1
[2013] FWCFB 4515
DECISION
Fair Work Act 2009
s.604—Appeal of decision
Barwon Health - Geelong Hospital
v
Dr Mark Colson
(C2013/3409)
Dr Mark Colson
v
Barwon Health - Geelong Hospital
(C2013/3427)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER LEE MELBOURNE, 15 JULY 2013
Unfair dismissal appeal - s.604 Fair Work Act 2009 (Cth) - significant errors of fact - in the
public interest to grant permission to appeal - appeal upheld - reinstatement order quashed -
dismissal harsh - remedy referred to a Member for rehearing.
1. Introduction
[1] Dr Mark Colson was dismissed from his employment as an anaesthetist with Barwon
Health on 30 May 2012, for serious misconduct. Dr Colson made an unfair dismissal
application to the Fair Work Commission (the Commission). Dr Colson’s application for
relief was heard by Commissioner Roe on 14, 15, 22 and 30 January 2013 and his reasons for
decision were published on 11 February 2013.1
[2] The Commissioner found that Dr Colson had engaged in misconduct and that there
was a valid reason for the termination of his employment,2 but having regard to a number of
other relevant factors the Commissioner concluded that the termination of Dr Colson’s
employment was unfair. The evidence concerning Dr Colson’s clinical expertise and
performance over 14 years at Barwon Health was a significant factor in favour of the
Commissioner’s finding that the termination of Dr Colson’s employment was harsh or
disproportionate. The Commissioner also had regard to the evidence concerning the
significant impact of the dismissal on Dr Colson’s reputation and on his ability to find
suitable employment in the Geelong area where he lives.
[3] As to remedy, the Commissioner was satisfied that there was a sufficient level of
cooperation for a proper working relationship to resume and he ordered that Dr Colson be
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 4515
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reappointed to the position in which he was employed immediately before the dismissal. The
Commissioner declined to make an order for lost remuneration because of Dr Colson’s
misconduct and his lack of insight into the significance of that misconduct.3
[4] Barwon Health seeks permission to appeal the Commissioner’s decision; that the
appeal be allowed; the decision set aside and Dr Colson’s application for relief be dismissed
(the appeal). Dr Colson also seeks permission to appeal, but on a narrower basis. Dr Colson’s
appeal relates to the Commissioner’s decision not to make an order to restore lost pay, (the
cross appeal).
[5] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way
of rehearing and the Commission’s powers on appeal are only exercisable if there is error on
the part of the primary decision maker.4 There is no right to appeal, rather an appeal may only
be made with the permission of the Commission.
[6] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the
Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a
decision made under Part 3.2 unless the Commission considers that it is in the public interest
to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made
on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of
the Act manifests an intention that the threshold for a grant of permission to appeal is higher
in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[7] The public interest test in s.400(1) is not satisfied simply by the identification of error
or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full
Bench of the Tribunal identified some of the considerations that may attract the public
interest:
“... the public interest might be attracted where a matter raises issue of importance and general
application, or where there is a diversity of decisions at first instance so that guidance from an
appellate court is required, or where the decision at first instance manifests an injustice, or the
result is counter intuitive or that the legal principles applied appear disharmonious when
compared with other recent decisions dealing with similar matters...”5
[8] For the reasons which follow we have decided that it is in the public interest to grant
Barwon Health’s application for permission to appeal and to uphold the appeal. In our view,
the Commissioner made significant errors of fact in his consideration of whether there was a
valid reason for the termination of Dr Colson’s employment. However, like the
Commissioner, we have concluded that Dr Colson was unfairly dismissed. We remit the issue
of remedy to Deputy President Gostencnik for determination. As the question of remedy is to
be reheard there is no need for us to consider the cross appeal.
2. The Barwon Health Appeal
[9] It was common ground that Dr Colson was a person ‘protected from unfair dismissal’
within the meaning of s.382 the Act. It was also agreed that Dr Colson had been ‘dismissed’
(within the meaning of s.386) and that the dismissal was not a case of genuine redundancy
and nor did it relate to Dr Colson’s performance. The ‘Small Business Fair Dismissal Code’
was not relevant in the circumstances of this matter.
[2013] FWCFB 4515
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[10] The main issue in the proceedings at first instance, and on appeal, was whether
Dr Colson had been ‘unfairly dismissed’. This issue required a finding to be made as to
whether or not the dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets
out the criteria in relation to this issue:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[11] At first instance, and on appeal, the central issue in dispute was whether there was a
‘valid reason’ for Dr Colson’s dismissal, within the meaning of s.387(a).
[12] The reasons for Dr Colson’s dismissal are set out in the letter terminating his
employment.6 This letter is Annexure PW3 to the witness statement of Mr Peter Watson. A
copy of the termination letter is set out at Attachment 1.
[13] Barwon Health gave two reasons for Dr Colson’s dismissal:
(i) Knowingly and willing submitting claims for ‘Relative Value Guide’ (RVG)
payments in breach of Barwon Health billing guidelines and directives
provided to him to comply with those guidelines (the first allegation); and
(ii) Publication of a letter dated 23 March 2012 to the entire Department of
Anaesthesia that was said to be intended to be deliberately offensive, a genuine
challenge to the authority of management and designed to embarrass Barwon
Health and damage its reputation (the second allegation).
[14] The Commissioner found that the first allegation could not be substantiated because
the billing guidelines and directives did not clearly exclude the billing methodology utilised
by Dr Colson. The Commissioner also found that Dr Colson had not repeatedly refused to
[2013] FWCFB 4515
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comply with policy or directives and nor did Dr Colson state that he would not comply with
policy or directives in the future.
[15] The Commissioner found that the second allegation was substantiated, in part, in that
the letter of 23 March 2012 contained unwarranted personal attacks on managers and the
distribution of these comments throughout the Department of Anaesthesia constituted
misconduct.
[16] Barwon Health submits that a number of the factual findings which underpin the
Commissioner’s conclusions were wrong. Before turning to deal with each of these matters
we propose to say something about the general approach to challenging factual findings on
appeal.
[17] In the joint reasons in Fox v Percy,7 in a passage which has been applied since,8
Gleeson CJ, Gummow and Kirby JJ said:
“[23] [An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in
the case of any appellate court proceedings wholly or substantially on the record.9 These
limitations include the disadvantage that the appellate court has when compared with the trial
judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which
an appellate court reading the transcript, cannot always fully share.”10
[18] The judgment of the High Court in State Rail Authority of New South Wales v
Earthline Constructions Pty Ltd11 is also relevant in this context. In Earthline the trial judge
had rejected the evidence of the State Rail Authority’s principal witness, Mrs Page, whose
testimony had been corroborated by the evidence of two other witnesses (Mrs Meek and
Ms Packham), neither of whom had been cross examined. Gaudron, Gummow and Hayne JJ
said the following in relation to these circumstances:
“[62] The [State Rail Authority] contends that the trial judge was in error in three respects. First,
the trial judge failed to give sufficient attention to all the evidence of the case, especially that
of Mrs Meek and Ms Packham, as well as the extensive documentary evidence, in evaluating
the evidence of Mrs Page. Secondly, the trial judge applied the incorrect standard of proof in
analysing the evidence led by the [State Rail Authority]. And thirdly, the trial judge
misdirected himself as to the relevant issue concerning the certification of the dockets. For the
reasons outlined above when reviewing the judgments of the trial judge and the Court of
Appeal, the [State Rail Authority] has established each of these grounds.
[63] It is true that the trial judge, in determining whether to accept the evidence of Mrs Page,
was heavily swayed by his impression of her whilst giving oral evidence. However, this
circumstance does not preclude a court of appeal from concluding that, in light of other
evidence, a primary judge had too fragile a base to support a finding that a witness was
unreliable [their Honours cited Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at
496-7; ALR. See also Voulis v Kozary (1975) 7 ALR 126; 50 ALJR 59; Chambers v Jobling
(1986) 7 NSWLR 1]. The documentary evidence in this case, comprising unchallenged
affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of
Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis
of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the
allegations made by Mrs Page.
[64] As Kirby J and Callinan J point out in their reasons for judgment, these were matters to
which weight was not given either by the trial judge or the Court of Appeal. The substance of
[2013] FWCFB 4515
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the matter is that there has not yet been a determination of the SRA’s case upon a
consideration of the real strength of the body of evidence it presented. There must be a new
trial at which this consideration will be undertaken.”
[19] And at [154] Callinan J said:
“[154] The evidence of Mrs Page was therefore corroborated in material particulars by
Mrs Meek and Ms Packham. It was given further force by the respondents’ decision not to
cross-examine those corroborators, the failure of the respondents to call any evidence in
refutation, and by the attempts at subornation by Messrs Davies, matters to which neither the
trial judge nor the Court of Appeal accorded any weight.”
[20] Kirby J was in general agreement with the approach of Callinan J.12
[21] There are differences between the circumstances in Earthline and those in these
proceedings. In Earthline, the witnesses (Mrs Meek and Ms Packham) had not been cross
examined to suggest their account was incorrect, hence their evidence was uncontradicted
corrobative evidence. In the proceedings to which these appeals relate, that was not so. At
least in relation to the critical factual contests (e.g. what was said during the meeting of
22 December 2011), the relevant witnesses were cross examined.
[22] A similar situation was considered by the Full Federal Court in Director, Office of the
Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy
Union,13 in which Besanko and Perram JJ said:
“[70] There are differences between the situation which obtained in Earthline and that obtaining
in this case. . . Mr Bell’s evidence did contradict the account given by each of Mr Sawyer, the
foreman and the project manager. Indeed, it was on this basis that his Honour had rejected
each of their evidence. Earthline, on the other hand, was a case where one could not dismiss
Mrs Page’s evidence without reconciling that finding with the uncontradicted evidence of
Mrs Meek and Ms Packham. This led the CFMEU and Mr Bell to submit that Earthline was to
be understood as ‘a case of glaring improbabilities or uncontested evidence not brought into
account’. This is, indeed, a distinguishing feature from Earthline. We would not accept that by
itself, however, it is sufficient to make inapplicable the point that Earthline makes. That point
is that a trial court must consider the evidence as a whole including, where relevant, how that
evidence internally relates to itself.
[71] Here the constellation of facts is a little different, although, we believe, not materially so.
One of the strengths of the appellant’s case was that the three witnesses all contended that
Mr Bell had made statements to them of a particular kind. One finding consistent with that
evidence was that they all gave that evidence because, in fact, it had been said. Further, if one
were to accept that Mr Bell had said such things in one of the conversations, that made it much
more likely that they had been said in the others. Consequently, as in Earthline, the evidence
of each of Mr Sawyer, the foreman and the project manager was corroborative of the evidence
of each of the others.
[72] For that reason it was necessary for the trial judge to consider that corroborative effect if
he was to discharge his obligation to consider all of the evidence. The only difference between
this case and Earthline is that the corroborative evidence in Earthline was uncontradicted.
However, we do not think that is a sufficient reason to distinguish it.”
[23] Applying the above observations to these appeals, the Commissioner was obliged to
consider the evidence as a whole. In discharging that obligation it was necessary for him to
[2013] FWCFB 4515
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consider the corrobative effect of the evidence and how the evidence internally relates to
itself.
The First Allegation - Failure to Comply with Directives
[24] It is convenient to group the grounds of appeal filed by Barwon Health by reference to
the two allegations made against Dr Colson. Appeal grounds 1, 2, 5 and 10 concern the
Commissioner’s conclusion in relation to the first allegation, and certain factual findings
which support that conclusion.
[25] There are two aspects to the first allegation, namely that Dr Colson knowingly and
willingly submitted claims for RVG payments:
(i) in breach of Barwon Health billing guidelines; and
(ii) in breach of directives given to Dr Colson.
[26] As to the first aspect of the allegation against Dr Colson, the Commissioner decided
(at [48]) that the Barwon Health billing guidelines in place prior to Dr Colson’s dismissal did
not ‘explicitly rule out the methodology utilised by Dr Colson’. At paragraph [49] of his
decision the Commissioner said:
“[49] I am satisfied that prior to the termination the policy was not clearly documented in a
policy or guidelines document in a manner that would exclude Dr Colson’s methodology . . .”
[27] There is no challenge to this aspect of the Commissioner’s decision. It is the
Commissioner’s conclusion in relation to the second aspect of the allegation which is
challenged by Barwon Health on appeal.
[28] The issue in contention is whether Dr Colson submitted claims for payment in breach
of a directive given by Barwon Health as to the billing practice to be followed when working
in two theatres concurrently. The Commissioner’s conclusion in respect of this matter is set
out at paragraph [144] of the Commissioner’s decision:
“I am satisfied that it has not been established that Dr Colson ‘knowingly and willing’ submitted
claims for RVG payments in breach of Barwon Health billing guidelines and directives
provided to you to comply with those guidelines.”14
[29] Before turning to Barwon Health’s challenge to this finding it is necessary to provide
some information about the methodology associated with claims for RVG payments.
[30] RVG payments are payments calculated in accordance with the ‘Relative Value
Guide’ (‘RVG’) published by the Australian Society of Anaesthetists and reproduced in full
in the Australian Medical Association’s list of medical services and fees publication. The
RVG is designed to assist anaesthetists in the determination of the fees charged for
professional anaesthetic services. It expresses the relative value of the various components in
the delivery of anaesthesia services. Dr Grutzner deals with the RVG in this evidence:
“The relative value of an anaesthetic service has three main components;
4.1 A basic unit allocation for the surgical or diagnostic procedure.
[2013] FWCFB 4515
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4.2 Time units. The time is expressed as one unit per fifteen minutes or part thereof for the
first two hours and as one time unit or part thereof per ten minutes or part thereof for
additional time beyond two hours. The RVG is premised on the fact that an
anaesthetist is providing exclusive one on one care of a patient and can only charge for
the care of one patient at any time.
4.3 Modifying units are applicable for other factors such as extremes of age, the presence
of severe systemic disease and the presence of emergency surgery.
4.4 Additional units may be added for anaesthesia consultations, specialised forms of
invasive catheterisation and monitoring, perioperative nerve blocks performed as
adjuncts to provide postoperative analgesia, and for special procedures such as blood
transfusions, autologous blood collection, double lumen endobronchial intubation and
awake fibreoptic intubation.
These components when added together give the total relative value for the service. A dollar
amount is assigned per unit and the total fee for anaesthesia services determined. The ASA
advises each year on what it considers as a reasonable maximum unit value but does stress that
each anaesthetist must determine their own unit value for each patient.”15
[31] In March 2012 the dollar value attributed to a unit was $32.
[32] The AMA-Barwon Health Full Time Anaesthetists Certified Agreement 2001 (which
applied to Dr Colson’s employment by Barwon Health) refers to the RVG as the document by
reference to which after hours work should be billed and paid.
[33] The first allegation centres on Dr Colson’s billing practices in circumstances where he
was working in two theatres which were operating concurrently. Dr Grutzner’s evidence was
that operating sessions often overlap in the public hospital system and:
“. . . it is entirely ethical and professional for an anaesthetist to provide anaesthesia services in
one theatre whilst supervising a trainee or less experienced medical colleague in another
theatre at the same time. This practice is widespread at public hospitals in Victoria.”16
[34] The RVG does not deal with the circumstances where an anaesthetist is working in
two theatres concurrently as it is premised on the proposition that anaesthetists provide
exclusive care to one patient at a time. The billing practice in these circumstances is dealt
with by local arrangement between the hospital and the specialist.
[35] Drs Gordon and Tomlinson (respectively the Director and Deputy Director of the
Barwon Health Department of Anaesthesia Perioperative and Pain Medicine) gave evidence
that since 2001 the ‘local arrangement’ at the Geelong hospital was that when two theatres
were operating concurrently only four time units per hour could be claimed (one ‘time unit’ is
15 minutes or part thereof). In the proceedings at first instance the Commissioner accepted
that only Dr Colson submitted claims on a different basis.17 The Commissioner deals with
Dr Colson’s practice at paragraphs [23] and [24] of his decision:
“[23] Dr Colson accepts that he interpreted the policy in the manner proposed by
Dr Tomlinson and Dr Gordon until payroll told him that he had to put a finish time at the end
of each sheet of four patients. From then on his practice was: “Where such a period spanned
more than one claim form, my long-standing practice was to record the time of starting the first
case on each subsequent claim form as the end time on the previous claim form.” Dr Colson
accepts that the capacity to claim for dual theatre operation has been in place since
approximately 2001 and it has become more common in recent years.
[2013] FWCFB 4515
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[24] Dr Colson’s practice is demonstrated by his March claims. The start time for the first
procedure on each sheet was recorded and that time was also recorded as the finish time on the
earlier sheet. So for example the first sheet specified a start time of 8.30 and a finish time of
11.20 and the second sheet specified a start time of 11.20 and a finish time of 15.40. The time
units claimed for these two sheets was 30 units but the actual time span was 7 hours and ten
minutes which under the policy alleged by the Respondent was only 29 units. It should be
noted that the Respondent accepts that part of 15 minutes is paid as with the RVG if the total
is not a multiple of 15 minutes.”18
[36] The Commissioner accepted (at [26]) the evidence of Drs Gordon and Tomlinson that
when two theatres are operating concurrently the finish time specified at the end of the billing
form is a nominal, rather than an actual time. This practice is explained at paragraph [25] of
his decision:
“[25] Dr Gordon and Dr Tomlinson say that a time is required at the start and finish of each
form but that at the end of the form if simultaneous operations are continuing it is not
reasonable to put down an actual finish time which relates to a specific patient because,
although there will be an end time for one patient, activity in respect to another patient will be
continuing. Hence it is obvious in the view of Dr Gordon that the nearest 15 minute period
should be specified as the end time on one sheet and the start time of the subsequent sheet.
Dr Colson refers to such times as imaginary.”19
[37] Against that background we now return to the issue of whether Dr Colson submitted
claims for payment in breach of a directive given by Barwon Health. This issue turns on what
was discussed at a meeting between Dr Colson and Drs Tomlinson and Gordon on
22 December 2011, and an email sent by Dr Tomlinson to Dr Colson on the same day. The
relevant facts are as follows.
[38] An audit of Dr Colson’s on call claims for 15 and 18 December 2011 showed that, due
to the billing method used by Dr Colson, he had lodged claims for payments for after hours
work performed when providing services to patients in two operating theatres concurrently at
a rate in excess of 4 units per hour.20
[39] On 22 December 2011 a meeting took place between Dr Colson and Drs Tomlinson
and Gordon. Drs Tomlinson and Gordon gave evidence that at that meeting Dr Colson was
told that when running two theatres concurrently afterhours time attendance was to be
claimed at a rate of 4 units per hour and that the claim he had lodged for 15 and 18 December
2011 would be reduced to 4 units per hour. Two instances of over-charging were discussed.
The net result was an increase in the payments due to Dr Colson.
[40] At 6.33pm on 22 December 2011 Dr Tomlinson sent an email to Dr Colson. The email
purports to summarise what had been discussed at the meeting earlier that day.21 A copy of
the email is set out at [68] of this decision.
[41] Dr Colson did not reply to this email, nor challenge its contents at any time prior to
8 March 2012.22
[42] On 4 March 2012 Dr Colson submitted a claim for 6 units per hour in relation to
afterhours work when he was working in two theatres concurrently.
[2013] FWCFB 4515
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[43] The 4 March 2012 claim for payment provided the basis for one of the
allegations that Dr Colson had knowingly and willingly submitted claims for RVG
payments in breach of the directions provided to him by Barwon Health. The Commissioner
concluded, at [144], that on the evidence before him this ground of termination was not
established. He also concluded, at [158], that neither Dr Colson’s written demand for an
apology on 28 March 2012 nor his responses during a meeting with Barwon Health
management on 14 May 2012 could properly be interpreted as a refusal to comply with
Barwon Health billing guidelines in the future (we return to these matters later). Barwon
Health submits that these findings are underpinned by significant errors of fact.
[44] Barwon Health challenges a number of the factual findings which underpin the
Commissioner’s conclusion in respect of the first allegation and contends that the
Commissioner made a number of ‘significant errors of fact’, within the meaning of s.400(2),
in respect of three matters:
(i) the meeting between Drs Colson, Tomlinson and Gordon on 22 December
2011;
(ii) the email of 22 December 2011; and
(iii) Dr Colson’s ‘ongoing refusal to comply with the 22 December 2011 billing
directive’.
[45] We now turn to the alleged significant errors of fact.
(i) The meeting between Doctors Tomlinson, Gordon and Colson on 22 December
2011
[46] It is common ground that on the afternoon of 22 December 2011 Dr Colson met
with Drs Tomlinson and Gordon and that this meeting followed an audit of claims for
payment lodged by Dr Colson. Both Dr Gordon and Dr Tomlinson gave evidence that during
this meeting:
(i) Dr Colson was given a clear direction as to the correct methodology for billing
afterhours work when working in two operating theatres concurrently; and
(ii) Dr Colson agreed that he would comply with that direction in the future.23 This
evidence includes a verbatim account from Dr Gordon of what he said to
Dr Colson, including telling Dr Colson that such claims could be treated as
fraudulent with the associated risks to Dr Colson’s reputation. It also includes
Dr Gordon’s account of how he demonstrated to Dr Colson during the
meeting on a sheet of paper the correct method for claiming out of hours
dual theatre operations work.
[47] Dr Colson’s evidence was that there was no discussion about these matters during the
meeting24 and that he did not understand how the hospital wanted him to bill for after hours
work when working in two operating theatres concurrently, until March 2012.25
[48] Dr Tomlinson corroborated Dr Gordon’s account of this meeting and described as
“fundamentally untrue”26 Dr Colson’s account that there had been no discussion during
the meeting of what Barwon Health regarded as the correct methodology for billing after-
hours dual theatre operations work.27 Dr Tomlinson’s evidence was that during the meeting
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he told Dr Colson that the claim submitted incorrectly could be treated as fraudulent.28 His
evidence was that Dr Colson specifically agreed during the meeting that 4 units per hour
was the appropriate calculation for time units29 and that, according to Dr Tomlinson, the
meeting was designed as an educative process such that subsequent behaviour inconsistent
with the direction would require a disciplinary process.30
[49] The evidentiary conflict about what was discussed at the meeting on 22 December
2012 required findings to be made about three critical matters:
(i) Was there a discussion about the methodology for claiming time units for dual
theatre operations?
(ii) Was Dr Colson given a clear direction as to the correct methodology for billing
after hours work when working in two operating theatres concurrently?
(iii) Did Dr Colson agree to comply with that direction?
[50] The Commissioner made express findings in respect of matters (i) and (iii), we return
to matter (ii) shortly.
[51] As to matter (i), at [73] of his decision the Commissioner found that the method for
claiming time units for dual theatre operations was discussed at the meeting of 22 December
2011. This finding implicitly rejected Dr Colson’s evidence that there was no discussion
about this issue at the meeting.
[52] As to matter (iii) the Commissioner rejected the evidence of Drs Tomlinson and
Gordon that Dr Colson had agreed that he would comply with the billing requirements from
that time, for the reasons given at [74] of his decision. The Commissioner’s finding in respect
of this issue was as follows:
“[74] Doctors Tomlinson and Gordon say that the Applicant at the 22 December 2011
meeting agreed that he would comply with the billing requirements from that time on ...
I am not satisfied that Dr Colson was as definitive as suggested by Doctors Tomlinson and
Gordon. It is more likely that there was a failure to contest rather than a positive agreement.”
[53] In our view, this finding was erroneous and it constitutes a ‘significant error of fact’
within the meaning of s.400(2).
[54] The Commissioner’s rejection of the evidence of Drs Tomlinson and Gordon is based
on two matters:
(a) that evidence ‘does not sit well with the Applicant’s almost belligerent
response on this issue when it was raised again in March 2012’; and
(b) it is not consistent with the nature of Dr Tomlinson’s email of 22 December
2011.
[55] As to the second matter the Commissioner says, at [74]:
“The tone of that email suggests that Dr Tomlinson was not convinced that the Applicant was
going to change his practices. If the Applicant had so clearly agreed to comply it would not
have been necessary to set out the matters in such detail.”
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[56] This was not a circumstance where the Commissioner was resolving an evidentiary
conflict between witnesses; it will be recalled that Dr Colson’s account was that the issue of
charging 4 units per hour was not even discussed during the meeting.31 The Commissioner’s
finding in respect of this issue was an inference he drew from other facts. As the majority of
the High Court observed in Warren v Coombes:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper
inference to be drawn from facts which are undisputed or which, having been disputed, are
established by the findings of the trial judge. In deciding what is the proper inference to be
drawn, the appellate court will give respect and weight to the conclusion of the trial judge but,
once having reached its own conclusion, will not shrink from giving effect to it.”32
[57] In our view, the matters relied upon by the Commissioner do not provide a proper
basis for rejecting the evidence of Drs Tomlinson and Gordon regarding the agreement of
Dr Colson to comply with Barwon Health’s billing requirements. The ‘tone’ of the 22
December 2011 email does not justify the rejection of the clear, corroborated evidence of Drs
Tomlinson and Gordon. We return to the email of 22 December shortly. It is also relevant to
note that it was never put to Drs Tomlinson and Gordon that rather than positively agreeing to
comply with the requirement of billing 4 units per hour, Dr Colson was not as definitive and
that he simply did not contest the billing requirements put to him. The Commissioner’s
inferential finding did not accord with any of the evidence given by Drs Tomlinson, Gordon
or Colson, and was not open to him.
[58] The Commissioner was required to have regard to all of the evidence in the case and in
discharging that obligation was required to consider the corroborative effect of the evidence
of Drs Gordon and Tomlinson.33 In rejecting the evidence of Drs Tomlinson and Gordon in
respect of what had been agreed with Dr Colson during the meeting of 22 December 2011 the
Commissioner failed to have sufficient regard to the fact that Dr Colson and Dr Gordon
corroborated each other’s account of what occurred during the meeting on 22 December 2011
and there was no direct evidence to the contrary - Dr Colson simply denying that the issue
was discussed (evidence which the Commissioner rejected).
[59] In this regard, it is relevant to note that the Commissioner made an express finding, at
[273], that he ‘was impressed by the integrity of both Dr Tomlinson and Dr Gordon’ and, save
for the finding at [74], the Commissioner made no adverse findings of any substance
regarding the evidence given by Drs Tomlinson and Gordon.
[60] Dr Colson’s billing practices in January and February 2012 are also relevant. The
Commissioner deals with this issue at [86]-[90]:
“[86] Dr Tomlinson gives evidence that the claim forms submitted by the Applicant
subsequent to the meeting of 22 December 2011 and prior to the 4 March 2012 claim (claim
forms dated 31 December 2011, 6 January 2012 and 21 February 2012) were all completed
appropriately as far as time units were concerned and consistent with the email of 22
December 2011. This suggests that the Applicant understood the methodology set out in the
email and was complying with it.
[87] This matter was put to the Applicant in the meeting of 14 May 2012 and he did not
challenge the fact but suggested that it may be because the times happened to coincide with
multiples of 15 minutes.
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[88] In the proceedings Dr Colson responded to this as follows:
‘What you did in the ensuing three months of - or these two months of January and
February 2012, was you did bill in accordance with the four units per hour rate for
dual operating theatres, didn’t you?---Well, so I’m told, but I can only conclude that
the real times happened to coincide with Colin’s preferred system during that period. I
didn’t change - - -
You didn’t intentionally comply. Is that what you’re saying?---Sorry?
You didn’t intentionally comply with 4.4.1?---No. I don’t believe I did anything
differently until 4 March.
It’s a coincidence, you say, that your claim forms complied with the rule in the interim
period?---I guess so.’
[89] The Respondent did not produce the claim forms but in cross examination
Dr Tomlinson said that he had the forms with him and could produce them.
[90] I consider it to be unlikely that the finish times for the patients in one theatre would
have coincided with exact quarter hours. However, I cannot exclude the possibility that the
Applicant’s forms complied with the methodology sought by Dr Tomlinson by coincidence
rather than design.”34
[61] Barwon Health contends that the Commissioner ‘failed to make a decision one way or
the other on this important issue’ and that he was required to make a finding as to whether Dr
Colson complied with the 22 December 2011 directive during January and February 2012. It
is submitted that the Commissioner should have found that Dr Colson did comply with the 22
December 2011 directive during January and February 2012. We agree.
[62] Dr Colson did not dispute that the claim forms lodged in January and February 2012
were consistent with the directive said to have been given on 22 December 2011, but said that
such compliance was coincidental rather than deliberate.35 Barwon Health submits that
Dr Colson’s evidence on this issue was ‘simply not credible, especially as his criticism on the
directive was that it involved claiming for ‘imaginary times’ rather than actual times
worked’36
[63] In our view the evidence supports a finding that Dr Colson’s billing practices in
January and February 2012 were consistent with his compliance with a directive given to him
during the meeting of 22 December 2011. As the Commissioner observed, it is ‘unlikely that
the finishing times for the patients in one theatre would have concluded with exact quarter
hours’. The more likely explanation is that Dr Colson was complying with a directive given to
him by Drs Tomlinson and Gordon on 22 December 2011.
[64] We note the Commissioner’s observation that he ‘cannot exclude the possibility’ that
Dr Colson’s forms complied with the methodology sought by Dr Tomlinson ‘by coincidence
rather than design’. This observation is, with respect, based on a misconception about the
appropriate standard of proof. The Commissioner had to determine this factual issue on the
balance of probabilities. The observation that he could not ‘exclude the possibility’ that Dr
Colson’s compliance was by coincidence rather than design, seems predicated on the
application of a higher standard of proof, namely that of beyond reasonable doubt.
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[65] We now turn to consider whether Dr Colson was given a clear direction as to the
correct methodology for billing after hours work when working in two operating theatres
concurrently.
[66] The Commissioner did not make an express finding on this issue but it may be inferred
that he had concluded that such a direction was given. We draw such an inference from the
Commissioner’s consideration of issue (iii), that is, did Dr Colson agree to comply with such
a direction. Issue (iii) would only need to be considered in circumstances where a direction
had been given, otherwise there would be no need to consider whether Dr Colson had agreed
to comply with such a direction. The inference is also supported by the Commissioner’s
observation, at [143], that ‘the December 2011 meeting . . . could have left Dr Colson in no
doubt about what Dr Tomlinson regarded as the correct methodology for time unit claims’.
[67] If we are wrong about this, and no such finding may be properly inferred, then the
Commissioner has failed to make a finding about a material issue and in those circumstances,
in the context of a rehearing of the matter, we would make a finding that Dr Colson was given
such a direction during the meeting on 22 December 2011. We would make such a finding on
the basis of the evidence of Drs Tomlinson and Gordon, and Dr Colson’s subsequent
compliance with the billing method directive.
(ii) The email of 22 December 2011
[68] The email of 22 December 2011 is set out below.
Colin GORDON
From: SIMON TOMLINSON
Sent: Thursday, 22 December 2011 18:33
To: MARK COLSON
Cc: Colin GORDON
Subject: RVG claims
Dear Mark
Thank you for meeting with myself and Colin to discuss your RVG claims. As discussed:
1. These are legal documents, the accuracy of which is the responsibility of the practitioner, not
the department nor myself or Colin. Once the form has been handed in to Diane it has been
submitted - Di checks the arithmetic but is not in a position to check the veracity of the item
numbers claimed. Colin’s review of submitted claims is not systematic and is intended to assist
and educate staff with the process as it has evolved - not act as a gate-keeper. Staff should not
rely on this to protect them from the consequences of non-compliant claims.
2. Inappropriate claims, if detected by audit or other review constitute poor practice at best, and
would almost certainly be regarded as fraudulent if the behaviour was repeated after
appropriate education.
3. There are guidelines created by the department to clarify areas of uncertainty within the AMA
RVG system which we have discussed at a number of departmental meetings.
4. We will continue to develop our RVG guidelines to minimise the possibility of any
misunderstandings, and in light of our discussions today will include the following
clarifications:
1. Item “CV125 - SUBSEQUENT INJECTION (or revision of infusion) of a therapeutic
substance to maintain regional anaesthesia or analgesia where the period of continuous
medical practitioner attendance is 15 minutes or less” - as discussed we believe that this
item cannot be used in association with an item for anaesthesia for a particular
procedure. On further reflection the time element in the description clearly indicates
[2013] FWCFB 4515
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that this is inappropriate in the setting of a procedure and is intended for the
maintenance of a pre-existing infusion which is primarily being used for analgesia
purposes. None the less, if you wish to clarify this interpretation with the ASA I look
forward to their response. In the meantime we will not support the use of this item in
these circumstances.
2. Items of service which do not attract PM, T modifiers - these are clearly labelled in
the AMA RVG guide. It has been agreed as part of our contract that all individual patient
care episodes after hours attract the M2 modifier and this would include epidurals in
labour and consults where no anaesthesia ensues. It is the responsibility of the
practitioner to ensure that these items are not claimed unless applicable.
3. It is appropriate to claim for an emergency pre-op consult (CA 051) prior to insertion
of a labour epidural.
4. Time units: as part of our employment contract we have an agreement that we can
claim for cases occurring simultaneously, but not “double dip” on the time units.
Therefore
1. While running 2 theatres/anaesthetising locations, time in attendance should be
claimed at the rate of 4 units per hour. Documentation on the claim form must
have start and finish times for each sheet, but they do not have to be accurate
from a specific case perspective. The start and finish times for each period of
attendance must reflect the actual time spent in the hospital. Cases longer than
2 hours occurring during this billing period do not attract the ascending time
unit provision.
2. If a single theatre is operating, the RVG claim for that patient should reflect the
AMA time unit schedule which has an increasing number of units per hour after
the initial 2 hours. If, for example, the one of the anaesthetists present goes off
to put in an epidural during that case, a decision needs to be made as to
whether you are going to claim for multiple cases or the increased time units for
the single case - not both.
3. When calculating the fee for taking over a case, the total RVG value for the case
(on which you are going to base your pro-rata amount) should be based on the
normal RVG calculations with an ascending time unit calculation.
If there are any uncertainties with future claims please don’t hesitate to discuss them with Colin or
myself, prior to submission. I expect that these particular billing mistakes will not occur in future,
and if there are any changes to items in future editions of the RVG guide, I expect that your
association with the ASA should prove valuable in clarifying the way they are to be used as soon as
the new version comes out.
Kind regards
Yours sincerely
Simon
[69] The Commissioner deals with this email at [43] to [76] of his decision. As to whether
the email constituted a clear direction as to the correct methodology for billing after hours
work when working in two operating theatres concurrently, the Commissioner states:
“[58] I am satisfied that the email makes it clear that only 4 units per hour can be claimed
reflecting the total actual time spent in hospital during the dual theatre out of hours session.
The email makes it clear that the times on the sheet do not have to be accurate from a specific
case perspective.
[59] Dr Colson suggests that the email is not clear because it does not say that you cannot
put the actual finish time of a case at the end of each sheet. I reject this submission as an
[2013] FWCFB 4515
15
artificial and pedantic reading. The requirement for only 4 units per hour is to be read in
conjunction with the provision that the times do not have to be accurate from a specific case
perspective.
[60] Dr Colson suggests that it was not clear from the email that the strict 4 units per hour
approach applied in each case given that the option of only claiming for one theatre in cases of
long operations was offered.37 I consider that this exception was clearly understood and did
not detract from the clarity of the approach that if you wish to claim for two theatre operation,
including the units for various item numbers in both theatres then only 4 time units can be
claimed per hour.
[61] Dr Colson suggests that the email does not constitute a direction. In my view there are
some aspects of the email which do constitute a direction and in particular statements:
That incorrect claims may be regarded as fraudulent if repeated after appropriate
education; and
Emphasizing that it is the doctor’s responsibility to get it right; and
Statements urging direct contact with Dr Tomlinson if anything is unclear.
[62] ... I am satisfied that the email was not general advice given that the email was
specifically addressed to Dr Colson and Dr Colson only and that it followed directly upon the
meeting to discuss Dr Colson’s claims...
[75] I am satisfied that the December email does make it clear how Dr Tomlinson wished
Dr Colson to claim time units in the future. There is no ambiguity about the methodology
proposed in the email. However, the December email is not a warning. It is a general direction
to fill in claim sheets correctly and notice that there could be consequences if there was a
continuing failure to do so. There were a range of errors including arithmetic and item number
errors in Dr Colson’s claim.
[76] The December email does leave some question mark about what the final policy
document will be and therefore it doesn’t provide a sound basis for discipline based on breach
of policy, guideline or direction in respect to the method for claiming time units for dual
theatre operation. This is because Dr Colson is a long serving senior employee who in March
2012 asserted a strongly held belief that his practice was consistent with policy and there was
no sound basis for a conclusion that his practice was inconsistent with the written policy. I
also consider it likely that Dr Colson believed when he made a further claim for time units
using his preferred methodology in March 2012 that there was still room for debate,
notwithstanding the explanation given to him and the expectation expressed by Dr Tomlinson
at the meeting and in the email of 22 December 2011.That belief was reasonably open to
him.”38
[70] In our view the Commissioner’s conclusion, at [76], that the email ‘does leave some
question mark about what the final policy document will be and therefore doesn’t provide a
sound basis for discipline based on breach of . . . directions’, was an error. The following
points are clearly made in the email:
only 4 units per hour can be claimed when running two theatres;
the accuracy of submitted RVG claims is the responsibility of the practitioner
(i.e. Dr Colson);
[2013] FWCFB 4515
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inappropriate claims constitute poor practice at best and ‘would almost certainly
be regarded as fraudulent if the behaviour was repeated after appropriate
education’; and
if there are any uncertainties over a future claim then it should be discussed with
either Dr Gordon or Dr Tomlinson, ‘prior to submission’.
[71] In our view the email clearly constitutes a direction that only 4 units per hour be
claimed when running two theatres.
[72] The Commissioner’s conclusion as to the characterisation of the email is based on two
particular passages. The first is in the introductory words to point 4 where Dr Tomlinson says:
“We will continue to develop our RVG guidelines to minimise the possibility of any
misunderstandings ...”
[73] The second passage relied upon is in the concluding paragraph:
“... if there are any changes to items in future editions of the RVG guide, I expect that your
association with the ASA should prove valuable in clarifying the way they are to be used as
soon as the new version comes out.”
[74] The Commissioner’s reliance on these passages in the email is apparent from [63] of
his decision:
“Dr Colson also suggests that the reference to “we will continue to develop our RVG guidelines
to minimise the possibility of any misunderstandings” in a context where he knew the
guidelines were still under development and discussion meant that he should regard the items
listed as a draft and still subject to discussion. I accept that this is a reasonable reading even
though it was not the intention of Dr Tomlinson. Support for Dr Tomlinson’s view that it was a
direction and not open to discussion is given by words “in light of our discussions today (the
guidelines) will include the following clarifications.” The conclusion of the email quoted
earlier reinforces this message where it states: “I expect that these particular billing mistakes
will not occur in the future...” However, the next phrase “and if there are any changes to items
in future editions of the RVG guide, I expect that your association with the ASA should prove
valuable in clarifying the way they are to be used as soon as the new version comes out”
suggests a consultative approach to the finalisation of guidelines.”39
[75] Viewed in context the two passages do not support the Commissioner’s conclusion. It
is important to appreciate that this email was purporting to document what was discussed at
the meeting earlier that day and that during that meeting Dr Colson was given a direction
about the correct methodology for billing after hours work. Nor should the passages relied on
by the Commissioner be viewed in isolation from their context in the email itself.
[76] In relation to the first passage, the email goes on to say:
“. . . and in light of our discussions today [our RVG guidelines] will include the following
clarifications:” [emphasis added]
[77] One of the clarifications mentioned concerned the billing method when working in
two operating theatres concurrently. As to the second passage, it is proceeded by the phrase:
[2013] FWCFB 4515
17
“I expect that these particular billing mistakes will not occur in future . . .”
[78] When viewed in context it is clear that while other aspects of the Hospital’s RVG
guidelines would continue to be developed, the issue of time unit billing when working in two
theatres concurrently was settled.
[79] It follows from the foregoing that during the meeting on 22 December 2011, and in the
email of that date from Dr Tomlinson, Dr Colson was given a clear directive as to the correct
methodology for billing after hours when working in two operating theatres concurrently.
Further, during the meeting on 22 December 2011, Dr Colson agreed to comply with that
directive. The Commissioner’s findings to the contrary constitute ‘significant errors of fact’
within the meaning of s.400(2) of the Act. This is so because these factual findings are central
to the determination of the first allegation. We reject Dr Colson’s submission to the contrary.
[80] We now turn to the question of whether Dr Colson knowingly and willingly submitted
claims for RVG payments in breach of the directive given to him.
[81] Dr Colson submits that his billing practice did not constitute serious misconduct or
provide a valid reason for termination and no error has been demonstrated in the
Commissioner’s conclusion in that regard. Dr Colson rejects the proposition that he submitted
a claim in full knowledge that it was inconsistent with the directive, on two bases. First, it is
submitted that there was no directive:
“The summary in paragraph 15 of the Barwon Health submissions of the email of
22 December 2011 critically omits that the e-mail refers to Barwon Health stating that it
will continue to “develop our RVG guidelines to minimise the possibility of any
misunderstandings”40, together with the final sentence:
I expect that your association with the ASA should prove valuable in clarifying the
way they are to be used as soon as the new version comes out.
It is clear from this that the matter canvassed in the e-mail continued to be under
discussion. The guidelines were a work in progress at that stage: they did not come out
until March 2012, and, as recorded by the Commissioner (at [46]), Dr Gordon
acknowledged that Dr Colson was not in breach of those guidelines.”41
[82] Second it is submitted that there is no evidence that Dr Colson was aware that he was
incorrectly submitting time sheets: ‘he believed his methodology was consistent with the
established practice. The Respondent contends that the Commissioner was entirely correct in
finding that Dr Colson was not seeking to be paid money to which he was not entitled.’42
[83] As we have noted, on 4 March 2012 Dr Colson submitted a claim in relation to after
hours work when he was working in two theatres concurrently. This claim was inconsistent
with the methodology discussed at the meeting on 22 December 2011 and set out in the email
from Dr Tomlinson later that day.
[84] The Commissioner deals with the 4 March 2012 claims in various passages between
[91] and [159]. The Commissioner concluded that:
“[115] ... this is not a situation where false claims were submitted, that is where Dr Colson was
seeking to be paid money to which he was not entitled. I am satisfied that it was a situation
[2013] FWCFB 4515
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where Dr Colson was seeking to contest the right of Dr Tomlinson to change the billing
practice where Dr Colson believed that his methodology was consistent with established
practice and was not in conflict with previously agreed local arrangements, the Agreement or
the RVG.”43
[85] Barwon Health submits that there are numerous flaws in what it describes as ‘this
benign view of the evidence’:
(i) Dr Colson could have sought further discussions regarding billing
methodology with Dr Gordon and Dr Tomlinson. He did not do so. Rather he
submitted a claim in full knowledge that it was inconsistent with the directive at 4.4.1
of the email of 22 December 2011. There is no evidence to support a conclusion that
when Dr Colson lodged the claim for payment on 4 March 2012 he did not expect that
it would not be paid. The only reason it was not paid was that Dr Tomlinson reviewed
the claim and refused to approve it because it sought more than 4 units per hour. But
for the intervention of Dr Tomlinson, Dr Colson would have been paid at the rate in
excess of 4 units per hour. Contrary to the Commissioner’s conclusion at [115],
Dr Colson was seeking a payment which he knew on 4 March 2012 he was not entitled
to receive.
(ii) The finding at [115] is directly inconsistent with Dr Colson’s own
evidence. The sole basis upon which Dr Colson sought to defend his conduct in
lodging the claim on 4 March 2012 was that he did not understand the direction
which he had received verbally and in writing on 22 December 2011 to the effect
that 4 units per hour was the maximum.44 This evidence (which includes a response
from Dr Colson to direct questioning from the Commissioner45 was rejected by the
Commissioner at [75], [141] and [143] of his decision. At no stage did Dr Colson
give evidence that when he lodged the claim on 4 March 2012 he was “seeking to
contest the right of Dr Tomlinson to change the billing practice.”
[86] Barwon Health contends that having rejected the sole basis upon which Dr Colson
sought to justify his conduct in lodging the claim on 4 March 2012 it was not open to
the Commissioner to construct a defence unsupported by any evidence. We agree. The
Commissioner erred in failing to conclude that Dr Colson’s failure to comply with the
direction he received on 22 December 2011 constituted a valid reason for termination of
his employment.
[87] However, contrary to Barwon Health’s submission we are not persuaded that Dr
Colson’s conduct amounted to serious misconduct justifying summary dismissal. After the
direction of 22 December 2011 there was only one instance of Dr Colson making a claim
which was inconsistent with the billing methodology directive (and the difference was only
two time units). Serious misconduct would require clear and cogent evidence.46 The available
evidence does not persuade us that Dr Colson engaged in fraud or that he submitted the 4
March claims dishonestly, for personal financial gain.
(iii) Dr Colson’s ongoing refusal to comply with the 22 December 2011 billing
directive
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[88] After lodging his claim on 4 March 2012 an email exchange took place between
Dr Colson and Dr Tomlinson on 7 and 8 March.47 A copy of that email exchange is attached
to our decision at Attachment 2.
[89] The Commissioner concluded, at [99]-[100]:
“... this email cannot be read as a refusal to abide by the approach to claiming time units
requested by Dr Tomlinson ... Dr Colson is suggesting that compliance might be an outcome
following further process.
This response in a situation where the Applicant says that he did not have the claim forms in
front of him because he had returned them for payment suggests that the Applicant well
understood the issue and that the Applicant’s actions in respect to the claim for time units may
have been conscious and deliberate.”48
[90] Barwon Health submits that in its terms Dr Colson’s email of 8 March 2012 is clearly
a refusal to comply with the direction given to him both verbally and in writing on 22
December 2011. It also submits:
“If all doctors employed by BH took it upon themselves to dictate to management that
compliance with lawful directives “might be an outcome following further process” the
result would be a complete breakdown of the Hospital’s administration. Dr Colson had the
right to raise the legitimacy of the billing directive which he had received from
Dr Tomlinson. He could have done so whilst at the same time complying with the directive.
He did not have any right to simply ignore it. Insofar as Roe C’s reasoning endorses such
conduct of Dr Colson it is seriously flawed.”49
[91] In reply, it is submitted that there is no refusal by Dr Colson, in his email of 8 March
2012, to comply with any directions and nor was there any subsequent refusal by Dr Colson
to comply with ‘lawful billing directions.’
[92] In his Position Statement of 28 March 2012 Dr Colson included an offer to comply
with the direction of 22 December 2012 subject to the conditions that:
BH issues a formal retraction and apology for Dr Gordon’s written accusation
of 23 March 2012 that I have”... knowingly and willingly submitted false
claims for RVG payments.”
BH issues a written undertaking that this matter will never again be raised in
future in any other context.
[93] A copy of the Position Statement is set out at Attachment 3.
[94] The Commissioner concluded at [153] that ‘it was understandable for Dr Colson to
have demanded a formal apology for allegations that he had submitted false claims and that
it be the end of the matter’.
[95] Barwon Health submits that the Commissioner’s reasoning in this regard is ‘ seriously
flawed’. Dr Colson had received a lawful and reasonable directive regarding the manner in
which he was to submit claims for payment for out of hours dual theatre operations. The
evidence of Dr Tomlinson and Dr Gordon (which the Commissioner accepted at [27]) was
[2013] FWCFB 4515
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that all other doctors in the Department were complying with the methodology of billing a
maximum of 4 units per hour. On the Commissioner’s findings of fact Dr Colson
deliberately lodged a claim on 4 March 2012 that was inconsistent with the direction he had
received on 22 December 2011. There is no legitimate basis upon which it could be
concluded that it was “understandable” that Dr Colson should receive an apology in these
circumstances.
[96] During the course of the meeting on 14 May 2012 Dr Colson made a number
of statements which, Barwon Health contends, evidenced an ongoing refusal to abide by the
billing directive of 22 December 2011:
My position is that it is ludicrous to modify and distribute Barwon Health billing
guidelines when the AMA RVG is in place as the long accepted means of
remuneration for afterhours work. I question the very legitimacy of the Barwon
Health Billing Guidelines.50
I intend to continue my longstanding practice and bill in accordance with my
certified agreement until such time as the agreement states otherwise.51
The implication for your question is that the Barwon Health Billing Guidelines are
legitimate. As I have already stated I reject that premise.52
He (Dr Tomlinson) again expressed the opinion that there can only ever be 4 time
units per hour. I rejected this, as sometimes the AMA RVG results in 6 or more time
units in an hour- depending on the case mix.53
[97] During the meeting on 14 May 2012 Dr Colson was asked: “If your employment
with Barwon Health continues do you agree to unconditionally and strictly comply with its
billing guidelines and directives provided to you in regards to billing practices?”
Dr Colson responded “not sure how to answer that”.
[98] The Commissioner concluded, at [158], that he was not satisfied that Dr Colson’s
responses at the 14 May 2012 meeting could “be properly interpreted as refusing to
comply with the Barwon Health billing guidelines in the future. However I am satisfied that
the responses do lead to a conclusion that there was a risk that Dr Colson would not
comply in the future.”
[99] Barwon Health submits that during the meeting on 14 May 2012, Dr Colson was
given an opportunity to unequivocally commit to complying with BH’s billing guidelines
and he declined the opportunity to give an unequivocal undertaking. Further, it is submitted
that the Commissioner erred in failing to have regard to the cumulative effect of the
evidence. It is submitted that when viewed cumulatively, the evidence supported a
conclusion that between 4 March 2012 and 14 May 2012 Dr Colson consistently refused
to provide a commitment to comply with the billing direction he had received on
22 December 2011.
[100] We do not think the conclusion urged by Barwon Health is open based on the evidence
before the Commissioner. The “minutes of disciplinary meeting”54 prepared by Dr Colson, the
accuracy of which was not challenged by Barwon Health records the following question and
response:
[2013] FWCFB 4515
21
“It appears from your written responses to the allegations that you had no intention of
changing your billing practices and complying with the Hospital’s directives in that
regard. Is that correct?”
“Mark – no It’s (sic) not correct stop you’ve received my position paper, and you’ve
seen that I will change my practice to comply with the Barwon Health Billing
Guidelines, but there are conditions attached. I offer to accept Colin’s method of
imaginary time recording but only in the specific circumstance where two operating
theatres are running concurrently. At all other times, I shall insist that the AMA RVG
method of time unit calculation – using actual times – shall be adhered to.”55 (Our
underlining)
[101] The whole billing dispute between Dr Colson and Barwon Health concerned the
billing method adopted by Dr Colson when two theatres were running concurrently. The
response given by Dr Colson and recorded above during the meeting of 14 May 2012 is
unequivocal on this point. Dr Colson says that he will adhere to Barwon Health’s preferred
method of billing when two operating theatres are running concurrently. Dr Colson’s later
response that he was “not sure how to answer that”56, is given to a more generalised question
of whether Dr Colson will agree “to unconditionally and strictly comply with its billing
requirements and directives provided to you in regards to billing practices”57. Doubtless Dr
Colson was hedging his bets because the question was so broad and not confined to the billing
issue in dispute, but when read with his earlier response, Dr Colson’s answer should not be
interpreted in the manner suggested by Barwon Health.
[102] Whatever may have been the position between December 2011 and 13 May 2012, it
seems clear on the evidence that by 14 May 2012, Dr Colson had agreed to comply with
Barwon Health’s billing procedure for periods when two theatres are running concurrently.
The Second Allegation - Dr Colson’s Letter of 23 March 2012
[103] On 23 March 2012 Dr Colson sent a five page letter to all members of the
Anaesthetic’s Department.58 There are 42 specialists in the Department. Dr Colson’s letter
was sent in response to a letter from Barwon Health also dated 23 March 2012.59 A copy of
the Barwon Health letter is attached to this document. In that letter, Barwon Health:
(i) put Dr Colson on notice of allegations of misconduct;
(ii) advised him that, if proven, the behaviour could result in disciplinary action;
and
(iii) directed him to attend a meeting with Barwon Health management to answer
the allegations.
[104] On 11 June 2012 Dr Colson sent a letter of apology in relation to his correspondence
of 23 March 2012. The letter of apology60 is in the following terms:
“Dear David/Tom
As you will be aware, the fallout in the aftermath of my summary termination nearly two
weeks ago is creating dangerously polarised positions.
[2013] FWCFB 4515
22
Bruce Munroe has indicated to me that a simple apology might be all that is required to
reverse this unfortunate turn of events.
Accordingly, I have no hesitation in apologising for any embarrassment the distribution of my
letter of 23 March 2012 may have caused Barwon Health.
As stated in the transcript of the disciplinary meeting of 14 May 2012, the purpose of this
letter was to muster the support of my colleagues. It was not intended to embarrass the
management of Barwon Health.
To put my actions into context, we need to consider my mindset at the time. I had just been
accused (in writing) of submitting false claims for after-hours work. Essentially it is in
allegation of fraud. I completely reject the allegation, and will fight to prove my innocence.
I believe any reasonable person who found themselves falsely accused of fraud would find
their judgment affected in the same way that my judgment was affected as I wrote that letter
on 23 March 2012.
With kind regards,
Dr Mark Colson”
[105] The Commissioner noted that the apology was ‘belated’ but did reject the suggestion
that it was insincere (at [224])61. In the proceedings at first instance Dr Colson ‘apologised’
for the letter, in these terms:
“In retrospect, there are things I wish I hadn’t put in there. In fact I wish I’d never written the
letter, but I have written it. There are things which have upset Colin Gordon and Barwon
Health. I’ve apologised for them. I can’t undo what’s done.”
No?---But I do believe that this is a completely reasonable letter for someone who has been
falsely accused of fraud and threatened with termination after 14 years of excellent service for
a large employer.”62
[106] In relation to the above remarks the Commissioner observed that ‘it was not a
particularly fulsome apology’ (at [226]).
[107] Appeal grounds 3 and 4 concern the Commissioner’s conclusion in relation to the
second allegation, and certain factual findings that support that conclusion. Barwon Health
submits that Dr Colson’s letter provides a valid reason for his dismissal on the basis that it
was intended to be deliberately offensive, a genuine challenge to the authority of management
and designed to embarrass Barwon Health and damage its reputation.
[108] The Commissioner’s consideration of Dr Colson’s letter is set out at [218]-[227] of his
decision and his findings are as follows:
the letter was ‘inappropriate and a disproportionate response to the actions of
management’ (at [221]);
it was a letter ‘written in the heat of the moment ... in response to an allegation of
false claims which was subsequently not proven, much of the letter could be
regarded as inappropriate but not seriously offensive or damaging to the employer’
(at [227]);
[2013] FWCFB 4515
23
there are some aspects of the letter ‘which are an unwarranted personal attacks on
managers ... [the] distribution of these comments throughout the department does
constitute misconduct’ (at [227]);
Dr Colson had ‘a history of this style of communication with his manager and about
his manager’ and ‘Barwon Health took no action between 2007 and 2012 to stop this
style of communication of Dr Colson. Barwon Health tolerated and condoned the
inappropriate communication of Dr Colson [and] did not clearly and directly tell
Dr Colson that his communication style would no longer be tolerated and if it
continued it could lead to his termination’ (at [227]).
[109] It is apparent from [229] of the decision that the aspects of the letter which the
Commissioner decided constituted misconduct were the allegations that ‘Democracy is clearly
not Dr Tomlinson’s preferred political system’ and ‘Although I know you are opposed to the
very concept of copyright’ which was directed at Dr Gordon.
[110] Dr Colson did not resile from these aspects of his letter in cross examination. He
described the letter as ‘completely reasonable’.63 He stated that his observation that
democracy is not Dr Tomlinson’s preferred political system to be ‘ a statement of fact’.64
[111] The Commissioner deals with Dr Colson’s inappropriate communication style at [219]
and [221]:
“[219] I consider that the evidence of earlier communications and the direct evidence of
Dr Gordon and Dr Colson support a conclusion that Dr Colson had previously engaged in the
same type of communication with his managers and colleagues as seen in the letter of
23 March 2012. In previous communications with Dr Tomlinson, and with others at Barwon
Health, Dr Colson had accused Dr Tomlinson of not pulling his weight, poor commitment,
lack of publications and poor management and communication skills. Dr Colson used a robust
and disrespectful tone. It may well be that concerns raised by Dr Tomlinson about Dr Colson’s
attendance were not substantiated, I am not in a position to make any judgment about that, but
it is clear that the concerns of Dr Tomlinson actually related to issues about communication
style and practice and issues of accountability to management. The evidence suggests that the
raising of these concerns did not justify the responses of Dr Colson.
[221] ... the actions of Barwon Health demonstrate that they did tolerate this sort of
communication from Dr Colson. Apart from the email of Dr Tomlinson in March 2007 the
evidence does not suggest that any action was taken to counsel or warn Dr Colson that such
communications would not be tolerated.”
[112] The relevant aspects of the March 2007 email65 from Dr Tomlinson to Dr Colson to
which the Commissioner referred, state:
“Personal and professional attitudes
In relation to the discussions about organisation of work, I emphasised the value of trying to
anticipate and manage the consequences of the sometimes inevitable and unpredictable
delays associated with clinical care. Communication with the SA as soon as practicable is
the mainstay of this process. I think it is an important part of our professional responsibility
that we make concerted efforts to limit inefficiencies and inconvenience to other staff,
wherever possible.
[2013] FWCFB 4515
24
I acknowledge your assertion that your philosophical approach to life is one of
‘contrariness’. However, this is only useful if it is tempered with a positive even optimistic
focus that looks for solutions as well as problems. Otherwise it generates a sense of
negativity and isolation from your colleagues that, you mentioned, is perhaps already
apparent and is obviously causing you some concern. I am delighted to hear that you still
enjoy working here as a staff anaesthetist, and that both the clinical and non-clinical aspects
remain satisfying. You certainly have many clinical and non-clinical skills and abilities to
contribute to the department, but your contrary attitude has, I believe, limited your ability to
involve yourself in department discussions and activities in an optimal way. This needs to
change if you are to fulfil your potential as a senior staff anaesthetist. Should this not be
possible, then it may be necessary for you to consider alternative career opportunities.
I hope that our discussion will encourage you to become more actively and positively involved
in the department, in keeping with your experience and seniority. Please continue to raise
issues with me that concern you, and I will do my best to help you resolve them.”
[113] The Commissioner refers to Dr Tomlinson’s email at [227] and says:
“The suggestion by Dr Tomlinson in 2007 that ‘it may be necessary for you to consider
alternative career opportunities’ was too indirect and Barwon Health subsequently tolerated
inappropriate communications.’
[114] Barwon Health submits that the writing and distribution of the 23 March 2012 letter
constituted an act of serious and wilful misconduct. It is submitted that the letter was
defamatory in that it contains the imputation that Dr Tomlinson benefited financially from
Pfizer’s sponsorship and that this was a matter which could have impaired his judgment in
promoting the use of an allegedly dangerous drug. The relevant parts of Dr Colson’s letter are
as follows:
“But neither is it the first time I have received such a communication. That was on 1 March
2007, when received an email from Dr Simon Tomlinson which contained the phrase ‘... it
may be necessary for you to consider alternative career opportunities’. I remember the
occasion quite clearly because three days earlier (26 February 2007), Dr Tomlinson and I had a
private meeting at which I questioned the appropriateness of Pfizer flying him to New York for
a conference. I cautioned that as Director of the Anaesthetic Department which happened to be
the largest prescriber of Pfizer’s Dynastt (parecoxib) in Australia, his acceptance of such
hospitality could impair his ability to rationalise the use of this drug within our department.
Given that the TGA was proposing the complete withdrawal of parecoxib from the Australian
market at the time based on adverse event reports emanating from the USA, I had good reason
to believe that inappropriate use of Dynastat could constitute a patient-safety issue.”
[115] The Commissioner refers to the Pfizer allegation at [204];
“Dr Colson raised an issue concerning Dr Tomlinson’s acceptance of a conference or research
trip funded by a pharmaceutical company, Pfizer, and his alleged promotion of a particular
drug produced by that company. Dr Colson argued that the use of this drug was inappropriate
due to its side effects and that Geelong Hospital was the highest user of the drug in Australia.
An internal investigation into the allegation was commenced but that was stopped when the
matter was taken up by the ombudsman. An internal investigation resumed when there was no
outcome from the ombudsman. It appears that the allegations concerning high or inappropriate
use of the drug were not sustained. Dr Gordon gave evidence that he was responsible for the
approval of the use of the drug not Dr Tomlinson. An internal investigation did establish that
acceptance of the airfare was contrary to the hospital’s gift policy but there was no other
[2013] FWCFB 4515
25
finding of inappropriate conduct. The Ombudsman’s investigation had no outcome. The issue
was finalised several years ago.”
[116] Dr Tomlinson’s unchallenged evidence was that he had no role in the selection of
Dynastat as a drug used in the Department66 and that the breach of the hospitals gift policy
was only a technical breach. Pfizer paid expenses which would have otherwise been directly
paid by Barwon Health.67 Dr Tomlinson received no financial gain from the Pfizer
sponsorship.
[117] Barwon Health makes the following submission about those aspects of the 23 March
2012 letter relating to Dr Tomlinson and Pfizer:
“The fact that Dr Colson gratuitously repeated these allegations 5 years after the event in
circumstances where the evidence before Roe C pointed strongly to the conclusion that they
were entirely without merit, warranted the strongest condemnation.”68
[118] In the reply submissions, at [32] and [33], Dr Colson deals with the reference to the
Pfizer matter in his letter of 23 March 2012:
“At paragraph 37-40 of its submissions, Barwon Health refers to Dr Colson having raised the
issue of the Pfizer provided trip to New York by Dr Tomlinson in 2007. A key factual issue
which Barwon Health has not referred to here is the submissions is the previous occasion on
which Dr Colson’s whistleblowing actions had been used to threaten his tenure, with an
attempt being made for Dr Colson’s to be only offered a short term contract.69
Establishing exactly what occurred in relation to the Pfizer allegation was always beyond the
scope of this proceeding. Contrary to the suggestions of Barwon Health70 Dr Colson has yet
sought to use this proceeding in order to pursue that matter. It was certainly not serious
misconduct for Dr Colson to ventilate his concern about the whistle-blowing issue continuing
to be used against him-particularly as it was the unchallenged position that the employer had
attempted to do so once before.”71
[119] Dr Colson submitted that Barwon Health’s criticism that he had not sought to establish
the truth of the matters contained in the Pfizer complaint, and other matters raised in his letter
of 23 March 2012, is misconceived:
“This is not a proceeding concerning the whistle-blowing. Nor is it an adverse action
proceeding in which it would be necessary to show that Dr Colson had been penalised for
having exercised workplace rights. The matters only enter the analysis because Dr Colson
had every reason to suspect that there were other issues involved in the employer taking
action against him, as had been the case in 2009.”72.
[120] Dr Colson also submits that the Commissioner’s findings in relation to his letter of
23 March 2012 were entirely open on the evidence:
“There is no basis for the claim . . . that the distribution of the letter was for the “principal
purpose of causing maximum damage to the reputation of those individuals, particularly Dr
Tomlinson”. The purpose of the letter was to defend Dr Colson’s position from allegations,
tantamount to fraud, which should never been made against him. It was, admittedly, as the
Commissioner correctly records (at [161 and 181]), written and sent in the heat of the moment
but it remained a letter sent in response to serious and unfounded allegations of “false claims”
being made against him that day.”73
[2013] FWCFB 4515
26
[121] Barwon Health also submits that the Commissioner’s finding that it condoned Dr
Colson’s inappropriate communication style is ‘misconceived’. Barwon Health says:
“In the present case the relevant misconduct was the writing and distribution of the
23 March 2012 letter. That misconduct could not have been condoned until it occurred.
Nothing which took place between 23 March and 30 May 2012 when Dr Colson’s
employment was terminated could on any view constitute condonation of Dr Colson’s
conduct in writing and distributing the letter.”74
[122] In reply Dr Colson submits:
“If Barwon Health had wanted to maintain strict adherence to what it regarded as appropriate
forms of communication, then it should not have allowed previous communications to have
been sent without reproach. There is no error in the approach of the Commissioner.”75
[123] It is convenient to deal first with the Commissioner’s finding that the March 2007
email was ‘too indirect’ and that Barwon Health had tolerated inappropriate communication.
[124] As to the first matter, the March 2007 email contains the phrase ‘it may be necessary
for you to consider alternative career opportunities’. It is clear from the context that this
statement is made in reference to Dr Colson’s ‘contrary attitude’ which ‘limited [his] ability
to involve [himself] in departmental discussions and activities in an optimal way’. The
Commissioner found that this statement was ‘too indirect’ to constitute a warning that
Dr Colson’s communication style would no longer be tolerated and if continued could lead to
the termination of his employment.
[125] While the language used and its context are important in characterising the words
used, it is also relevant to consider Dr Colson’s interpretation of the statement that it may be
necessary for him ‘to consider alternative career opportunities’. It is clear that, contrary to the
Commissioner’s finding, Dr Colson regarded this statement as a threat to his ongoing
employment. This is apparent from Dr Colson’s letter to Dr Gordon, dated 23 March 201276
in which he says:
“The next thing I noticed was the overt threat to terminate my employment at Barwon Health.
It’s not every day that one receives a written threat to one’s employment and livelihood.
But neither is it the first time I have received such a communication. That was on 1 March
2007, when I received an email from Dr Simon Tomlinson which contained the phrase ‘... it
may be necessary for you to consider alternative career opportunities ...’
The next occasion on which I was threatened with termination occurred two years later during
my reappointment in 2009.”
[126] Having regard to Dr Colson’s characterisation of the March 2007 email we have
concluded that the Commissioner erred in finding that it was ‘too indirect’. However,
importantly, this threat to Dr Colson’s employment is not directed - in terms - at his
inappropriate communications. It is clear from the context that the threat, or warning, was
directed at Dr Colson’s ‘contrary attitude’.
[2013] FWCFB 4515
27
[127] As to the second matter we are not persuaded that Barwon Health tolerated
communications of the kind circulated by Dr Colson on 23 March 2013. There was no
evidence that Dr Colson had previously circulated throughout the Department correspondence
of the same type as the letter on 23 March 2012. Drs Tomlinson and Gordon and Mr Watson
strongly rejected the proposition put to them in cross-examination that the letter was “typical”
of Dr Colson’s communication style.77 This evidence emphasised both the highly offensive
content and widespread distribution of the letter as a point of distinction between it and earlier
correspondence from Dr Colson.
[128] Barwon Health also submits that Dr Colson’s motivation for ‘the widespread
distribution of a letter containing a series of baseless but highly damaging accusations was for
the principal purpose of causing maximum damage to the reputation of those individuals,
particularly Dr Tomlinson’.78 In this regard, the Commissioner rejected (at [163]) Dr Colson’s
suggestion that one reason for the wide distribution of the letter was to ask his colleagues to
keep an eye on him to protect patient safety given the possibility he might be distracted by the
allegation of fraud or false claims made against him.79 Barwon Health submits that having
rejected Dr Colson’s explanation for the wide distribution of the letter the Commissioner
should have addressed the issue of Dr Colson’s motivation.
[129] We largely agree with this submission. The Commissioner made no express finding as
to Dr Colson’s motivation for the wide distribution of the letter. It seems to us that one of the
purposes for the wide distribution of the letter was to damage the reputation of Dr Tomlinson.
[130] The Commissioner found that parts of the letter of 23 March 2012 contained
unwarranted personal attacks on managers and that the distribution of these comments
throughout the Department constituted misconduct and provided a valid reason for
termination. We would go further. In our view the entire letter and its wide distribution was
inappropriate and unprofessional. It contained unwarranted personal attacks on Dr Colson’s
superiors and was circulated with the intent of damaging their reputations. The writing and
dissemination of the letter of 23 March 2012 constitutes misconduct and provides a valid
reason for the termination of Dr Colson’s employment. But given the context, in particular
our finding that Dr Colson did not engage in fraud or submit the 4 March claims dishonestly,
combined with the fact that the letter was written in the heat of the moment we are not
persuaded that Dr Colson’s conduct should be characterised as serious and wilful misconduct
justifying termination without notice. It does however constitute a valid reason for dismissal.
[131] Having dealt with appeal grounds 1, 2, 3, 4, 5 and 10 we now turn to consider the
remaining grounds of appeal.
Other Grounds of Appeal
[132] Appeal ground 6 relates to Dr Colson’s conduct during the investigation relating to his
March 2012 time unit claims.
(i) Appeal ground 6
[133] On 28 March 2012 Dr Colson forwarded a ‘Position Statement’ to Barwon Health
management. A copy of the ‘Position Statement’ is Attachment 3 to this Decision and
contains the following:
[2013] FWCFB 4515
28
“In fact, it is only now apparent to me that what was being demanded at that meetings (sic) was
a new method of calculating time units which was quite different from my normal practice and
did not conform to the AMA RVG description of time unit calculations.”80
“Only now do I think I understand the time unit interpretation actually sought by Doctors
Gordon and Tomlinson.”81
[134] On 14 May 2012 Dr Colson attended a disciplinary meeting with Barwon Health
Management. He digitally recorded the meeting82 and the following exchange is recorded:
“Do you maintain that you did not understand the Hospital’s billing guidelines when you
submitted the claim form for 4 March 2012? Mark- actually that’s correct. I did not understand
the implications of the BH guidelines on 4 March 2012 I understand it now but I still don’t
accept the legitimacy of the BH guidelines for all the reasons I have stated.”83
[135] Barwon Health submits that because Commissioner Roe found that the 22 December
2011 email to Dr Colson:
made the billing methodology to be used by Dr Colson in the future unambiguously
clear84; and
left Dr Colson in no doubt about what Dr Tomlinson regarded as the correct
methodology for time unit claims85,
the Commissioner should also have found that Dr Colson deliberately misled Barwon Health
in his position paper86 and during an investigation meeting on 14 May 2012 by claiming that
he did not have an understanding of the correct methodology for time unit claims when he
submitted his claim form on 4 March 2012.87
[136] This additional finding, it was submitted, should have led the Commissioner to
conclude that Dr Colson engaged in an act of serious misconduct justifying Dr Colson’s
dismissal, and founding a valid reason for the termination of Dr Colson’s employment.88
During the hearing of the appeal, Barwon Health urged us to find that Dr Colson’s claims of
ignorance of the guidelines on 4 March 2012 were false and were intended to mislead it
during the course of the disciplinary process.89 Barwon Health submitted that such a finding
would constitute a stand alone ground justifying dismissal and relied on Streeter v Telstra
Corporation Ltd90 in aide of its submission.91
[137] Dr Colson argued that Barwon Health’s reliance on Streeter was misplaced. There was
no misconduct justifying dismissal as there was no reason to disbelieve Dr Colson that as at
4 March 2012, he did not understand the interpretation of the guidelines sought by Barwon
Health.92
[138] We are inclined to agree with Dr Colson, although for different reasons. There are a
number of difficulties with Barwon Health’s submission on appeal. The findings sought by it
were not urged on the Commissioner below. This in itself would not be a basis to reject such
findings on appeal if the findings were clearly open on the evidence. However, the
proposition that Dr Colson misled Barwon Health in his position paper and during the
investigation meeting on 14 May 2012 by claiming, as he did that as at 4 March 2012 he did
not have an understanding of the correct methodology for time unit claims, was not put to
Dr Colson by Barwon Health during the hearing before Commissioner Roe. Even when, as is
evident below, Dr Colson’s claim was clearly asserted by him during cross-examination:
[2013] FWCFB 4515
29
“I see, and the reason you say you didn’t refuse is because you gave the conditional offer at the
end of your position statement on 28 March. Is that right?---No, the reason is there was a
longstanding billing practice which - the first occasion on which I understood that my
longstanding billing practice was not consistent with the approved departmental approach was
on the occasion of 4 March, and when I realised that I queried it ...”93
[139] Dr Colson’s assertion was not challenged, and the proposition now being advanced on
appeal was not put to Dr Colson. As Dr Colson was not given an opportunity to deny the
proposition, or to clarify, explain or qualify the evidence by reference to the proposition, it
would have been unwise for the Commissioner to have made such an adverse finding.
[140] It follows that the Commissioner did not fall into error by not finding that Dr Colson
misled Barwon Health, it was not reasonably open on the evidence for him to have done so. It
is equally not reasonably open to us to do so.
(ii) Appeal grounds 7 and 8
[141] Barwon Health submits that in both the letter of 23 March 2012 and during the
meeting on 15 May 201294 Dr Colson made a series of serious and unsubstantiated
allegations against Dr Tomlinson, namely:
(i) that the investigation was retaliation for his decision in 2009 to make a
complaint to the Victorian office of Whistleblower Protection;
(ii) that Dr Tomlinson was acting maliciously and “had set a trap”;
(iii) that he had been singled out for an audit of his time unit claims;
(iv) that Dr Tomlinson had engaged in bullying behaviour during the previous 5
years;
(v) that the investigation was linked to a discussion he had had with Dr Tomlinson
in February 2007 during which Dr Colson advised Dr Tomlinson that he
believed that it was inappropriate for Dr Tomlinson to accept flights and
accommodation from Pfizer;
(vi) that Dr Tomlinson had threatened to terminate Dr Colson’s employment in
200995.
[142] Barwon Health submits that the allegations set out above were not put to
Dr Tomlinson during the course of cross examination. The only reference to any of the
matters set out at (i) - (vi) above is at [3687]-[3689] where it was put to Dr Tomlinson that he
had taken offence at the reference in the letter to the flight to New York funded by Pfizer and
the whistleblowing allegations. At no point did counsel for Dr Colson seek to establish the
truth of any of the matters set out at (i) - (vi).
[143] In reply, Dr Colson submits that Barwon Health’s ‘selective list of matters that had
been referred to by Dr Colson in his letter of 23 March and at the meeting of 15 May 201296,
do not constitute the making of ‘false allegations’.’ Further it is submitted that:
[2013] FWCFB 4515
30
“Dr Colson admittedly engaged in a robust defence of his position, given the serious nature of
the allegation of fraud that had been taken against him, however the observations made in so
doing were not so unreasonable or intemperate as to constitute serious misconduct.”97
[144] At [202] of his decision, the Commissioner concluded that the history of the
relationship between Dr Colson and Dr Tomlinson did not mean that there was anything
inappropriate in Dr Gordon and Dr Tomlinson challenging Dr Colson’s 4 March 2012
claim for payment. The Appellant submits that in addition to making this finding, the
Commissioner should have concluded that Dr Colson, without any justification, used his
response to the investigation of the March 2012 claim as a vehicle for making totally
unwarranted attacks on Dr Tomlinson.
[145] The submissions of Baron Health made in support of appeal grounds 7 and 8 overlap
in part with those advanced in support of appeal grounds 3 and 4. We have earlier in this
decision concluded that, in our view, the entire letter of 23 March 2012 and its wide
distribution was inappropriate and unprofessional, that it contained unwarranted personal
attacks on Dr Colson’s superiors and was circulated with the intent of damaging their
reputations. This conclusion, in our view, deals with Barwon Health’s submission that in
addition to the Commissioner’s finding at [202], the Commissioner should also have
concluded that Dr Colson, without justification, used his response to the investigation of the
March 2012 claim as a vehicle for making totally unwarranted attacks on Dr Tomlinson, at
least insofar as the response was contained in Dr Colson’s letter of 23 March 2012.
[146] However Barwon Health also suggests in appeal grounds 7 and 8, and in its written
submissions98 that Dr Colson made a series of serious and unsubstantiated allegations against
Dr Tomlinson during the meeting on 14 May 2012. We do not accept this submission. It
seems clear from Barwon Health’s record of the meeting of 14 May 2012 prepared by Mr
Muncaster99, that the allegations made by Dr Colson in his letter of 23 March 2012 had been
discussed by Dr Colson in response to specific questions put to him by Barwon Health. That
meeting record includes the following questions:
“It appears that the publication of your letter dated 23 March 2012 to the entire Department of
Anaesthesia was intended to be deliberately offensive, a challenge to Barwon Health’s
authority and was designed to embarrass Barwon Health its management. How do you respond
to those contentions?”100
“Why did you make public allegations of unlawful conduct by Barwon Health, including
references to breach of copyright, illegal billing of Medicare and torment of employees?”101
[147] Dr Colson’s responses to these questions are also recorded. It would be wrong in our
view to characterise Dr Colson’s responses to questions put to him by Barwon Health during
the meeting on 14 May 2012 about his correspondence of 23 March 2012 as Dr Colson
making serious and unsubstantiated allegations. Dr Colson’s responses as recorded in the
meeting record show that he was seeking to explain the basis for his comments in the letter of
23 March 2012. He was not using the opportunity to respond as a vehicle for making totally
unwarranted attacks on Dr Tomlinson as submitted by Barwon Health.
(iii) Appeal grounds 9 and 11
[148] The submissions made in support of appeal grounds 9 and 11 challenge the
Commissioner’s decision to reinstate Dr Colson. As we have decided that the question of
[2013] FWCFB 4515
31
remedy will be the subject of a rehearing it is unnecessary for us to address those
submissions.
Conclusion
[149] We have found that the Commissioner made a number of ‘significant errors of fact’ in
his consideration of whether there was a valid reason for the termination of Dr Colson’s
employment. We have also identified a number of erroneous findings in the Commissioner’s
consideration of the allegations against Dr Colson.
[150] In our view it would be unjust to allow the decision to stand. We are satisfied that it is
in the public interest to grant permission to appeal. We grant permission to appeal and uphold
the appeal. We will quash the decision subject to appeal.
[151] In the rehearing of this matter we need to decide whether Dr Colson was unfairly
dismissed within the meaning of s.385 and, if he was, the remedy to award.
[152] We have concluded that there were valid reasons for the termination of Dr Colson’s
employment. But as is evident from s.387 of the Act such a finding is only one of the matters
which the Commission must take into account in dealing whether or not a dismissal was
harsh, unjust or unreasonable (and hence whether Dr Colson was unfairly dismissed within
the meaning of s.385). We now turn to the statutory criteria for considering whether
Dr Colson’s dismissal was harsh, unjust or unreasonable, as set out in s.387 of the Act.
s.387(a) valid reason
[153] Two matters relating to Dr Colson’s conduct each provided a valid reason for his
dismissal:
(i) Dr Colson had deliberately lodged a claim for payment which he knew to be
inconsistent with a direction he had been given by management regarding the
appropriate billing method for time units when working in two theatres
concurrently; and
(ii) Dr Colson’s publication of the letter dated 23 March 2012 to the entire
Department of Anaesthesia.
s.387(b), (c) and (d) Notification, Opportunity to respond and support person
[154] Dr Colson was notified of the reasons for his dismissal and was given an opportunity
to respond to those reasons at the meeting on 14 May 2012. Dr Colson was represented at the
meeting on 14 May 2012.
s.387(f) and (g) Size of Employer and HR Expertise102
[155] Barwon Health is a large employer with dedicated human resources management
expertise.
s.387(h) Other Relevant Matters
[2013] FWCFB 4515
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[156] The Commissioner considered seven ‘other relevant matters’ at [233] to [240]. Other
than the first of these matters - Barwon Health tolerating Dr Colson’s communication style -
there is no challenge to this part of the Commissioner’s decision. We have decided to adopt
the Commissioner’s findings in respect of the six other relevant matters.103.
[157] Having regard to all of the matters in s.387 we have concluded that the termination of
Dr Colson’s employment was harsh, particularly having regard to his 14 years of service and
the significant impact of the termination on his reputation and ability to find suitable
employment.
[158] Our conclusion in this regard is also supported by the following matters;
after the direction of 22 December 2011 there was only one instance of
Dr Colson making a claim which was inconsistent with the billing and
methodology directive (and the difference was only two time units); and
Dr Colson has never received a warning specifically directed to his
communication style.
[159] We now turn to the question of remedy. It seems to us that this matter is most
appropriately dealt with by referring the matter of remedy to a single Member for
determination pursuant to s.607(3)(c)(i) of the Act. This will provide an opportunity for the
parties to lead further evidence as to the circumstances since the Commissioner’s decision and
to make submissions on the basis of our conclusions regarding the valid reasons for
Dr Colson’s dismissal.
[160] We will refer the question of remedy to Deputy President Gostencnik for
determination.
PRESIDENT
Appearances:
M. McDonald SC and J. Tracey (solicitor) for Barwon Health - Geelong Hospital.
Mr Rohan Millar of Counsel for Dr Mark Colson.
Hearing details:
2013.
Melbourne:
April 16.
Subsequent submissions filed on:
17, 19 and 24 April 2013.
[2013] FWCFB 4515
33
Printed by authority of the Commonwealth Government Printer
Price code J, PR538714
[2013] FWCFB 4515
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ATTACHMENTS
1. Letter to Dr Mark Colson from Mr Peter Watson, Executive Director Surgical Services,
dated 30 May 2012 (Re: Termination of Employment) [PW-3]
2. Email from Dr Mark Colson to Simon Tomlinson dated 8 March 2012 (Re: RVG Claim
4/3/12)
3. Position statement of Dr Mark Colson dated 28 March 2012 [CG-6]
4. Letter to Dr Colin Gordon, Deputy Director, Department of Anaesthesia Barwon Health
from Dr Mark Colson dated 23 March 2012 [CG-4]
5. Letter to Dr Mark Colson from Dr Colin Gordon dated 23 March 2012 (Re: False Claims
for RVG’s) [CG-2]
[2013] FWCFB 4515
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ATTACHMENT 1
PW-3 Barwon Surgical Services Rwie Street 30 May 2012 Geelong, 3220 PO Box 281 Geelong. 3220 Dr Mark Colson T 03 5226 7111 6 Tuxen Court F 03 $221 3429 Highton 3216 ABN 45 877 249 165 Dear Dr Colson Re: Termination of Employment We refer to our meeting with you earlier today and confirm that your employment with Barwon Health has been terminated on the basis of serious misconduct." Specifically, Barwon Health has concluded that you engaged in serious misconduct on the following basis: 1. that you knowingly and willingly submitted claims for RVG payments in breach of Barwon Health billing guidelines and directives provided to you to comply with those guidelines; and 2. that the publication of your letter dated 23 March 2012 to the entire Department of Anaesthesia was intended to be deliberately offensive, a genuine challenge to the authority of management and was designed to embarrass Barwon Health and damage its reputation. 3. Barwon Health has found that your explanation In respect to the resubmission of the RVG claim form in April 2012 was sufficient to make that allegation unsubstantiated. Barwon Health considers your conduct has fractured the relationship of trust and confidence that is a necessary part of the employment relationship such that an ongoing employment relationship between you and Barwon Health is no longer tenable. Barwon Health has considered both your written responses and the responses you provided in the meeting on 14 May 2012 and has concluded that the allegations against have been made out and that your conduct constitutes serious misconduct. Despite your conduct constituting serious misconduct, Barwon Health has decided to terminate your employment by providing you with notice pursuant to your Employment Contract rather than terminating your employment summarily. However, you are not required to work out your notice period and your employment with Barwon Health will cease immediately. You will be provided with a payment of three months' salary in lieu of notice. This payment will be paid directly to your bank account overnight. For completeness sake, we note that we have read and considered your amended version of the minutes from the meeting on 14 May 2012. We also note that we do not accept your amendments to the minutes as being a complete and accurate record. OUR VALUES / RESPECT / COMPASSIONY : COMMITMENT : ACCOUNTCHEIL TY / PROMATICN
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2 We require you to return all Barwon Health property, including keys and security passes in your possession. Please contact Dr Colin Gordon to arrange a suitable time for you to hand in Barwon Health property and to retrieve any personal property you may have at work. We note that you have a mobile phone account which is being paid for by Barwon Health. That account will now be cancelled. We will delay the termination of that account for two weeks to enable you to arrange for an alternative telecommunications provider and to transfer your mobile number to a new account if so desired, As you will no longer be an employee of Barwon Health, we will require you to reimburse Barwon Health for any expenses Incurred by use of your mobile phone until the termination of the account with Barwon Health. Yours sincerely Peter Watson Executive Director Surgical Services
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ATTACHMENT 2
Mark Dr Mark Colson Senior Staff Specialist Anaesthetist Barwon Health - The Geelong Hospital Ph 03 52267333 Mob 0419 557481
Original Message ----- From: MARK COLSON Sent: Thursday, 8 March 2012 9:00 AM To: SIMON TOMLINSON Subject: RE: RVG claim 4/3/12 Hi Simon,
The time at the end of each sheet is the time that the last case on that sheet finishes - or the next one starts if there is a subsequent sheet. There is no provision within the RVG for rounding these times to 15 min blocks which is what you seem to suggest. The RVG system dictates that if you do a 30 minute case, you get 2 time units. But if you do a 10 min then a 20 minute case - you get 3 time units. This is NOT double dipping - an accusation I find quite offensive. Please explain exactly which time period I have "claimed twice for".
I'm happy to record a start and and stop time for the whole block (as I used to do in fact) - but if pay office require a time on each sheet, there can be little doubt about what time that should be. I'm happy to refer the sheets to the ASA for their opinion. Cheers, Mark Original Meccano
original Message From: SIMON TOMLINSON Sent: Wednesday, 7 March 2012 11:10 AM To: MARK COLSON Subject: RVG claim 4/3/12 Hi Mark I have sent the above claim back for revision - the documentation of time in less than 15 min blocks leads to claiming twice for some periods of time which constitutes double dipping (as Colin and myself
discussed with you earlier this year); nor does it comply with the published guidelines from the department. Please re-write it so that it complies with our agreed rules. Regards Simon
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ATTACHMENT 3
CG-6 POSITION STATEMENT DR MARK COLSON 28 MARCH 2012 PREAMBLE I have been accused of defrauding Barwon Health via inappropriate after-hours
claims. For over 11 years, I have not substantially changed the way in which I submit these claims, except where the AMA RVG itself has been modified, in which case ! have modified my claims such that they have always been in full accordance with the prevailing AMA RVG. Barwon Health is attempting to renege on a contractual obligation to remunerate after-hours work according to the AMA RVG. The AMA RVG is the method of after- hours remuneration specified in my current Certified Workplace Agreement. . I have had payment for claims unreasonably withheld in full over a minor disputed item. I have been asked to attend a meeting to answer these charges on 30.03.2012. I have been advised that Barwon Health believes a dismissible offence may have been committed, and that the charges only need to be proven a "balance of probabilities" test basis. There is NO evidence that I have in fact over-charged Barwon Health for my after- hours work. What the evidence does show is systemic undercharging - even when the disputed time-unit calculation method was applied. No other member of the anaesthetic department has had their claims scrutinised to the same degree as I have experienced. . I believe my treatment constitutes retaliatory behaviour for my decision in 2009
to make a complaint to the Victorian Office of Whistleblower Protection. TIMELINE On Thursday 22.12.2011, I was invited to a meeting with Drs Tomlinson and Gordon. At this meeting, I was informed that they had detected inappropriate after-hours billing on my claims for after-hours work of the 15 and 18 December 2011. We proceeded to work-trough the claims, and a number of mistakes were identified and corrected. Some of these mistakes were in Barwon Health's favour. Indeed, at the end of the meeting, my claim for 544 units had been increased to 551 units. There was some discussion of time units at this meeting, but I presumed I had made a simple error in time-unit calculations. In fact, it is only now apparent to me that what was being demanded at that meetings was a new method of calculating time units which was quite different from my normal practice of over 11 years, and did not conform to the AMA RVG description of time-unit calculation. Later that day, I received a lengthy email from Dr Tomlinson. Many of the points raised did not specifically relate to our meeting. Some of the items listed caution me not to forget to claim items which had resulted in the undercharging found in the audit. The email is reproduced here:
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"Dear Mark, Thank you for meeting with myself and Colin to discuss your RVG claims. As discussed: 1. These are legal documents, the accuracy of which is the responsibility of the practitioner, not the department nor myself or Colin. Once the form has been handed in to Diane it has been submitted - Di checks the arithmatic but is not in a position to check the veracity of the
item numbers claimed. Colin's review of submitted claims is not systematic and is intended to assist and educate staff with the process as it has evolved - not act as a gate-keeper. Staff should not rely on this to protect them from the consequences of non-compliant claims. 2. Inappropriate claims, if detected by audit or other review constitute poor practice at best, and would almost certainly be regarded as fraudulent if the behaviour was repeated after appropriate education. 3. There are guidelines created by the department to clarify areas of uncertainty within the AMA RVG system which we have discussed at a number of departmental meetings. 4. We will continue to develop our RVG guidelines to minimise the possibility of any misunderstandings, and in light of our discussions today will include the following clarifications: 1. Item "CV125 - SUBSEQUENT INJECTION (or revision of infusion) of a therapeutic substance to maintain regional anaesthesia or analgesia where the period of continuous medical practitioner attendance is 15 minutes or less" - as discussed we believe that this item cannot be used in association with an item for anaesthesia for a particular procedure. On further reflection the time element in the description clearly indicates that this is inappropriate in the setting of a procedure and is intended for the maintenance of a pre- existing infusion which is primarily being used for analgesia purposes. None the less, if you
wish to clarify this interpretation with the ASA I look forward to their response. In the meantime we will not support the use of this item in these circumstances. 2. Items of service which do not attract PM, T modifiers - these are clearly labelled in the AMA RVG guide. It has been agreed as part of our contract that all individual patient care episodes after hours attract the M2 modifier and this would include epidurals in labour and consults where no anaesthesia ensues. It is the responsibility of the practitioner to ensure that these items are not claimed unless applicable. 3. It is appropriate to claim for an emergency pre-op consult (CA 051) prior to insertion of a labour epidural. 4. Time units: as part of our employment contract we have an agreement that we can claim for cases occurring simultaneously, but not "double dip" on the time units. Therefore 1. While running 2 theatres/anaesthetising locations, time in attendance should be claimed at the rate of 4 units per hour. Documentation on the claim form must have start and finish times for each sheet, but they do not have to be accurate from a specific case perspective. The start and finish times for each period of attendance must reflect the actual time spent in the hospital. Cases longer than 2 hours occurring during this billing period do not attract the ascending time unit provision.
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2. If a single theatre is operating, the RVG claim for that patient should reflect the AMA time unit schedule which has an increasing number of units per hour after the initial 2 hours. If, for example, the one of the anaesthetists present goes off to put in an epidural during that case, a decision needs to be made as to whether you are going to claim for multiple cases or the increased time units for the single case - not both. 3. When calculating the fee for taking over a case, the total RVG value for the case (on which you are going to base your pro-rata amount) should be based on the normal RVG calculations with an ascending time unit calculation. If there are any uncertainties with future claims please don't hesitate to discuss them with Colin or myself, prior to submission. I expect that these particular billing mistakes will not
occur in future, and if there are any changes to items in future editions of the RVG guide, 1 expect that your association with the ASA should prove valuable in clarifying the way they are to be used as soon as the new version comes out. Kind regards Yours sincerely Simon" On Sunday 04.03.0212, I was the first on-call anaesthetist for Barwon Health, I commenced work on the first schedule patient at 08:30, and concluded work nearly 12 hours later at 20:20. Over the course of the day, I cared for 15 patients. I completed four Anaesthetic Out of Hours Claim Forms on the day. Each claim form contains the details of four patients. As two operating theatres were running for the entire day, times are not recorded for each patient, but a START and STOP time is shown for each sheet. The STOP time for each sheet is the START time for the first-patient on the subsequent sheet. These sheet-changeover times for my claim forms were 11:20, 15:40, and 18:30. Based on the AMA RVG description of time unit calculation (but modified to reflect the fact that time-unit rate escalation does not occur during concurrent theatre operations), the time units claimed for each sheet are as follows: Sheet 1: 08:30 - 11:20 = 12 time units Sheet 2: 11:20 - 15:40 = 18 time units
Sheet 3: 15:40 - 18:30 = 12 time units Sheet 4: 18:30 - 20:20 = 8 time units Total: 50 time units. This dispute is about changing these actual times to imaginary times so as to render the time span of each sheet an exact multiple of 15 minutes, thus reducing the total time units payable. Using this imaginary time system, the claim would look like this: Sheet 1: 08:30 - 11:30 = 12 time units Sheet 2: 11:30 - 15:30 = 16 time units Sheet 3: 15:30 - 18:30 = 12 time units Sheet 4: 18:30 - 20:20 = 8 time units Total: 48 time units
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That this approach would reduce the time-units payable is not disputed. The problem is, these changeover times are not the actual times at which the transition to the subsequent sheet occurred. The approach also imposes a new system which is not in accordance with my normal practice of over 11 years. On Tuesday morning 06.03.2012, I found my claim forms for 04.03.2012 in my pigeon hole. They had been stamped "APPROVED - DIRECTOR OF ANAESTHESIA" with no other addendum or notation. The totals on each sheet had been signed-off unchanged. There was nothing to indicate that the forms had been rejected. I assumed they had been left in the
printer and found by someone who saw they were mine so rightly returned them to my box (a regular occurrence). I therefore returned the claims to Di's desk. On Wednesday 07.03.2012, I noticed that the out-of-hours claim had not been paid to my bank account. This caused me quite significant financial inconvenience and embarrassment. On Thursday 08.03.2012, I first read an email from Dr Tomlinson which had been sent the previous day (07.03.2012), but which I did not see on the day it was sent as it was my day -. . off. It was titled "RVG claim 4/3/12", and stated "I have sent the above claim back for revision - the documentation of time in less than 15 min blocks leads to claiming twice for some periods of time which constitutes double dipping (as Colin and myself discussed with you earlier this year); nor does it comply with the published guidelines from the department." Upon reading this, I emailed Dr Tomlinson the following reply: "Hi Simon, The time at the end of each sheet is the time that the last case on that sheet finishes - or the next one starts if there is a subsequent sheet. There is no provision within the RVG for rounding these times to 15 min blocks which is what you seem to suggest. The RVG system dictates that if you do a 30 minute case, you get 2 time units. But if you do a 10 min then a 20 minute case - you get 3 time units. This is NOT double dipping - an accusation I find quite offensive. Please explain exactly which time period I have "claimed twice for.""
Later in the day (08.03.2012), I emailed this follow-up note to Dr Tomlinson, with a copy to our head of HR, Mr Perry Muncaster and the Director of Surgical Services, Mr Peter Watson: "Dear Simon, Further to this email sent earlier, you are entitled to withhold payment for that part of my after-hours work which is in dispute - namely 1 time unit. But to withhold the entire 200 odd units owing is a grossly disproportionate response, and I suspect this would contravene BH's HR policies with respect to pay dispute resolution. It may be necessary to clarify this with Perry or Peter which is why I have circulated this to those individuals. I was not unreasonably counting on that money being received in yesterday's pay, and have been quite severely embarrassed and inconvenienced to find it has not been paid. Furthermore, in your email you imply this is a repeat offence which is NOT true. It is true you audited my RVG claim in December, and that my claims on that occasion contained several minor mistakes, probably related to the fact that I had completed the claim form at 02:30 AM. It is also highly relevant that some of these mistakes were in Barwon Health's favour. In fact, I claimed 544 units, when in fact the correct amount owing was 551. Given that I had deprived myself of 7 units, the insinuation that I had somehow been guilty of "double dipping" on a previous occasion is quite insulting and inflammatory. I am also concerned that I seem to be regularly singled-out for extra audits of my after hours claims, which are not based on any objective indications for such behaviour. Despite being told that the December audit was something "everyone was undergoing", I have yet to find a single colleague who was subject
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to the same audit. I would ask that the amount outstanding be paid immediately as an offline payment. Regards, Mark" On Sunday 11.03.2012, Dr Tomlinson emailed me the following reply: "Mark, I haven't withheld anything - i have sent back an incorrectly completed claim sheet for correction. As soon as I receive an accurate claim which complies with the agreed rules of engagement I will sign off on it and it can be paid. Colin and myself will discuss these issues with you when Colin returns from leave later this week. Regards Simon" On Tuesday 13.03.2012, I emailed Dr Tomlinson: "You have withheld the pay for my entire Sunday on-call. Mark" On Thursday 22.03.2012, Dr Colin Gordon emailed me: "Hi Mark, Simon and I would like to forms from about 4 weeks ago. Thanks, Colin."
. speak to you tomorrow about your RVG foris from about + weeks ago. I responded the same day: "I'd like Perry Muncaster to come to the meeting thanks Colin. Cheers, Mark." Perry Muncaster was apparently unable to attend a meeting on the day, so it was re- scheduled for 30.03.2012. Late on Friday afternoon, 23.03.2012, Colin Gordon hand-delivered me a letter to which I issued a response on the same day. Both documents are attached. EMPLOYMENT CONTRACT I am a full-time salaried specialist employed under the AMA-BARWON HEALTH FULL-TIME ANAESTHETISTS CERTIFIED AGREEMENT 2001. Clause 22.1 of this agreement states: "After hours work additional to the normal roster shall be paid on the basis of the AMA Anaesthetic Relative Value Guide (RVG) in effect at the time, with the exception that the After Hrs Emergency loading will not apply. Instead, the M2 Modifier will be applied in the case of after hours emergencies. Dafar 0 irrent AMA RVG. the following section deals with time units:
Referring to the current AMA n 2. Time Units For the first 2 hours, each 15 minutes (or part thereof) of anaesthetic time constitutes 1 time unit. After 2 hours, time units are calculated at 1 per 10 minutes (or part thereof) and after 4 hours, time units are calculated at 1 per 5 minutes (or part thereof). Time begins when the anaesthetist starts preparing the patient for anaesthesia care in the operating room or an equivalent area. Time ends when the anaesthetist is no longer in personal attendance; that is, when the patient may be safely placed under the supervision of other personnel On 01.03.2012, our secretary forwarded an email from Dr Colin Gordon titled "RVG for publication" to all staff. Di had added the note: "Hi All, Please find attached amended and updated RVG numbers and Guidelines for billing." A Word document was attached titled "ANAESTHESIA RVG NOTES 2011". The electronic creation date of this document is 25 Januray 2012, and the author is listed as "Colin." I had not previously seen this long and
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complex document, and had not fully read it 3 days later when I was rostered on-call on 04.03.2012. It is true the that the intention to create such a document had been discussed at various staff meetings, During such discussions, I maintained that there was no need for such a document, since the ASA/AMA RVG was the contractual basis for our out of hours remuneration. I completely disagree with the assertion that the document contains "agreed department rules." I have not agreed with the contents of this document - neither have a number of my colleagues. This document has been unilaterally imposed upon the department. The document appears to have been largely cut-and-pasted from the current AMA RVG. However, additional explanatory notes have been added, such as this:
Time units We are contractually entitled to bill for all patients that we are responsible for while we are in the hospital. This recognizes our medico-legal and clinical responsibilities whilst minimizing the impact that billing preferences might have on workload organization and registrar training. We do not have to have been directly involved in a particular patient's care to bill the hospital for them. However, the following activities do not constitute billable registrar activities unless the consultant was actually involved in those clinical episodes of care: Registrar Pain and other ward/EMD consultations Registrar attendance at code blue and trauma calls In recognition of this it has been agreed that: 1. Time units will be calculated at 4 units/hour amalgamating the times for consecutive patients on each sheet of four patients and documented in blocks of 15 minutes on the claim sheets. The number of units per hour does not increase as per the RVG when billing for multiple contemporaneous patients.
2. If a single case triggers the unit increase per hour this is acceptable (but requires that only that case is billed within the relevant time period) 3. Calculation of the value of handover cases may utilize the standard (escalating) unit amounts, but assumes that time units for other cases occurring contemporaneously are not claimed until the handover case has concluded. MY POSITION The description of time in Colin Gordon's guide is NOT in accordance with the AMA RVG. This description of a number of other items (such as CV085) in Colin Gordon's guide is NOT in accordance with the AMA RVG. Barwon Health is contractually bound to pay for after-hours in accordance with the AMA RVG. Time units are not necessarily calculated at 4 units per hour, nor does the AMA RVG contain any provisions for " ... amalgamating the times for consecutive patients on each sheet of four patients and documented in blocks of 15 minutes on the claim sheets,"
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For instance, during single theatre operations, if a single case lasted exactly 60 minutes, 4 time units would indeed be earned in this hour. However, if two 20-minute cases and 2 10- minute cases were performed in the same hour, 6 time units would have been earned in complete accordance with the AMA RVG. The fact that a different case mix can vary the number of time units earned in a given period is a logical consequence of the "or part thereof" definition of time units in the AMA RVG. It does NOT represent "double-dipping." It has long been the normal practice at The Geelong Hospital to claim for two simultaneous operating theatres where applicable, but claim the time units for this period only once. During
this period of two-theatre operation, individual times are not recorded for each patient except at the following two junctures: 1. At the end of the four-patient claim sheet. 2. Where the second theatre concludes, at which point the single-theatre provisions apply. .. When I commenced my current position in 1998, it was my practice to simply "carry-forward" time calculations to the final sheet, where a time component was calculated at the rate of one unit per 15 minutes. I believe this approach would have yielded the result Dr Gordon now seeks. However, in about 2000, I was advised that Barwon Health's pay office required each sheet to showing a start and end time so that it was in effect self-contained. Accordingly, for the last 11 years, I have recorded a start and end time on each sheet. The start time is as per the AMA definition of the start time. The end time is also as per the definition, except where two theatres are running, and there is a case subsequent to the last case on a claim sheet. In this situation, the end time is the start time of the subsequent case. I have claimed time in this fashion for over 11 years, in which time my practice has never
been queried. It therefore forms my normal practice. Although Dr Gordon changed some of my time units in an audit of my claim forms of 15 and 18 December 2012, my understanding at the time was that I had made a simple error in time-calculation. In his email of 22.12.2011, Dr Tomlinson made this lengthy point: "Time units: as part of our employment contract we have an agreement that we can claim for cases occurring simultaneously, but not "double dip" on the time units. Therefore 1. While running 2 theatres/anaesthetising locations, time in attendance should be claimed at the rate of 4 units per hour. Documentation on the claim form must have start and finish times for each sheet, but they do not have to be accurate from a specific case perspective. The start and finish times for each period of attendance must reflect the actual time spent in the hospital. Cases longer than 2 hours occurring during this billing period do not attract the ascending time unit provision. 2. If a single theatre is operating, the RVG claim for that patient should reflect the AMA time unit schedule which has an increasing number of units per hour after the initial 2 hours. If, for example, the one of the anaesthetists present goes off to put in an epidural during that
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case, a decision needs to be made as to whether you are going to claim for multiple cases or the increased time units for the single case - not both.
3. When calculating the fee for taking over a case, the total RVG value for the case (on which you are going to base your pro-rata amount) should be based on the normal RVG calculations with an ascending time unit calculation. Despite reading it many times, I found point 1 in this communication ("the claim form must have start and finish times for each sheet, but they do not have to be accurate from a specific case perspective.") completely unintelligible. If the times do not have to be accurate from a "specific case perspective", it does not follow that it is wrong to record actual, specific times. Yet one of the charges now levelled against me [" ... constitutes double dipping (as Colin and myself discussed with you earlier this year)." Dr Tomlinson to me, 07.03.2012] is that I have ignored previous instructions on this issue. Only now do I think I understand the time-unit interpretation actually sought by Drs Gordon and Tomlinson. I would suggest that it would be accurately described as follows: "Where two theatres are running concurrently, the end-time shown on the relevant claim form shall be rounded to the nearest time which would yield a time-span for that sheet which is an exact multiple of 15 minutes. This time shall also be shown as the start time of any subsequent sheet." MY OFFER
I am prepared to modify my long-standing normal practice with respect to my billing for after- hours work where two theatres are running concurrently on the following conditions: Barwon Health issues a written undertaking that at all other times, and in all other respects, after-hours work is to be remunerated in accordance with the current AMA RVG as specified in my Certified Workplace Agreement. Barwon Health issues a formal retraction and apology for Dr Gordon's written accusation of 23 March 2012 that I have " ... knowingly and willingly submitted false claims for RVG payments." Barwon Health issues a written undertaking that this matter will never again be raised in future in any other context. Mark Colson 28 March 2012
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ATTACHMENT 4
CG-4
DEPARTMENT OF ANAESTHESIA, PERIOPERATIVE & PAIN MEDICINE Barwon P O Box 281 Geelong Victoria 3220 Health AUSTRALIA The Geelong Hospital Ryrie Street, Geelong Telephone: 03 52 267333 Facsimile: 03 52 299971
Dr Colin Gordon, Email: markc@barwonhealth.org.au Deputy Director, ABN 45 877 249 165 Department of Anaesthesia Barwon Health Friday 23 March 2012 Dear Colin.
Thank-you for your morale-boosting letter entitled "False Claims for RVG's" which you hand- delivered to me late this afternoon. I always enjoy a relaxing weekend read. I attach a copy for my own reference. The first thing I noticed about your letter is that it is written in first-person pleural syntax, yet your name appears as the sole author. The tone and language used is not that which I would normally associate with you.
The next thing I noticed was the overt threat to terminate my employment at Barwon Health. It's not every day that one receives a written threat to one's employment and livelihood. But neither is it the first time I have received such a communication. That was on 1 March 2007, when I received an email from Dr Simon Tomlinson which contained the phrase " ... it may be necessary for you to consider alternative career opportunities." I remember the occasion quite clearly because three days earlier (26 February 2007), Dr Tomlinson and I had a private meeting at which I questioned the appropriateness of Pfizer flying him to New York for a
conference. I cautioned that as Director of the Anaesthetic Department which happened to be the largest prescriber of Pfizer's Dynastat (parecoxib) in Australia, his acceptance of such hospitality could impair his ability to rationalize the use of this drug within our department. Given that the TGA was proposing the complete withdrawal of parecoxib from the Australian market at the time based on adverse event reports emanating from the USA, I had good reason to believe that inappropriate use of Dynastat could constitute a patient-safety issue. The next occasion on which I was threatened with termination occurred two years later during
my re-appointment in 2009. As you will recall, it was only by invoking the Whistleblower Protection Act (Victoria) 2001 that I was able to avert termination on that occasion. This Act, and Director Dr Simon Tomlinson Dr Britt Fraser Dr Frank Raineri MB, ChB. FANZCA Dip Health Services Mgt MBBS, FANZCA MBBS,FANZCA Dr Simon Gower Dr Amutha Samuel Deputy Director MBBS,FANZCA MBBS,FANZCA Dr Colin Gordon FANZCA, Dip Comp Tech Dr Joanne Kara-Brightwell Dr Melissa Viney MBChB, FANZCA MBBS,FANZCA,FFPMANZCA
Staff Anaesthetists Dr Adrian Lee Mived (Pain ived) Dr Liam Broad BSc, DIS, MBBS,FRCA,FANZCA MBBS,FANZCA Dr Christine Lee Dept of Clinical & Biomedical Dr Brett Coleman MBBS. FANZCA Sciences MBBS, FANZCA Dr Diarmuid McCoy Assoc Prof Stephen Bolsin MB BCh,BAO(NUI),FFARCSI BSc, MBBS, FRCA, FANZCA Dr Mark Coison MBBS,FANZCA,Dip Comp Tech FFPMANZCA,DPM(CARCSI) MRACMA, MHSM, DLitt(Hon) Dr Myles Conroy Dr Ross Mackenzie Clinical Director of Surgical Services MBBS, DRANZCOG,FANZCA MB, ChB,FANZCA Dr Tony Weaver Dr Dean Dimovski Dr Cameron Osborne MBBS,FANZCA,FJFICM,FFPMANZCA MBBS, FANZCA,PG Dip Echo MBBS, DRANZCOG. FANZCA
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associated Office, also extends protection to cover any behaviour thought to constitute retaliation for invoking The Act in the first place. You may wish to reflect upon the last sentence. So you see, termination threats have tended to punctuate my Barwon Health career with dreary semi-regularity. Info the current issue of the appropriate use of the AMAIASA RVG in after-hours
vwhich brings us to the current issue of the appropriate use 01 10 claims. Really this is quite straightforward. Our Certified Workplace Agreement 2001 states that after-hours work shall be remunerated in accordance with the current AMA RVG. Around December 2011, your undertook to introduce modifications to the current AMA RVG with the release of a document which was essentially a cut-and-paste of the AMA RVG, with additional local modifications (denoted in red) following the original ASA description of many items. Although | know you are opposed to the very concept of copyright - the AMA's publications are copyright and can neither be copied nor distributed without authorisation. These of dolla re nemt are and uht they would ever
publications sen for many Would authorise the distribution of a modified version of their RVG publication. As you are aware, the actual content of the RVG is the intellectual property of the ASA, who forward a copy to the AMA bi-annually for inclusion in the AMA RVG. You are entitled to release a separate local department document clarifying any aspects of the RVG which you feel are not adequately addressed in the guide itself, but as a member of the ASA's Economics Advisory Committee (EAC) which actually writes the RVG descriptors, it would be far nrefo rable if an such issues be referred to this committee for consideration
would be lai prefer able I a Equally, Barwon Health is entitled to renegotiate our Workplace Agreement such that our after- hours remuneration is based on some document other than the AMA RVG - such as "Colin's RVG" - but until such time, Barwon Health is contractually bound to comply with the AMA RVG, and your modifications do not change the actual AMA RVG. In any case, the ASA's EAC has reviewed your document, and disagrees with a number of your modifications. For example, the EAC fully supports the use of CV085 when intrathecal fentanyl is used for caesarean section The available evidence would suggest that it increases the
duration of post-op analgesia after caesarean section by at least two hours. Indeed, your position: 1. That fentanyl is not used for post-operative analgesia, and 2. That deliberate omission of fentanyl could leave a patient in agony post caesarean section was described as "breathtakingly hypocritical" by one member of the EAC. The notion that medical specialists need to be cautioned against behaviour which could be described as deliberately torturing a patient for financial gain is outrageously offensive. I also note that this item has a corresponding MBS item number (22031) which the EAC advises is widely used in this scenario. Your refusal to allow its use is thus also depriving Barwon Health of valuable income when performed under the provisions of our Private Practice Agreement.
Turning now to claiming time, the appropriate use of time units is described in great detail in the RVG. However, it obviously does not deal with the issue of completing Barwon Health after- hours claim forms - a form which I in fact created. In the event of any dispute relating to a workplace practice which is not explicitly covered in the relevant Workplace Agreement, "normal practice" generally prevails. Indeed, you will recall that Barwon Health successfully used this argument to oppose the claiming of the M4 modifier some years back in the then Arbitration Commission of Victoria.
When I commenced my current position in 1998, it was my practice to simply record the start and stop time for an entire on-call session, and claim four time units per hour. I performed the time calculation in the last of the submitted claim forms. However, I was soon advised that pay-office required a time at the end of each sheet. I dutifully complied, and it has thus been my unerring practice for more than ten years to record the time at which anaesthesia ends for the last patient on each claim form as the end time for each sheet. Self-evidently, this is also the start time for the first patient on any subsequent sheet.
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It is clear to me now that you would prefer a different time to be recorded at the end of each sheet - namely an imaginary time yielding a session duration for the claim sheet which is an exact multiple of 15 minutes. It has been my normal practice to record actual times on my time sheet. This practice of ten
year standing had never been queried until three months ago. The implication in your letter that my refusal to replace these actual times with your imaginary times has, in the last three months, suddenly become a dismissible offence is ludicrous. Self-evidently, your imaginary time method would have shaved several units off my claim forms of 15 and 18 December 2011, and it is true that this was discussed in our meeting at the time. What you have curiously neglected to mention about that audit is that it uncovered a number of errors in my RVG claims, probably related to the fact that I had completed the claim form around
2:00 AM. Some of these were in Barwon Health's favour. In fact, as a result of that audit, my original claim for 544 was revised up an extra seven units to 551 units - even disallowing the use of CV125 (which, incidentally, the ASA EAC advises should have been CV085 - both are valued at 3 units). In your letter, you claim that I was given timesheets to correct on 5 March 2012 which I chose to resubmit unaltered. This is incorrect. I found the claim forms in question in my pigeon hole on Tuesday morning 6 March 2012. They had been stamped "APPROVED - DIRECTOR OF . ANAESTHESIA" with no ( other addendum or notation. The totals on each sheet had been
signed-off unchanged. There was nothing to indicate that the forms had been rejected. I assumed they had been left in the printer and found by someone who saw they were mine so rightly returned them to my box (a regular occurrence). I therefore returned the claims to Di's desk. Late on Thursday afternoon two days later (8 March 2012), I first read an email from Dr Tomlinson which had been sent the previous day (7 March 2012 - my day off), in which he informed me that he was returning the claim forms to me, On Friday 9 March 2012, I travelled to Auckland for the meeting of the ANZ Anaesthetic Allergy Group. I therefore did not see Di again
until the following week, and when I enquired as to the whereabouts of the forms, she claimed not to have seen them. When they were not credited to my next pay, I protested to Dr. Tomlinson that it was inappropriate - not to mention a breach of Barwon Health's policy relating to pay disputes - to withhold an entire claim over a dispute about two time units. It may strike you as a quaint notion, but the AMA advice is that an employee is entitled to withdraw his labour when pay is withheld. Once work has been performed, paying for that work - the undisputed component at least - becomes a legal. obligation upon the employer. I was seriously inconvenienced by the non-payment of this claim. Withholding pay is not intended to be used as weapon with which to torment employees. I am concerned that it took the intervention of our SUD MED on the de ment to this fact
head of hik, ivir Perry imuncaster to enlighten the department to this lath. The ASA is our profession's peak industrial body. Without the ASA there would be no RVG. Although viewed by many as its crowning achievement, the ASA's work is far more encompassing than just creating and maintaining the RVG. Every week, the ASA becomes aware of some new threat to our professional autonomy or work conditions, all of which must be soundly defended. But it is not just an industrial body. The ASA is a major supporter of improving anaesthesia in the third-world - a cause I know you support dearly. It holds world- class academic meetings which many feel are superior to our College meetings, and is a major sponsor of anaesthesia research. Directly or indirectly. we all benefit from these activities.
It therefore saddens me that service to the ASA - and even ASA advice - is valued so poorly by this department. While every ASA office-bearer I know seems to enjoy some employer recognition for their ASA activities, I have been told it is something I must do "in my own time." It is not even regarded as a legitimate non-clinical activity in this department. I enjoy my work immensely. I think it a great privilege to be able to practice clinical anaesthesia. - equally enjoy my CPX research pursuits; my registrar contact; my relationship with most surgical and nursing staff: my allergy testing-service and especially my work for the ASA. My
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blocks will probably never be as good as Myles's, but I do feel I have other redeeming features with which I make a valuable contribution to the department. I'm not an exceptional anaesthetist, but I have nevertheless saved a few lives over the years, generally provided a quality service, and made a lot of people - patients and staff - happy along the way. I know my contribution is well-regarded by individuals in the department, and wider hospital
community. Whether it's the CPX service; our allergy service; lending statistical support to the Department of Surgery, or our own trainees, or lecturing at hospital Grand Rounds - I think individuals do appreciate the work I do. I may have failed to convince the department management of the merits of my CPX research, but I am pleased to report more success with the BJA's reviewers. The rest of the world will take a little longer. The only part of my job I don't enjoy is receiving recurrent termination threats. As you must know by now, I speak-out when I feel something is unjust, misleading, or just plain
wrong. If I think the boss is doing the wrong thing, I say something. If I'm asked to bill Medicare for a patient who advises me that he wishes to be treated publicly - I rightly refuse. If I think the College accreditation process has become an expensive exercise in rubber-stamping bureaucracy - I tell them so. If I'm asked to sign a Medicare form which contains the clause "This service does not contravene the Health Insurance Act 1973" and I am not sure that it does not - | strike-out the clause before signing. If a surgeon requests a mode of anaesthesia which I feel is reasonable, I will employ this mode, even if it may not accord with a hospital protocol. The opinion of two senior specialists should always transcend a protocol designed by committee. If I think something may be illegal - I say so, and generally avoid any involvement.
In our recent staff meeting, we were advised that the gastroenterologists were happy with the proposal to bill Medicare for endoscopy services. My enquiries revealed this to be quite inaccurate. In fact, there exists a spectrum of attitudes towards the proposal. Remarkably, even the chief protagonist agreed that the proposal was probably illegal, but only "a little bit illegal." I responded that many anaesthetists had concerns about this illegal component - small as it may be. Many staff choose to just do what is asked, and say nothing when confronted with situations of which that That
which they may not approve. I nat is their right. They are still good people - but bad things happen when good people do and say nothing. The tolerance of dissent and a range of views, or even personality types is the hallmark of a good democracy. However, the departmental response to the above issues indicates to me - and a number of my colleagues both staff-specialists and VMO's - that dissent is not welcome in this department. Democracy is clearly not Dr Tomlinson's preferred political system. I could go on, but I shall instead just ask you outright, have I become redundant to the department's needs? Perhaps you should take a poll. As you know I am a firm believer in due
UC process. If the department feels it would be better-off without me, there is a relevant due process for dealing with redundant employees which I feel would be far preferable to your current approach. The wrongful dismissal of Professor Thomas Kossmann is rumoured to have cost Melbourne's Alfred Hospital $52 million. Should you chose this path, you may find my terms surprisingly reasonable. As for being terminated if on "balance of probabilities" the charges against me are proven, I would remind you that our Certified Workplace Agreement specifies a formal dispute resolution procedure, which | may need to activate. The issuing of overt threats such as those in your letter
is not in accordance with that process. Even if your "imaginary time" approach was upheld, the charge against me amounts to overcharging 6 units (around $180) over 4 months. Yet this would be fully offset by the 7 units I had undercharged Barwon Health on my claims of 15 and 13 December 2011. So the net "offence" is in fact undercharging Barwon Health one unit over a four month period. Reversing your narrative, Barwon Health has in fact defrauded me one RVG unit. Unlike Barwon Health, I may be prepared to forgive this fraud in the circumstances.
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My alleged billing fraud begs the question: How does my billing integrity compares with the rest of the department? I presume of course that the entire department was audited in the same way I have been. I would need to see the data to determine whether I am in fact an outlier with respect to billing accuracy. What action has been taken against the other outliers? Presumably they have also been threatened with termination. Alternatively, if I am the only staff member who has been audited, I need to know on what basis I was singled-out for such special treatment. It cannot be based on earlier audit findings, because as I have explained, the only formal audit of my claims prior to this month was that in December 2011 which, as you know, revealed systematic undercharging. Your RVG notes war of "random audits." There are 42 specialists in this department. Anyone who believes that you have rolled your 42-sided die and my number just happened to come-up probably also believes that Al Capone's only crime was tax evasion. You need to consider the possibility that you have perhaps unwittingly been deployed to tidy-up some unfinished business on behalf of Dr Tomlinson, during his mysterious short-notice absence. The business which began on 1 March 2007. I have chosen to distribute this communication to the entire department, because I strongly believe these things are better out in the open where they are less likely to become the subject of gossip and innuendo
In your letter you speak of the "balance of probabilities" in an ominous context. On "balance of probabilities," I don't feel that your approach is conducive to optimal staff motivation and performance. The wide disseminating of this communication may also help my colleagues understand why ! might not seem myself this next week as I ponder our Friday meeting to discuss - yet again - my possible termination. I hope this matter can be resolved in an atmosphere of genuine mutual respect. But Barwon Health may have other ideas. Perhaps the decision to terminate me has in fact already been made. If this is the case, I am sure "normal practice" in such situations would include a last meal. Could I please request grated-carrot and mayonnaise sandwiches, preferably prepared about four hours prior to the meeting. Nobody does these quite like Barwon Health. Yours faithfully, Dr Mark Colson
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ATTACHMENT 5
CG-2 Anaesthesia, Perioperative & Pain Medicine P O Box 281 Barwon Geelong Victoria 3220 Health AUSTRALIA The Geelong Hospital Ryrie Street, Geelong 23 March 2012 Telephone: 03 5226 7333 Facsimile: 03 5229 9971 Dr Mark Colson colin@barwonhealth.org.au Dear Dr Colson Re False Claims for RVG's that we have reason to believe that you may be knowingly and willingly
This letter is to advise you that We TidVe 15 submitting false claims for RVG payments and intend to investigate the matter. The out of hours claim forms in question are Date Issue 04/03/2012 2 extra time units claimed Those previously discussed with you were Date Issue 15/12/2011 1 extra time unit 18/12/2011 3 extra units Our concerns are that you were made aware of this issue in December 2011 at a meeting with yourself, Dr Tomlinson and myself, where you agreed you would not continue submitting the claims in the manner you have. You have also received staff meeting notes and participated in meetings where the correct method of claiming RVG's was covered. (31/01/2012 and 01/03/2012) Departmental agreed guidelines were issued to you on 01/03/2012. On 05/03/2012 you were given timesheets to correct. You chose to resubmit those timesheets unaltered. If proven such behaviour is a breach of Barwon Health's Code of Conduct and is considered to be that if after receiving and considering your explanation it is
serious misconduct. You need to be aware that IT after receiving afid confiden deemed that, in the balance of probabilities these allegations are proven Barwon Health will implement disciplinary action that could include termination of your employment. You are required to attend a meeting at 1600 hours on Friday 30 March 2012 in meeting room 1 of the corporate office on level 3 of the ED Building to answer these allegations and provide any submission Director Dr Simon Tomlinson Dr Simon Gower Dr Frank Raineri MB, ChB. FANZCA Dip Health Services Mgt MBBS,FANZCA MBBS,FANZCA Dr Andrew Jones Dr Amutha Samuel Deputy Director MBBS, FANZCA MBBS, FANZCA Dr Colin Gordon Dr Joanne Kara-Brightwell Dr Richard Talbot FANZCA, Dip Comp Tech MBChB, FANZCA MB BCh,BAO (NUI),FCARCSI, Staff Anaesthetists Dr Adrian Lee MSo(Anaesthesia),FFPMANZCA, Dr Liam Broad BSc, DIS, MBBS,FRCA,FANZCA FANZCA MBBS,FANZCA Dr Christine Lee Dr Rachel Shanks Dr Mark Colson MBBS, FANZCA MBBS, FANZCA MBBS,FANZCA,Dip Comp Tech Dr Diarmuid McCoy Dr Melissa Viney Dr Myles Conroy MB BCh, BAO {NUI),FFARCSI MBBS,FANZCA,FFPMANZCA MBBS, DRANZCOG,FANZCA FFPMANZCA,FFPMCAI, MMed (Pain Med) Dr Britt Fraser FANZCA Dr Ross Mackenzie Dept of Clinical & Biomedical MBBS, FANZCA Sciences Dr Dean Dimovski MB,ChB,FANZCA MBBS, FANZCA,PG Dip Echo Dr Cameron Osborne Adjunct Prof Stephen Boisin MBBS, DRANZCOG, FANZCA BSc, MBBS, FRCA, FANZCA MRACMA, MHSM, DLitt(Hon)
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1 [2013] FWC 766.
2 [2013] FWC 766 at para 229 and 242.
3 Ibid at para 279.
4 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at para 17 per Gleeson CJ, Gaudron and Hayne JJ.
5 (2010) 197 IR 266 at para 27.
6 Exhibit B11, Attachment PW3.
7 (2003) 214 CLR 118; 197 ALR 201; 38 MVR 1; [2003] HCA 22 at para 23.
8 Australian Securities and Investments Commission v Hellicar (2012) 86 ALJR 522; 286 ALR 501; 88 ACSR 246; [2012]
HCA 17 at para 130; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357;
270 ALR 204; [2010] HCA 31 at para 76.
9 Dearman v Dearman (1908) 7 CLR 549 at 561; 15 ALR 287 at 291; [1908] HCA 84. See also Scott v Pauly (1917) 24 CLR
274 at 278-81; 24 ALR 27 at 31-3; [1917] HCA 60.
10 Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 AII ER 635 at 637, per Lord
Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 AII ER 21 at 26. See also Chambers v
Jobling (1986) 7 NSWLR 1 at 25.
11 (1999) 160 ALR 588.
12 Ibid at para 71.
13 [2013] FCAFC 8.
14 [2013] FWC 766 at para 144.
15 Exhibit C3, para 4; AB533-AB534.
16 Ibid at para 8; AB535.
17 [2013] FWC 766 at paras 22 and 27-29.
18 [2013] FWC 766 at paras 23-24.
19 [2013] FWC 766 at para 25.
20 See the discussion at Transcript, 16 April 2013, at PN14-PN52 and AB548.
21 Exhibit B10; Annexure ST-1, AB782-783.
22 Exhibit B10 at para 8; AB777; Transcript, 14 January 2013 at PN973 and PN1056.
23 See evidence of Dr Gordon: Transcript, 16 January 2013 at PN2709, PN2879-PN2880, PN2883-PN2889; AB309, AB327-
AB328.
24 Transcript, 14 January 2013 at PN797, PN842-PN843, PN917-PN918, PN928-PN933, PN959-PN964, PN1026-PN1027
and PN1215; AB127, AB131, AB138, AB140, AB143-AB144, AB149, AB167.
25 Transcript, 14 January 2013 at PN808; AB128.
26 Transcript, 22 January 2013 at PN3525; AB397.
27 Ibid at PN3482; AB392.
28 Ibid at PN3531-PN3533; AB397-AB398.
29 Ibid at PN3597; AB405.
30 Ibid at PN3646; AB410.
31 Transcript, 14 January 013 at PN843 and PN918.
32 (1979) 142 CLR 531 at pp 551 cited with approval in Fox v Percy (2003) 214 CLR 118 at para 25 per Gleeson CJ,
Gummow and Kirby JJ.
you wish to be considered by us in determining the outcome of this investigation. You are entitled to have a support person at the meeting. Yours faithfully Colin Gordon
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33 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 at [63]-[64], [71] and
[154]; Director, Office of the Fair Work Building Inspectorate v CFMEU [2013] FCAFC 8 at [70]-[72].
34 [2013] FWC 766 at paras 86-90.
35 Transcript, 14 January 2013 at PN988-PN991.
36 Exhibit B6, Attachment CG4; AB718.
37 Transcript, 14 January 2013 at PN850.
38 [2013] FWC 766 at paras 58-62 and 75-76.
39 Ibid at para 63.
40 Ibid at para 55.
41 Submissions in Reply of the Respondent, 12 April 2013 at paras 24 - 25.
42 Submissions in Reply of the Respondent, 12 April 2013 at para 23.
43 [2013] FWC 766 at para 115.
44 Transcript, 14 January 2013 at PN808, PN1264, PN1445-PN1448, and PN1452.
45 Transcript, 14 January 2013 at PN1264.
46 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450.
47 Exhibit B10, Attachment ST2 and ST3; Appeal Book 785.
48 [2013] FWC 766 at para 99-100.
49 Appellant’s Outline of Submissions, 5 April 2013 at para 25.
50 Exhibit C9; Appeal Book 552.
51 Exhibit C9; Appeal Book 553.
52 Exhibit C9 at Appeal Book 553.
53 Exhibit C9 at Appeal Book 555.
54 Exhibit C9 at Appeal Book 552.
55 Exhibit C9 at Appeal Book 555.
56 Exhibit C9 at Appeal Book 557.
57 Exhibit C9 at Appeal Book 557.
58 Exhibit B6, Annexure CG-4 at Appeal Book 716-720.
59 Exhibit B6, Annexure CG2 at Appeal Book 693-694.
60 Exhibit C12 at Appeal Book 564.
61 [2013] FWC 766.
62Transcript, 14 January 2013 at PN1187 to PN1188.
63 Transcript, 14 January 2013 at PN1188.
64 Transcript, 14 January 2013 at PN1313.
65 Exhibit C-28 at Appeal Book 615-616.
66 Transcript 22 January 2013 at PN3240.
67 Transcript 22 January 2013 at PN3239.
68 Appellant’s Outline of Submissions 5 April 2013 at para 40.
69 Paras 216 and 217: see also transcript at PN2773 where Dr Gordon is cross-examined.
70 Eg Exhibit C27.
71 Submissions in Reply of the Respondent, 12 April 2013 at paras 32-33.
72 Submissions in Reply of the Respondent 12 April 2013 at paras 41.
73Submissions in Reply of the Respondent, 12 April 2013 at paras 31.
74 Appellant’s Outline of Submissions, 5 April 2013 at para 45.
75 Submissions in Reply of the Respondent, 12 April 2013 at 36.
76 Exhibit B6, Annexure CG-4 at Appeal Book 716-720.
77 Transcript 15 January 2013 at PN3006, PN3007, PN3091 (Gordon); Transcript 22 January 2013 at PN3690, PN3691
(Tomlinson); PN3927 - PN3930 (Watson).
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78 Appellant’s Outline of Submissions 5 April 2013 at para 36.
79 Transcript 14 January 2013, PN1358-PN1362.
80 Exhibit B6, Attachment CG-6 at Appeal Book 724.
81 Exhibit B6, Attachment CG-6 at Appeal Book 731.
82 Exhibit C9 at Appeal Book 552-560.
83 Exhibit C9 at Appeal Book 553.
84 [2013] FWC 766 at para 75.
85 Ibid at para 143.
86 Exhibit B6 Attachment CG-6 at Appeal Book 724.
87 Exhibit C9 at Appeal Book 553, Exhibit B6, Attachment CG6 at Appeal Book 724 and 731; see also Appellant’s Outline of
Submissions 5 April 2013 at paras 46-47.
88 Barwon Health’s Notice of Appeal, 1 March 2013 at para (6)(b).
89 Appellant’s Outline of Submissions, 5 April 2013 at para 47.
90 (2008) 170 IR 1 at para 23.
91 Appellant’s Outline of Submissions 5 April 2013 at para 48.
92 Respondent’s Submissions in Reply, 12 April 2013 at para 38; see also exhibit B6, Attachment CG-6 at Appeal Book 731.
93 Transcript, 15 January 2013 at PN 1927.
94 According to both the notes of meeting prepared by Mr Perry Muncaster and Dr Colson the meeting occurred on 14 May
2013, Exhibit C9 at Appeal Book 552; Exhibit B5, Attachment PM-1 at Appeal Book 672.
95 Exhibit B6, Attachment CG-4 at Appeal Book 720, Exhibit C9 at Appeal Book 554-555, Appeal Book 558-559.
96 According to both the notes of meeting prepared by Mr Perry Muncaster and Dr Colson the meeting occurred on 14 May
2013, Exhibit C9 at Appeal Book 552; Exhibit B5, Attachment PM-1 at Appeal Book 672
97 Respondent’s Submissions in Reply 12 April 2013 at para 40.
98 Appellant’s outline of submissions 5 April 2013 at para 49.
99 Exhibit B5, Attachment PM1 at Appeal Book 672.
100 Exhibit B5, Attachment PM1 at Appeal Book 674.
101 Ibid.
102 The matter in s.387(e) is not relevant in the circumstances of this case.
103 [2013] FWC 766 at para 234 - 240.
