerchez who entered, and immediately withdrew. One can only read that the applicant exaggerated Dr Cerchez’s actions to ameliorate his later behaviour. The applicant’s explanation of the ensuing incident beggars belief.

[334] I note the applicant’s offhand communication to Dr Cerchez the day after the incident (Exhibit M04(B8)):

 

“… I move fast about the centre … To loiter at my door as you did is to risk being bowled over.”

[335] The applicant maintained Dr Cerchez had been eavesdropping, and also maintained he felt harassed and was in a hurry. The applicant did not give an explanation as to why he concluded Dr Cerchez had been eavesdropping, other than he was standing next to his door. In my view this is a fabrication to justify his later actions.

[336] Evidence from the three witnesses concur that the applicant physically made contact with Dr Cerchez, sufficient to make him lose his balance. The applicant denied this and maintained he was merely pushing past the group. There was no evidence provided that he asked to be given room to get through and no evidence to say he excused himself as would be conventional good manners and expected of a well-educated professional.

[337] Evidence guides me towards this being a wilful act by the applicant in an attempt to assert himself on the group. There was no evidence that Dr Cerchez was eavesdropping and no evidence of harassment or intimidation. I see this as another example of the applicant’s attempt to justify his actions.

[338] With the evidence before the Agency from three senior Agency personnel, I fail to understand why Mrs Leedham, in her investigation of the matter, took it no further than reprimanding the applicant for “moving too quickly” around the practice.

[339] In late 2005 the applicant sought intervention by the OSSC (R042). He alleged he had been refused an interview for the SMO role and had not been given an explanation. Mrs Leedham in her evidence explained that the applicant had indeed been addressed by one of the interview panel and herself as to the reasons he was not afforded an interview. The applicant subsequently withdrew the application prior to it being arbitrated by the OSSC. The applicant clearly made the application knowing the grounds he espoused to be false.

[340] A review of the aforementioned incidents shows the applicant to be prone to manipulating facts, less than truthful, duplicitous and comfortable in engaging in calumny whenever it suited his motives.

 

Legal Advice

[341] I turn now to the advice the applicant allegedly received from his advisors. The applicant interpreted the advice such that he insisted Dr Cerchez communicate “any” matter in writing as the only acceptable means of communication.  This process was necessary, the applicant claimed, because of the outstanding grievances. The situation, from the applicant’s perspective, was to remain in place until all grievances were resolved.

[342] Under cross-examination the applicant confirmed his position was not to discuss with Dr Cerchez anything to do with his employment at CCHC, but that everything had to be put to him in writing.  He stated at p331, L15 – 45 of transcript:

 

“ If Dr Cerchez wanted to talk to you about where you parked your car, for example, just as an illustration, he had to put that in writing to you?‑‑‑Yes.

 

Or if he wanted to talk to you about the time that you were to start work or to finish work, he had to put that in writing to you?‑‑‑Yes.

 

If he wanted to talk to you about what you were wearing, because maybe he thought it was inappropriate … he would have to put that in writing?‑‑‑Yes.

 

Or the way that you addressed staff?‑‑‑Yes.”

[343] Remarkably the applicant stated he did not think such behaviour at all unreasonable.

[344] It is understandable that where a specific grievance is on foot, it is sensible to quarantine discussion on the matter until the parties can be accompanied by a support person. However, a blanket insistence that all matters relating to the applicant’s employment be in writing is both unreasonable and unworkable.  There is an array of evidence available on this matter which depicts the extent to which the situation was unworkable. The tactic not only prevented the SMO from managing the operation in its entirety, it stifled any chance of the parties building any form of working relationship.

[345] As noted previously the evidence shows, the applicant consistently refused to accept the outcomes of the grievance investigations throughout the entire life of this matter, regardless of whether the determinations came from internal or external investigations.  This situation if extrapolated would mean there would never be a point in time where normal manager/ employee relations could be re-established.

[346] Mr Green used a response by Mr P Targett that “ there is always the potential for differing views and advice and we all must act in accordance with that advice we believe is appropriate” as an endorsement of the applicant’s tactic of refusing to meet Dr Cerchez. (Exhibit A12) Mr Targett, in my view, is simply saying “the choice is yours” to the applicant.

[347] However, the emails upon which Mr Targett gave his opinion specifically refer to “my industrial advice is not in agreement with the advice given to you about the 3 month appointment of Dr Cerchez…nor is it sympathetic to the two year extension …”.  I do not accept Mr Green’s view that Mr Target in anyway endorsed the applicant’s tactic of refusing to meet Dr Cerchez effectively under any circumstances.

[348] Mr Green also made much of the fact that the Agency did not seek to obtain evidence of the applicant’s alleged legal advice prior to or during the CD5 investigation.  I do not accept the Agency’s action, or lack of, as tacit acceptance of the accuracy of such legal opinion.  I agree with Mr Turner, it was the choice of the practitioners involved in the applicant’s case as to the lines of action to be taken. Consequently, it is appropriate the Agency challenge the veracity and competence of the applicant’s interpretation of such advice.

[349] In his summing up, Mr Green put the argument that the applicant had the right to be accompanied by a support person if he were to engage in conversation with his manager while a dispute was on foot.

[350] Mr Turner, in his submission, did not disagree with the principle put forward by Mr Green. From evidence in this matter, at no stage did the applicant accede to a meeting with Dr Cerchez with the proviso that he be accompanied by a support person. There is no evidence that the applicant was ever refused the opportunity to meet Dr Cerchez because he wanted a support person. There was no evidence educed that at any time in this matter, the applicant deferred or rescheduled a meeting with Dr Cerchez to facilitate his being accompanied by a support person.

[351] It should be noted from his own evidence on numerous occasions the applicant would only accede to meeting Dr Cerchez if all the grievances were resolved, one must assume to his satisfaction, with or without a support person.

 

Avoidance of Resolution

[352] The CD5 breach investigation addressed the applicant’s refusal to comply with the Agency directive to meet with Dr Cerchez, as he asserted, based on advice from his Industrial Advisor and Mr Green.

[353] Evidence shows that it was the applicant’s practice, from the commencement and throughout the progress of this issue, to refuse to attend meetings where resolution of grievance matters could be sensibly progressed. On one instance very early in the matter he did agree to meet with Dr Cerchez, however the meeting never took place.

[354] In September 2005, well before he sought legal advice, the applicant refused to attend a meeting facilitated by the Head of Agency to address the issues.  His own colleague, Dr Sarma, urged him to take the opportunity to meet Agency staff “at the highest level”, noting the distraction to the work within the practice as a result of the applicant’s continuing focus on Dr Cerchez’s appointment. There was no evidence educed as to the applicant’s response to Dr Sarma’s suggestion, other than he did not participate in the meeting.

[355] In refusing to participate in the meeting he informed the Secretary that the meeting was “premature”.  To the person who was charged with arranging the meeting, the applicant said he had a high clinical workload and could not free himself. To the investigator, James Cumming Investigation Services, the applicant asserted “because he was challenging Dr Cerchez’s appointment there was no point in a meeting”.

[356] During March of 2006, after applying to the OSSC for a review of complaint FGA03 and other matters, the State Service Commissioner offered the applicant mediation as a means of reaching a resolution.  The parties, including the applicant, initially agreed to participate.  In summary, this was to have the parties together, the various matters on foot, table the issues and through mediation attempt a resolution.  The applicant withdrew from the mediation before it was convened.  His explanation for this action was fraught with inconsistencies.

[357] Firstly, he agreed that all issues, anything anyone wanted to raise, were to be put “on the table”.  He then claimed he withdrew from mediation because he didn’t know what the mediation was about “specifically”.  He further confirmed that the agreement was to get everything to be mediated from both sides identified and addressed.  He then said that his application to the OSSC was for a specific issue only, after acknowledging that he had agreed to the process of addressing all the issues. Finally, he said it was “ … my prerogative, … to withdraw from that process …”.

[358] It is quite clear the applicant had been given early opportunities to try and resolve the issue. His response, in my view, showed he had already made up his mind not to accept the legitimacy of Dr Cerchez’s appointment, regardless of any counter argument. His rejection of the OSSC brokered mediation can not be justified. His confused reasoning for refusing to participate defies commonsense. His behaviour throughout appears to have been designed to avoid situations which were capable of facilitating resolution of his issues.

[359] The applicant took an accumulation of grievances to the OSSC on eight occasions. He withdrew from four of the matters before resolution could be advanced. He raised twelve formal grievances with the Agency, there is no evidence he accepted a single outcome emanating from the Agency’s investigations.  It is my view the behaviour exhibited by the applicant can be interpreted in no other way than he deliberately and in a calculated manner chose to isolate himself from every opportunity open to him to advance a genuine resolution of his issues.

[360] Mr Green argued, it was appropriate that the applicant did not meet with Dr Cerchez because of the outstanding grievances which had not been satisfactorily resolved, particularly since some of these grievances were around allegations of harassment, intimidation, discrimination and defamation. As addressed earlier, the applicant’s grievances regarding these allegations were investigated by the Agency and were found to either have no foundation or that the applicant did not supply evidence to support his claims. Regardless, he refused to accept the outcomes putting any question of meeting Dr Cerchez in a stalemate.

[361] The applicant was specifically asked by the Commission, after all that had happened, if he were to return to his job at CCHC would he still refuse to meet with Dr Cerchez.  The applicant stubbornly refused to answer the question directly.  He gave two very non-specific circuitous responses, neither of which could be described as affirmative.  He refused to give a simple yes/no answer.  I read from his response, or lack thereof, that even as late as the conclusion of the hearing the applicant would refuse to commit to normal manager/employee dialogue with Dr Cerchez.

[362] The applicant, throughout the matter, expressed how busy he was “clinically”. Indeed he used “busyness” as a reason for his behaviour on 18 October 2005. He referred to himself as being the “only full-time doctor” and bemoaned the practice being staffed by part-time doctors. Situations were raised where he alleged he was the only doctor on duty. He used the excuse of “clinical workload” on a number of occasions to avoid meetings with Dr Cerchez, various managers and Head of Agency.

[363] Like the other doctors, I note the applicant set his own hours of work within the practice framework.  He also conducted a private practice whilst an employee of the agency. In my view, the applicant had carriage of his own timetable to a significant extent. Had he the will to attend meetings, he could have made the time.

[364] In evidence it was also shown the applicant devoted considerable time to non-clinical activities, such as pursuing the practice car availability issue, the practice software issues, re-classification of reception staff and writing to a potential employee. There was no evidence educed that any other doctor in the practice took time out from clinical duties to engage in such extraneous matters. Further, the applicant was not averse to blocking out major portions of the consultation time to attend to paperwork. However, it was conceded that other doctors, when the situation warranted it, also occasionally blocked off time to do paperwork.

[365] Rejecting an invitation to participate in a facilitated meeting offered by the Head of Agency and, at a similar time, refusing to meet Dr Cerchez, the applicant offered, in both cases, the alternative that any meeting on the topic of Dr Cerchez’s appointment should be inclusive of all the doctors in the practice.  Yet the applicant was the only employee who persistently challenged the appointment.

[366] A theme throughout the applicant’s evidence was his stated perception that issues to do with the running of the practice had to be agreed to collectively by the practice doctors before he considered them valid.  The applicant asserted that such arrangements had been custom and practice, however he offered no evidence of this.  In a number of instances he used this as an excuse to oppose Dr Cerchez’s management directives.  Typical was the applicant’s rejection of Dr Cerchez’s directive to follow the practice protocol for booking in patients.

[367] In his reply the applicant wrote (p337 L40 of transcript):

 

“It has not been discussed with a full quorum of doctors.  Consequently I believe your directive is not a reasonable directive.”

[368] In my view the applicant had no legitimate reason for espousing the premise that the validity of a management decision had to be dependent upon its approval by a cohort of doctors.  Even had he proven a “custom and practice” relationship, it does not take away the Agency’s obligation to manage the business as it sees fit.  The applicant’s stance, in my view, added to his marginalising Dr Cerchez’s authority.

 

SPECIFIC INCIDENTS

 

Electronic Bill Processing

[369] The applicant’s refusal to comply with the initial request, then the directive to use the electronic billing system had significant impact on the practice, both from lost revenue and the added workload for the administration staff. Ms Harpur, in her evidence, confirmed that no other doctor had a problem with the electronic billing or its security.

[370] Various Agency staff tried to persuade the applicant on a number of occasions to use the electronic billing process; they failed. The applicant’s argument was that he sought indemnity from the Minister or the Head of Agency. Mr Green, in his submission, stated that the applicant did indeed agree to use the system. However, what he failed to emphasise was the fact that the applicant put a provision on his agreement which went back to his original demand, that of indemnity; “in anticipation of the assurances sought”. That assurance was spelt out in correspondence to Ms Bent, “a letter signed by the Minister or Secretary will resolve this issue.”

[371] This manipulation of the facts cannot be seen as the applicant acceding to participating, like the other doctors, in electronic billing.  

[372] I find no justification in the applicant’s stance on this matter. It was made very clear to him by senior Agency figures that his demands for indemnity were not necessary. Yet he persisted. Compounding the situation is the fact that on engagement in his new employment in two different practices he has agreed to use the system, with no indemnity. His reason, he now works for “people I have a more intimate knowledge of.”

 

Manual Processing

[373] There was evidence from witnesses that the applicant’s pedantic scrutiny of the folio’s before they were processed caused considerable administrative problems.  Dr Cerchez in his evidence said; at p390, L10 of transcript:

 

“So I’d have to have some explanation of why they suddenly became unreliable when for 17 years they were okay.”

[374] The applicant was quite emphatic that he chose to be very particular about checking the folios at the time when he was asked, and refused, to use the electronic system for billing.

[375] Mrs Clingeleffer, in her evidence explained the difficulty the applicant caused by his fastidious checking of the Medicare folios. Contrary to his claim of “one sixth of the work they used to do”, she said; at P400, L10 of transcript:

 

“… think I had got to the stage that I had been trying to adjust these and alter these and fix them for Dr Bennett and it was just such a time-consuming process, which was really going nowhere …”

[376] Mrs Clingeleffer’s frustration was taken to the point of her swearing at the applicant over the processing of the claims.

[377] It is my view the applicant made a conscious change in behaviour which resulted in considerable stress and a great deal of extra work for the administration staff. There was no justification for him to alter the process he had followed, as Dr Cerchez said, “for 17 years”.

 

Loss of Medicare Monies

[378] Dr Forrest, in his letter of CoC investigation findings, addressed the matter of the loss of Medicare monies due to the CCHC. I note the applicant did not show any sign of good faith and offer to process the receipts of his own volition while on suspension. The applicant’s assertion that it was the Agency’s fault for holding up the receipts for three months is adequately addressed in the findings. It is clear to me that the refusal to engage in electronic billing, the applicant’s pedantic and unnecessary scrutiny of the accounts and his tardiness in processing the claims significantly contributed to the CCHC loss. His protestations of being the only doctor on duty at times, and therefore unable to process the claims, was refuted by the facts.

 

Patient Booking

[379] It appears the whole issue of patient bookings became a constant source of aggravation, I have no doubt, to both parties.

[380] Evidence showed that it was practice for some doctors on occasions to re-book patients for follow-up appointments.  The overlying condition, it was stated, was if they had the time.  It was acknowledged, indirectly, that if time was limited it was more efficient to have the reception staff book patients by means of a note from the doctor.

[381] Dr Kearon, in her evidence, stated at p 418, L10 of transcript:

 

“Well, my view is doctors’ time is pretty valuable time and anything that you can do in your practice to ensure that your time is taken up doing the things that you’re trained to do, is a good thing. So if there’s a receptionist in the practice who can do that task at, you know, a quarter of the cost then it’s a reasonable thing to do to ask somebody else to do it.”

[382] Dr Kearon also relied on the reception staff to change bookings as required.

[383] Dr Klok, in her evidence, stated at p279, L5 – 25 of transcript:

 

“And the booking would be organised by the reception staff?‑‑‑It depends … So sometimes I will send out a request, a written request to the reception staff to book somebody in …”

[384] Dr Dunbar in evidence said, with regard to booking appointments for her own patients: (Transcript p294 L40)

 

“I either put … the name in myself, or if I’m in a hurry … write on a piece of paper that they take to the receptionist …”

[385] There was no suggestion by the two witnesses for the applicant that they undertook wholesale booking of patients.

[386] The applicant, in much of his correspondence leads one to believe that to direct him not to follow his practice of booking patients was discriminatory because no other doctor was given the same directive.  However, from his own evidence the applicant broadened the practice of booking follow-up appointments from his room to, at different times, booking all patient appointments himself. At times he gave instructions to the reception staff to direct all enquiries for appointments to him, knowingly going against the practice booking protocol. The applicant effectively manipulated the PracSoft system to circumvent the protocols adhered to by the rest of the practice, and in doing so marginalised the position of the PM.

[387] Under cross-examination the applicant was emphatic that he did not follow the practice of the other doctors while at CCHC.  At p337, L35 of transcript he responded:

 

“Yes. And maybe your practice of booking patients is different to others?‑‑‑Not maybe, my practice of booking patients was different to others, Mr Turner.”

[388] Yet when challenged about his booking practice at Grosvenor Street and Hopkins Street, the two surgeries at which he now works, he said at p190, L1 – 10 of transcript:

 

 “And there’s a practice manager at each of Grosvenor Street and Hopkins Street?‑‑‑There is.”

 

“There is an electronic system used for bookings and the like at both those practices?‑‑‑Correct.”

 

“And the practice manager at both those practices is expected to attend to the keeping of the bookings for doctors?‑‑‑Correct….”

[389] For want of an explanation one can assume that the applicant adhered to the protocols current at Grosvenor Street and Hopkins Street, in contrast to his wilfully contravening the same protocols at CCHC.

[390] The applicant argued that in a particular instance in January 2006, his intervention in the scheduling of patients was necessary because of the particular situation on the day.

[391] Mr Turner did not refute that there was difficulties with the lack of doctors in residence and the number of patients requiring attention.  However, from the balance of evidence, the manner in which the applicant went about the process clearly marginalised the authority of Ms Green. Had, as the applicant claimed, he had the good of the patients in mind he could have sought the support of Ms Green in affecting a comparable outcome.  As it was there was an altercation, widely witnessed which, in my view, did not correlate with the applicant’s insistence his actions were for the good of patients.

 

Blocking Out Sessions

[392] It was acknowledged by the doctors who gave evidence, that from time to time it was necessary to block out sessions to afford them the time to complete various aspects of paperwork and other tasks.

[393] With regard to the blocking out of appointments, Dr Klok admitted that she did, but it was an infrequent occurrence. During her evidence she also said there was a flexible arrangement where at the doctor’s initiative, they could choose to discuss any significant allocation of appointment time with the SMO. She may or may not consult with the PM before blanking out a significant portion of a session.

[394] Dr Dunbar asserted she did not consult with the PM when she blocked out appointments and alleged she had not been instructed to follow the practice.  However, she confirmed that should she expect to come in late or need to block out two hours of appointments she would consult with the PM.

[395] Mr Turner raised the issue of the applicant unilaterally blocking off significant segments of consultation time. He also raised the issue of these blocked-off times being capriciously altered over the course of a day. When questioned about this aspect of the matter, the applicant did not deny his actions, but merely stated that this allegation was unsubstantiated. Being a live system there are no records of the various manipulations of the booking system. However the testimony of both Ms Green and Dr Cerchez, who claimed to have witnessed the changing appointments on the computer screen, corroborate to implicate the applicant. I have no reason to doubt their evidence.

[396] I take note of the applicant’s more industrious view of his current practice at his new employ. At p195, L35 – 45 of transcript:

 

“… was a recommendation, that is to say, that which the department recommends, that there be the introduction of electronic systems in the practice, including billing systems, and including booking systems, correct? And as part of the booking systems – well, the booking system, I should say, 15 minutes is allocated as an appointment a patient?‑‑‑Standard appointment, yes.

 

Yes. And that is the practice at Grosvenor Street and at Hopkins Street?‑‑‑Yes.

 

……. That time is meant to include seeing the patient, making some notes; is that right?‑‑‑Yes.”

[397] And further at p196, L10 – 15:

 

 “And if you’re the doctor you’re expected to look at the pathology results for your patients?‑‑‑Yes.

 

You don’t get a 15 or 30 minute block rubbed out for that, do you?‑‑‑This is a private practice”

 

[398] I fail to see why the management of doctors’ consulting time should be different in a State-run facility to that of “private practice”. It is evident, as with booking his own patients and using the electronic billing system, the applicant has chosen to alter the modus operandi to which he doggedly adhered at CCHC, to conform to the requirements of his current employers.

[399] This, I believe, illustrated the applicant’s disregard for the authorities of both Ms Green and Dr Cerchez.

 

Severing the Pay Group Link

[400] The applicant’s reasoning behind his severing the pay group link is fraught with inconsistencies. He misled Ms Bent by claiming the link was to be simultaneously re-established. The clandestine manner by which he took the action, by not informing the Manager or Ms Green, who was responsible for ensuring correct billing, warrants serious consideration as to his motive; as does his reasoning in belatedly informing Ms Bent of his action. Dr Cerchez said the applicant took the action to “provoke a response”. I believe his observation is sound.

[401] Severing the pay group link, in evidence, was seen as a significant matter. Ms Harpur sought to get to the bottom of the matter. The applicant refused to acknowledge she had a legitimate role to play. He refused to cooperate even with a basic explanation. One must question the applicant’s motives.

[402] I reject Mr Green’s assertion that the Agency had mismanaged the situation by expending resources trying to resolve the matter, when the applicant had offered to explain the issue to the Head of Agency. The ensuing administration muddle where Medicare gave incorrect advice to the Agency was a direct consequence of the applicant’s action.

 

Bogus Bookings

[403] Mr Green asserted the applicant was not given the opportunity to address the accusation, that he had manipulated the appointment system in the form of bogus patients. The applicant, in his response to Dr Cerchez in an email (Exhibit M04(B13), asks Dr Cerchez to substantiate his allegations; however, he then commented on Dr Cerchez’s part-time status; he blamed Mrs Leedham for excluding him from the SMO interview process; and he questioned probity of Mrs Leedham’s involvement in the selection process. He made no attempt to address the specifics of Dr Cerchez’s accusation.

[404] Dr Cerchez sought to meet with the applicant, to no avail. The applicant lodged a formal complaint, FGA06, with regard to the matter in which he claimed defamation. The applicant’s grievance was investigated and found to have no substance. He sought a review of the investigation outcome, again his assertions were found to lack substance.

[405] It is my view the applicant had sufficient opportunity to address Dr Cerchez’s accusations. However, as has been evinced throughout this matter, in his email to Dr Cerchez he chose expound on issues not relevant to the matter and failed to address the matter on point. The applicant’s failure to address the matter cannot be laid at the feet of the Agency.

 

Private Patients

[406] Mr Green argued that the applicant followed custom and practice in maintaining private patients while employed by the CCHC. It should be noted, from evidence, that he was the only doctor at CCHC engaged in this practice. The Agency argued that in 2000, doctors were informed that patients could not be both private and CCHC patients. This documentation could not be located. Although, in his evidence, the applicant asserted he had informed management at the time that he would follow his then current practice and continue to see private patients, regardless. Given the evidence surrounding this particular issue, I believe the weight of probability is that the facts are as the Agency has stated. I concur with the Head of Agency’s findings.

 

GRIEVANCE MANAGEMENT

[407] Mr Green was highly critical of the Agency’s management of the grievance process. He argued the Agency had failed the first basic measure in addressing grievances by not responding within 20 working days, which is fact. He further argued that there was confusion between the local management administering the grievance procedure and the HR Department of the Agency injecting HR process into the situation. He cited the fact, that while the grievance procedure was on foot, directives were given to the applicant by the senior Agency manager.  I find no conflict in the two approaches.

[408] In evidence it was clear the senior Agency staff resorted to giving the applicant directives through the frustration of his continual refusal to comply with management instructions from his Manager, Dr Cerchez. I interpret the Agency’s actions as a clear indication to the applicant, of the seriousness of the situation which was developing.

[409] Mr Green asserted that the grievance procedure had failed the applicant. The applicant raised twelve formal grievances. There is no evidence he accepted the outcome of any of grievance investigations, whether they were conducted by internal or external resources.

[410] Some of the grievances under investigation were germane to this whole matter. The applicant took the opportunity to seek an alternative resolution with the OSSC, as is his right. However, given the opportunity to have an outcome determined by the independent authority, the applicant for no other reason given than it was “ …my prerogative … to withdraw from the process … ” The applicant chose to withdraw from a number of matters while still on foot and unresolved.

[411] The applicant’s grievance FGA01, formed part of his applications to the OSSC R042 and R043; he withdrew both applications before the OSSC had made a determination.

[412] Grievance FGA03 formed part of an application to the OSSC R045; the applicant withdrew before the OSSC made a determination.

[413] The applicant made an application to the OSSC R052 regarding CaseAction’s handling of the 10 October matters, which was first raised in FGA03; he withdrew before the OSSC had made a determination.

[414] Evidence shows that the applicant refused to engage with the Agency in pursuit of its CD5 investigation.  He refused to be interviewed and, as a result, the Agency made a determination.  He applied to the OSSC, R021, alleging he was not given the opportunity to be interviewed, which from evidence was blatantly untrue.  The OSSC resolved the matter by generating an MOU in which the parties agreed to a process by which the applicant would be interviewed with regard to CD5.  At the agreed interview the applicant refused to answer any question posed.

[415] Grievance FGA03 relating to alleged harassment and intimidation was submitted a month after the alleged incident. Grievance FGA05 relating to discrimination and harassment was initially withdrawn then reinstated some five months after the alleged incidents; from evidence, in retaliation for complaints raised by Dr Cerchez, Ms Le Mesurier and Ms Green over the 10 October matters.

[416] Grievance FGA10 refers to the applicant’s grievance FGA05 not being dealt with within 20 days. This was submitted almost three months after the original submission. The response from the Agency showed that it was the applicant’s lack of availability and his withdrawal from an agreed mediation which caused the delay. Facts he was aware of before submitting the grievance.

[417] Grievance FGA11 was submitted six months after the alleged incident. The matter was in regard to the alleged destruction of the applicant’s property. The Agency’s findings were disputed. The applicant chose to take the matter to the OSSC, R047, who dismissed the application.

[418] The grievance procedure and process it drives is there to provide a means by which matters can be dealt with in an open and timely manner. Even from a cursory perusal of the applicant’s “grievance” history, it is reasonable to assume he would only accept the outcome of the grievance process if it concurred with his position.  It is my view the applicant’s manipulation and often capricious use of the grievance process tied up considerable resources, not only within the Agency but also an external investigator and the OSSC. His rejection of every finding and his withdrawal from a number of partially addressed OSSC applications indicate the applicant’s lack of genuine commitment to have the matters resolved.

[419] Evidence showed that the Agency followed up every issue raised by the applicant. Their investigations were open and their conclusions well-founded, albeit not within the 20-day target. In my view the grievance procedure functioned as it should and did not fail the applicant.

 

CD5 PROCESS

[420] Much of Mr Green’s argument lay in his assertion that the CD5 process followed by the department was flawed and incomplete.

[421] I turn now to the CD5 process adopted by the Agency.

[422] The initial CoC breach investigation was initiated on 6 January 2006 by way of a letter (Exhibit A24) from the then Head of Agency, Dr Forrest, to the applicant.  The letter, in its construction specifically addressed the requirements of s4 Allegations and Investigation of DC5 in sequence - s4.1, s4.4, s4.5, and s4.8.

[423] As required by s4.7 of CD5, the Head of Agency informed the applicant of the outcome of the investigation by letter (Exhibit A58) on 22 March 2006. He offered the applicant time to respond. He further stated that he would determine if breach of the CoC took place once he had received the applicant’s response.

[424] The applicant was suspended on 12 April 2006. The Head of Agency in his letter (Exhibit A35) expressed concerns over the applicant’s actions. Dr Forrest intimated he would inform the applicant of the manner by which the matter was to be investigated.

[425] On 1 May 2006, Dr Forrest again wrote to the applicant (Exhibit A61) informing him that he was to be investigated for a possible breach of s9, CoC. In the correspondence Dr Forrest outlined the allegations against the applicant. Again the letter addressed the requirements of s4 Allegations and Investigation of DC5 in sequence - s4.1, s4.4, s4.5, and 4.8.

[426] On 30 June 2006 the applicant was invited by the Head of Agency to participate in an interview with the investigator. In mid-July, James Cumming Investigation Services, the investigator, extended the applicant a further invitation to participate in an interview and provided him a series of questions. The applicant replied deeming the list of questions not specific enough and requesting more specifics. Further communications were sent to Dr Forrest from the applicant in the same vein.

[427] Dr Forrest wrote to the applicant on 4 August 2006 confirming the investigation had followed the procedure as dictated in CD5 and that the investigation had been completed and he, the applicant, would be furnished with the outcome.

[428] The applicant continued to complain he did not have specific allegations. On 24 August 2006 the applicant applied to the OSSC, R021, complaining he had not been afforded the opportunity of an interview. Dr Forrest responded to the OSSC clearly showing the Agency had adhered to the requirements of s4 of CD5 and that the applicant had shunned opportunities to be interviewed.

[429] With the assistance of the OSSC, a MOU was developed which prescribed the process to be followed to provide the applicant with an additional opportunity to be interviewed. The MOU was signed by both parties on 8 September 2006.

[430] The interview was convened in late September 2006. Despite agreeing to participate the applicant refused to answer any questions. He made a statement which subsequently formed part of the investigator’s report.

[431] To this point the investigation process had been drawn out over two and a half months from the end of June, in an attempt to have the applicant participate. The applicant persistently complained he was not given “full specific allegations”. CD5 requires an employee suspected of breaching the CoC, at 4.4 (a), to be given in writing “… the substance of the alleged breach of the Code.” In my view the Agency fully satisfied these requirements. Indeed, the Agency went beyond that which was expected of it in CD5.

[432] On 8 January 2007, the findings of the CoC breach investigation was sent to the applicant and a response sought. A month later the applicant wrote to Dr Forrest with a response, but requested that it be regarded as “preliminary” as information he required from the Agency had not been provided. Dr Forrest had informed the applicant that the information he sought did not form part of the investigation and would not be provided to him.

[433] The Agency’s findings were presented on 19 March 2007.

[434] The Agency found that the applicant had breached the CoC on a number of occasions and his employment was subsequently terminated.

[435] In the findings document (Exhibit M04(B71)) the Agency, in great detail, addressed the issues and the applicant’s response to them. The document breaks down each of the allegations against the applicant and fully addresses them quite clearly. The document also addresses the applicant’s responses, again quite clearly.

[436] Specific issues raised by Mr Green are addressed in the following:

[437] On a number of occasions the applicant sought to meet with Dr Forrest, who did not accede to his requests.  Mr Green argued that the refusal of the Head of Agency to meet the applicant and his legal advisor was a breach of CD5, a breach of the Act and a denial of natural justice.  I am at a loss to locate anywhere in CD5 or the Act where an employer is obliged to meet an employee.  In the event, as we have, where an employee’s employment is terminated there are specific obligations on the employer.

[438] CD5 directs that an employee be afforded the opportunity to be interviewed and an opportunity to respond the findings. Both these requirements were offered to the applicant.

[439] At s30(7) of the Act, it stipulates:

 

“The employment of an employee must not be terminated for reasons related to the employee’s conduct, capacity or performance unless he or she is informed of those reasons and given an opportunity to respond to them …”

[440] Clearly the Agency adhered to the requirement of the Act.

[441] As detailed above, the applicant was afforded all that was required of the CD5 process in the investigation. The Agency exhibited extreme patience in dealing with the applicant’s demonstrable recalcitrance. In my view natural justice was afforded the applicant throughout the entire process.

[442] The applicant was given many opportunities to present his case, with his legal advisor present if he so wished. He freely chose a particular route to pursue the defence of the allegations against him. There was no indication that the applicant had more or different evidence available to him which had not been considered by the Head of Agency. There was no evidence educed which suggested the applicant was in any way disadvantaged by being denied the opportunity to present his case to the Head of Agency. I reject Mr Green’s argument.

[443] Mr Green asserted the Agency failed to conduct a full and extensive investigation. Despite the applicant’s abject lack of cooperation, evidence shows unequivocally that the Agency conducted an independent, thorough and complete investigation. Evidence is against Mr Green’s position.

[444] The applicant sought documentation to assist him in responding to the CoC breach, this was denied him. Mr Green asserted the lack of access to the documentation disadvantaged the applicant. Dr Forrest was quite specific in his communications with the applicant and made it clear that the Agency was not relying on the information contained in the sought after documentation. No evidence was educed to show the Agency relied upon material not made available to the applicant on request.

[445] Mr Green denied the applicant did not acknowledge the roles and responsibilities of Dr Cerchez as the SMO and Ms Green as PM. The overwhelming weight of evidence is against Mr Green’s denial. The Head of Agency, in his CoC findings clearly illustrated the applicant’s open rejection of the authority of both Dr Cerchez and Ms Green.

[446] As part of accusation 1.2, Mr Green denied the applicant refused to be the “red dot doctor”. The applicant’s own email of 21 November 2005 stated:

 

“I appear to be the red dot doctor today.

However, I appear to be fully booked this afternoon.

I will not be able to work overtime, so could you make other arrangements?” (Exhibit M07)

[447] In the context of the whole matter, a basic reading of the email leaves me in no doubt that the recipient, Ms Green, took this to be a refusal. After the fact, the applicant claimed he did indeed perform the “red dot doctor” role. Whether this was the case or not, the applicant had made it clear he was not available to perform the role. His comment in evidence, that Ms Green had already left for the day and would not have known if he had performed the role or not, I find disingenuous.

[448] Mr Green asserted the Agency failed to give weight to the applicant’s allegations of harassment. The applicant made four complaints in which he alleged harassment, among other things. All the complaints were investigated. None could be substantiated. The applicant had the right to seek assistance from the OSSC, as he had done on eight occasions, if he were not satisfied with the outcome of the investigations.  

[449] I am at a loss to discern what more consideration the Agency could give to the alleged harassment. What weight would be given by the Head of Agency to unproven and unsubstantiated allegations when determining the outcome of the CoC breach?

[450] It was asserted by Mr Green that the Agency failed to investigate grievances against Dr Cerchez. In all grievances raised by the applicant, investigations were conducted and outcomes concluded. I find no basis for Mr Green’s assertion.

[451] One of the germane issues in this matter was the refusal of the applicant to follow legal and reasonable directions. One of these directions was to respond “positively” to a management direction given by Dr Cerchez. Mr Green argued that such a directive was too imprecise. I disagree with him. This matter must be seen in the environment within which it sits, that of a workplace. We see from evidence the applicant was argumentative, recalcitrant and disruptive, refusing to comply with common protocols. In my view it does not take a stretch of the imagination to deduce where the applicant could respond positively to managerial directives. In an industrial context the directive need be no more precise than it is.

[452] The applicant refused to adhere to directives given to him by the Agency because he asserted they were not “reasonable”. James Cumming Investigation Services, in its conclusion of the earlier investigation, recommended that the Agency seek a legal interpretation of “reasonable”. Mr Green asserted the applicant was denied natural justice because the Agency had not sought that legal opinion.

[453] Mr Turner argued the practitioners charged with the progression of this matter were capable of discerning “reasonable” directive.

[454] This is an industrial matter. It must be viewed in the context of a group of people collectively trying to achieve a common outcome; in this case provide a medical service. James Cumming Investigation Services rightly gave its opinion of what was required from the investigation. It is the Agency’s prerogative as to how they use the recommendation.

[455] In my view the opinions of practitioners, in an industrial situation, are just as valid as those of the legal profession, both are interpretations neither are absolute. I concur with Mr Turner’s position and do not see a denial of natural justice to the applicant.

[456] Mr Green argued that the Head of Agency did not have all the relevant documentation before him when he made his decision to terminate the applicant’s employment. Mr Green could not substantiate his assertion.

[457] Evidence showed that all the relevant information was available to the Head of Agency throughout the development of this matter.

[458] Mr Green also raised the issue that the applicant was not made aware that Dr Cerchez had intimated his desire to withdraw from the SMO position just before the applicant was suspended. There was no evidence educed to support the applicant’s assertion that Dr Cerchez’s intention to resign influenced the decision of the Head of Agency to suspend the applicant.

[459] The Head of Agency would not accept the applicant’s position that his response to the CoC investigation was “preliminary”. The applicant relied on his not receiving the requested documentation from the Agency as preventing him from fully addressing the allegations against him.

[460] The Agency’s response, that the documentation did not form part of their argument and was therefore unnecessary, was made quite clear by Dr Forrest. The applicant did not educe any evidence to the contrary. The applicant sought the intervention of the OSSC in the matter. The application was dismissed.

[461] Mr Green asserted that the errors present in the letter of 19 March 2007 meant there were no reasonable grounds for the Head of Agency to find the applicant had breached the CoC. The weight of substantiated evidence was clearly in favour of the findings of the Head of Agency. In my view the errors do not detract from the substance of the case, in total, against the applicant.

[462] There was no evidence educed to suggest the Head of Agency did not take into account the applicant’s work history with CCHC. Mr Green’s assertion is unsubstantiated.

[463] Mr Green asserted the Head of Agency failed to take into account the impact on the applicant’s long-term patients. Mr Turner confirmed, in response to a question from the Commission, that the consulting hours allocated to the applicant had been re-assigned to other doctors. There was no impediment brought to the attention of the Commission which would prevent the applicant treating his long-term patients from his current place of employment, if he so chose.

[464] Mr Green alleged the Head of Agency made a finding of fact without evidence and contrary to the weight of evidence. It is my view the Head of Agency conducted a thorough investigation and made decisions on the evidence before him. The Head of Agency clearly spelt out his reasoning in the termination letter of 19 March 2007. As prescribed in CD5 s5.1(f), the Head of Agency must:

 

“Act according to equity, good conscience, and the merits of the case without regard for technicalities or legal form”.

[465] It is my view the Head of Agency complied with s5.1(f) requirement in considering evidence.

[466] It was asserted by Mr Green that it was contradictory and unfair for the Head of Agency to rely on the actions of the applicant before and after 25 January 2005 to find reason for an adverse finding in the CoC breach investigation. Perusal of the Head of Agency’s CoC finding letter of 19 March 2007, illustrates a number of the applicant’s actions which would warrant sanction with respect to the CoC. I find no justification in Mr Green’s assertion.

[467] Mr Green argued that the Head of Agency did not give consideration to the suite of sanctions open to him as an alternative to termination. There was no evidence educed to support Mr Green’s position.

 

CONCLUSION

 

[468] The legislation is quite specific as to the conditions under which an employee’s employment can be terminated.  The provision of s.30 of the Act dictates the following at (2):

 

“… in considering an application in respect of termination of employment, the Commission must ensure that fair consideration is accorded to both the employer and the employee concerned and that all of the circumstances of the case are fully taken into account”. 

[469] And s30(3), advises:

 

“The employment of an employee … must not be terminated unless there is a valid reason for the termination connected with a) the capacity, performance or conduct of the employee”.

[470] The provision of s44 of the SS Act dictates the following at (3):

 

“The following are the only grounds for termination;

 

a. that the permanent employee is found under section 10 to have breached the Code of Conduct;

 

b. ……….”

[471] The provision of s10 of the SS Act dictates the following at (1):

 

 “The Minister may impose one or more of the following sanctions on an employee who is found, under procedures established under subsection (3), to have breached the Code of Conduct; and at (g) termination of employment in accordance with section 44 or 45.”

[472] The provision of Commissioner’s Direction No.5 of 2005, s6 IMPOSITION OF SANCTION, at 6.1:

 

“If the Head of Agency finds the employee has breeched the Code, any sanction imposed must be done in accordance with section 10 (1) of the Act.”

[473] I believe The Head of Agency has adhered to all the protocols set out by the various instruments of legislation. Further, he demonstrated that he followed the prescribed processes required of CD5 in his investigation of the applicant’s case.

[474] All the procedures dictated by CD5 were adhered to and the investigation was carried out objectively. Although it was demonstrated that minor inaccuracies were evident, they were not material in the overwhelming case against the applicant.

[475] The applicant was afforded every opportunity to participate in the investigation of his case. He chose not to cooperate with the investigation. At no time did the applicant accept that he had breached the CoC even in the face of damning evidence. The seminal issue in this matter, being that of the applicant’s refusal to meet with Dr Cerchez, was addressed in the final throes of the matter being heard by the Commission. From the applicant’s avoidance of answering when asked if he would now meet with Dr Cerchez, it is evident the applicant’s position has remained inflexible.

[476] The CD5 investigation leaves no doubt that the applicant did breach the CoC in a number of matters. In my view the Head of Agency had valid reasons for terminating the employment of the applicant, as is required by s30(5) of the Act.

[477] The applicant failed to prove the termination to be unfair, as is required by s30(6) of the Act. As a consequence, the applicant was not unfairly dismissed, and I so find.

[478] The application is dismissed, and I so Order.

 

 

 

 

 

James P McAlpine
Commissioner

 

Appearances:
Mr C Green, Page Seager, Barristers and Solicitors for Dr Stephen Bennett
Ms L Wilkins (17.7.07); Mr P Turner for the Minister Administering the State Service Act 2000 (Department of Health and Human Services)

 

Date and place of hearing:
2007
July 17
August 1
October 5
December 5,6, and 7
Hobart