1
Fair Work Act 2009
s.394—Unfair dismissal
Dr Mark Colson
v
Barwon Health
(U2012/10440)
DEPUTY PRESIDENT
GOSTENCNIK
MELBOURNE, 11 NOVEMBER 2013
S. 394 unfair dismissal remedy.
Introduction
[1] This matter has a long and very public history. More than 17 months ago, on 30 May
2012, Dr Mark Colson (Dr Colson) was dismissed from his employment with Barwon Health
where he had worked as an anaesthetist in the department of Anaesthesia, Perioperative and
Pain Medicine (Department) since 1998. Barwon Health summarily dismissed Dr Colson
from its employment because of serious misconduct said to have been engaged in by Dr
Colson in that he:
Knowingly and willingly submitting claims for ‘Relative Value Guide’ (RVG)
payments in breach of Barwon Health billing guidelines and directives provided to
him; and
Published a letter dated 23 March 2012 to the entire Department that was deliberately
offensive, a genuine challenge to the authority of management and designed to
embarrass Barwon Health and damage its reputation.1
[2] Barwon Health claimed that Dr Colson’s conduct had “fractured the relationship of
trust and confidence that is a necessary part of the employment relationship such that an
ongoing employment relationship between [him] and Barwon Health is no longer tenable”.2
The fractured nature of the relationship rendering trust and confidence as irreconcilable, is a
position that Barwon Health maintains in the proceedings before me.
[3] Dr Colson proceeded to lodge an application for relief in respect of the termination of
his employment under section 394 of the Fair Work Act 2009 (Act) on 13 June 2012. Dr
Colson’s application for relief was heard by Commissioner Roe on 14, 15, 22 and 30 January
2013 and the Commissioner’s reasons for decision were published on 11 February 2013.3 The
1 See exhibit B 11, Attachment PW3
2 Ibid
3 [2013] FWC 766.
[2013] FWC 8734 [Note: An appeal pursuant to s.604 (C2013/7488) was
lodged against this decision - refer to Full Bench decision dated 24 March
2014 [[2014] FWCFB 1949] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB1949.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwc766.htm
[2013] FWC 8734
2
Commissioner concluded that Dr Colson had engaged in misconduct and that there was a
valid reason for the termination of his employment.4 However, the Commissioner concluded
that the misconduct was not serious misconduct justifying summary termination and having
regard to a number of other factors, he concluded that the termination of Dr Colson’s
employment was unfair. Dr Colson’s clinical expertise as an anaesthetist and his performance
over 14 years at Barwon Health were significant factors to which the Commissioner had
regard, as was 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.
[4] Ultimately the Commissioner concluded that reinstatement was not inappropriate
because he was satisfied that there was a sufficient level of cooperation for a proper working
relationship to resume and he ordered that Dr Colson be 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.5
[5] Barwon Health sought permission to appeal the Commissioner’s decision; that the
appeal be allowed; the decision be set aside and Dr Colson’s application for relief be
dismissed. It also sought a stay of the Commissioner’s decision and reinstatement order. That
application was dismissed.6 On a narrower basis, Dr Colson also sought permission to appeal,
relating to the Commissioner’s decision not to make an order to restore lost pay. Both appeals
were heard by a Full Bench of the Commission, of which I was a member, on 16 April 2013
and reasons for its decision were published on 15 July 2013.7 The Full Bench concluded that
the Commissioner had 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 and that
there were a number of erroneous findings in the Commissioner’s consideration of the
allegations against Dr Colson.8 Consequently the Full Bench granted Barwon Health
permission to appeal, upheld its appeal and quashed the Commissioner’s decision.9 Upon the
rehearing of the matter, the Full Bench concluded that there were valid reasons for the
termination of Dr Colson’s employment. The Full Bench identified two matters relating to Dr
Colson’s conduct that each founded a valid reason for the dismissal. The two matters were Dr
Colson’s:
deliberate lodgement of 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
publication of the letter dated 23 March 2012 to the entire Department of
Anaesthesia.10
[6] The Full Bench concluded that neither of these two matters could be characterised as
serious misconduct justifying summary dismissal.11 The Full Bench adopted the
4 Ibid at [229] and [242]
5 Ibid at [279]
6 [2013] FWC 1435
7 [2013] FWCFB 4515
8 Ibid at [149]
9 Ibid at [150]
10 Ibid at [152] – [153]
11 Ibid at [87] and [130]
[2013] FWC 8734
3
Commissioner’s finding in respect of six other relevant matters identified at [235] – [240] of
the Commissioner’s reasons for decision as these were not subject to challenge in the appeal
and, taking into account all of the matters set out in section 387 of the Act, concluded that the
termination of Dr Colson’s employment was harsh, particularly having regard to his lengthy
period of service and the significant impact of the termination on his reputation’s ability to
find suitable employment.12 This is to be contrasted with the Commissioner’s initial finding
that the dismissal of Dr Colson was unfair, a general description used to describe a dismissal
that is harsh, unjust or unreasonable.13 The Full Bench observed that its harshness conclusion
was also supported by the fact that:
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 not received a warning specifically directed to his communication
style.14
[7] The matter of remedy was referred to me for determination by way of a rehearing
having regard to the conclusions of the Full Bench as to valid reason and harshness, and to
provide an opportunity to the parties to lead further evidence as to the prevailing
circumstances since the Commissioner’s decision. It was therefore unnecessary for the Full
Bench to deal with Dr Colson’s appeal.
[8] For the reasons which follow, I have declined to make an order reappointing Dr
Colson as an anaesthetist with Barwon Health because I am satisfied that reinstatement of Dr
Colson is not appropriate. I have decided that there will be an order of compensation payable
to Dr Colson in the amount of $59,050.00.
Remedy for unfair dismissal
The statutory provision
[9] Section 390 of the Act sets out the circumstances in which I may make an order for
reinstatement or compensation:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the payment of
compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at
the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
12 Ibid at [156] – [157]
13 [2013] FWC 766 at [241]; See also Byrne v Asutralian Airlines Limited (1995) 185 CLR410 at 465 per McHugh and
Gummow JJ for a discussion of the overlap in and separate meanings of, the words “harsh,unjust or unreasonable”
14 [2013] FWCFB 4515 at [158]
http://www.fwc.gov.au/decisionssigned/html/2013fwc766.htm
[2013] FWC 8734
4
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the
circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[10] The matters set out in subsections 390(1) and (2) are not put in issue in the
proceedings before me. The Full Bench has determined that Dr Colson has been unfairly
dismissed. Further, there is no question that Dr Colson is a person protected from unfair
dismissal and has made a valid application under 394. Therefore the jurisdictional
preconditions to the order of an appropriate remedy are satisfied.
[11] The question whether to order a remedy in a case where a dismissal has been found to
be unfair remains a discretionary one. Neither party suggested that I exercise my discretion
not to order a remedy at all. I consider that a remedy is appropriate in all the circumstance of
this case.
Reinstatement as the primary remedy for an unfair dismissal
[12] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair
dismissal. The discretion to order a remedy of compensation may only be exercised if the
Commission is satisfied that reinstatement is inappropriate. The object of Part 3-2 of Chapter
3, in which the unfair dismissal provisions appear, also tells us that an object of that Part is “to
provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”.15
But to describe reinstatement as the ‘primary remedy’, is to do no more than to recognise it as
being the first, perhaps even the foremost, remedy under the Act. The description is not
licence to search for a reason to order an employee’s reinstatement when that in not
appropriate. The only question in determining whether to grant the remedy of reinstatement of
an employee in relation to a dismissal that is found to have been ‘unfair’ is whether that is
appropriate in the particular case.
Determining whether reinstatement of the person is inappropriate
[13] In order to understand and appropriately decide the question of whether reinstatement
of Dr Colson is inappropriate, it is important to briefly consider the legislative development of
the remedy provisions pertaining to unfair dismissal relief. In the federal sphere, codified
remedies for ‘unfairly’ dismissed employees first commenced on 30 March 1994 when Part
VIA of the Industrial Relations Act 1988 (IR Act) commenced. The jurisdiction to order a
remedy was conferred on the Federal Court16 and section 170EE (2) of the IR Act then
provided:
15 Section 381(1)(c)
16 The then Australian Industrial Relations Commission could make an award that provided a remedy of a kind that could be
granted by the Court under section 170EE of the IR Act if the parties made an election to have the matter dealt with by
content arbitration; see section 170EC of the IR Act
[2013] FWC 8734
5
“If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170
DB or 170 DD) constituted by the termination of employment of an employee, that the reinstatement of
the employee is impracticable, the Court may, if it considers it appropriate in all the circumstances of
the case, make an order requiring the employer to pay employee compensation of such amount as the
Court thinks appropriate.” (Emphasis added).
[14] Commencing on 25 November 1996 the IR Act was renamed the Workplace Relations
Act 1996 (WR Act) and from 31 December 1996 the unfair dismissal scheme was amended.
Simply stated, remedies in respect of a harsh, unjust or unreasonable dismissal were thereafter
to be dealt with by the Australian Industrial Relations Commission (AIRC) by conciliation
and if needed, by arbitration.17 Section 170CH(3) of the WR Act relevantly provided that the
AIRC may make an order requiring the employer to reinstate the employee if it “considers it
appropriate”. Section 170CH(6) of the WR Act provided as follows:
“If the Commission thinks that the reinstatement of the employee is inappropriate, the commission may,
if the commission considers it appropriate in all circumstances of the case, make an order requiring the
employer to pay the employee an amount ordered by the commission in lieu of reinstatement.”
(Emphasis added).
[15] Two things may be observed from the foregoing. The first is that the earlier IR Act
provision required a consideration of the ‘practicability’ of reinstatement, whereas the latter
WR Act provisions focused attention on whether reinstatement of the employee is
‘appropriate’ and permitted orders of compensation to be made only if the Commission
thought that reinstatement is ‘inappropriate’. The second is that, although somewhat more
cumbersomely expressed, the remedy provisions of the WR Act are to the same effect as
section 390 of the Act. Both schemes emphasise reinstatement as the primary remedy with
compensation available as a remedy only when reinstatement is inappropriate. The only
relevant question as to remedy under both schemes is whether reinstatement is appropriate.
[16] As to the first observation, a Full Bench of the AIRC in Australia Meat Holdings Pty
Ltd v McLauchlan18 gave consideration to the differences in the provisions of the IR Act and
the WR Act and concluded that “a consideration of appropriateness of reinstatement involves
the assessment of a broader range of factors than practicability . . . [I]n considering whether to
order the reinstatement the Commission is not confined to an assessment of the practicability
of such an order are that must decide whether such an order is appropriate”19. I respectfully
agree. It follows from my second observation that the conclusions of the Full Bench in
McLauchlan about the consideration of the appropriateness of reinstatement continue to have
currency and I adopt them for the purposes of deciding whether an order reinstating Dr
Colson is appropriate.
When might reinstatement be inappropriate?
[17] Reinstatement might be inappropriate in a whole range of circumstances. The remedy
may be inappropriate if reinstatement would be futile, for example where reinstatement of an
employee would almost certainly lead to a further termination of the employee’s employment
because the employer has since discovered that the employee engaged in an act of serious
17 See generally subdivision B of Division 3 of Part VIA of the WR Act
18 (1998) 84 IR 1
19 Ibid at 17
[2013] FWC 8734
6
misconduct which was only discovered after the employee’s termination.20 Reinstatement as a
remedy may be inappropriate if the employer no longer conducts a business into which the
employee may be reappointed.21 The mere absence of a position in a business into which an
employee may be reappointed will rarely found a conclusion that reinstatement is
inappropriate.22 However if reinstatement of an employee would result in the employee being
surplus to the employer’s business requirements, this is clearly a factor which goes to the
question of the appropriateness of reinstatement.23
[18] Reinstatement may be inappropriate if an employee is incapacitated because of illness
or injury in a material way so that further performance of the employee’s contractual
obligations would be impossible.24
[19] The most common basis advanced to support the proposition that reinstatement is
inappropriate is that there has been a loss of trust and confidence, or a breakdown in that
relationship, so as to make the re-establishment of the employment relationship unviable or
unproductive. Here we are concerned with that which is essential to make an employment
relationship workable. It is not to be confused with an implied term in a contract of
employment of mutual trust and confidence, the existence of which in Australian law has not
been considered by the High Court, and continues to be the subject of differing judicial
opinion.25
[20] It is doubtless the case, that trust and confidence is a necessary ingredient in any
employment relationship. But it would be wrong to assume the status of the relationship of
trust and confidence is the sole criterion or even a necessary one to determine whether or not
reinstatement is appropriate.26 As Justice Gray observed in Australasian Meat Industry
Employees’ Union v G & K O’Connor Pty Ltd27 the development of the law relating to trust
and confidence in the employment relationship commenced when that relationship invariably
involved a close personal relationship between the employer and employee, but with the
emergence of corporate employers, the importance of trust and confidence in the employment
relationship has diminished.28
[21] I do not take his Honour’s comments to mean that trust and confidence as an element
of the employment relationship is no longer important. It is merely recognition that in many
cases it will be important to have regard to the totality of the employment, and that in the case
of a corporate employer, the loss of trust and confidence in the employee will be by a
manager or managers of the corporate employer. But as his Honour observed, in such cases
20 Such discovery might also be relied upon by the employer as a valid reason for the employee’s dismissal which is the
subject of an unfair dismissal remedy application
21 Chelvarajah v Global Protection Pty Ltd (2004) 142 FCR 296
22 Ibid; See also Smith v Capral Aluminium, 7 October 1999 Print R9808; Fairhall v Smorgon, 22 February 2002, PR913285
23 Newtronics Pty Ltd v Salenga, AIRC Full Bench 29 April 1999, Print R4305
24 See for example Smith v Moore Paragon AIRC Full Bench 20 January 2004, PR942856
25 See most recently Commonwealth Bank of Australia v Barker [2013] FCAFC 83; per Jacobson and Lander JJ at [77]-
[108]; C/f Per Jessup J at [236]-[340]
26 See Tenix Defence Pty Ltd v Galea, PR928494, 11 March 2003; see also Liddell v Lembke (1994) 1 IRCR 466,
per Gray J at 495 and Abbott-Etherington v Houghton Motors Pty Limited
(1995) 63 IR 394, per Marshall J at 396-397
27 [2000] FCA 627
28 Ibid at [42]
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281995%29%2063%20IR%20394?stem=0&synonyms=0&query=perkins
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281994%29%201%20IRCR%20466?stem=0&synonyms=0&query=perkins
http://www.fwc.gov.au/awardsandorders/html/PR928494.htm
[2013] FWC 8734
7
the “critical question must be what effect, if any, a loss of trust by the manager in an
employee is likely to have on the operation of the workplace concerned”. 29 It is important to
understand that his Honour’s observations were made in the context of an interlocutory
application while His Honour was considering “balance of convenience” arguments against
reinstatement on an interlocutory basis. His Honour’s observation about the effect of the shift
from a personal to a corporate employment relationship were made as an introduction to his
conclusion that the respondent did not provide any evidence on the “critical question” as
identified. So much is clear from the following passage:
“. . . It might be more significant, for instance, to know the name of Mr Voss’s immediate supervisor and
to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it
might also be relevant to know whether it would be possible to place Mr Voss in another part of the
workplace, under another supervisor, who did have such trust. It would also be relevant to know what
effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct
of operations in the workplace. There is no evidence as to any of these matters.
[43] Resort to an assertion that trust and confidence in a particular person have been lost cannot be a
magic formula for resisting the compulsory reinstatement in employment of the particular person.”
30
[22] In my view, His Honour is merely saying that it is not enough to simply assert that
trust and confidence in an employee has been lost. Where this is relied upon then there must
be evidence from the relevant managers holding that view and an assessment must be made as
to the effect of the loss of trust and confidence on the operations of the workplace. In short, all
of the circumstances must be taken into account. This seems evident and is hardly
controversial.
[23] In Perkins v Grace Worldwide (Aust) Pty Ltd31 the Full Court of the Industrial
Relations Court considered the effect of a loss of trust and confidence on the question of the
“practicability” of a reinstatement remedy and said:
“Trust and confidence is a necessary ingredient in any employment relationship. That is why the law
imports into employment contracts an implied promise by the employer not to damage or destroy the
relationship of trust and confidence between the parties, without reasonable cause: see Burazin v
Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996,
not yet reported). The implication is not confined to employers, it extends to employees: see for
example Blyth Chemicals Ltd v Bushell [1933] HCA 8; (1933) 49 CLR 66 at 81-2 and North v
Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there
has been a loss of trust and confidence is a relevant consideration in determining whether
reinstatement is impracticable, provided that such loss of trust and confidence is soundly and
rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of an employer,
accuses an employee of wrongdoing justifying the summary termination of the employee’s
employment, the accuser will often be reluctant to shift from the view that such wrongdoing has
occurred, irrespective of the Court’s finding on that question in the resolution of an application under
Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust
and confidence between employer and employee, and so made reinstatement impracticable, an
employee who was terminated after an accusation of wrongdoing but later succeeded in an application
29 Ibid
30 Ibid
31 (1997) 72 IR 186
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281976%29%2011%20ALR%20599?stem=0&synonyms=0&query=perkins
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281933%29%2049%20CLR%2066?stem=0&synonyms=0&query=perkins
http://www.austlii.edu.au/au/cases/cth/HCA/1933/8.html
[2013] FWC 8734
8
under the Division would be denied access to the primary remedy provided by the legislation.
Compensation, which is subject to a statutory limit, would be the only available remedy.
Consequently, it is important that the Court carefully scrutinise any claim by an employer that
reinstatement is impracticable because of a loss of confidence in the employee.
Each case must be decided on its own merits. There may be cases where any ripple on the surface of
the employment relationship will destroy its viability. For example the life of the employer, or some
other person or persons, might depend on the reliability of the terminated employee, and the employer
has a reasonable doubt about that reliability. There may be a case where there is a question about the
discretion of an employee who is required to handle highly confidential information. But those are
relatively uncommon situations. In most cases, the employment relationship is capable of
withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any
human being to have total trust in another. What is important in the employment relationship is that
there be sufficient trust to make the relationship viable and productive. Whether that standard is
reached in any particular case must depend upon the circumstances of the particular case. And in
assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer
believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the
employer. But if there is such a requirement, it will be because the employee’s employment was
earlier terminated without a valid reason or without extending procedural fairness to the employee.
The problems will be of the employer’s own making. If the employer is of even average fair-
mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate
such a loss of confidence as to make the restoration of the employment relationship impracticable.”
32
[24] As the Full Bench of the AIRC observed in McLauchlan, although Perkins was
decided under the IR Act, the Court’s observations reproduced above remain relevant to the
question of whether reinstatement is appropriate in a particular case.33 To this I would add the
observations of Full Bench of Fair Work Australia in Regional Express Holdings Limited v
Richards: 34
“Whenever an employer dismisses an employee for misconduct, assuming the employer is acting
honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that
the termination was harsh, unjust or unreasonable is appropriate to consider whether the relationship can
be restored if the employee is reinstated. That question cannot be answered solely by reference to the
views of management witnesses. All of the circumstances should be taken into account.”
35
[25] From the foregoing, and putting to one side the obiter observations of the Full Court in
Perkins that the law imports into employment contracts an implied term of mutual trust and
confidence,the following propositions may be distilled concerning the impact of a loss of trust
and confidence on the question of whether reinstatement is an appropriate remedy:
An assessment of whether there has been a loss of trust and confidence must be
decided on the circumstances of the particular case, including the nature of the
employment;
An allegation that there has been a loss of trust and confidence must be soundly and
rationally based and it is important to carefully scrutinise any claim by an employer
that reinstatement is inappropriate because of a loss of confidence in the employee;
32 Ibid at 191
33 (1998) 84 IR 1 at 18
34 [2010] FWAFB 8753
35 Ibid at [26]
[2013] FWC 8734
9
The appropriateness of reinstatement does not depend on notions of a loss of trust and
confidence in the employee, although it is a relevant and even important consideration;
Dismissal for misconduct, assuming the employer is acting honestly, will in most
cases imply a loss of trust and confidence in the employee. If the dismissal is
ultimately found to be ‘unfair’, the question becomes whether the relationship can be
restored if the employee is reinstated. In answering that question all of the
circumstances must be taken into account, not just the views of management;
The reluctance of an employer to shift from a view, despite a tribunal’s assessment
that the employee was not guilty of serious wrongdoing or misconduct, does not
provide a sound basis to conclude that the relationship of trust and confidence is
irreparably damaged or destroyed;
The fact that it may be difficult or embarrassing for an employer to be required to re-
employ an employee whom the employer believed to have been guilty of serious
wrongdoing or misconduct are not necessarily indicative of a loss of trust and
confidence so as to make restoring the employment relationship inappropriate;
In most cases, employment relationships are capable of withstanding some friction and
doubt and in this context, trust and confidence are concepts of degree;
The question, so far as it relates to reinstatement is ultimately, whether there can be a
sufficient level of trust and confidence restored to make the relationship viable and
productive. In making this assessment, it is appropriate to consider the rationality of
any attitude taken by a party.
These propositions are accepted by both Dr Colson and Barwon Health36.
Has there been a loss of trust and confidence?
[26] Barwon Health submits, in part, that reinstatement of Dr Colson to his former position
with Barwon Health is inappropriate because the relationship of trust and confidence between
the parties has been destroyed by reason of Dr Colson’s conduct, and any restoration of the
employment would be impracticable37. I take the reference to “parties” relevantly to mean
between Dr Colson and those having managerial and supervisory authority over him. This
submission is advanced on a number of bases each of which are considered below.
[27] DishonestyBarwon Health submits that Dr Colson was dishonest with its managers
under whose supervision he worked, and under whose supervision he would continue to work
were he to be reinstated to a position with Barwon Health38. This submission is founded on a
view held by Barwon Health that Dr Colson was dishonest with management of Barwon
Health in his Position Statement of 28 March 201239 and during the investigation meeting on
14 May 2012 by claiming that he did not have an understanding of the correct methodology
36 Transcript PN8765; PN8968-PN8979; MFI1
37 Barwon Health's further submissions on remedy at [11(a)]
38 Ibid at [12]
39 AB724
[2013] FWC 8734
10
for time units claimed on 4 March 201240. It is said that Dr Colson’s “claims of ignorance of
the guidelines on 4 March 2012 were false and were intended to mislead” Barwon Health
during the course of the disciplinary process, and that it is now open to me (based on matters
put to Dr Colson during hearings before me and on the evidence before and findings made by
Commissioner Roe) to make such a finding41.
[28] This issue was considered by the Full Bench which said as follows:
“ [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 clear; and
left Dr Colson in no doubt about what Dr Tomlinson regarded as the correct methodology for time
unit claims,
the Commissioner should also have found that Dr Colson deliberately misled Barwon Health in his
position paper 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.
[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. 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. Barwon Health submitted that
such a finding would constitute a stand alone ground justifying dismissal and relied on Streeter v Telstra
Corporation Ltd in aide of its submission.
[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.
[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:
“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 ...”
[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.
40 Barwon Health's further submissions on remedy at [18]
41 Ibid at [19] – [20]
[2013] FWC 8734
11
[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.”42 Endnotes omitted
[29] Before me it is not said that such a finding should be made for the purposes of
concluding that Barwon Health was entitled to summarily dismiss Dr Colson on that ground,
rather it is said that Dr Colson’s dishonesty during the investigation into the billing allegations
was destructive of the relationship of trust and confidence. In order to overcome the
difficulties of making such a finding identified by the Full Bench Dr Colson was cross-
examined by Counsel for Barwon Health on this issue during which the following exchange
occurred:
“MR McDONALD: No, I’ve asked the witness – I’ve put a straight proposition to you. You really should
be able to answer yes or no?---Yes, I believe that the matter was open to debate and that when this email
was written, that debate was still ongoing.
And you didn’t agree with it?---It was open to debate.
On your side of the vote you didn’t agree with it?---Because it was open to debate, there will be
differences of opinions in any debate.
Could you not just answer a very simple, straight question? You didn’t agree with the billing
methodology as set out in that email of 22 December which is – you certainly understand it now – you
don’t charge more than four units per hour. You didn’t agree with it?---I interpreter four units per hour as
being one unit per 15 minutes or part thereof so - - -
Yes, and when you found out what was actually the position – on your account, when you found out what
was the position – and you say that it was only on 28 March. In your position statement you say it was
only as at 28 March did you now understand what was meant, but when you did get that understanding,
you didn’t agree with it. You thought it was inconsistent with the certified agreement. That’s correct, isn’t
it?---I agreed to comply at that point.
Yes?---As soon as I understood what was requested, I agreed to comply. That was the evidence put before
Roe C.
You agreed to comply but under protest. Your position was, “This is inconsistent with the certified
agreement.” It’s all set out in the minutes. We don’t want to waste time. We’ll be here for three weeks.
It’s all in the minutes of the meeting on 14 May where you set out that, yes, you’ll comply, but this is
inconsistent with the certified agreement. It’s in black and white. That was your position?---That’s not
correct. The only protest was that I had by this time been accused of fraud and I requested that the fraud
allegation be withdrawn.
Very well, Dr Colson. You prepared a position statement on 28 March 2012 and I think it might be an
attachment to the decision. Just bear with me.
THE DEPUTY PRESIDENT: Yes, it’s attachment 3, Mr McDonald.
MR McDONALD: I might be wrong about that.
THE DEPUTY PRESIDENT: It’s attachment 3 to the decision.
MR McDONALD: It’s attachment 3 to the decision. Thank you very much, your Honour.
42 [2013] FWCFB 4515 at [135] - [140]
[2013] FWC 8734
12
This was a document that you, am I correct – correct me if I’m mistaken, but you prepared this document
in anticipation that there was going to be a meeting to consider allegations which had been put against
you and you were setting out your position. That’s right?---Yes, that’s broadly correct.
Right; and under the heading “Timeline”, under that paragraph, you talk - in the second half you’re
referring here to the meeting on 22 December. You say:
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 meeting was a new method of calculating time units which was quite different from my normal
practice over 11 years and did not conform to the AMA RVG description of time-unit calculation.
So in setting that out in this document you were basically explaining your position, your perspective, in
advance of the meeting. Correct?---Yes.
Now, the relevant meeting was actually held on 14 May 2011 – I beg your pardon, 2012. You understood
that the purpose of that meeting was to inquire and investigate into the allegations which had been made
against you and to give you an opportunity to further put your position. Correct?---Yes.
And you understood, as a consequence of that meeting, there might be disciplinary action against you?---
Yes.
And you understood that disciplinary action might include termination of your employment?---Yes.
You made a recording of that meeting?---No, I didn’t.
Isn’t exhibit C9 in the proceedings a recording that you made? I’m not making a big deal of the fact you
made a recording, Dr Colson. I just want to confirm - - -?
---The fact is I didn’t make a recording. I transcribed the meeting in real-time using software to do that.
It’s not an audio-recording.
Right, but exhibit C9 in the proceedings is a result of that non-recording. Correct?
---If you’d just give me a minute, Mr McDonald.
We can take you to it, if you like. It’s in the appeal book?---Yes.
It’s page 552 of the appeal book?---Okay. I wonder if I could - - -
That’s in volume 2 of the appeal book, but all I want to do is to read from you. I’m sure Mr Millar will
pull me up if he thinks I’m not doing this accurately, but at page 554 of the appeal book at the top of the
page - this is an extract from your transcription, I’ll call it, your real-time transcription.
THE DEPUTY PRESIDENT: Just before you go on, Mr McDonald, the software you used was akin to
something like Dragon Dictation or some such?---It wasn’t actually Dragon but it was - it was very cheap,
low-quality software but something similar, your Honour.
Yes, I understand; yes.
MR McDONALD: What you are transcribed as saying is:
As the December 2011 meeting with Colin and Simon time units were discussed but with so many
other things Colin wished to change that I did not fully appreciate his interpretation of time-unit
calculations at that meeting -
I beg your pardon, I’ll go back -
but with so many other things Colin wished to change that I did not fully appreciate his
interpretation of the time-unit calculations at that meeting, nor was it made clear in a follow-up
email.
So what I want to put to you, Dr Colson, is that by your position statement of 28 March 2012 and by the
statement that you’ve made there on 14 May 2012 you have deliberately misled Barwon Health by
[2013] FWC 8734
13
claiming not to have understood the direction which was given to you when in fact you had a clear
understanding?
---That’s not correct.
And you say it’s not correct because in fact the position was that you did not have an understanding?---
Would you repeat the question, please?
I’ve put it to you that your statements were misleading.
. . .
MR McDONALD: So the point we were at was I’ve taken you to your position statement of 28 March
and I’ve taken you to the extract from the transcription of the meeting on 14 May 2012 and I’m putting to
you that by making those statements in the context of a disciplinary process you were intending to
mislead Barwon Health?---I was not intending to mislead Barwon Health, but it was confusing by the
meeting on the 14th of May, there was enormous confusion about exactly what it was I was doing wrong.
THE DEPUTY PRESIDENT: Just excuse me for a moment, Mr McDonald. Yes, Mr McDonald?
MR McDONALD: Thank you.
I want to be fair to you, Dr Colson, because we all know the stakes are very high in this case. On the
current state of the findings of the full bench you did understand the direction which was given to you on
22 December 2011. Now, I know you’re taking issue with that, but that’s the finding of the full bench.
That’s the factual position?---I don’t - - -
All right. That is the position. That’s not a question. I’m just laying the foundation for my question. I’ve
taken you to statements you’ve made in writing and orally which are inconsistent with that factual finding
in the full bench decision. I’m giving you an opportunity now to qualify your account regarding the
meeting on 14 March – sorry, 14 May and the statement you made in writing on 28 March. I’m giving
you the opportunity to put forward any other explanation that you may wish to as to why you made those
statements which are inconsistent with the findings of fact of the full bench. Now, are you in a position to
do so? Do you want to take up that opportunity?---I do, Mr Millar, thank you. I think the central problem
in this area is that when I went into the meeting of 14 May, I was not clear whether the Barwon Health
billing guidelines applied at all times or only during periods of two-theatre operations and it seemed to me
at the time that it was - the directive was that the Barwon Health billing guidelines at all times but in fact
only now or subsequently did I learn that the Barwon Health billing guidelines – that the application of
the AMA RVG during single-theatre operations is not in contention and which brings me to one of my
conditions attached to my adherence to the Barwon Health billing guidelines was I wanted it spelt out that
these billing guidelines applied only during two-theatre operations and not at all times after hours. This
was my chief concern.
Can I suggest to you, Dr Colson, basically in the evidence you’ve just given you are maintaining the
position that as at 4 March you did not understand the direction which you had been given on 22
December?---My evidence is that I wasn’t given a direction. I stand by that evidence.”
43
[30] Despite the urging of Counsel for Barwon Health, I am not satisfied that on the
evidence, when viewed in its totality, I should make a finding of dishonesty. For present
purposes it must be accepted that Dr Colson was given a clear directive on 22 December 2011
that only 4 units per hour were to be claimed when running two theatres44, that Dr Colson
agreed to comply with that directive45 and that Dr Colson had deliberately lodged a claim for
payment which he knew was inconsistent with the direction he had been given by
43 Transcript PN4952-PN4985 and PN4997-PN5002
44 [2013] FWCFB 4515 at [71] and [79]
45 Ibid at [79]
[2013] FWC 8734
14
management regarding the appropriate billing method for time units when working in two
theatres concurrently46.
[31] It is not suggested, nor is it open on the available evidence to find that Dr Colson
engaged in fraud or that he submitted claims on 4 March 2012 dishonestly, for financial
gain47. In fairness to Dr Colson, his evidence is that he was confused about “exactly what it
was I was doing wrong”48. When this evidence is understood in context, at the time that Dr
Colson prepared his position statement and responded to questions during the meeting of 14
May 2012, Dr Colson thought that the whole of the billing procedure adopted by him and said
to be in accordance with the “prevailing AMA RVG”, 49 was at issue, and it is against this
backdrop that the response that “it is only now apparent to me”50 might be understood. So
much seems clear from his evidence before me in which he said:
“. . . . I think the central problem in this area is that when I went into the meeting of 14 May, I was not
clear whether the Barwon Health billing guidelines applied at all times or only during periods of two-
theatre operations and it seemed to me at the time that it was - the directive was that the Barwon Health
billing guidelines at all times but in fact only now or subsequently did I learn that the Barwon Health
billing guidelines – that the application of the AMA RVG during single-theatre operations is not in
contention . . .”
51
[32] Given this doubt, coupled with Dr Colson’s evidence before me that he “was not
intending to mislead Barwon Health”52 which I am prepared to accept, I am not inclined to
make such a serious finding that Dr Colson was dishonest.
[33] Nevertheless given the Full Bench findings described earlier in these reasons, it
appears to me that Dr Colson’s explanation in his position statement of the 28 March 2012
and during the meeting on 14 May 2012, that the first occasion on which he understood that
Barwon Health wanted him to claim only 4 units per hour when running two theatres, was
after he was queried about the time sheet he submitted on 4 March 2012, was a disingenuous
attempt to explain his actions. The totality of the evidence points clearly to this conclusion. Dr
Colson was not being straightforward or candid in his position statement or in the discussions
with management of Barwon Health. In my view, his response in the position statement and
in the discussions on 14 May 2012 was insincere and calculated to place his action of
disregarding the directive given to him on 22 December 2011 in the best possible light. Given
that which Barwon Health knew at the time about the directive that was given to Dr Colson in
the meeting with him on 22 December 2011 and in the follow-up email, it seems to me an
inescapable conclusion that Dr Colson’s response in his position statement and in the meeting
of 14 May 2012 had the effect of damaging the trust and confidence that Barwon Health
management had in Dr Colson even absent deliberate dishonesty.
46 Ibid at [153]
47 Ibid at [87]
48 Transcript PN4997
49 AB724.1
50 AB724.9; see also AB731.4
51 Transcript PN5001
52 Transcript PN4997
[2013] FWC 8734
15
[34] In the circumstances I accept that Barwon Health management may now not be
confident that Dr Colson would be straightforward and candid with them in the future. Indeed
Dr Colson’s failure to respond candidly and in a straightforward manner to Dr Tomlinson’s
email query about his whereabouts on 23 May 201353 (a matter to which I will later return)
will have done little to alleviate that doubt.54
Dr Colson’s Obstinacy
[35] Barwon Health submits that during cross examination of Dr Colson in proceedings
before me, Dr Colson chose to stand by the evidence he gave before Commissioner Roe and
that contrary to the Full Bench findings Dr Colson continues to maintain a position that he
was not given a directive that Barwon Health wanted him to claim only 4 units per hour when
running two theatres on 22 December 2011, he did not agree to comply with the directive and
that he did not intentionally comply with the directive during January and February of 2012.
In consequence, so it is submitted, the obstinacy with which Dr Colson “continues to
maintain, in effect, that he was right and that the Full Bench and Drs Tomlinson and Gordon
are wrong, of itself illustrates that Dr Colson cannot work under the direction and supervision
of Drs Tomlinson and Gordon”55
[36] There is some merit in this submission. Whilst it is understandable that Dr Colson
would feel aggrieved that his dismissal by Barwon Health was harsh, it is difficult to
understand why Dr Colson is so adamant in his refusal to accept that which has been
overwhelmingly established. Putting to one side the question of whether he agreed to comply
with the directive and whether he in fact did so during January and February 2012, there
would seem to be no rational basis for Dr Colson now continuing to maintain that he was not
given a directive on 22 December 2011. Drs Tomlinson and Gordon gave evidence that a
directive was given. The follow-up email from Dr Tomlinson to Dr Colson on 22 December
2011 makes clear that which was required of Dr Colson, namely that Dr Colson could “claim
for cases occurring simultaneously, but not “double dip” on time units. Therefore while
running two theatres/anaesthetising locations, time in attendance should be claimed at the rate
of 4 units per hour”56. The email concludes with the unequivocal statement that Dr Tomlinson
expected “that these particular billing mistakes will not occur in the future”57. I find the
explanation given by Dr Colson in his position statement and in evidence before
Commissioner Roe on this point entirely unconvincing, though I can well understand Dr
Colson’s desire to explain his actions in the best light possible in the context of a disciplinary
forum and in a contested unfair dismissal proceeding.
[37] Based on the evidence, the Full Bench concluded that Dr Colson was given a directive
on 22 December 2011. In light of the weight of evidence and the Full Bench findings based
53 Exhibit RR7, attachment ST-1
54 Exhibit RR7 at [7]-[20]
55 Barwon Health's further submissions on remedy at [15]
56 AB782.7
57 AB783.1
[2013] FWC 8734
16
on that evidence, Dr Colson’s evidence before me that he was not given a direction and that
he stood by that evidence58, demonstrates obstinacy in the face of a compelling evidence to
the contrary, and in my view has the effect of damaging the confidence that Barwon Health
management might otherwise have in him. It lends voice to the concerns expressed by Dr
Tomlinson that he continues to hold the view that there has been a breakdown in the
relationship with Dr Colson59, and to those of Mr Watson that he believes that Dr Colson will
continue to challenge management at every opportunity and be a destructive presence in the
Department60.
[38] Whilst it was submitted on Dr Colson’s behalf that his response is unremarkable and
he was doing no more than saying that he stood by the evidence that he gave before
Commissioner Roe61 and by necessary implication Dr Colson was not suggesting that that
was his view now, this is not borne out by his evidence recovered in the transcript when read
in the context in which Dr Colson’s answer was given. I set out below relevant exchange
recorded in transcript between Counsel for Barwon Health and Dr Colson:
“MR McDONALD: Thank you.
I want to be fair to you, Dr Colson, because we all know the stakes are very high in this case. On the
current state of the findings of the full bench you did understand the direction which was given to you on
22 December 2011. Now, I know you’re taking issue with that, but that’s the finding of the full bench.
That’s the factual position?---I don’t - - -
All right. That is the position. That’s not a question. I’m just laying the foundation for my question. I’ve
taken you to statements you’ve made in writing and orally which are inconsistent with that factual finding
in the full bench decision. I’m giving you an opportunity now to qualify your account regarding the
meeting on 14 March – sorry, 14 May and the statement you made in writing on 28 March. I’m giving
you the opportunity to put forward any other explanation that you may wish to as to why you made those
statements which are inconsistent with the findings of fact of the full bench. Now, are you in a position to
do so? Do you want to take up that opportunity?---I do, Mr Millar, thank you. I think the central problem
in this area is that when I went into the meeting of 14 May, I was not clear whether the Barwon Health
billing guidelines applied at all times or only during periods of two-theatre operations and it seemed to me
at the time that it was - the directive was that the Barwon Health billing guidelines at all times but in fact
only now or subsequently did I learn that the Barwon Health billing guidelines – that the application of
the AMA RVG during single-theatre operations is not in contention and which brings me to one of my
conditions attached to my adherence to the Barwon Health billing guidelines was I wanted it spelt out that
these billing guidelines applied only during two-theatre operations and not at all times after hours. This
was my chief concern.
Can I suggest to you, Dr Colson, basically in the evidence you’ve just given you are maintaining the
position that as at 4 March you did not understand the direction which you had been given on 22
December?---My evidence is that I wasn’t given a direction. I stand by that evidence.”
62
[39] It is clear from the above that Counsel for Barwon Health was giving Dr Colson the
opportunity to state whether he continued to be of the view that he was not given a directive
on 22 December 2011 having now had the opportunity to reflect on the evidence and the
58 Transcript PN5002
59 Exhibit RR7 at [6]
60 Exhibit RR6 at [15]
61 Transcript PN8795
62 Transcript PN4999 – PN5002
[2013] FWC 8734
17
finding of the Full Bench on that issue. Dr Colson’s ultimate response was that he was not
given a direction.
[40] The question of whether, and if so, to what degree, an employee’s obstinacy is
relevant in assessing its impact on trust and confidence will necessarily vary in every case.
However, in this case I am satisfied that Dr Colson’s obstinacy is a relevant factor in
assessing whether and to what extent there has been a loss of trust and confidence, whether
that relationship can be repaired to the point of workability and whether there is a rational
basis for the views expressed by the managers responsible for Dr Colson about the status of
that relationship..
Capacity to work with Drs Tomlinson and Gordon
[41] Dr Colson says that he does not have a problem working with either Dr Tomlinson or
Dr Gordon63. This is a position that I would expect a person seeking reinstatement to
maintain, however when Dr Colson’s statement is viewed in the context of the totality of the
evidence both at first instance and before me, the statement is difficult to accept. To begin
with, and as the Full Bench found, the wide distribution and content of the letter from Dr
Colson of 23 March 2012 was inappropriate and unprofessional, and it contained unwarranted
personal attacks on Dr Colson’s superiors including Dr Tomlinson, and was circulated with
the intent of damaging their reputations64. There can be little doubt that the wide circulation of
the letter has contributed to a deterioration of the relationship between Drs Tomlinson and
Colson. During the proceedings before Commissioner Roe, Dr Colson gave that which the
Commissioner described as a “belated” apology,65 but in doing so Dr Colson remained of the
view 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”66.
[42] Before me Dr Colson maintained that if he had the opportunity to do so he would
apologise to Dr Tomlinson for causing hurt by distributing the letter of 23 March 2012, but
that he would have difficulty apologising for the “factual allegation” contained in that letter.67
A number of observations may be made about the circulation of the letter and Dr Colson’s
evidence before me. First, a suspicion of wrongdoing falls a long way short of a “factual
allegation”. Secondly, Dr Colson first made the allegation in 2007 and has felt sufficiently
strongly about it ever since so as to cause him to remake the allegation and widely circulate it
some five years later. Thirdly, it is difficult to reconcile such a long and strongly held belief
that Dr Tomlinson has engaged in serious wrongdoing with the evidence given before me that
Dr Colson does not have a problem working with Dr Tomlinson.
[43] In the proceedings before Commissioner Roe, a document prepared by Dr Colson
purporting to be minutes of a disciplinary meeting occurring on 14 May 2012 was tendered
63 Transcript PN4941
64 See [2013] FWCFB 4515 at [130]
65 [2013] FWC 766 at [224]
66 AB164; Transcript PN1188
67 Transcript PN 5102 – PN 5103
[2013] FWC 8734
18
into evidence68. This document is instructive as it records views held by Dr Colson of Dr
Tomlinson. First the document records Dr Colson’s explanation to his employer of the
circumstances in which he submitted and then resubmitted claim forms for 4 March 2012. In
so doing Dr Colson explains:
“It is important that you understand there is a malicious element to this. I believe Simon Tomlinson set
a trap: he knew the only possible response to the receipt of the apparently approved claim forms would
be to re-submit them. Also knew he would then be able to claim that I had deliberately resubmitted
rejected claims. My inevitable actions would then be used to accuse me of a devious behaviour stop this
was a deliberate trap, but it was a good one: after all, I fell for it.”
69
[44] Later in the document Dr Colson records himself as saying:
“In 2007 by privately advised Simon Tomlinson that it was inappropriate for him and his family to
accept flights to New York and accommodation courtesy of Pfizer pharmaceuticals, as this breached
Barwon Health guidelines in effect at the time. 3 days later, Simon wrote me an email threatening that it
may be time for me to consider “alternative career opportunities”. I went to my managers at the time,
Damian Armour and Dr Tony Weaver, to report that I felt threatened by Dr Tomlinson’s behaviour.
Despite this, no action was taken against Dr Tomlinson. Instead, I ended up with a pejorative summary
of the meeting on my personnel file.”
70
[45] In the next paragraph of the document Dr Colson records himself explaining that in
2008 Dr Tomlinson and sent him a letter alleging three “instances of unauthorised
absenteeism - all of which were fabrications”71. Still later in the document Dr Colson records
himself as saying that in 2009 “Colin Gordon advised the reappointment committee in writing
that I should only be offered a one year appointment as I had accessed the whistleblowers’
protection office”72.
[46] Finally the document records Dr Colson saying the following:
“Then, my planned 2010 sabbatical leave application was endlessly watered in a fashion which none of
my colleagues had to endure more previously nor since.
And of course, in 2011, we have the accusation of the indictable criminal offence of fraud.
I’ve put it to you that you have been advised of Dr Tomlinson’s bullying behaviour on a number of
occasions over the past five years and yet at no stage has Barwon Health intervened to modify this
behaviour, nor even censure Dr Tomlinson. He is simply not being managed, and Barwon Health’s
failure to manage Dr Tomlinson’s (sic) has allowed him to fabricate grounds with which to threaten me
with dismissal every single year since 2007. Any external investigation of this behaviour – all of which
is documented in great detail – would surely confirm both the dysfunctional nature of the behaviour,
and Barwon Health’s failure to intervene to modify the behaviour on multiple occasions. As a result, I
68 AB81; Transcript PN252 – PN258; AB552; Exhibit C9
69 AB554.8
70 AB558.5
71 AB558.7
72 AB558.10
[2013] FWC 8734
19
can have had to endure a very stressful workplace for over 5 years, devoid of the normal job security to
which I am entitled, enjoyed by my colleagues . . .”
73
[47] It is clear from the extracts above that Dr Colson does not have a high regard for Dr
Tomlinson. He has accused Dr Tomlinson of setting him up, of fabricating dismissal grounds,
of bullying and of dysfunctional behaviour. He has also accused Dr Gordon of recommending
the provision of a short-term contract in retaliation for Dr Colson having made a
whistleblower complaint. Whatever else might be said about these allegations, they do not sit
comfortably with the evidence that Dr Colson gave before me that he has no problem working
with Drs Tomlinson and Gordon.
[48] During the proceedings before Commissioner Roe, Dr Colson alleged that Barwon
Health and Dr Gordon had taken intellectual property belonging to be Australian Society of
Anaesthetists relating to the Relative Value Guide by copying it, extensively modifying it and
distributing it74. Dr Colson also gave evidence that the reference in his widely circulated letter
of 23 March 2012 to Dr Tomlinson’s unwelcoming approach to dissent and that democracy
was clearly not Dr Tomlinson’s preferred political system, was a comment about Dr
Tomlinson’s management style; and, rather than it showing a lack of respect for Dr
Tomlinson, it was a statement of fact75.
[49] Furthermore Dr Colson continues to maintain that Dr Tomlinson and through him
Barwon Health dismissed Dr Colson in retaliation for the whistleblower complaint made by
Dr Colson in 2008.76 Dr Colson also gave evidence before me that he believes that the
account of the meeting of 22 December 2011 given by Drs Tomlinson and Gordon given
under oath in proceedings before Commissioner Roe was completely inconsistent with his
account of what had occurred at that meeting and was untrue.77
[50] Although I have no doubt that Dr Colson is genuine in his desire to be reinstated to his
former position, in light of the evidence outlined above, I cannot and do not accept that Dr
Colson has no problem working with Drs Tomlinson and Gordon – clearly he does.
[51] Trust and Confidence in Dr Colson by those responsible for his managementDr
Tomlinson is the Director of the Department in which Dr Colson was employed. In
proceedings before me, Dr Tomlinson gave evidence that he considered that his relationship
with Dr Colson had broken down irretrievably prior to Commissioner Roe’s order for
reinstatement because he could no longer trust Dr Colson or have a constructive, professional
relationship with him78. Dr Tomlinson gave evidence that he had arrived at this view because
Dr Colson had previously refused to follow his directions in relation to billing, he continued
73 AB559 .1 – AB559.4
74 AB163; Transcript PN1173 – PN1176
75 AB176 – AB 177; Transcript PN1311 – PN1315; see also AB71 9.6
76 Transcript PN5109 – PN5114; Exhibit RR5
77 Transcript PN4026 – PN4129
78 Exhibit RR7 at [6]
[2013] FWC 8734
20
to be uncooperative and exhibit a hostile response to Dr Tomlinson’s directions, such as the
publication of the letter of 23 March 2012 which was extremely offensive and contained false
allegations and disparaging attacks on Dr Tomlinson’s character79.
[52] Dr Tomlinson’s evidence was that he continued to hold the view that the relationship
had broken down and that Dr Colson’s conduct upon returning to work in March 2013 only
served to confirm his view80. I will return later in these reasons to consider the allegations
about Dr Colson’s conduct in the period since returning to work in March 2013 and the date
of the decision of the Full Bench.
[53] In my view the attitude taken by Dr Tomlinson to Dr Colson that he can no longer
trust Dr Colson andthat he is unable to have a professional and constructive relationship with
Dr Colson is both rationally based and understandable. First, as to the billing directive, the
Full Bench concluded that a directive was given to Dr Colson on 22 December 2011, that Dr
Colson deliberately lodged a claim for payment in 4 March 2012 which he knew to be
inconsistent with that directive and that this provided a valid reason for the termination of Dr
Colson’s employment 81. Secondly, as to the publication of the letter dated 23 March 2012,
the Full Bench concluded that the entire letter together with its wide distribution was
inappropriate and unprofessional, that it contained unwarranted personal attacks on Dr
Colson’s superiors, it was circulated with the intent of damaging their reputations and that it
was misconduct providing a valid reason for the termination of Dr Colson’s employment82. In
light of the findings of the Full Bench, there is no reasonable basis upon which it may be said
that Dr Tomlinson does not have a rational basis for holding that view that he cannot trust Dr
Colson nor have a professional and constructive relationship with him. This is not a case
where Dr Tomlinson is refusing to shift from a view that Dr Colson engaged in misconduct
even though a tribunal has found to the contrary. Dr Colson’s conduct which directly involved
Dr Tomlinson was misconduct.
[54] Dr Colson submitted that as he dedicated only approximately 1% of his workplace role
to interaction with management, if there is any tension in his dealings with management, that
tension would soon dissipate upon the relationship being fully restored and so that tension has
very little impact upon the professional work of Dr Colson as an anaesthetist83. Although I
accept that Dr Colson’s interaction with Barwon Health management represents only a small
portion of his overall role at the hospital, I do not accept that the interaction is unimportant or
that the rational views expressed by Dr Tomlinson about the relationship can be described as
merely tensions in Dr Colson’s dealings with management. Dr Tomlinson had, and will
continue to have, if Dr Colson is reinstated, managerial responsibility over Dr Colson. It is
undeniably the case that it is important that Dr Tomlinson, in that capacity, have trust and
confidence in Dr Colson, and that the relationship between them be workable.
79 Ibid
80 Ibid
81 [2013] FWCFB 4515 at [71], [75], [79], [86] and [153]
82 Ibid at [130] and [153]
83 Further Submissions of Dr Colson Regarding Remedy at [8]
[2013] FWC 8734
21
[55] In his decision Commissioner Roe concluded that the “concerns of Dr Tomlinson and
Dr Gordon about the behaviour of Dr Colson in personally and unfairly criticising them to his
colleagues is rational. The concern about the impact of Dr Colson’s behaviour on their ability
to provide effective leadership in the Department is also rational.”84 I agree. The
Commissioner went on:
“However, a significant issue to which they both refer is the issue of Dr Colson’s refusal to accept
direction and to abide by the billing policy and the impact that has on their managerial ability and
authority. Although I do not doubt the sincerity of their views about this matter I have found that the
allegations against Dr Colson in respect to this matter were not established. This should not be the basis
for deciding that the relationship cannot be restored for the reason stated by Justice Marshall: “It is
entirely inappropriate ... for the respondent to rely in part on its very basis for its termination of the
applicant’s employment to seek to deny the applicant her primary remedy.”“
85
[56] In light of the finding of the Full Bench in relation to the billing directive, the
Commissioner’s conclusion at least insofar as it related to the deliberate lodgement of the 4
March 2012 claim contrary to a management directive, cannot be sustained and in my view it
follows that the views expressed by Drs Tomlinson and Gordon about the impact on their
authority as managers is both sincerely and rationally held.
[57]
In proceedings before me Dr Colson gave evidence that he would abide by the policies and
procedures of Barwon Health, including its afterhours billing policies and that he had no
intention of ever again agitating the billing issues which were at the heart of this dispute86. I
accept that if reinstated, Dr Colson would do just that, for to do otherwise would likely lead to
the termination of his employment yet again. In some respects this commitment is beside the
point, although I do not discount it in my considerations. The issue is whether management
has the trust and confidence in Dr Colson that he will carry out its directions in the future. For
Dr Tomlinson’s part, he does not.
[58] Dr Gordon was not called to give evidence before me, however in proceedings before
Commissioner Roe, Dr Gordon said, in relation to his relationship with Dr Colson that he
could no longer work with a person that he could not trust, that he did not think Dr Colson
was honest and that lack of trust and honesty had fractured his relationship with Dr Colson87.
Dr Gordon accepted that Dr Colson is a good anaesthetist and that there were no clinical
issues concerning Dr Colson but that he would have major problems working with Dr Colson
in the future88. Dr Gordon gave evidence that:
84 [2013] FWC 766 at [270]
85 Ibid
86 Exhibit RA1
87 AB344; PN 3027
88 AB347; PN 3049 – PN 3053
[2013] FWC 8734
22
“Soon after reading Dr Colson’s position statement I informed Mr Watson, Muncaster and Dr
Tomlinson that I believed that I could no longer work with Dr Colson in a professional manner and that
I could no longer trust him. He had made himself unmanageable in my view.”
89
[59] In proceedings before me Dr Colson gave evidence that upon resuming work
following Commissioner Roe’s reinstatement order he had met with Dr Gordon who had
greeted him warmly, shook his hand and said “welcome back”90. Dr Colson submitted that
this evidence, coupled with the fact that Dr Gordon was not called to give evidence before
me, is suggestive of a conclusion that there is a real question as to the genuineness of the
allegation that the relationship between Drs Colson and Gordon has irretrievably broken
down91. I do not accept this submission. The purpose of the proceedings before me, although
a rehearing on the remedy question, was not to re-run evidence that had already been given
about remedy before Commissioner Roe. Rather it was 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 the Full Bench conclusions regarding the valid reasons for Dr
Colson’s dismissal92. The matters that Barwon Health sought to agitate by way of further
evidence did not seem to involve Dr Gordon. In that context it is unsurprising Dr Gordon was
not called. The manner of Dr Gordon’s greeting of Dr Colson upon his return to work speaks
to Dr Gordon’s professionalism and courtesy, but does not diminish the evidence that he had
already given under oath, about his relationship with Dr Colson. Given the findings of the
Full Bench, the views held by Dr Gordon are, in my opinion, rationally based.
[60] Mr Watson gave the following evidence before Commissioner Roe:
“I would agree that the relationship between Barwon Health and Dr Colson irreparably damaged. I
believe that it’s untenable to have a continued employment relationship going forward, given these
events, the events that have followed since here, the communications that have been circulated widely
throughout the Department of Surgical Services, including surgeons and nurses external to Barwon
Health . . . I would say I have zero confidence that Dr Colson will behave any differently into the future
than he has behaved for the period the past.”
93
[61] Before me Mr Watson gave the following evidence:
[62] “As stated in my first witness statement and the evidence about provided under oath during the original
hearing of the matter, at the time of Dr Colson’s dismissal I considered the relationship between Dr Colson and
Barwon Health to have broken down irretrievably, that he was determined to continue to challenge Barwon
Health’s authority and continue to refuse to comply with important directives provided to him in relation to these
billing practices. I am still of that belief. I consider the relationship between Dr Colson and Barwon Health to be
unmanageable.”
94Later Mr Watson said:
89 AB689; Exhibit B6 before Commissioner Roe at [14]
90 Exhibit RA1 at [9]
91 Further Submissions of Dr Colson Regarding Remedy at [11]
92 [2013] FWCFB 4515 at [159]
93 AB455 – 456; PN 4079 – PN 4081
94 Exhibit RR6 at [5]
[2013] FWC 8734
23
“. . . I consider that the relationship with Dr Colson has broken down beyond repair and that he is not
willing to act co-operatively, professionally and respectfully towards management. In fact to the
contrary, it is clear to me that Dr Colson will continue to challenge management at every opportunity
and continued to be a destructive presence in the Department of Anaesthesia, Perioperative and Pain
Medicine.”
95
[63] Mr Watson’s evidence immediately above is in part reflective of his experience of Dr
Colson since the reinstatement order to which I will return later in these reasons. Dr Colson
submitted that whenDr Watson was pressedin cross-examination, Barwon Health’s contention
that there had been a breakdown in the relationship came down to the proposition from Dr
Watson that he, Dr Tomlinson, Dr Gordon and Mr Muncaster had a problem with Dr Colson’s
employment.96 That submission is said to find support from the following exchange with Mr
Watson recorded in transcript before me97:
“MR MILLAR: Mr Watson, you have your witness statement there?---Yes, I do.
In paragraph 5, you’ve said, “At the time of Dr Colson’s dismissal, I considered the relationship
between Dr Colson and Barwon Health to have broken down irretrievably. He was determined to
continue to challenge Barwon Health’s authority and continue to refuse to comply with important
directives provided to him in relation to his billing practices. I’m still of that belief.” When you say the
relationship has broken down irretrievably, what you’re talking about is a problem that a relatively
confined number of people within management of the hospital have had with Dr Colson. Is that right?---
His direct manager and his manger’s manager, and director of human resources and the deputy director
of the department, as well. They’re the main people in management that deal with this.
Sorry, just to give some names, you said his director - who did you specify again?---His deputy director
is Colin Gordon. His director is Simon Tomlinson. The director of human resources is Perry Muncaster,
and myself.
So those four gentlemen are really what you’re talking about when you say that the relationship has
broken down irretrievably. It’s the relationship with those four gentlemen?---Yes, but those four
positions represent the Barwon Health management and all the policies and procedures that exist within
Barwon Health. They are representatives of Barwon Health.
I understand that they’re very important people within the organisation?---Yes.
But what we’re talking about is a relationship between Dr Colson and four individuals who gave
evidence in the proceedings before Roe C. That’s right?
---Sorry, could you just rephrase that question?
The four people you’re talking about are the four witnesses who gave evidence before Roe C?---Yes,
that’s correct.
And they gave evidence in support of Barwon Health’s resistance to the unfair dismissal application
brought by Dr Colson, and that resistance was ultimately unsuccessful. Would you agree with that?---
Yes. In terms of it was determined as unfair dismissal, yes.
It was determined as unfair dismissal at first instance and determined as unfair dismissal again by the
full bench?---Yes, but it’s also true to say that the full bench did find grounds on both counts as being
95 Exhibit RR6 at [15]
96 Ibid at footnote 3 of submissions
97 Ibid at footnote 3
[2013] FWC 8734
24
just reasons for dismissal; but when a harshness test had been applied according to the Act, it failed that
test.
Well, we can go down that path if need be. They found that there were valid reasons, but
notwithstanding that, the hospital’s decision to terminate Dr Colson’s employment was harsh, unjust
and unreasonable, and was therefore in breach of the Fair Work Act. Do you agree with that?---That
would be true.”
98
[64] I do not accept that the above exchange merely shows that four individuals have a
problem with Dr Colson’s employment. To come to such a view would require one to ignore
all of the evidence given by Mr Watson and his colleagues. In my view, Mr Watson’s
assessment of the state of the relationship with Dr Colson is best judged by understanding that
which Mr Watson regards as important in the relationship between Dr Colson and Barwon
Health. In that regard Mr Watson gave the following evidence:
“THE DEPUTY PRESIDENT: Mr Watson, can you just explain to me what your understanding is of
the key elements that are important to the relationship between Barwon Health and Dr Colson?---I think
probably the single most important one is one of trust and one where you will follow a reasonable
instruction from a manager to undertake, and not to openly challenge that manager and undermine his
authority to be able to deliver what they are supposed to deliver in their role.
But you wouldn’t have a problem with somebody questioning a decision or discussing a decision?---No,
not at all. Open and robust discussion done in the correct way is very Healthy in a workplace, but to do
it in a way which is defiant and then calls upon other members of the workforce against the manager, is
not constructive and it’s undermining of that manager’s influence and confidence.
Are there other elements of the relationship that you regard as important?---I think honesty. For
example, when we had our first meeting with Mark when it was back in May 2012, I think it was - I’m
getting very confused with dates. It has gone on for so long. You know, we had a very clear request to
record the - to minute the meeting. We said we’d provide the minute secretary and we’d provide them
with a copy of those minutes. We said there was no - under those circumstances - be minuted. Mark, as
it turned out, in the course of that hearing had - you know, acknowledged it was recorded on probably a
recording device and provided a verbatim account, so - - -
I think the nature of the recording is disputed, but let’s not get bogged down on that?---Yes, okay. It’s
an undertaking that was not held to, so that’s an example.
Let’s assume the relationship was at a point where you’d lost faith in his trustworthiness. He loses his
job and he is thereafter reinstated. Do you put any store in the fact that a person might take that as a
wake-up call and change their behaviour?---Yes, I do. I think when Mark returned to work in that
interim period, there was no issues for three months. None. Then, as in my witness statement, a simple
request for an explanation as to why he was absent on a non-clinical afternoon wasn’t responded to with
a simple answer, which may have been the end of it right then and there. It was not a major issue, but
ended up being eight weeks of a game, of an escalation process that evolved past his manager to the
director of human resources, to his legal team, to me and the CPX came in. It became - out of nothing
this large complicated issue arose, out of seemingly not much, which indicated to me that the behaviour
of defiance was still there as if he challenges the concept of the manager to be able to manage. I’d hate
to be in that situation as the manager. It would be very difficult unless you’re very adept and skilled to
be able to handle those things.”
99
98 Transcript PN 8164 – PN 8173
99 Transcript PN 8195 – PN 8199
[2013] FWC 8734
25
[65] It is noteworthy that Dr Colson holds a similar view. During cross-examination by
Counsel for Barwon Health in proceedings before me, the following exchange took place:
“Fine, but what I’m putting to you, I would think, as a fairly uncontroversial proposition is that there’s a
high degree of trust reposed in the anaesthetist when he or she makes a claim for payment, that he or she
is doing so honestly and the claim actually reflects the work that’s being done and is in accordance with
Barwon Health’s billing guidelines?---I think most - - -
That’s the way it works, isn’t it?---I think most employers expect their employees to be honest and
trustworthy, yes, and it’s no different in our job. In fact, if anything, I think there’s a higher standard
applied in the medical profession. It would be extremely disappointing if another doctor was deemed to
be untrustworthy. It’s serious damage. It’s seriously damaging to someone’s reputation.”
100
[66] Given the findings of the Full Bench, and when measured against that which Mr
Watson regards as important in an employment relationship, I am of the view that Mr
Watson’s views about the state of the relationship with Dr Colson are rationally based. It
seems clear from the totality of the evidence that neither Mr Watson nor Drs Tomlinson and
Gordon have trust in Dr Colson. They each have little or no confidence that a professional
working relationship as between managers and Dr Colson can be re-established and
maintained.
[67] Mr Perry Muncaster is the Director of Human Resources with Barwon Health. Mr
Muncaster gave evidence before Commissioner Roe but not before me. Very little of Mr
Muncaster’s evidence deals with the question of whether reinstatement is appropriate101. Mr
Muncaster is not responsible for the direct management of Dr Colson. Rather Mr Muncaster
has assisted the management team in their dealings with Dr Colson including in conducting
the investigation in relation to the billing dispute. Mr Muncaster’s evidence is in my view
essentially neutral on the question that I need to determine particularly as his working
relationship with Dr Colson is indirect and consequential.
Dr Colson’s relationship with colleagues and co-workers
[68] It cannot seriously be disputed that Dr Colson is well regarded by his colleagues and
co-workers. Dr Colson is an excellent anaesthetist and his clinical expertise and competence
is widely recognised and was not put in issue by Barwon Health. A substantial portion of the
proceedings before me was spent listening to evidence of colleagues and co-workers called by
Dr Colson. Without reciting all of that evidence, all those who were called to give evidence or
whose witness statements were admitted without cross examination, said that during the
period between Commissioner Roe’s reinstatement order and the Full Bench decision, they
did not see or hear anything about Dr Colson’s conduct which made them feel that his
presence in the Department was at all adverse to the functioning of the Department, the
running of the hospital or the welfare of the patients.
[69] The evidence given by the clinicians called in support of Dr Colson showed
widespread support for his reinstatement and for Dr Colson’s clinical practice and
100 Transcript PN 4933 – PN 4934
101 I have noted AB 671; Exhibit B5 before Commissioner Roe at [10] and the content of attachment PM- 3 thereto
[2013] FWC 8734
26
contribution. In many respects the evidence shows the capacity that Dr Colson has, in
building relationships and in garnering support amongst his colleagues, and in that respect it
stands in stark contrast to the evidence of the relationships that he seems unable to maintain
amongst those responsible for his management and that of the Department.
[70] Counsel for Barwon Health sought to cross-examine many of the witnesses called by
Dr Colson on whether the views that they had expressed in their evidence about Dr Colson
would be altered if they properly understood the findings of the Full Bench about Dr Colson’s
conduct. The responses were mixed but all maintained a strong support of Dr Colson’s skill
and competence as an anaesthetist. Some like Dr Whiting said that he did not know all of the
details about the findings made by the Full Bench102; some like Dr Burton confined their
evidence about Dr Colson to his competence and skill as an anaesthetist103; some like Dr
Prewett, were unable to make comment about Colson’s communication within the
Department104; some like Dr Mander maintain their support for Dr Colson despite becoming
aware of the Full Bench findings105; some like Dr Creati are close friends of Dr Colson while
others know Dr Colson only in a professional capacity; and some like Dr Neerhut have not
observed Dr Colson’s clinical capacity but have formed views based on dealings with Dr
Colson outside of the operating theatre environment such as in the pre-admission areas and in
the supervision of other anaesthetists106.
[71] Although Barwon Health submitted that the evidence of the witnesses called in
support of Dr Colson should be given little weight, I disagree. The evidence shows the high
regard in which Dr Colson is held in the discharge of the duties for which he is employed and
this is an important consideration in determining whether reinstatement is appropriate.
Allegations about Dr Colson’s conduct since the reinstatement order
The absence incident
[72] Dr Tomlinson gave evidence that he had been informed by an employee of Barwon
Health that Dr Colson had been seen in the town centre riding his bicycle at approximately
2:15 PM on 23 May 2013107. It emerged during the evidence before me that the “employee”
who had provided information to Dr Tomlinson was Mr Watson, who himself was attending
to a personal errand during working hours108. Dr Colson’s absence from the hospital on 23
May 2013 to undertake a private errand is, in my view, a fairly trivial matter although I do
recognise that Dr Colson has been spoken to by Dr Tomlinson on a previous occasion about
the requirement that he, along with all staff specialists, be present at the hospital throughout
102 Transcript PN5687 – PN 5688
103 Transcript PN 7950
104Transcript PN 6306 – PN 6308
105 Transcript PN 6739 – PN6741
106 Transcript PN 7594
107 Exhibit RR7 at [7]
108 Transcript PN 8218 – PN 8228
[2013] FWC 8734
27
their nonclinical and off-the-floor sessions unless previously discussed with Dr Tomlinson or
his deputy.109
[73] Nevertheless, Dr Tomlinson asked Dr Colson to explain the absence110, and in light of
the previous discussion noted above and Dr Tomlinson’s position as Director of the
Department, it was a question which Dr Tomlinson had every right to ask. The question
demanded no more than a simple response from Dr Colson, but instead Dr Colson sent an
email to Dr Tomlinson in which he referred to Dr Tomlinson’s “recent misconduct allegations
against me” and requesting that, in view of current unresolved litigation, the matter be
referred to Mr Muncaster.111 Thereafter further requests for an explanation of the actions were
made by Mr Muncaster, meetings were scheduled but did not take place and Mr Watson also
became involved112. According to Mr Watson the failure by Dr Colson to provide a response
to questions about his whereabouts and 23 May 2013 were leading to a disciplinary meeting,
but the decision of the Full Bench intervened.113
[74] Dr Colson submitted that his cautious approach to the request for an explanation made
by Dr Tomlinson must be judged by the highly unusual dynamics of the period between the
reinstatement order and the decision of the Full Bench.114 He was, it was submitted dealing
with senior executives who were doing everything they could to convince a third-party that he
should not keep his job, and therefore Dr Colson had every reason during this period to
proceed with trepidation in his dealings with management, and with an understandable
suspicion that management might be motivated by a desire not to let this forced re-
employment work.115
[75] I accept that there will have been some level of tension and cautious questioning of the
motives of management in raising this issue on Dr Colson’s part. Nevertheless Dr Tomlinson
was entitled to ask the question that he did of Dr Colson, and Dr Colson should have
accounted for his whereabouts. There is no suggestion in the initial question by Dr Tomlinson
of any misconduct allegation, and that Dr Colson had an innocent explanation to provide
makes the unnecessary involvement of others and the failure to in fact provide an explanation,
all the more absurd. The incident reflects poorly on both parties, but it does underscore the
suspicion and lack of trust that exists in the parties’ dealings with one another.
Anaesthetic Dental Injury Procedure Letter
[76] On or about 5 July 2013 an email attaching a copy of an updated anaesthetic dental
injury procedure letter was circulated in the Department by a secretary in that department on
109 Attachment ST-12 to exhibit RR7
110 Attachment ST-1 to exhibit RR7
111 Attachment ST-2 to exhibit RR7
112 Exhibit RR7 at [11] – [19]; Exhibit RR6 at [6] – [7]
113 Exhibit RR6 at [7]
114 Further Submissions of Dr Colson Regarding Remedy at [19]-[20]
115 Ibid at [20]
[2013] FWC 8734
28
instructions from Dr Tomlinson.116 Dr Colson sent a Department wide reply to that email
which, according to Dr Colson’s submission, contained a constructive critique of the proposed
letter and there was nothing in the letter which was a personal affront to Dr Tomlinson, nor
did it contain any content which showed disrespect for hospital management.117 Rather, so it
was submitted, it was simply an attempt in good faith by Dr Colson to provide feedback on a
proposed communication with patients.118
[77] Dr Tomlinson gave evidence that he regarded Dr Colson’s response to the letter as
destructively scathing rather than offering constructive suggestions.119 Consequently Dr
Tomlinson sent an email to Dr Colson on 7 July 2013 in which he reminded Dr Colson of an
earlier conversation about the undesirability of circulating Department wide emails when
raising issues and noting Dr Tomlinson’s disappointment that such “a critical rather than
constructive, emotive rather than factual” response to the draft was circulated so soon after
discussion about Department wide communiqués had occurred.120
[78] There is no doubt that Dr Colson’s email contains some constructive suggestions, for
example, that the current draft be viewed from the perspective of a person who has recently
suffered a dental injury under anaesthesia,121 and that the letter be sent under signature of a
manager or the consultant involved in a case, rather than a registrar or a more junior staff
member.122 However the email is also laced with hyperbole, as for example, Dr Colson’s
suggestion that as a risk management initiative the letter “is simply appalling for so many
reasons I don’t know where to begin”. 123 Dr Colson’s email is also sarcastically critical of
Barwon Health when he says “[P]robably the piece de resistance is Barwon Health (sic)
“offer” to allow you to attend your own dentist . . . at your own expense. Barwon Health’s
magnanimity known (sic) no bounds.”124
[79] Given that a central issue in the proceedings before Commissioner Roe and ultimately
one that was the subject of the Full Bench decision concerned the departmental wide
circulation of an inappropriate email, coupled with the Department discussion about which Dr
Tomlinson gave evidence, I would have thought that Dr Colson would have been more
circumspect. The email was unnecessarily critical and rude, and unlike the communication at
issue during the proceedings before Commissioner Roe, it was not sent in the heat of the
moment. Its content and wide distribution does little to engender confidence that Dr Colson is
able to demonstrate judgement in his communications or to learn any lessons from the recent
past and adjust his behaviour accordingly.
CPX Patient Billing Issue
116 Exhibit RR7 at [24]
117 Further Submissions of Dr Colson Regarding Remedy at [29]
118 Ibid
119 Exhibit RR7 at [24]
120 Ibid at [25]; Attachment ST–16 thereto
121 Exhibit RR7, Attachment ST–16 at p1.7
122 Exhibit RR7, Attachment ST–16 at p2.1
123 Exhibit RR7, Attachment ST–16 at p1.6
124 Exhibit RR7, Attachment ST–16 at p1.9
[2013] FWC 8734
29
[80] Mr Watson gave evidence about concerns that had arisen concerning Dr Colson’s
billing of cardio pulmonary exercise testing (CPX) patients.125 The allegations are based on
information provided to Mr Watson by Simon Williams who was not called to give evidence
about the matter. The allegations date back to conduct said to have occurred in 2011. These
are not new allegations and were known to, or should have been known to Barwon Health at
the time of Dr Colson’s dismissal in May 2012. These matters were not raised with Dr Colson
at that time, nor relied upon by Barwon Health as a reason for dismissal of Dr Colson. In any
event as Mr Williams was not called to give evidence and Dr Colson has not had a proper
opportunity to test the allegations, I place no weight on those allegations.
[81] Mr Watson also gave evidence about correspondence passing between Barwon Health
and Dr Colson concerning Dr Colson’s return to the CPX roster.126 Mr Watson said that in
response to a request of 13 June 2013 to Dr Colson to attend an informal one-on-one meeting
to discuss CPX clinic work, Dr Colson sent an email on 17 June 2013 in which Dr Colson
requested “that a support person accompany him and asked various additional questions such
as what the agenda for the meeting was, was any misconduct alleged, will the meeting be
minuted and who will be attending and in what capacity”.127 Mr Watson said that he
considered Dr Colson’s conduct in relation to the CPX billing as being a further example of
his generally uncooperative and unprofessional conduct. To the extent that this evidence
relates to allegations dating back to 2011 I disregard it. To the extent that Mr Watson suggests
that Dr Colson’s email of 17 June 2013 should be so regarded I do not accept that evidence.
Although Mr Watson’s request of 13 June 2013 for a meeting makes clear that Mr Watson
intended “the meeting to be just between ourselves”128 the request for a meeting also advises
Dr Colson that if “you wish to have a support person with you, please advise me so that I can
make suitable arrangements”.129
[82] Dr Colson would understandably have taken the reference to a support person in Mr
Watson’s invitation as indicating that the discussion might be about alleged misconduct or
wrongdoing. Further, Dr Colson’s request for a support person is responsive to the invitation
to bring along such a person. There is nothing in Dr Colson’s email of 17 June 2013 which is
suggestive of uncooperative and unprofessional conduct.
[83] The remainder of the CPX issue concerns whether Dr Colson had a current Medicare
provider number. Mr Watson noted in his evidence that as Dr Colson had signed the
necessary Medicare documents on 14 June 2013 and it was no longer necessary to meet with
Dr Colson and that he advised Dr Colson by email dated 18 June 2013, accordingly.130 I
accept Dr Colson’s submission that the issue arose as a consequence of a misunderstanding
about Dr Colson’s Medicare provider number and that the matter was resolved by
125 See exhibit RR6 at [8]–[9]
126 Ibid at [10] – [14]
127 Ibid at [12]-[13]
128 Exhibit RR6, attachment PW-5
129 Ibid
130 Exhibit RR6 at [14]; Attachment PW-7
[2013] FWC 8734
30
correspondence passing between Mr Watson and Dr Colson by email dated 18 June 2013. As
the issue has been resolved it is of no consequence.131
Letter to Public Sector Standards Commissioner of 29 August 2013
[84] Barwon Health relied upon a letter sent by Dr Colson to the Public Sector Standards
Commissioner dated 29 August 2013132 as evidence that Dr Colson still holds the view that
the termination of his employment by Barwon Health was, essentially, retaliatory action taken
against him by Dr Tomlinson, Mr Watson and Mr Muncaster for raising the allegation that his
manager, Dr Tomlinson, engaged in conduct in 2008 that was a risk to patient safety.133
Further Barwon Health submits that a statement in the letter that “one of the executives, in his
sworn testimony to Fair Work Commission, admitted that my making of a protected
disclosure under the Whistleblower Protection Act was a factor in him reaching the decision
to terminate my employment” was false. that this shows that Dr Colson has a deeply held
animosity towards Barwon Health’s management of him; and that the contents of the letter
demonstrate a continuing pattern of behaviour of distorting the truth.134
[85] Dr Colson submitted that Barwon Health’s reliance upon the letter of 29 August 2013
is curious. Dr Colson was exercising a right to make a complaint in relation to his
employment and it would be wrong if the letter of complaint, a complaint which he is entitled
to make, were to be used against him.
[86] It is to be seriously doubted whether Dr Colson was entitled to make a complaint to
the Public Sector Standards Commissioner under the Public Administration Act 2004 or the
Public Administration (Review of Actions) Regulations 2005 because he was not an
“employee” covered by the legislation at the time he made his complaint.135 But as that matter
was not argued before me I will not express a concluded view. I will proceed on the basis that
such a right existed.
[87] Proceeding on that basis, I agree that the fact that Dr Colson has made a complaint
about his employment to the Public Sector Standards Commissioner is not a matter that I
should take into account determining whether reinstatement is appropriate. However, Barwon
Health did not suggest otherwise. Barwon Health points to the inaccurate content of the letter.
In my view the letter discloses the following:
The letter states that Dr Colson believes that he was dismissed because he raised a
patient safety issue within the organisation and made a “protected disclosure under
Victoria’s whistleblower protection act 2001”136. First, this shows that Dr Colson does
131 Further Submissions of Dr Colson Regarding Remedy at [33]
132 Exhibit RR5
133 Barwon Health's further submissions on remedy at [17]
134 Ibid
135 See for example Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622
136 Exhibit RR5 at p1.1
[2013] FWC 8734
31
not appear to accept that Barwon Health had two separate valid reasons for dismissing
him from employment, neither of which related to the protected disclosure. Secondly,
the case for Dr Colson conducted before Commissioner Roe was not put on the basis
that the real reason for the termination of the employment of Dr Colson was because
he had made a protected disclosure. That issue was agitated as part of the justification
for the publication of his letter of 23 March 2012;
The letter states that “on the grounds for my termination, the Full Bench found:
“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 (about
$66.00)); and
Dr Colson has never received a warning specifically directed to his
communication style.”“137
The selective extract from the Full Bench decision and the context in which Dr Colson
makes reference to the extract in his letter is self-serving, incomplete and liable to
mislead the uninformed reader. The extract relates to the finding that Dr Colson’s
dismissal was in all of the circumstances harsh, however Dr Colson does not include
other important findings of the Full Bench including that he deliberately lodged a
claim for payment he knew to be inconsistent with a direction he had been given by
management, 138 that the entire letter of 23 March 2012 and its wide distribution was
inappropriate and unprofessional, 139 and that each of these provided a valid reason for
his dismissal.140
The letter also states that “[O]ne of the executives, in his sworn testimony to Fair
Work Commission, admitted that my making of a protected disclosure under the
Whistleblower Protection Act was a factor in him reaching the decision to terminate
my employment.”141 There does not appear any basis for this statement. Indeed if such
evidence had been given there would be very little basis for Barwon Health resisting
an order for reinstatement. There is no evidence to this effect recorded in the transcript
of proceedings before Commissioner Roe. The Commissioner did not make any
finding to that effect, nor was it suggested that Commissioner Roe fell into error in not
making such a finding.
[88] Dr Colson is entitled to pursue complaints. He is not entitled, in making such
complaints, to make statements that are baseless and to suggest that Barwon Health had no
basis upon which to dismiss Dr Colson from his employment. In my view statements made by
Dr Colson in his letter to the Public Sector Standards Commissioner are relevant to my
137 Ibid at p1.9
138 [2013] FWCFB 4515 at [153]
139 Ibid at [130]
140 Ibid at [153]
141 Exhibit RR5 at p2.4
[2013] FWC 8734
32
assessment of whether there is a workable relationship of trust and confidence capable of
being restored and in my assessment of the validity and rational basis of the views held by
Barwon Health Managers about the relationship..
Nursing handover meeting of 16 July 2013
[89] Jennifer Cooke and Phil Curtain are employed by Barwon Health as registered nurses.
Both gave evidence in their witness statements142 in precisely the same terms, namely, that on
the morning of 16 July 2013 Dr Tomlinson attended the nursing handover meeting, which he
would not normally attend. They said:
“He stated to the large group assembled: “Big news guys – Fair Work have upheld Barwon Health’s
appeal in the Mark Colson case. This means Mark no longer works here and will never be seen here
again.” Most of those present were upset by his statement some to the point of tears.”
143
[90] Dr Tomlinson disputed his version of the meeting and in particular the words
attributed to him by Ms Cooke and Mr Curtain144. His recollection of the meeting was that he
said something along the lines that:
“The full bench has handed down the decision. They’ve upheld the appeal. Dr Colson is no longer
employed here, but we’ve still got to go back to the commission again and I – you know, we’ll wait and
see what happens from there.”
145
[91] Dr Tomlinson said that based on his observations “nobody appeared particularly
upset”.146
[92] Mr Curtain was adamant under cross examination that the words that he attributed to
Dr Tomlinson were the words of Dr Tomlinson used at the meeting on 16 July 2013.
However he conceded that when he attended a conference with the solicitors retained by Dr
Colson, the words attributed to Dr Tomlinson were already in the draft witness statement
given to him at the conference, as he had previously told Dr Colson about the conversation.147
[93] Ms Cooke said that she could not recall whether Dr Tomlinson actually use the words
“Big news guys”.148 Ms Cooke also agreed that the words “Big news guys” were put into her
draft statement by someone else but she wasn’t sure who that person was. 149 Ms Cooke
accepted that she may have had a discussion with Mr Curtain after he gave evidence before
142 Exhibits RA9 and RA39
143 Ibid at [6]
144 Transcript PN 8481
145 Transcript PN 8479
146Transcript PN 8480
147 Transcript PN 6473 – PN 6481
148 Transcript PN 7459 – PN 7460
149Transcript PN 7461 – PN 7462
[2013] FWC 8734
33
me.150 Ms Cooke also gave evidence that she did not give instructions to anyone about what
happened on 16 July 2013 and that the statement came to her, that she read it and “that’s
pretty much how it happened”.151
[94] Given the circumstances under which the statements of both Ms Cooke and Mr
Curtain were prepared, I am not satisfied that their evidence about the words used by Dr
Tomlinson, is reliable and I prefer the evidence of Dr Tomlinson about his comments at the
nursing handover meeting held on 16 July 2013. In any event I am not persuaded that the
statements attributed to Dr Tomlinson by Ms Cooke and Mr Curtain are of anything but
marginal relevance.
Capacity to obtain alternative comparable employment
[95] Dr Colson submitted that he would suffer serious adverse consequences if he were not
reinstated to his former position with Barwon Health. Dr Colson is a highly specialised
employee who was working with the dominant employer of anaesthetists in the region. Dr
Colson submitted that his employment prospects as an anaesthetist in the region are limited
and that a failure to order reinstatement as a remedy would likely require him to look for work
elsewhere causing considerable inconvenience and disruption to his family life. There would
in all probability be a requirement for him to relocate elsewhere to obtain suitable
employment and that such a relocation would have profound consequences for Dr Colson’s
spouse and their school-aged children.
[96] Dr Colson submitted that there would be a tension between the Full Bench finding that
his dismissal was harsh particularly because of the significant impact of the termination of his
reputation and ability to find suitable employment and the ordering of a remedy of
compensation instead of reinstatement. Consequently it was logical and appropriate to make
an order of reinstatement. Although this submission has some superficial attractiveness, it is
in my view incorrect. The Full Bench concluded that the termination of Dr Colson’s
employment, particularly having regard to his lengthy period of employment and its impact
on his reputation and ability to find suitable employment, was harsh. It does not follow that an
order for reinstatement should be made, because if that were the case, the question whether
reinstatement is appropriate would be redundant. The legislature intended the Commission to
first examine whether an employee was unfairly dismissed, and then to consider what remedy
if any should flow from a finding that an employee was unfairly dismissed. So far as the
remedy of reinstatement is concerned, the question that must be asked is whether
reinstatement is appropriate in a given case. Understood this way, there is no tension between
the Full Bench’s conclusion that the dismissal of Dr Colson was harsh and any conclusion by
me that reinstatement is inappropriate.
[97] Barwon Health submitted that if Dr Colson were not reinstated, with the evidence
suggests that Dr Colson’s work prospects are good and that it is likely that Dr Colson would
150 Transcript PN7463 – PN 7466
151 Transcript PN 7474 – PN 7475
[2013] FWC 8734
34
be able to work in private practice in the Geelong area. I do not accept that the evidence goes
nearly that far.
[98] Without rehearsing all of the evidence that was given on this subject, it seems to me
the evidence establishes the following:
The difficulties of establishing a private practice as an anaesthetist in the region are
made more difficult if the practitioner does not also hold a VMO appointment at
Barwon Health152;
Privately practising as an anaesthetist could occur as a member of one of two groups
of anaesthetists operating in the region, the Geelong Anaesthetics Group and the
Barwon Anaesthetic Group or as an independent practitioner;
There is no right to join one of the two groups and membership may be refused;
Non-membership of one of the two groups is not an impediment to a successful
private practice153, however it is unlikely to result in regular referral work from the
groups, although the excess work of the groups could be referred154;
Dr Colson is well regarded for his clinical skill and expertise by many surgeons
operating in the region. Those who gave evidence would have no hesitation in utilising
Dr Colson as an anaesthetist but not at the expense of another anaesthetist with whom
they have an established and ongoing professional relationship;
St John of God, a private hospital in the region is planning to open three new
operating theatres which may increase the number of operations conducted in the
region and consequently increase demand for anaesthetic services. 155
[99] In my opinion the evidence supports a conclusion that establishing a private practice
as an anaesthetist in the region will be challenging for Dr Colson, however it will not be
impossible or impracticable. Dr Colson would not approach the task of establishing a private
practice, were he so minded, from the position of an inexperienced new entrant into the field.
Dr Colson has substantial experience, is well-known and highly regarded and it is apparent
from those practitioners called in support of him that there is a great deal of goodwill and
support for him as a practitioner.
[100] There is little doubt that the publicity associated with this case, particularly in the
region, has had a negative impact on Dr Colson’s reputation. This is a factor that may play an
inhibiting role in establishing a private practice in the region. However, as I indicated above,
judging by the evidence called in support of Dr Colson, there remains a high level of support
for Dr Colson as a practitioner among many medical practitioners in the region, many of
whom are likely to have an influence on the success of any practice that Dr Colson might
choose to establish in the region.
152 Transcript PN 7735
153 Transcript PN 7324 – PN 73 to 5
154 Transcript PN 7975
155 Transcript PN 7933 – PN 7938
[2013] FWC 8734
35
[101] There is also very little doubt that the prospect of Dr Colson obtaining employment as
an anaesthetist in the region is extremely low. I accept that if he desires to continue his career
as an employed anaesthetist, this will likely require Dr Colson to look for work outside of the
region and, depending on where he secures such work, it may require that he and his family
relocate, with all the attendant inconvenience, expense and dislocation accompanying
relocation. These are factors that weigh heavily on my mind and lend support to a
reinstatement order.
Inadequacy of compensation as a Remedy
[102] On more than one occasion Dr Colson submitted that reinstatement was the only
effective remedy in this case and that compensation was a manifestly inadequate remedy.
During oral argument the following exchange took place concerning the question of whether
the adequacy of a remedy of compensation should be taken into account in determining
whether an order of reinstatement is appropriate:
“THE DEPUTY PRESIDENT: Is it your submission that, as you have described it, the manifestly
inadequate remedy of compensation, particularly given the cap, is a factor that I’m entitled to take into
account or should take into account in assessing whether or not reinstatement is appropriate?
MR MILLAR: In my submission, the analysis need not get that far because reinstatement is appropriate
and there’s no basis for deciding reinstatement is inappropriate, but if your Honour were so minded as
to look beyond the factors that I’ve taken you to, that trust and confidence isn’t an obstacle to the
reinstatement occurring, then, in my submission it is a matter that your Honour is to take into account.
All of the circumstances are able to be taken into account and the inadequacy of compensation is
something that ought properly to be viewed.
THE DEPUTY PRESIDENT: Given that the authorities suggest that the test for whether or not
dismissal is appropriate is broader than the old test of – sorry, the test of whether or not the dismissal is
appropriate is broader than the older test of whether reinstatement is practicable, is the inadequacy of
the remedy of compensation in this case a factor that I’m entitled to take into account?
MR MILLAR: In my submission, your Honour is entitled to take it into account. It is something that
you can look at. It’s also my submission that - - -
THE DEPUTY PRESIDENT: Mr McDonald will tell me I can’t and he will appeal me if I do.
MR MILLAR: That’s the reason I’m putting it this way, your Honour. My submission is that you can
do it that way but I would invite your Honour to note take that into account simply because the matter
can be determined without reference to that factor. If your Honour wished to view that a factor, in my
submission, it would involve no error, but it is a compelling consideration in this case, the inadequacy
of compensation. No doubt Mr McDonald will say, “Look, the cap on compensation is simply what
parliament has decreed,” and that’s not something that your Honour need concern yourself with. In fact,
if you were swayed towards reinstatement, that would involve error if that decision were based upon the
inadequacy of compensation.
In my submission, when the commission is looking at the suite of remedies available, given that in fact
the suite is really limited to two, to reinstatement and compensation, the manifest inadequacy of
compensation can be taken into account in favour of an assessment of reinstatement as a remedy, but
again, your Honour, the analysis need not get that far because this is a case where the legislation
charges you with the statutory task of remedying the dismissal and the emphasis is upon reinstatement.
Here there is no reason why reinstatement should not be able to take effect.
[2013] FWC 8734
36
THE DEPUTY PRESIDENT: The reason I raised it is because you kind of put that submission in
paragraph 4 where you say “not to award reinstatement would serve to ignore”, et cetera, and in
paragraph (c) you say “provide Dr Colson with a manifestly inadequate remedy as a redress” so I’m
putting the proposition squarely to you. Is it something that you say I should take into account?
MR MILLAR: I say, your Honour, that if you did take it into account, it would not lead your Honour
into error, but I understand my friend will probably urge upon you a different approach. In my
submission, the matter can be determined because there is no impediment to reinstatement occurring
such as would make it an inappropriate remedy and one doesn’t need to turn to the inadequacy of
compensation, but if your Honour did take that into account, in my submission, it would be proper to do
so.”
156
[103] Although it may readily be understood that many who are “unfairly dismissed” might
regard the amount of compensation awarded instead of reinstatement as inadequate, even
manifestly inadequate, in my view the adequacy or otherwise of any compensation order, is
not a matter that should be taken into account in assessing whether an order for reinstatement
is appropriate. The parliament has determined the level of compensation that may be awarded
in circumstances where the Commission considers that reinstatement is not appropriate and it
would be wrong to give any weight to the level of compensation in assessing the
appropriateness of reinstatement. To do so would result in applicants who are higher income
earners always have a more persuasive argument for reinstatement than applicants who are
lower income earners. Conversely it would also allow the Commission to consider that
compensation was an adequate remedy and thereby justifying the non-award of reinstatement.
Such an approach is surely erroneous.
Fixed term employment
[104] Barwon Health submitted that a relevant consideration in determining whether
reinstatement was appropriate in this case is the fact that Dr Colson’s employment was
subject to a maximum term contract of employment which was due to expire by the effluxion
of time in March 2014. It was suggested that this consideration is relevant because Dr Colson
would only be guaranteed employment for a further six months and that this was not a case of
reinstatement to an ongoing position.
[105] There was some dispute as to whether the period of employment currently at issue was
in fact subject to a maximum term contract. Dr Colson suggests that an unsigned contract
produced by Barwon health specifying the employment as ceasing and 31 March 2014 was
not sighted by him. Previous periods of employment had proceeded on the basis of five-year
contracts and I am prepared to accept that the current period of employment was also subject
to a five-year maximum term contract. That said, I do not regard the relatively short period
that would be left to run on the contract to be a particularly persuasive factor against order for
reinstatement, and I do not place any weight on it
Conclusion regarding reinstatement
[106] Although this matter is finely balanced and the significant consequences for Dr Colson
in not being reinstated has weighed heavily on me, I am satisfied, based on the totality of the
156 Transcript PN 8922 – PN 8930
[2013] FWC 8734
37
evidence, that reinstatement in this case is inappropriate. The relationship of trust and
confidence between Barwon Health’s managers responsible for Dr Colson along withthe
management of the Department and Dr Colson has broken down and the evidence strongly
points to a conclusion that the relationship cannot be repaired making ongoing employment
unworkable. This is not outweighed by the consequences of no order of reinstatement for Dr
Colson.
Compensation as a remedy
[107] Section 390(3)(b) provides that I must not make an order for compensation unless I am
satisfied that reinstatement is inappropriate and I consider that an order for the payment of
compensation is appropriate in all the circumstances.
[108] Dr Colson devoted very little time during proceedings before me to the question of an
appropriate amount of compensation. This is wholly understandable since he sought
reinstatement and has maintained that an order of compensation would be manifestly
inadequate. However Dr Colson submitted that in the event that I reached conclusion that I
was satisfied that reinstatement was inappropriate then I should order the maximum
compensation amount permissible and that there should be no reduction the amount by reason
of any misconduct attributable to Dr Colson. 157
[109] Barwon Health submitted that in all the circumstances, the proper and appropriate
remedy is minimal compensation. It submitted that in light of the Full Bench finding that
Barwon Health had valid reasons for terminating Dr Colson’s employment based on
misconduct, I must exercise the power in s 392(3) of the Act and reduce the amount of
compensation by an appropriate amount on account of misconduct. It submitted the amount
should be reduced by 50 percent.158
[110] Taking into account the findings of the Full Bench and all of the circumstances of this
case I am satisfied that an order for compensation is appropriate.
[111] Section 392 of the Act sets out the circumstances that must be taken into account when
determining an amount of compensation, the effect of any findings of misconduct on that
compensation amount and the upper limit of compensation that may be ordered:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in
lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
157 Transcript PN 8955 – PN 8959
158 Barwon Health's further submissions on remedy at [44]
[2013] FWC 8734
38
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order
for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would
otherwise order under subsection (1) by an appropriate amount on account of the
misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must
not include a component by way of compensation for shock, distress or
humiliation, or other analogous hurt, caused to the person by the manner of the
person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must
not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
Note: subsection 392(5) indexed to $61,650 from 1 July 2012
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
[2013] FWC 8734
39
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer
during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.”
[112] The method for calculating compensation under s.392 of the Act was recently dealt
with by a Full Bench of the Commission in Bowden v Ottrey Homes Cobram and District
Retirement Villages Inc. T/A Ottrey Lodge159 (Bowden). In that decision the Full Bench set out
the order in which the criteria and other factors should be applied, taking into account
authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival
Supermarket160 and Ellawala v Australian Postal Corporation161. I have adopted the
methodology in Bowden in determining the amount of a payment of compensation.
Remuneration that Dr Colson would have been received: s.392(2)(c)
[113] At the time of his dismissal, Dr Colson’s annual remuneration was $434,802.54162.
That represents an amount of $36,566.88 per calendar month.
[114] Dr Colson was dismissed from his employment on 30 May 2012. As an alternative to
dismissal, the conduct engaged in by Dr Colson would have warranted a final warning. The
evidence clearly discloses that relationships between management of Barwon Health and Dr
Colson were poor and that mutual respect and trust between them was lacking. Barwon Health
has suggested that Dr Colson’s employment would have ended through the effluxion of time
in March 2014 because the employment was subject to a maximum term contract. I suspect,
given the state of the relationship, that the employment relationship would not have lasted that
long. Nevertheless I am prepared to accept, for the purposes of making an assessment as to
the remuneration that Dr Colson would have received had his employment not been
terminated on 30 May 2012,that his employment with Barwon health would have continued
until 31 March 2014.
[115] This means, based on Dr Colson’s annual remuneration at the time of his dismissal,
the remuneration that Dr Colson would have earned until 31 March 2014, being a period of 22
months, is $804,471.36. This amount will necessarily be higher by reason of wage increases
provided under the relevant enterprise agreement that would have become applicable during
this period. For reasons which will become apparent I have found it unnecessary to calculate
that amount. For those same reasons I have not calculated the impact of taxation on this
159 [2013] FWCFB 431
160 (1998) 88 IR 21
161 Print S5109
162 AB546 (exhibit C5); AB563 (exhibit C11); Transcript PN 9064 – PN 9082; exhibit RR9; Transcript PN 9131 – PN 9144
[2013] FWC 8734
40
amount. In addition I have not taken into account the lump sum benefit of this amount given
the relatively short period between the date of this decision and 31 March 2014. Consequently
no reduction in the amount to take account of that exigency is necessary.
Remuneration earned by Dr Colson: s.392(2)(e)
[116] It seems common ground that Dr Colson has earned $81,000 from sources other than
Barwon Health since the termination of his employment163. In addition during the period of
Dr Colson’s re-employment by Barwon Health pursuant to Commissioner Roe’s order (11
February 2013 to 15 July 2013) Dr Colson earned $184,506.72. Dr Colson has therefore
earned $265,506.72 in remuneration from employment or other work during the period since
the dismissal and I deduct this amount from the calculation of compensation.
Income likely to be earned: s.392(2)(f)
[117] I find the Dr Colson is unlikely to earn any income during the period between the
making of the order for compensation and the actual payment of that compensation.
Other matters: s.392(2)(g)
[118] In the circumstances of this case I do not I think it is appropriate that a contingency
deduction should be applied.
Viability: s.392(2)(a)
[119] There is no suggestion that an order for compensation would have any adverse
consequence for the viability of Barwon Health, and I make no reduction.
Length of service: section (s.392(2)(b))
[120] Dr Colson’s period of service in excess of 14 years supports an order of compensation
at the higher end and certainly would not support any reduction.
Mitigating efforts: s.392(2)(b)
[121] Given the evidence before me and before Commissioner Roe I am satisfied that Dr
Colson has taken reasonable taken steps to mitigate the loss suffered as a result of the
dismissal and I make no deduction on account of any failure by Dr Colson to mitigate losses.
Misconduct: s.392(3)
[122] As I have earlier indicated the Full Bench concluded that that Barwon Health had valid
reasons for dismissing Dr Colson because of his misconduct. Although the misconduct was
not serious misconduct justifying summary dismissal, the misconduct nonetheless contributed
to the dismissal. In the circumstances I consider that an appropriate reduction in compensation
that might otherwise be ordered is 20 percent.
Calculation of total compensation
163 AB 73 (PN 186); AB835 (Submissions of the Applicant)
[2013] FWC 8734
41
[123] Applying the above matters, Dr Colson would have earned $804,473.36 for the period
between the date of his dismissal and 31 March 2014. From this amount I deduct $265,506,72
for the remuneration earned by Dr Colson since his dismissal. This would leave a balance of
$538,966.64. From this amount I deduct the sum of $107,793.32 as an amount that is
appropriate having regard to the contribution of Dr Colson’s misconduct to his dismissal. The
total compensation after deduction for remuneration earned and misconduct contribution is
$431,173.32.
Applying the Compensation cap: s.392(5)
[124] By reason of section 392(5) I am unable to order compensation in the amount
calculated in the previous paragraph. The lesser of the amounts referred to in s 392(5) is half
the amount of the high income threshold that applied immediately before the dismissal. As at
30 May 2012 the high income threshold was $118,100.00. Half that amount is $59,050.00.
[125] As the amount of compensation that I have calculated exceeds the compensation cap. I
will reduce the amount of compensation to be ordered to $59,050.00.
Payment by instalments: s.393
[126] Barwon health did not suggest that any compensation order to be paid by instalments
and in the circumstances I do not think that an instalment payment either necessary or
appropriate.
Conclusion
[127] I have concluded that reinstatement of Dr Colson is inappropriate and that in all the
circumstances it is appropriate to order that Barwon Health pay Dr Colson an amount of
compensation. The amount of compensation that I have determined is $59,050.00. That
amount will be payable within 7 days of the order. An order giving effect to this decision is
published separately.
DEPUTY PRESIDENT
Appearances:
R.Millar of Counsel for the applicant.
M.McDonald SC with J.Tracey of Counsel for Barwon Health
[2013] FWC 8734
42
Hearing details:
2013.
Melbourne:
1 August.
2 August.
30 September.
1 October.
15 October.
Printed by authority of the Commonwealth Government Printer
Price code G, PR544220
