The Public Service Appeal Board has upheld the decision of North Metropolitan Health Service to dismiss an Oncologist, finding that he engaged in serious misconduct after approving substantial overtime payments of over $244,000 to a worker who was not entitled to overtime; and that he breached his duty of fidelity and good faith when he engaged the same worker on a contract that was detrimental to the employer.

Background

The applicant was a Consultant Medical Oncologist, and was engaged by the respondent since 2003, and was for a period, the Head of the Department between 2007-2013.

In 2019, Corruption and Crime Commission proceedings concluded that another employee of the Department engaged in serious misconduct for unsubstantiated overtime payments. The employee was primarily employed by the Department as a Clinical Trials Manager, and was later engaged at the initiative of the appellant under an independent contractor arrangement (‘Worker’)

Between 2019-2020, the respondent conducted investigations into the appellant’s role in relation to the payment of these overtime payments and contract. Broadly, the two allegations that were found to be substantiated by the respondent were:

Allegation 1. That the appellant had failed to exercise an appropriate level of oversight and scrutiny in relation to the payment of the overtime payments to the Worker, constituting a breach of discipline contrary to s 161 (d) of the Health Services Act 2016 (WA) (‘HS Act’) as the appellant was negligent or careless in the performance of his functions; and

Allegation 3:  That the appellant breached his duty of fidelity and good faith to his employer when he approved the engagement of the Worker on a contract which was detrimental to the respondent, constituting a breach of discipline contrary to s 161(c) of the HS Act as the appellant committed an act of misconduct (allegation 3).

The appellant appealed against his dismissal to the Appeal Board.

Contentions     

The parties agreed that the period in question was between November 2014 and November 2017.

In relation to Allegation 1, the appellant denied that he had oversight of the Worker, and if he did, contended that he was not negligent or careless.  The appellant submitted that he was only the Worker’s manager at the time that he was Head of Department, and denied that the approval of the overtime was not his role or responsibility; and that he did not have any training or an understanding of the approval of overtime.

The respondent submitted that evidence before the Appeal Board supported that the appellant was the Worker’s manager, and that the appellant admitted this before the CCC. The respondent contended that any reasonable, sensible, intelligent person reviewing the overtime forms would have seen the hours worked were significant.

In relation to Allegation 3, the appellant contended that he believed he had the authority to approve the contract, and that the engagement was vital to the function of the Clinical Trials Unit.

The respondent contended that the appellant engaged the Worker under the contract to allow the achievement of higher earnings than she would have been entitled to as an employee, to the detriment of the respondent.

The appellant contended that where the allegations were made out, that no penalty beyond a reprimand was appropriate.

Findings

The Appeal Board found Allegation 1 was substantiated. The Appeal Board considered that the appellant was in a supervisory position to the Worker, and that he was approving payment of overtime in circumstances where he had not properly reviewed the amount of overtime claimed, the reasons for the overtime or whether the overtime had been worked at all, and this amounted to negligence and carelessness in the performance of his functions.

The Appeal Board found Allegation 3 was substantiated.  The Appeal Board found that appellant negotiated the terms of the contract despite knowing he lacked the authority to do so. The Appeal Board found that the appellant approved overtime while being aware he did not have authority to do so, and knowing that the Worker was not entitled to overtime.

The Appeal Board noted that the appellant failed to take responsibility for his actions, and considered that termination of employment was a fair penalty in the circumstances, and dismissed the application.

The decision can be read here.