T12264
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Christine Anne Armstrong and St Luke Medical Services Pty Ltd
Appeal against a decision handed down by Commissioner McAlpine arising out of T12011 of 2005 - Appeal rejected - Decision confirmed REASONS FOR DECISION [1] In an application pursuant to s.29 of the Industrial Relations Act 1984, (the Act) Dr Christine Armstrong (the applicant) alleged that her employment by St Luke Medical Service Pty Ltd [Dr Saba] (the respondent) had been terminated unfairly. In determining the matter Commissioner McAlpine found that the applicant "...repudiated her contract of employment and was not unfairly dismissed in the first instance." He also found that "As to the second allegation of unfair dismissal no contract was entered in to beyond the original contract therefore I dismiss this aspect of the application." [2] The applicant has appealed the Commissioner's decision on the following grounds:
[3] In considering an appeal against an exercise of discretion the Commission relies on the principles established in the decision of the High Court in House v The King (1936) [55CLR499, at 504-505 per Dixon, Evatt and McTiernan] which provides:
Background [4] The applicant was employed by the respondent on 17 May 2004. Employment arrangements were found in a contract prepared by the applicant and signed by the respondent. The applicant took some leave and returned on 23 March 2005 "where a significant disagreement took place" with the respondent over work related issues. [5] Commissioner McAlpine commented:
[6] We agree with his comment. [7] The Act provides at s.29(3):
[8] S.29(5) provides:
[9] S.29(6) provides:
[10] Appeal ground 1
[11] The Commissioner acknowledged that there existed an agreement between the appellant and Dr Saba in respect to care plans. He noted that Dr Saba had seen one of the appellant's patients, Mrs R (and maybe others), whilst the appellant was on leave. The evidence reveals that the appellant was very upset about him doing so and was also annoyed that he had not named her as Mrs R's General Practitioner on the care plan form. There then followed a flurry of emails from the appellant to Dr Saba in which she advised Dr Saba that as he had seen Mrs R in her absence she now refused to see her and she was referring Mrs R back to him.2 Mrs R had a scheduled appointment with the appellant that afternoon, 23 March 2005. [12] In an email dated 23 March 2005, Dr Saba apologized for his omission in not naming Dr Armstrong as Mrs R's GP on the care plan form. He also instructed the appellant to advise Mrs R that she would no longer be seen by the appellant. It was the appellant's evidence that she had been directed by Dr Saba to see Mrs R and that if she refused their employment relationship "is ended." The appellant's entire case revolves around that conversation alleging that was when Dr Saba had terminated her employment and that such termination was unfair.3 [13] There is some dispute whether Dr Saba said the relationship is ended or will be ended. It seems to us that it matters not whether Dr Saba said is or will be as the action which would trigger the relationship ending was yet to occur. That was the finding of the Commissioner and we agree with his finding. [14] The respondent argued that the appeal ground had not been made out as the uncontested evidence indicated that it was not the first time that Dr Saba had seen Mrs R and that the appellant had conceded in her own testimony that "Normally it would be the regular general practitioner who had the primary care of that patient. Other doctors can perform Care Plans such as locums or other doctors in the practice, but usually if the person's regular doctor was available and had mainly sole care of that patient, it would be expected that that doctor prepare the Care Plan."4 [15] Further the respondent noted that Dr Saba had completed some other care plans in the appellant's absence but these drew no complaint from the appellant, it was only his completing Mrs R's plan that raised the ethical or professional issue. The appellant said in evidence that she had conveyed to staff her frustration with Mrs R who was a complex and demanding patient. She had however, never refused to see her if she was available to do so. [16] The appellant's own evidence supports the practice that if the regular GP is not available the patient can be attended by a locum or another doctor in the practice. Regardless of any agreement or understanding that the appellant would do her own care plans she was not available when Mrs R sought attention and she was attended by Dr Saba. [17] We detect no error in the Commissioner's finding which was open to him on the evidence presented and with which we agree. [18] We reject appeal ground 1. [19] Appeal ground 2
[20] This appeal ground was amended to:
[21] The Commissioner found that it was "implausible" that Mrs Saba would have told the appellant her employment was terminated on 25 March 2005, as the conversation with Mrs Saba was related to the appellant's ongoing two week employment which she had agreed to perform. It was Mrs Saba's evidence that the discussion she had with the appellant on 24 March 2005 was about seeking her to reconsider leaving and that she was "...sure that we could come to some sort of arrangement..."5 [22] The conversation on 25 March between Mrs Saba and the appellant again was to indicate a preference for her to continue in employment with the practice but that if things were going to be unpleasant it would be better that she didn't come back and she could be paid out. It was Mrs Saba's evidence that the appellant told her she had made up her mind and was not returning. [23] The appellant had left her employ by the time the conversations with Mrs Saba took place, accordingly no termination could have been effected by Mrs Saba acting alone or on behalf of the respondent. [24] The Commissioner noted that the ultimatum issued by Dr Saba had not expired by the time the appellant had decided she had been terminated and packed up her belongings. At that time the position was retrievable had the appellant decided to see Mrs R as scheduled. Dr Saba attempted to retrieve the situation but the appellant could not be convinced to continue employment. [25] The Commissioner's findings were open to him, he has made no error. [26] Appeal ground 2 is rejected. [27] Appeal grounds 3 and 4
[28] We have in part addressed appeal grounds 3 and 4 in our response to appeal ground 2 which raises the same issue. It is conceded that Mrs Saba indicated to the appellant that if there was to be any unpleasantness it would be best if she did not resume. That comment however was made in the context that Mrs Saba was of the view that the appellant had resigned her employment. It is irrelevant what the appellant's husband said he heard when listening in to the telephone conversation between the appellant and Mrs Saba. Mrs Saba testified that she understood only the appellant was at the other end of the phone. It was her evidence that she was unaware that Mr Armstrong was listening on a speaker phone to her conversation with the appellant.6 [29] Mrs Saba was doing no more than attempting to arrange the conditions under which the appellant would work the two weeks she had indicated she was prepared to work. Any comment made by Mrs Saba as to the appellant not returning to work was qualified and had nothing to do with the circumstance of the alleged termination of employment. The evidence reveals that many attempts were made to encourage the appellant to continue in employment, at least in the short term but preferably long term. [30] The Commissioner has considered the relevant evidence and taken it into account in his determination and has provided his reasons for such determination. In our view he has made no legal error, or given weight to an irrelevant matter. [31] We reject the submission of the appellant and the reliance on the rule in Browne v Dunn. In a decision of a Full Bench of the Australian Industrial Relations Commission in Xiu Zhen Huang v Rheem Australia Pty Ltd [Print No. PR954993 at 21, 26 and 27] it was said:
[32] We reject appeal grounds 3 and 4. [33] Appeal ground 5
[34] The Commissioner had the advantage of seeing the witnesses and hearing the evidence, he has provided his reason for rejecting the claim that the appellant's refusal to see Mrs R was prompted on ethical or professional grounds. He has noted that if that were so, and those ethical or professional grounds related to Dr Saba seeing the appellant's patient, that such issue could have been discussed without the appellant deciding not to see Mrs R and refusing duty. To accept the appellant's argument would be contrary to her own sworn evidence which we have referred to in our response to appeal ground 1.7 [35] We reject appeal ground 5. [36] Appeal ground 6
[37] The Commissioner found that the appellant had repudiated her contract of employment and that there was no termination of employment by the respondent. He noted also that the employment contract required notice of 4 weeks by either party. That is a statement of fact.8 [38] The ground is not made out and must fail. [39] The Commissioner made no error or acted on a wrong principle. [40] We reject appeal ground 6. [41] Appeal ground 7
[42] The Commissioner referred to the ongoing negotiations in respect to remuneration and conditions of employment which were a fact. Those comments related to the "frenetic negotiations around remuneration and conditions of employment beyond the instant contract" particularly as this case is all about an alleged unfair dismissal. The Commissioner considered the behaviour `incongruous' and we agree with his observation. He expressed the view that it may well have been those negotiations which caused the over reaction of both parties to the "seemingly minor issue" of the care plan and Mrs R.9 It is not unusual that negotiations for new contracts are undertaken whilst a current contract is in place. The Commissioner's finding would not seem to have any bearing on his conclusions reached. [43] We detect no mistake in the Commissioner's finding which addressed a factual situation. Likewise his comment that neither party brought the issue to his attention is also a matter of fact. [44] We reject appeal ground 7. [45] Appeal ground 8
[46] This appeal ground is misconceived. The reference to the evidence of Dr Saba is found at para 49 of the Commissioner's decision where it is noted that "Counsel for the applicant attempted to paint a less that favourable picture of Dr Saba both ethically and professionally." The Commissioner found that the answers of Dr Saba in respect to those assertions were direct, consistent, logical and plausible. The transcript references relied upon by the appellant are not relevant to the issue the Commissioner was addressing in para 49. Any finding made by the Commissioner in regard to the issues addressed in para 49 is unrelated to his finding that the appellant's employment was not terminated by Dr Saba. [47] Appeal ground 8 is rejected. [48] Appeal ground 9
[49] The appellant has relied on all of the previous grounds in support of appeal ground 9. As we have rejected all grounds of appeal this ground also must fail. [50] Appeal ground 9 is rejected. [51] The appellant argued the following additional grounds of appeal: [52] Appeal ground 10
[53] The appellant argued that the issue of an unprofitable employment arrangement had never been raised with her and claims that the ultimatum was related to that situation rather than the issue with Mrs R. The transcript reference relied on by the appellant is a discussion between the Commissioner and Dr Saba where the earlier contract negotiations were raised and there is no evidence to suggest that the dispute between the parties which caused the appellant to `repudiate her contract of employment' was related to any unprofitable employment arrangement. The reference to s.30(7) of the Act is misconceived as the Commissioner found there was no termination at the initiative of the employer which would attract the provisions of s.30(7). [54] The incident which caused the termination was that related to Mrs R and the appellant's refusal to see her after being directed to do so. This appeal ground is fanciful. [55] Appeal ground 10 is rejected. [56] Appeal ground 11
[57] The appellant relies on her own evidence10 to support this ground of appeal. That evidence has been rejected by the Commissioner who said at para 52 that the appellant "...had decided to leave, [she had] packed up her belongings well before the ultimatum had been triggered." [58] It was the appellant's evidence that she then "...commenced to pack up my belongings and notified the staff that I would be unavailable for the rest of the day."11 [59] Such finding was open to him and we detect no error. [60] Appeal ground 11 is rejected. [61] Appeal ground 12
[62] Dr Saba rejected the appellant's claim that she had been terminated. In a letter dated 23 March 2005 the appellant, whilst claiming she had been terminated, offered to continue working for a further two weeks. [63] By letter dated 23 March 2005 Dr Saba sought that the appellant honour the terms of her agreement with him and complete the initial 12 months and "ideally we would like to negotiate a further 12 months". Nevertheless if the appellant did not wish to continue her employment she was asked to provide one months notice as provided in her employment agreement. The appellant proceeded to pack up her belongings. Dr Saba said he expected to see her at work the following day. [64] This ground of appeal is misconceived as the Commissioner found that there was no termination of employment by the respondent, accordingly the requirement to prove a valid reason does not exist. [65] We reject appeal ground 12. [66] The Commissioner has addressed all of the issues raised and we find no error in his approach or the manner in which he has dealt with the evidence and we agree with his conclusions. We also agree with his comment that both parties over reacted to an issue that should have been capable of simple resolution. The Commissioner found that the appellant had `repudiated her contract of employment'. The Act requires that an applicant who alleges that his or her employment has been unfairly terminated has the onus of proving that the termination was unfair, in this matter the appellant has not satisfied that onus. [67] We reject the appeal and confirm the decision of Commissioner McAlpine.
P L Leary Appearances: Date and place of hearing: 1 Original decision para 39
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