Appeal against a decision of the Public Service Arbitrator in matter no. PSACR 20 of 2013 given on 10 March 2016

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00699

DELIVERED : THURSDAY, 11 AUGUST 2016

FILE NO : FBA 1 OF 2016

Appellant

AND

The Minister for Health

Respondent

ON APPEAL FROM:

Jurisdiction : Public Service Arbitrator

Coram : Acting Senior Commissioner P E Scott

Citation : [2016] WAIRC 00135; (2016) 96 WAIG 390

File No : PSACR 20 of 2013

CatchWords : Industrial Law (WA) - Appeal against decision of public service arbitrator - Doctor aggrieved by decision not to offer him a further contract following the expiry of a fixed term contract - Rules of procedural fairness that apply to decision by application of the principles of administrative law did not apply as any right of the doctor to a further contract derived from contract and not from a statutory power - The claim of procedural fairness as a part of industrial unfairness also considered - Employer had a right unfettered by procedural fairness to determine whether to offer a further contract - No industrial unfairness demonstrated as no special circumstances raised to displace this right

Legislation : Industrial Relations Act 1979 (WA) s 7(1)(c), s 7(1)(ca), s 26(1)(a), s 44(9), s 49, s 80E, s 80E(1), s 80E(6), s 80F

Hospital and Health Act 1927 (WA) (repealed) s 7, s 7A, s 7A(2), s 19, s 19(1)

Interpretation Act 1984 (WA) s 5

Public Sector Management Act 1994 (WA) s 21

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3, s 13

Australian National University Act 1946 (Cth) s 23, s 27(1)(g)    

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr R L Hooker

Respondent : Mr R J Andretich

Solicitors:

Appellant : Panetta McGrath Lawyers

Respondent : State Solicitor for Western Australia

Case(s) referred to in reasons:

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Attorney-General for the State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1

Australian National University v Burns (1982) 43 ALR 25

Australian National University v Lewins (1996) 138 ALR 1; (1996) 68 FCR 87

Baker v University of Ballarat (2005) 225 ALR 218; [2005] FCAFC 210

Breen v Amalgamated Engineering Union [1971] 2 QB 175

Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153

Cole v Cunningham (1983) 81 FLR 158

Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244; (2005) 86 WAIG 231 (Jones)

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47

Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166; (2003) 83 WAIG 3053

Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99

Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543

Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44;  (2005) 221 ALR 95

John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Malloch v Aberdeen Corporation [1971] 2 All ER 1278, 1282

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636

Quinn v Overland [2010] FCA 799; (2010) 199 IR 40

R v British Broadcasting Corporation; Ex parte Lavelle [1983] 1 All ER 241; [1983] 1 WLR 23

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Whitehead v Griffith University [2002] QSC 153

Case(s) also cited:

Abbott v Women's and Children's Hospital [2003] SASC 145

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

FAI Insurances Ltd v Winneke (1982) 151 CLR 342

Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319

State of Victoria v Master Builders Association of Victoria [1995] 2 VR 121

Reasons for Decision

SMITH AP:

Introduction

1         This is an appeal to the Full Bench by the Australian Medical Association (WA) Incorporated (the AMA) pursuant to s 49 of the Industrial Relations Act 1979 (WA) (the IR Act) against a decision of the Commission delivered on 10 March 2016 dismissing a matter referred for hearing and determination under s 44(9) of the IR Act in PSACR 20 of 2013:  [2016] WAIRC 00135; (2016) 96 WAIG 390.

2         A dispute first arose out of an incident involving a member of the AMA, Dr James Savundra, at Royal Perth Hospital on 15 February 2013 which resulted in his suspension from work at the hospital (C 204 of 2013).  The matter was in part resolved which resulted in Dr Savundra returning to work in June 2013.  The AMA continued with the dispute by filing application PSAC 20 of 2013 in 25 June 2013 after agreement was reached for Dr Savundra to return to work and in 2014 Dr Savundra's contract of employment to work as a sessional consultant at Royal Perth Hospital was not renewed following the expiry of his contract for a fixed term.  The matter was referred for hearing in June 2015.  By that time, the dispute mainly concerned a decision made on behalf of the Minister for Health (the employer) to not renew Dr Savundra's contract of employment at Royal Perth Hospital.

3         The central issue raised in this appeal is whether Dr Savundra was entitled to procedural fairness during the process of the making of the decision in 2014 not to renew the Royal Perth Hospital contract.

4         When this matter came before the Public Service Arbitrator (the Arbitrator) for hearing the claim was opposed on a number of grounds, including a claim that the Arbitrator did not have jurisdiction to enquire into and deal with the matter.  The AMA sought to amend the application.  The employer opposed the amendments on grounds going to the jurisdiction of the Arbitrator to deal with the matters sought to be raised by the AMA.  Following argument, amendments were allowed by the Arbitrator.

5         In reasons for decision delivered by the Arbitrator on 23 April 2015, the Arbitrator set out her reasons as to why she reached the view that there was no jurisdictional impediments to the application being amended:  [2015] WAIRC 00333; (2015) 95 WAIG 590.  Following the delivery of her reasons for decision, the Arbitrator issued a memorandum of matters referred for hearing and determination (PSACR 20/2013) on 8 June 2015 which set out the matters that had not been settled by agreement between the parties.  The memorandum of matters referred for hearing and determination states as follows:

The applicant says that:

1. Dr James Savundra, a member of the applicant, is a fully trained Plastic and Reconstructive Surgeon.

2. Dr Savundra was employed by the respondent at Royal Perth Hospital (RPH), working in RPH's Department of Plastic and Maxillofacial Surgery (the Department) under a fixed term contract of employment from 1 November 2009 to 1 November 2014 (the Royal Perth Hospital Contract).

3. On 12 March 2013, Dr Savundra received a letter on behalf of the respondent (the 12 March Letter) which, among other things:

(a) told him that the Director General had directed the undertaking of a preliminary inquiry into what was described as Dr Savundra's conduct in connection with industrial action by medical staff of the Department;

(b) told him that the respondent had determined that he was suspended from duty with full pay pending a decision on whether a formal disciplinary investigation is warranted (the suspension);

(c) directed him:

(i) not to attend for duty at RPH with immediate effect and until further notice; and

(ii) not to communicate with Hospital staff on any matter pertaining to the operations of the Department.

(the directions)

4. Dr Savundra was not heard, properly or at all, before the suspension and being given the directions.

5. Despite a course of correspondence between Dr Savundra's solicitors and the respondent in May 2013, the respondent:

(a) denied having failed to accord Dr Savundra natural justice; and

(b) declined to identify any power that it relied upon to source the suspension and the two directions.

6. On 6 June 2013 the Acting Director General of Health by letter to Dr Savundra through his solicitors found, amongst other things, that:

(a) industrial action in the form of withdrawal of labour, occurred and further action was threatened; and

(b) Dr Savundra failed to comply with a verbal direction given to him by Dr Frank Daly to the effect that he (Dr Savundra) was not to attend Royal Perth Hospital on 15 February 2013.

(the adverse findings)

7. The adverse findings were made without:

(a) according Dr Savundra any procedural fairness; or

(b) informing Dr Savundra under what source or sources of power the respondent purported to be acting in making the adverse findings and conducting any investigation or inquiry which preceded the adverse findings.

8. On 10 June 2013 Dr Savundra was permitted by the respondent to, and did, return to work at Royal Perth Hospital.

9. Dr Savundra, and accordingly the applicant, are aggrieved about:

(a) the failure of the respondent to accord Dr Savundra procedural fairness with respect to the suspension, the directions, and the adverse findings;

(b) the impact of the suspension on Dr Savundra's professional standing and reputation;

(c) the impact that the suspension had on the welfare of Dr Savundra's patients at RPH;

(d) the attempt of the respondent, through the directions, to impair Dr Savundra's freedom of communication on matters pertaining to his profession and his employment with RPH;

(e) the absence of any clarity or structure to any preliminary or substantive inquiry or investigation that the respondent conducted into Dr Savundra;

(f) the impact of the adverse findings on Dr Savundra's professional standing and reputation, including him being placed in peril of further adverse action by the Medical Board; and

(g) the peril of further disciplinary proceedings being taken against Dr Savundra if it be asserted that he breached either or both of the two directions.

10. A lengthy, ongoing course of communication was undertaken between Dr Savundra and his representatives and the respondent since 12 March 2013.

11. Despite that course of correspondence the respondent appeared to maintain that:

(a) Dr Savundra was lawfully and fairly suspended;

(b) the directions were lawful and reasonable, and were therefore capable of binding Dr Savundra in his employment with the respondent; and

(c) Dr Savundra denied those two propositions at the time and continues to deny them.

12. By letter of 28 July 2014 Alex Smith on behalf of the respondent told Dr Savundra that his RPH Contract would not be renewed beyond its expiry on its own terms on 1 November 2014 (the RPH Contract Decision). The letter did not express any of the reasons for that decision.

13. The RPH Contract did in fact expire on its own terms on 1 November 2014 and he has not since undertaken any work at RPH.

14. The respondent's employment records for Dr Savundra include a 'Termination Form' which reflects an understanding by the respondent that there was a termination of part of Dr Savundra's employment with the respondent.

15. The reasons which caused, or alternatively contributed to, Dr Savundra not being offered by the respondent any more employment at RPH after 1 November 2014 were, or included:

(a) the adverse findings;

(b) allegations by the respondent (the allegations) that Dr Savundra:

(i) had bullied or intimidated other staff members of the respondent; and

(ii) has a polarising effect on people he works with and needs to learn to work with management in a more cohesive way.

16. The allegations have not been put to Dr Savundra or the applicant at all, or with any particularity, nor has either of them been invited to respond to the allegations.

17. The RPH Contract Decision was made without the adverse findings or the allegations being put to Dr Savundra or the applicant, nor has the respondent provided a fair hearing (or any hearing at all).

18. The RPH Contract Decision was accordingly made:

(a) in a manner devoid of natural justice;

(b) in a manner that took into account considerations which were based solely on assumptions made, or conclusions drawn, by the respondent on allegations or other material which are unknown to Dr Savundra or the applicant and thus which relevantly were irrelevant considerations;

(c) manifestly unreasonably;

(d) unfairly to Dr Savundra and numerous other doctors employed by the respondent at RPH;

(e) unlawfully.

19. The applicant seeks that the Public Service Arbitrator (the Arbitrator):

(a) review the RPH Contract Decision and the circumstances which preceded it;

(b) nullify the RPH Contract Decision with the effect that:

(i) Dr Savundra is afforded an opportunity to understand and respond to any adverse allegations the Respondent wishes to make against him;

(ii) Dr Savundra has an opportunity to be offered more employment with the respondent at Royal Perth Hospital; and

(iii) a decision is made by the respondent about Dr Savundra's employment at Royal Perth Hospital lawfully, fairly and transparently.

The respondent says:

1. In relation to the suspension, the directions and the adverse findings:

(a) Dr Savundra was not allowed by the respondent to perform duties, but was paid, from 12 March 2013 to 6 June 2013;

(b) the respondent wrote to the applicant by letter dated 12 July 2013 admitting that a claim that Dr Savundra was not afforded procedural fairness in connection with the matter could not be contested and that the adverse finding against him was abandoned, the formal warning imposed withdrawn and the matter discontinued;

(c) the events took place two years ago; and

(d) taken in isolation, there is nothing more that the Arbitrator can or should do in relation to it given the length of time since the events occurred and the contents of the letter of 12 July 2013.

2. In relation to the circumstance in which the employment at RPH ended, it came to an end by agreement between Dr Savundra and the respondent, set out in a letter headed 'RENEWAL OF FIVE YEAR CONTRACT' signed by Dr Savundra on 17 December 2009.

3. Dr Savundra's employment ended by way of the ordinary operation of an agreement between the respondent and Dr Savundra and did not involve any matter affecting or relating or pertaining to the work, privileges, rights or duties of an employee or employer.

4. It is denied that any 'privilege', 'right', 'duty' or matter of 'work' is in any way affected by the situation where a contract expires by the effluxion of time as a result of the genuine agreement of the parties that this occur.

5. Even if there were an industrial matter the respondent says that the Arbitrator may only intervene to address issues of industrial unfairness relating to a matter affecting or relating or pertaining to the work, privileges, rights or duties of an employee.

6. There cannot be an issue of industrial fairness relating to the ending of the employment of the applicant's member at RPH as that employment ended as a result of an agreement between the applicant's member and the respondent with neither party taking any action nor invoking any right or privilege.

7. The respondent was not required to do anything and did not do anything in relation to the purported matter. The contract expired on its own terms and according to the genuine agreement of the parties. The respondent could act neither fairly nor unfairly in relation to the matter.

8. Even if the applicant's allegations, including an alleged connection between the suspension, the directions and the allegations on one hand and the circumstances in which the employment came to an end on the other hand, were entirely true, which is denied, they could not possibly, in the context of the matter complained about (being the ending of the employment of Dr Savundra at RPH), evidence relevant unfairness given that the employment ended by the effluxion of time according to a genuine agreement between Dr Savundra and the respondent that this occur.

9. The respondent maintains that the Arbitrator cannot, or in the alternative should not, make any order which has the effect that a genuine fixed term contract does not have the result intended by both parties to it and that, rather, a term in a genuine contract that certain employment ends at a certain time is, in fact, subject to various unformulated terms such as that the employer must accord the employee procedural fairness before forming negative assessments of the employee, the employer must give consideration to offering the employee further employment and the employer must successfully complete a process, as formulated by the Arbitrator, before deciding whether or not to offer the employee further employment.

10. Although the respondent accepts that findings have been made allowing this matter to proceed to hearing, the respondent maintains all of its jurisdictional challenges to any order being made which has the effect that a genuine fixed term contract does not operate according to its terms.

11. The respondent also notes that, in terms of 'remedy', the parties to the present proceedings have agreed that what should happen where 'upon expiry of a fixed term contract, [the applicant's member] is unsuccessful in seeking a new contract' and have further agreed that 'no other termination, redundancy or severance payment shall be made except as provided for in the Agreement' (see clause 20(5) of the Agreement).

12. The agreement between the parties as to what should happen in the situation in which the applicant's member finds himself is a powerful factor against the Arbitrator exercising discretion, in the event it finds it has such discretion, to intervene in the current matter in the way the applicant seeks.

13. For the sake of completeness the respondent notes that the applicant's member has fixed term contracts with the respondent to perform services at Fremantle Hospital (expiring 4 February 2019) and Princess Margaret Hospital (expiring 2 November 2016).

The respondent seeks that the matter be dismissed.

Background

6         It is the practice of the public health system to engage senior medical practitioners on fixed term contracts.  This practice has been enshrined in industrial agreements entered into by the parties.

7         Dr Savundra is a very senior plastic surgeon whose professional skills are highly regarded by his peers.  He commenced employment with the WA public health system in 1993 as an intern.  For a substantial number of years he has been engaged as a sessional consultant on a series of fixed term contracts at Royal Perth Hospital.  He has also been engaged on the same basis to work at Fremantle Hospital and Princess Margaret Hospital and at the time of the hearing of the matters referred, he continued to work at Fremantle Hospital and Princess Margaret Hospital as a sessional consultant.

8         When the matter was heard by the Arbitrator, on behalf of the AMA a bundle of documents were tendered into evidence and the following witnesses gave evidence by the tender of witness statements supplemented by oral evidence:

(a) Dr Savundra;

(b) Dr Brigid Corrigan (specialist plastic and reconstructive surgeon and consultant and co-head of the department of Royal Perth Hospital plastic surgery);

(c) Dr Anthony Williams (specialist plastic and reconstructive surgeon and consultant and co-head of the department of Royal Perth Hospital plastic surgery); and

(d) Dr Mark Duncan-Smith (specialist plastic and reconstructive surgeon and former consultant and head of the department of Royal Perth Hospital plastic surgery).

9         At the conclusion of the case for the AMA, an election was made on behalf of the employer not to adduce any evidence.

10      In 2013, Dr Savundra's employment was covered by the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2013 (the 2013 Agreement).  Pursuant to cl 20(1)(a) of the 2013 Agreement, all appointments of practitioners are to be on five-year contracts unless there is written agreement to the contrary between the employer and practitioner.  There is no automatic right of reappointment upon expiry of a contract (cl 20(4)).  Clause 20(5) contemplates a payment which could be characterised as compensation where no new contract is entered into on expiry of the fixed term.  Clause 20(5) provides that in circumstances of there being no new contract, a contract completion payment to be paid to the practitioner which is equal to 10% of the final base salary of the practitioner for each year of continuous service.

11      The final contract Dr Savundra entered into at Royal Perth Hospital was executed by him on 17 December 2009.  The express terms of the contract provided that the date of commencement of the renewal was 1 November 2009 and was for a period of five years from the date of commencement (AB 400 - 402).  The material express terms of the contract were as follows:

(a) The contract was described as a renewal of a five-year contract as consultant (sessional) in the department of plastic surgery.

(b) The renewal was offered in accordance with the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2007 (the 2007 Agreement).  (Clause 21 of the 2007 Agreement is materially in the same terms as cl 20 of the 2013 Agreement.)

(c) The employer was not to be liable to employ Dr Savundra in any capacity beyond the specified term.  In the event that the hospital did elect to make a subsequent offer of employment to Dr Savundra, it was to be in the form of a written offer subject to such terms and conditions as may be contained in that offer.

(d) The appointment could be terminated by three months' notice on either side.

(a) The incident at Royal Perth Hospital in February 2013

12      On 15 February 2013, an incident occurred which resulted in Dr Savundra being suspended on full pay from Royal Perth Hospital.

13      In February 2013, there were two plastic surgeons employed at Royal Perth Hospital as senior registrars/senior medical practitioners, Dr Barry O'Sullivan and Dr Jeremy Rawlins.  Both were plastic surgeons who were qualified to be accredited or classified as specialist plastic surgeons in Australia.  From mid-2012 they had been treated as if they had been employed as consultants at Royal Perth Hospital.  Yet, they were not credentialed or engaged as consultants at the hospital.

14      Dr Savundra and other specialist consultants in the department of plastic surgery at the hospital had no difficulty with the clinical skills, experience and training of Dr O'Sullivan and Dr Rawlins, but they objected to them not being employed as consultants.

15      By letter dated 6 February 2013, five consultant surgeons employed in the hospital's plastic surgery department, Dr Savundra, Dr Williams, Dr Corrigan, Dr Paul Quinn and Dr Duncan-Smith (who was at that time the head of department) wrote to Dr Frank Daly, the executive director of Royal Perth Hospital, raising this issue (AB 275 - 277).  In the letter they set out their concerns and stated that whilst the hospital recognises Dr O'Sullivan and Dr Rawlins as senior registrars/senior medical practitioners but not as credentialed consultants, they the undersigned would not be able to act as consultant plastic surgeons for the on-call roster at Royal Perth Hospital.  The letter also stated that unless Dr O'Sullivan and Dr Rawlins were given appointments as consultants they would treat the two doctors as registrars and Dr O'Sullivan and Dr Rawlins would not be able to carry out on-call work as consultants unless they were being supervised by a consultant plastic surgeon.

16      By Friday, 15 February 2013, the issue was not resolved.  Dr Savundra was going on leave that evening to go overseas to carry out voluntary surgery in a third world country for three weeks.  Prior to going on leave, he intended to go to Royal Perth Hospital before his on-call rostered period ended at 6.00pm.  Before going to the hospital he had a discussion with his colleagues to initiate action about this matter as he was the most senior plastic surgeon on the on-call trauma roster.

17      Dr Savundra spoke to Dr Patterson, the head of department of Royal Perth Hospital emergency department, and Dr Ruven Gurfinkel, who was to be the plastic surgeon on-call for the weekend at Sir Charles Gairdner Hospital.  He told Dr Patterson that, having checked the on-call roster for specialist plastic surgeons for the weekend, he noted that Dr O'Sullivan was rostered.  He advised Dr Patterson that, in the circumstances, there would be no consultant plastic surgeon on-call for the weekend at Royal Perth Hospital and as Dr O'Sullivan had been contracted by Royal Perth Hospital as a senior registrar/senior medical practitioner Dr O'Sullivan could not carry out certain duties without consultant oversight.  When Dr Savundra spoke to Dr Gurfinkel he requested and Dr Gurfinkel agreed to organise extra operating theatre time for that weekend at Sir Charles Gairdner Hospital and advise the plastic surgery registrars at Sir Charles Gairdner Hospital of the situation.

18      After making these arrangements, at about 4.30pm Dr Savundra was driving to Royal Perth Hospital when he received a telephone call from Dr Daly.  Dr Savundra asked Dr Daly whether there was a plastic surgeon consultant on-call for Royal Perth Hospital from 6.00pm that evening and Dr Daly did not answer.  He told Dr Daly that he was on his way to Royal Perth Hospital and he was going to the emergency department and he had already spoken with Dr Patterson about the situation.  During the conversation, Dr Daly directed Dr Savundra multiple times not to attend Royal Perth Hospital's emergency department.  Dr Savundra told Dr Daly that he could not follow his directive and do his job properly.  During the conversation, Dr Savundra told Dr Daly that Dr O'Sullivan was not contracted as a specialist plastic surgeon and therefore could not carry out certain duties without consultant oversight.  Dr Savundra also told Dr Daly that he had to make sure all plastic surgery patients 'were safe' and that was why he was going to the emergency department.  Dr Savundra also informed Dr Daly that if Dr O'Sullivan 'got accredited at 10 to 6 that would have been okay'.  When giving evidence, Dr Savundra explained that he regarded a patient safety issue was raised as Dr O'Sullivan was not willing to take the responsibility of being a consultant when the hospital had not credentialed him as a consultant.

19      After he spoke to Dr Daly, Dr Savundra went to Royal Perth Hospital, made what he said were appropriate arrangements and ensured that there were no patients with serious injuries in the emergency department requiring plastic surgeon consultant attention.  He told the plastic surgery doctors, who were rostered on, that the patients who had been already admitted to the plastic surgery department would have consultant oversight over the weekend, but they were the last of the patients that they could admit given the inadequate staffing levels.  He also gave a direction that new patients who presented to the emergency department that weekend and required prompt plastic surgery care were to be given a piece of paper with Sir Charles Gairdner Hospital's address.  Dr Savundra then went on three weeks' planned leave from the next day.

20      When Dr Savundra returned to Royal Perth Hospital after being away for three weeks he was asked to attend a meeting at which Dr Daly handed him a letter dated 12 March 2013 from Mr Marshall Warner, Director, Health Industrial Relations Service, in which it was stated that he was suspended from duty.  In the letter Dr Savundra was also advised by Mr Warner that the Director General had directed him to undertake a preliminary inquiry into his conduct in connection with industrial action by medical staff of the plastic surgery department of Royal Perth Hospital.  It was also stated that the purpose of the preliminary inquiry was to establish whether or not there were grounds to initiate a formal disciplinary investigation and the allegations made against Dr Savundra were set out as follows (AB 281):

I am advised that contrary to an explicit direction from Dr Frank Daly, you attended the Hospital on Friday 15 February 2013 and gave instructions, to Emergency Department and other staff, to the effect:

- no plastics on-call service would be provided from Friday 15 February 2013;

- no plastics admissions would be accepted on the immediately following Saturday and Sunday; and

- plastics referrals from other hospitals to be diverted to Sir Charles Gairdner Hospital.

21      On 27 March 2013, Dr Savundra went to Africa for some weeks, again to undertake voluntary surgery.

22      By letter dated 13 May 2013, Dr Savundra's lawyers sought, among other things, his reinstatement and that this occur by 15 May 2013.

23      By letter dated 15 May 2013, Dr Savundra's lawyers raised other issues regarding the preliminary inquiry referred to in Mr Warner's letter.  It appears there was a meeting on 16 May 2013.  However, there was no evidence as to what occurred at that meeting.

24      On 30 May 2013, an application for a conference pursuant to s 44 of the IR Act was lodged by the AMA in C 204 of 2013 in the Commission's general jurisdiction.

25      By letter dated 6 June 2013, Professor Bryant Stokes, acting Director General, wrote to Dr Savundra in the following terms (AB 304 - 305):

In March 2013, the then Director General (Mr Snowball) directed that a preliminary enquiry into your conduct in connection with Industrial action by medical staff of the Plastic Surgery Department of Royal Perth Hospital be undertaken.

I have had the opportunity to review the matters at issue.

It is plain that industrial action, in the form of withdrawal of labour, occurred and further action was threatened. This is entirely unacceptable and any repetition will necessitate retaliatory industrial action being taken by the Hospital.

There are well established processes to deal with disputes about contractual and other entitlements including ultimately recourse to relevant industrial tribunals. Failure to follow these processes in future will result in sanctions being imposed.

The industrial action having ceased, little purpose would be served by pursuing the matter further.

It is plain that you failed to comply with a verbal direction given to you by the Executive Director Royal Perth Hospital Group, Dr Frank Daly, to the effect that you were not to attend the Hospital on Friday 15 February 2013. It is apparent that you did attend the Hospital and gave various directions in connection with the admission of patients in the furtherance of the industrial objectives then being pursued.

If in future should you fail to comply with your contractual obligations or unreasonably involve yourself in matters pertaining to the organisation of the business of the Hospital then disciplinary action, which may call into question your continuing association with the Hospital, will be taken.

Whether the Medical Board of Australia (Board) will take any action is a matter for the Board to consider. The Hospital has no further action to take in this regard.

In the present circumstances, I am satisfied that there is nothing to prevent you from returning to your clinical duties at a date to be fixed by Dr Daly. Dr Daly's office will liaise with you directly in this regard.

26      The Commission convened conferences and the parties reached agreement on Dr Savundra returning to duty at Royal Perth Hospital on 10 June 2013.

27      The AMA filed an application for a conference pursuant to s 44 of the IR Act in the Arbitrator's jurisdiction in this matter on 25 June 2013.  After a conference was convened by the Arbitrator on 4 July 2013, Mr Warner wrote to the executive director of the AMA by letter dated 12 July 2013, in the following terms (AB 309):

I refer to the Conference proceedings before the Public Service Arbitrator (PSA) on Thursday 4 July 2013.

It is apparent that the Applicant's claim that Mr Savundra was not afforded procedural fairness in connection with this matter cannot be contested.

Acknowledging the procedural error, I advise that the finding of misconduct is abandoned, the formal warning is withdrawn and that the matter is discontinued.

28      However, proceedings in the Commission continued as a number of issues remained in dispute between the parties and as a result the Arbitrator convened conferences on 28 November 2013, 14 April 2014 and 24 October 2014:  [2015] WAIRC 00333 [9] - [11].

(b) Dr Savundra's work at Fremantle Hospital

29      Dr Savundra also had a contract to work as a sessional consultant at Fremantle Hospital which was due to expire on 12 December 2013.  Dr Savundra was at that time also head of department of plastic surgery at Fremantle Hospital.  By letter dated 4 December 2013, Dr David Blythe, the executive director of Fremantle Hospital, wrote to Dr Savundra advising him that his appointment at Fremantle Hospital, which was due for renewal on 13 December 2013, could be extended to match the longer term of Dr Savundra's appointment at Royal Perth Hospital which was to expire 'on 31 October 2014'.  Dr Savundra objected and sought a renewal of the Fremantle Hospital contract for five years.  There was correspondence between Dr Savundra and Dr Blythe and telephone calls between the two of them about this issue over a period of weeks.  In the interim, Dr Savundra's contract at Fremantle Hospital was extended for a short term.  One of the issues raised by Dr Blythe was that he did not know what sort of plastic service he would need at Fremantle Hospital from about October 2014 when elective surgery started moving to Fiona Stanley Hospital.  Dr Savundra did not accept this explanation.  This is because only two months earlier another doctor at Fremantle Hospital had had his five-year contract renewed at Fremantle Hospital.  This was known to Dr Savundra because he was the head of department.

30      By letter dated 23 December 2013, Dr Blythe wrote to Dr Savundra and advised him that Professor Stokes, the Director General, wished to speak to Dr Savundra about future employment within the South Metropolitan Health Service and requested that he make an appointment to see Professor Stokes.

31      In late December 2013, Dr Savundra met with Professor Stokes.  At the end of the meeting, the Director General told Dr Savundra he would look into the question of Dr Savundra's five-year contract at Fremantle Hospital.

32      Following the meeting, Dr Savundra sent Professor Stokes an email setting out information requested by Professor Stokes relating to FTE for plastic surgery specialists at Royal Perth Hospital and Fremantle Hospital.  Dr Savundra in the email also referred to his involvement in the plastic surgery review implementation committee and informed Professor Stokes that he would be happy with a further five-year contract across the South Metropolitan Health Service, allowing him to work at all three campuses, depending on where the work was.  He also referred to issues associated with Dr Daly and tension and morale at Royal Perth Hospital.

33      On 20 February 2014, Dr Savundra was informed he would be offered a five-year contract at Fremantle Hospital which he accepted.  It was for a fixed term of five years commencing on 4 February 2014 as a sessional plastic surgeon consultant.

(c) Expiry of Dr Savundra's contract at Royal Perth Hospital in 2014

34      Dr Savundra expected that when his Royal Perth Hospital 2009 contract was due to expire in 2014 it would be renewed.  He, however, was not the only doctor who worked at the hospital not to be offered a further contract.  At least six other doctors at the hospital were not offered a new contract when their contracts expired.

35      A number of emails covering the period of March 2013 to October 2013 were received into evidence.  They indicate that consideration was being given to the renewal of contracts of employment of nine consultants at Royal Perth Hospital, one of whom was Dr Savundra.  There was no evidence of how many were offered new contracts.

36      On 19 March 2014, Dr Aresh Anwar, Director of Clinical Services at Royal Perth Hospital, wrote to Dr Savundra advising that a decision would be made as to whether a further contract of employment would be offered to him on the cessation of his existing contract on 1 November 2014.  The letter also noted that should he not be offered a further contract, he would be eligible for a contract completion payment in accordance with the 2013 Agreement.

37      By letter dated 28 July 2014, Mr Alex Smith, acting Executive Director, Royal Perth Group South Metropolitan Health Service, sent a letter to Dr Savundra informing him that a further contract of employment would not be offered, that his employment at Royal Perth Hospital would cease at close of business on Saturday, 1 November 2014 and he would receive a contract completion payment.

38      For some time Dr Savundra was not provided with any information as to why he was not offered a new contract.

39      Professor Stokes met with Dr Savundra on 3 October 2014.  Before attending the meeting, Dr Savundra inspected his personnel file.  There was little information on the file.  However, there was a file note of a meeting Dr Savundra and his AMA representative had with Dr Mark Platell, director of clinical services at Royal Perth Hospital and Dr Daly in June 2012.  This meeting arose because Dr Savundra had made an inappropriate note in a patient's medical notes.  The notation that Dr Savundra had made was 'If anyone in Executive blocks my ability to transfer this patient for proper care I will be taking it further'.  Dr Savundra testified that he made the note out of frustration with hospital administration about transferring a patient.  Dr Savundra's evidence is that he disagreed with the content of the file note on his record.  The file note identified discussion about two issues.  The first was how staff working with and around him perceived his work and personality style.  The second was the proper approach to notations on a patient's medical record.  The file note stated that:

(a) both issues were vigorously discussed and debated;

(b) the outcomes of the meeting were positive; and

(c) Dr Savundra was aware of how he impacted upon other staff and agreed as to what were appropriate and inappropriate notations within a medical record.

40      Dr Savundra's evidence was that there was no vigorous discussion and debate at that meeting and the only issue dealt with was his note on the patient's record.

(d) Dr Savundra's colleagues' evidence

41      Dr Duncan-Smith, Dr Corrigan and Dr Williams all have a high regard for Dr Savundra's skill, expertise and dedication.  Each expressed the opinion that Dr Savundra's skills are needed at Royal Perth Hospital as Dr Savundra has a level of skill and expertise in procedures that other plastic surgeons at Royal Perth Hospital do not have.  Prior to, and subsequent to, the expiry of Dr Savundra's contract, all have recommended on a number of occasions that Dr Savundra be reappointed as a consultant at Royal Perth Hospital.

42      Tendered into evidence was a bundle of emails and letters of support from medical specialists and trainees in other areas for Dr Savundra's retention at Royal Perth Hospital (AB 359 - 371).  Three of these letters were given to Professor Stokes in September 2014 (AB 518).

43      Dr Corrigan initially raised her concerns as to why there was an impediment to reappointing Dr Savundra to Royal Perth Hospital with Professor Grant Waterer and Dr Anwar in August 2014.  Professor Waterer told her that the reappointment of Dr Savundra at Royal Perth Hospital is being 'blocked' further up the line than him.  On another occasion Professor Waterer told her that Dr Savundra could not be reappointed because he was 'difficult'.  He also told her that of all the consultants he is responsible for, he spent a lot of his time dealing with Dr Savundra.  Towards the end of 2014, Dr Anwar or someone else in management at Royal Perth Hospital told Dr Corrigan that Dr Savundra would not be given a five-year contract at Royal Perth Hospital because he is 'difficult' and he has had 'allegations of bullying made against him'.

44      In about September 2014, Dr Williams and Dr Duncan-Smith met with Professor Stokes about Dr Savundra's contract not being renewed.  It appears this meeting and a subsequent meeting took place prior to Dr Savundra meeting Professor Stokes in October 2014.  At the meeting, Dr Williams gave Professor Stokes the three letters of recommendations about Dr Savundra which they obtained from the orthopaedic surgery department, the plastic surgery department and the plastic surgery trainees (AB 359 - 371).  Professor Stokes said he would look at the matter and meet with them again.  On 24 September 2014, Dr Daly sent an email to Professor Stokes in which it was stated that (AB 383):

We will not enter into a new contract with Mr Savundra at RPH but instead offer him up to 5 sessions at FHHS for plastic surgery at that site within his contract there. His commitment to other SMHS sites will be reviewed in two years (November 2016) depending on performance.

Secondly, I have asked Grant Waterer to provide a confidential file note outlining his conversations and concerns. He has alre[sic].

45      It appears that no confidential file note referred to in the email was discovered.  On behalf of the employer it said that no such document could be found.

46      Dr Williams and Dr Duncan-Smith met with Professor Stokes again shortly after the first meeting.  Dr Williams' evidence was that Professor Stokes at the second meeting told them that Dr Savundra's contract would not be renewed at Royal Perth Hospital because he 'had been a naughty boy'.  Professor Stokes also indicated he would not go into any further detail about why he thought Dr Savundra had been a 'naughty boy' and said that Dr Savundra had a contract at Fremantle Hospital and he could do plastic surgery work from there.  Professor Stokes also said that Dr Savundra could come to Royal Perth Hospital for teaching purposes and the decision might be able to be reviewed in a year's time.

47      When Dr Duncan-Smith gave evidence about the meetings that he and Dr Williams had with Professor Stokes he said that Professor Stokes said words to the effect that:

(a) he did not wish to intervene with the decision management of the health group;

(b) there had been issues with Dr Savundra over the industrial action; and

(c) he was aware of concerns about an incident involving an entry Dr Savundra had made in a patient's medical record at Shenton Park Hospital and some information raised by the plastic surgery review committee regarding Dr Savundra being a bully.

(e) Dr Savundra's meeting with Professor Stokes in October 2014

48      When Dr Savundra met with Professor Stokes on 3 October 2014, he made notes of the meeting.  Professor Stokes told him that his contract at Royal Perth Hospital would not be renewed due to several issues regarding his behaviour at Royal Perth Hospital.  Professor Stokes suggested that there was evidence of bullying and intimidation towards other staff members.  Dr Savundra asked for details of the allegations.  Professor Stokes told Dr Savundra that surgeons he had spoken to had stated Dr Savundra was a highly competent surgeon, but he had 'a polarising effect on the people' he works with and he 'needed to learn to work with management in a more cohesive way' (AB 357 - 358).  Professor Stokes also told Dr Savundra that:

(a) a young plastic surgeon was asked whether they would work at Royal Perth Hospital and stated that they would not work there due to the intimidation of working with Dr Savundra; and

(b) the circumstances surrounding his suspension from Royal Perth Hospital was evidence that he had not behaved well.

49      Professor Stokes also told Dr Savundra at the meeting he could work an extra two sessions at Fremantle Hospital in lieu of his contract terminating at Royal Perth Hospital and he could attend Royal Perth Hospital to teach registrars and other doctors and give advice on difficult cases such as the management of complex pressure sores.  Professor Stokes also told Dr Savundra that after 12 months of this service he would personally review the merits of him returning to work at Royal Perth Hospital.

Arbitrator's findings

(a) Was the employer obliged to provide procedural fairness to Dr Savundra when making the decision not to renew Dr Savundra's contract?

50      The Arbitrator concluded that in the particular circumstances of this matter the employer was not obliged to provide procedural fairness in making the decision not to renew Dr Savundra's contract for work at Royal Perth Hospital.

51      In reaching this decision, the Arbitrator found that the Arbitrator's role was not to undertake judicial review where it is concerned with the fairness of the procedure adopted as an end in itself.  It is concerned with the equity and substantial merits of the case:  Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244; (2005) 86 WAIG 231 (Jones) [21] - [34] (Wheeler and Le Miere JJ).  Applying this test, the Arbitrator found that the appropriate question may be, did the employer act unfairly in deciding to not renew Dr Savundra's contract at Royal Perth Hospital, or in not advising him of the issues it would consider and not giving him a hearing before deciding, that is, in denying him procedural fairness?

52      The Arbitrator then went on to consider the issues raised by the AMA in the schedule to the memorandum of matters referred for hearing and determination which include the suspension, the directions and the findings arising from the incident on 15 February 2013.  The Arbitrator found these matters caused the AMA and Dr Savundra to be aggrieved for two reasons.  The first was the circumstances of themselves and their direct consequences.  The second was the effect the circumstances of the suspension appeared to have had on the employer's decision to not renew Dr Savundra's contract at Royal Perth Hospital.  This included whether Dr Savundra was denied procedural fairness in the decision to suspend.

(b) The suspension, directions and findings arising from the incident on 15 February 2013

53      The Arbitrator found that the main concern to the AMA and to Dr Savundra is that it was acknowledged in Mr Warner's letter of 12 July 2013 that Dr Savundra was not afforded procedural fairness in connection with the suspension, that this could not be contested, the finding of misconduct was abandoned, the formal warning was withdrawn and the matter was discontinued.  Yet, the employer is said to have continued to believe and act as if these findings remain valid.

(c) The non-renewal of the Royal Perth Hospital contract

54      The Arbitrator had regard to the principle that an employer who allows a fixed term contract to expire and does not offer a further contract it is not a dismissal:  Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166; (2003) 83 WAIG 3053 [4] - [7], and to the principle that where an employee accepts employment for a fixed term, the employee must be taken to have consented to the position that the contract comes to an end on a specified day:  Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47, 59 - 60, 62 – 63.

55      She then had regard to the following:

(a) the 2013 Agreement makes five-year fixed term contracts for those in Dr Savundra's circumstances the norm (cl 20(1)(a)).  It not only explicitly recognises that 'there shall be no automatic right to reappointment', but also provides compensation of 10% of final base salary for each year of continuous service;

(b) the contract signed by Dr Savundra provided that it would be for five years and there could be no expectation of employment beyond that point (AB 400 - 402);

(c) Dr Savundra signed the contract on 17 December 2009; and

(d) Dr Savundra knew some months before the expiry of his contract that the employer was considering whether to offer him a new contract.

56      The Arbitrator observed the 'deal' that both parties had made was to an agreement for a fixed term and compensation for the non-renewal of a contract.  When all of these circumstances were considered, the Arbitrator found Dr Savundra could not have a genuine or objective expectation that he would be offered a new contract.

57      The Arbitrator found that the evidence demonstrated that the employer made a decision not to renew the contract; that it was a deliberate decision as it did not merely allow the contract to come to an end and do nothing about it.  She also found that the facts established that there appeared to be particular reasons behind that decision and those reasons appeared on their face to include conclusions, findings and opinions associated with the incident on 15 February 2013, which the employer had advised the AMA were made without affording Dr Savundra procedural fairness and which were effectively withdrawn.

58      The Arbitrator then turned her mind to the question whether Dr Savundra was entitled to procedural fairness in the non-renewal decision.  She firstly had regard to the principle in Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44;  (2005) 221 ALR 95 in which Gleeson CJ noted that in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 it was said that it can now be taken as settled that the rules of natural justice regulate the exercise of a power to remove a person from public office unless they are excluded by plain words of necessary intendment.  The Arbitrator observed that the case of Jarratt was a decision to remove an officer, not a decision to not renew a contract; that is to employ or re-employ.

59      The Arbitrator then found that:

(a) the fact that the 2013 Agreement and the contract expressly state that there is no obligation on the employer to offer a new contract on the expiration of the previous one and that there is no right to reappointment means there can be no right to, interest in or legitimate expectation of a new contract;

(b) a decision not to offer a new contract is not dissimilar to a decision to not employ at first instance.  An employer is free to choose whom they wish to employ and on grounds they choose;

(c) neither the 2013 Agreement nor the contract places any obligation on the employer to afford procedural fairness in that decision;

(d) to now create a new requirement to afford procedural fairness in making a decision of this nature would have widespread effects on employment practices and could in the public sector open the 'floodgates';

(e) to require employers to justify decisions not to offer a further contract in the circumstances where the parties had agreed that there could be no expectation in the future is not reasonable, both in contractual terms and in public policy terms; and

(f) in this case, such a process (being an opportunity to be heard) would be unreasonable given the basis upon which the parties had entered into their agreement in the first place.

(d) Is industrial unfairness demonstrated in the records?

60      The Arbitrator found that it was most likely that the decision not to offer a new contract was made based on the personal knowledge and opinion of the participants in that decision, particularly Professor Stokes and Dr Daly, without necessarily relying on an incomplete personnel file.

61      She then found in the circumstances, the incomplete file neither added to nor subtracted from the fact that the employer made a decision based on views of people who had dealt with Dr Savundra.  She also found that it was most likely that the fact that the formal adverse findings and the formal warning which were withdrawn did not mean that Dr Daly and Professor Stokes had changed their minds about Dr Savundra's conduct on 15 February 2013.

62      In relation to the T1 termination form, the Arbitrator found that the form provided no options to reflect the employment came to an end by the effluxion of time or the end of a contract and found that the boxes which were ticked under the heading 'Reasons for Termination' and the words written 'End of Contract' did not reflect that there was a 'termination of the employment relationship' as meaning a dismissal.

(e) Was unfairness to other doctors and to the interests of patients demonstrated?

63      In the schedule of the memorandum of matters referred for hearing and determination a claim is made that the decision not to offer a new contract at Royal Perth Hospital was made unfairly to Dr Savundra and numerous other doctors employed at that hospital.  The Arbitrator found that there was no substantive evidence of unfairness to other doctors employed at Royal Perth Hospital by the decision not to renew Dr Savundra's contract.  Further, she found there was no real evidence of unreasonable workloads or demands placed on any doctors as a consequence of Dr Savundra not having a contract at Royal Perth Hospital.

64      The Arbitrator then found that whilst she accepted that there may be a real view amongst doctors at Royal Perth Hospital about Dr Savundra's professional skills and a real demand for such skills, the matter referred for hearing and determination was never really about unfairness to other doctors at Royal Perth Hospital consequential upon the decision to not renew Dr Savundra's contract.  Further, she found that, in the circumstances, whether the management of Royal Perth Hospital decided to take some action against an individual doctor for good reason or ill, its impact on the doctor's colleagues is not directly material, nor appropriate to be dealt with in her reasons for decision.  She then found that it could just as reasonably be argued that, regardless of the reasons for a non-renewal of a contract or, in different circumstances, the dismissal of an employee, the fact that a particular individual's skills are, in the view of that individual's colleagues, necessary for the wellbeing of patients does not mean that the person ought to continue to be employed.  Finally she found this issue is not relevant to whether that individual has or has not been treated fairly in all of the circumstances.

(f) The relevance of impact on patients of the contract decision

65      The Arbitrator found that the impact on patients, even if it is an industrial matter, which she did not determine, is a matter to be treated in the same way as unfairness to other doctors.  She found that this issue whilst it could not be said to be a matter of no consequence, was not a relevant matter for her decision.

(g) Alternatively - If there is an obligation on the employer to provide procedural fairness in deciding whether to offer a new contract should the remedy sought by the AMA be granted?

66      The Arbitrator found it was clear that before the decision to not offer a new contract was made, as Dr Savundra was not informed of what matters would be taken into account and was not given an opportunity to be heard, he was denied procedural fairness.

67      She observed that the AMA does not pursue an opportunity for Dr Savundra to be offered more employment at Royal Perth Hospital, but seeks that:

(a) the decision not to offer a new contract and its circumstances be reviewed;

(b) the decision be nullified;

(c) an opportunity be given to Dr Savundra to understand and respond to any 'adverse allegations' the employer wishes to make against him; and

(d) a new decision be made by the employer 'lawfully, fairly and transparently'.

68      The Arbitrator then went on to review the decision to not offer a new contract.  She observed that in putting its case and the process for the hearing, the AMA had elicited evidence of at least some of the reasons for the employer not offering Dr Savundra a new contract.

69      As to the issue of writing on patients' notes, she found that Dr Savundra appeared to accept, at the time, that he should have done things differently.  She also found that the note he wrote was demonstrative of an attitude towards hospital administration which was reflected in his conduct and attitude in the incident of 15 February 2013.

70      The Arbitrator then went on to consider Dr Savundra's own evidence of the incident of 15 February 2013.  She found that:

(a) the arrangements that he made with another hospital to receive patients, the directions that he gave and the action he took at Royal Perth Hospital were made in the circumstances where he appeared to have no managerial or organisation authority.  In particular, he took matters into his own hands, beyond his authority;

(b) there was no real or genuine risk to patient safety on the weekend in question as Dr O'Sullivan was competent to deal with patients who presented and the issue was simply that he had not yet been credentialed; and

(c) Dr Savundra's own evidence made it clear that he was given a verbal direction by Dr Daly to not attend the emergency department at Royal Perth Hospital on 15 February 2013 but he refused to comply with that direction.

71      The Arbitrator did not make any determination as to whether Dr Savundra or the conduct of others in regard to that day constituted industrial action.  She found it was not argued before her and it was unnecessary to make any findings in that respect.

72      The Arbitrator then went on to consider the inherent tension between the health service management and clinicians.  She found that:

(a) the former are required to make decisions about the type of service and the allocation of resources, by taking a broad view of the best interests of the organisation, and, in this case, how that fits within the Western Australian health system;

(b) on the other hand, the clinician is focussed, quite properly, on the best interests of each patient and obtaining the best possible care for each of them;

(c) there is an immediate tension between the health services management and clinicians and this can lead to conflict;

(d) it is how the two, the management and the clinicians, work together and co-operate, each understanding the other's position and interests, which allows the whole system to work in the best interests, not merely of one patient or some patients, but the whole of the patients;

(e) working together involves compromises, as resources are limited; and

(f) where an arrangement is difficult, where compromise and co-operation are troublesome, management will be entitled to make necessary decisions, and employees are not entitled to take things into their own hands regardless of the strength of their beliefs about those decisions.

73      The Arbitrator then found she did not see it was necessary to nullify the decision because the decision was not to do something, that is, not to offer a new contract and that nullifying such a decision has no effect.  She also observed that Dr Savundra and the AMA do not specifically seek that a new contract be offered, rather that Dr Savundra have an opportunity to know what is against him and respond to it, and that the employer consider that and make a decision.  She then observed that if she found in Dr Savundra's favour, those other things might flow without the need for the original decision to be nullified.

74      She finally found that her reasons for decision had given Dr Savundra the remedy sought of an opportunity to understand and respond to adverse allegations, and in giving his evidence, he had responded to them.  In particular, the hearing of the matter had otherwise enabled the AMA and Dr Savundra to know what was against him, if he did not already know.

Grounds of appeal

75      The grounds of appeal are as follows:

The Acting Senior Commissioner erred in law in that she:

1. Failed to correctly identify, and apply, the correct principles concerning whether the Respondent was required to provide procedural fairness to the Appellant's member Dr Savundra in deciding whether to offer Dr Savundra a further contract to work at Royal Perth Hospital (RPH) in the course of, and as part of, his ongoing employment with the Respondent (the RPH Contract Decision), and specifically:

(a) Having observed that procedural fairness is generally applicable where a relevant right, interest or legitimate expectation may be defeated, destroyed or prejudiced, then failed to address, properly or at all, whether Dr Savundra had a material interest in being offered a further contract to work at RPH in the course of his ongoing employment with the Respondent;

(b) In circumstances where she found that Dr Savundra was not informed of what matters would be taken into account and be given an opportunity to be heard about those matters, further erred in law in failing to find that Dr Savundra did, materially have an interest in being offered a further contract to work at RPH, and therefore necessarily was denied procedural fairness by the Respondent when it made the RPH Contract Decision.

2. Failed to properly address, and make findings about, the totality of the Applicant's claim for relief that the RPH Contract decision be nullified with the effect that was expressly claimed at paragraph 9(b)(i)-(iii) of the initiating application, as amended by leave, and specifically:

(a) Addressed the issue of Dr Savundra being afforded an opportunity to understand and respond to any material adverse allegations made, or maintained by the Respondent in the context of the evidence as led in the hearing in this Commission, as opposed to within the context of his ongoing employment with the Respondent;

(b) Incorrectly failed to acknowledge and address Dr Savundra's wish to have the opportunity to be offered more employment with the Respondent at RPH; and

(c) Failed to make findings about whether the Respondent had acted lawfully, fairly and transparently in making the RPH Contract Decision, and thus whether that Decision should in fairness and good conscience be remade, so that those essential attributes would then be properly observed by the Respondent.

Conduct of the appeal - submissions

76      Prior to the hearing of the appeal on 23 May 2016, on 16 May 2016 a letter was sent to the parties' representatives by email on behalf of the Full Bench in which it was stated:

The Full Bench notes that:

(a) ground 1 of the appeal directly raises the issue whether Dr Savundra was denied procedural fairness by the respondent when it made the Royal Perth Hospital contract decision; and

(b) ground 2 of the appeal appears also to raise issues going to procedural fairness.

As the rules of procedural fairness are principles that apply to administrative decisions, at the hearing of the appeal, the members of the Full Bench wish to hear submissions from the parties in respect of the issue whether a right to procedural fairness can, or should, apply to a decision that arises pursuant to a contract between Dr Savundra and the respondent and as such is a private right.

77      Subsequent to the letter, both parties filed written submissions on Friday, 20 May 2016 in which the point raised by the Full Bench was addressed.

78      At the hearing of the appeal the Full Bench referred counsel to the following three decisions in which there was judicial consideration of the point raised by the Full Bench in its letter dated 16 May 2016:

(a) Australian National University v Burns (1982) 43 ALR 25;

(b) Australian National University v Lewins (1996) 138 ALR 1; (1996) 68 FCR 87; and

(c) Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99.

79      At the conclusion of oral submissions on 23 May 2016, both counsel for the parties sought to file supplementary written submissions about the point raised by the Full Bench and the issues arising from the authorities referred to by the Full Bench.  Mr Hooker, counsel for the AMA, also sought to address in the supplementary submissions the final matters his client wished to raise in reply to the matters raised on behalf of the employer.  At that point in time it was agreed that the AMA would file its submissions by 27 May 2016 and the employer by 3 June 2016.

80      On 25 May 2016, the parties were sent an email on behalf of the Full Bench in which it was stated:

One of the issues to be addressed in the submissions to be filed by the parties is whether the Royal Perth Hospital contract decision involved an exercise of statutory power as contended on behalf of the appellant in its outline of submissions filed on 20 May 2016.

The Full Bench advises that in addressing this issue, the parties may wish to consider whether any of the recent observations made by Pritchard J in Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 [42] - [51], [57] - [71]  (delivered 20 May 2016) are relevant.

81      On 1 June 2016, solicitors for the AMA advised that it had been agreed with counsel for the employer that the AMA file its written submissions by 2 June 2016 and the employer by 9 June 2016.  Unfortunately, the supplementary submissions were not forthcoming.

82      On 22 June 2016, the Full Bench reconvened and made the following orders ([2016] WAIRC 00382):

1. The appellant is to file and serve its supplementary submissions by close of business 29 June 2016;

2. The respondent is to file and serve his supplementary submissions within seven (7) days of receipt of the appellant's supplementary submissions.

83      On 1 July 2016, the Full Bench extended the time for compliance for order 1 of the order ([2016] WAIRC 00382) until 6 July 2016.

84      By letter dated 6 July 2016, the AMA through its solicitors advised that it would not be providing any further written submissions and asked that the matter proceed on the basis of the submissions that had been put before the Full Bench on 23 May 2016.

85      The employer filed its supplementary submissions on 8 July 2016 in which the remaining points raised by the Full Bench were addressed.

86      One of the issues raised by the Full Bench is whether the 2007 and 2013 Agreements can be properly characterised as 'subsidiary legislation'.  One of the matters relevant to the determination of this issue is the operative effect of the definition of subsidiary legislation in s 5 of the Interpretation Act 1984 (WA) and whether industrial agreements can be said to be made under any written law and have legislative effect.  As this is an issue which is likely to be of importance in other matters that come before the Commission in the absence of submissions on this point from both parties, no consideration of this issue has been addressed in these reasons.  In any event, for the reasons that follow, resolution of this point in this appeal is not necessary.

AMA's submissions

87      The AMA contends there are two significant appealable errors committed by the Arbitrator as set out in the grounds of appeal.

88      In ground 1, the AMA argues that the Arbitrator erred in concluding that the principles of procedural fairness were inapplicable to the decision of the employer as to whether or not to offer Dr Savundra a further contract to work at Royal Perth Hospital in the course of, and as part of, his ongoing employment with the employer.  I understand this ground of appeal to rely upon the application of the principles of administrative law that require procedural fairness to be applied when making an administrative decision in the exercise of a statutory power.

89      In ground 2, it is argued that the Arbitrator failed to properly address the totality of the industrial matter referred under s 80F of the IR Act.  In particular, she failed to make factual findings, and arrive at ultimate conclusions about, significant issues of injustice that warranted a remedy.  This appeal ground includes a claim of denial of procedural fairness but encompasses a wider claim of industrial unfairness and a claim of unreasonableness in making the decision not to offer Dr Savundra a further contract of employment to carry out work at Royal Perth Hospital.

(a) Ground 1 of the appeal

90      It is pointed out on behalf of the AMA that since the seminal decision in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, the High Court has consistently held that the making of administrative decisions derived from statutory powers when exercised so as to destroy, defeat or prejudice not merely a person's rights, but also his or her interests, a strong presumption applies that the rules of procedural fairness regulate the exercise of that power unless excluded by plain words of necessary intendment.

91      The AMA contends it was accepted in the proceedings at first instance that there was an ultimate statutory power from which the various decisions made from time to time in the course of Dr Savundra's overall employment.  This power it says is provided in s 19 (when read with s 7 and s 7A) of the Hospital and Health Services Act 1927 (WA) (repealed).  It is also argued in written submissions filed on behalf of the AMA on 20 May 2016 that the applicable power is also sourced in the industrial agreements that governed Dr Savundra's employment at all material times.

92      The other major component of the case for the AMA at first instance relied upon the existence of a material interest which it says was in peril of being prejudiced, or derogated from by the decision not to offer Dr Savundra a further fixed term contract of employment at Royal Perth Hospital.

93      It is argued that the Arbitrator failed to have any, or any proper regard to what was, an irresistible inference on the evidence and other material before her, that Dr Savundra had an 'interest' in the making of the decision not to offer him a new contract.  Further, that such an interest comes within the observations of the 'almost' infinite variety of interests which are protected by the principles of natural justice and that 'any interest possessed by an individual' attracted the protection that compliance with the obligation provides:  Kioa (617, 619) (Brennan J).  The width of this test it is said was reinforced by a majority of the High Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 in which their Honours observed that the plurality judgment of Brennan J in Kioa emphasised that there are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice:  [66] (Gummow, Hayne, Crennan and Bell JJ).

94      The relevant right or interests that Dr Savundra had are said to be as follows:

(a) There was a pre-existing employment relationship, between the employer and Dr Savundra which had been ongoing for over a decade, pursuant to which Dr Savundra was and had been undertaking work at Royal Perth Hospital on more than one fixed term contract and he had been undertaking work on fixed terms at other public hospitals and continued to do so.  Further, he was undertaking other work within the public health system which work was not necessarily easy to ascribe to any particular hospital.

(b) Dr Savundra retained relevant rights of private practice contemplated by the 2007 and 2013 industrial agreements which was orthodox and common for senior highly experienced and eminent doctors such as Dr Savundra.

(c) Whilst it is accepted that the expiry of specific fixed term contract work at Royal Perth Hospital did not generate any relevant right, Dr Savundra had an inherent interest in the importance of going to work and performing one's work in addition to the drawing of a particular salary:  Quinn v Overland [2010] FCA 799; (2010) 199 IR 40 [101] - [103].

(d) The nature of Dr Savundra's work at Royal Perth Hospital pursuant to a series of fixed term contracts was important specialist work which was highly regarded not only by the patients but by other specialists at the hospital.

(e) Another part of Dr Savundra's interests is his eminence, his seniority and the undoubted sophisticated quality of the work value of the work performed by him.

95      When all of these circumstances are considered, it is argued that Dr Savundra had an interest that not only related to reputation as recognised by Brennan J in Kioa, but also his interests were broader than that.  Further, if one analyses his interest by an analogy to an issue of 'standing' at common law, he would meet the test of standing.

96      As this matter turns on its own facts, it is said that the Arbitrator erred in finding that to apply the rules of procedural fairness in this matter would have created 'new requirements' or of itself 'opened the floodgates'.

97      Alternatively, it is argued that to recognise the existence of an interest in this matter would not have a widespread effect on employment practices as the High Court has recognised unequivocally that where a person has an interest in the making of an administrative decision the rules of procedural fairness regulate the exercise of that power to make the decision.

98      Moreover, the AMA points out that it was not argued that Dr Savundra had an expectation of being offered a new contract for work at Royal Perth Hospital, be it a 'legitimate expectation' or otherwise, as the source of the presumption of the applicability of procedural fairness.  Since Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, the concept of 'legitimate expectation' in this area of public law discourse has not been supported by the High Court, notwithstanding the form of words used in authorities such as Annetts.  In Plaintiff S10, it was found that the phrase 'legitimate expectation' either adds nothing or poses more questions than it answers, and was therefore an 'unfortunate expression which should be disregarded':  [65].

99      The AMA points out it cannot be disputed that the Arbitrator correctly found that Dr Savundra had been denied procedural fairness in making the decision not to renew his contract.  The decision in question was deliberate.  The employer did not merely allow the contract to come to an end and do nothing about it.

100   The AMA also contends that it is not the point to say that an employer is free to choose whom they wish to employ and do not state the grounds on which they chose.  In isolation that may not be incorrect to say, but in the context of a situation where a senior employee, in the circumstances of Dr Savundra, plainly does have an interest, the freedom to make the decision in question in pursuing that freedom to contract is qualified by the obligations that procedural fairness imposes.

(b) Ground 2 of the appeal

101   Section 80E of the IR Act confers jurisdiction on the Arbitrator of substantial width to conduct a real review into the industrial fairness and lawfulness of occurrences, acts and omissions within the parameters of what has been referred:  Jones.

102   In the hearing at first instance, the AMA on behalf of Dr Savundra did seek an order for Dr Savundra to work at Royal Perth Hospital within his employment with the employer.  However, it is said that this important component of the industrial matter before the Commission was overlooked by the Arbitrator.  Whilst an assertion was never put that the employer should be ordered to award a new contract to Dr Savundra at Royal Perth Hospital, what was sought was that the decision not to offer a new contract be nullified and that the employer reconsiders the matter in a manner that is lawful, fair and transparent.  In these circumstances, it is argued that Dr Savundra should be given an opportunity to be apprised of the particulars of all of the allegations made against him and have an opportunity of addressing those matters prior to a further decision being made.

103   It is pointed out that a failure by an administrative tribunal, such as the Commission, to properly and fully address the entirety of an applicant's claim, including making necessary factual findings, will amount to a jurisdictional error:  Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088.

104   The AMA contends that the factual findings made by the Arbitrator in her reasons for decision about the circumstances of the incident in February 2013, were made in an artificial context of a failure to acknowledge what it was, in reality the AMA was seeking by way of relief on Dr Savundra's behalf.  Consequently, it is argued that the Commission's jurisdictional task remained, and still remains, unfulfilled:  Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.  Thus, it is argued that such an error in and of itself entitles the AMA to relief on appeal.

105   The AMA also contends that the decision not to offer Dr Savundra a new contract was industrially unfair as the decision lacked patent transparency, openness, procedural unfairness and was manifestly unreasonable with consequences for colleagues and patients.

106   The finding that the inquiry into the matter by the Arbitrator has given Dr Savundra the remedy sought of an opportunity to understand and respond to adverse allegations and in giving his evidence he has responded to them, is in error as Dr Savundra has been denied an opportunity of being provided with particulars of the adverse allegations and a hearing by the employer.

107   It is argued that if it is accepted that there was an obligation on the employer to provide procedural fairness in deciding whether or not to offer a new contract, the evidence established that before the decision was made, Dr Savundra was not informed what matters would be taken into account and was not given an opportunity to be heard.  Further, that the hearing that took place before the Arbitrator did not provide Dr Savundra with a hearing that would satisfy the requirements of procedural fairness.

108   Whilst not raised in the grounds of appeal, it is not conceded that some of the factual findings made about the conduct of Dr Savundra in the incident that occurred in February 2013 fairly reflected the evidence.  However, it is said that even if those assertions are correct, the hearing that was conducted before the Arbitrator could not be said to obviate the need to refer the matter back to the employer to provide procedural fairness to Dr Savundra.

109   In various conversations Dr Savundra had with Professor Stokes and the conversations Dr Williams and Dr Duncan-Smith had with Professor Stokes, it appears that the reasons Dr Savundra was not offered a further contract at Royal Perth Hospital was based on broad-based assertions of Dr Savundra being a bully, having a polarising effect on people and needing to learn to work with management in a more cohesive way.  In light of the fact that the employer elected not to give evidence in the matter at first instance, the AMA and Dr Savundra have simply been left with these vague assertions which, if a fair hearing was to be accorded by the employer, would be required to be particularised.  Further, any critical evidence and material that might support those particulars should be put to Dr Savundra with a fair opportunity to understand the material and respond.

110   In any event, the Arbitrator did not make any determination as to the circumstances of the incident of 15 February 2013 other than to find that there were two competing conflicting views about what should have occurred in relation to that incident and a finding that there were different interests of management to the view of Dr Savundra of what was important.

111   The AMA contends the decision of the employer was industrially unfair because of the following matters:

(a) The head of the AMA, Mr Paul Boyatzis, wrote to Professor Stokes on 19 August 2014 stating that the AMA was concerned about the manner in which Dr Savundra had been treated by Royal Perth Hospital (AB 345 - 346).  A number of matters were put to Professor Stokes in that letter, including there had been no finding of any wrongdoing on Dr Savundra's part.  No answer to that letter was received.  However, it is conceded that a letter was received from Professor Daly to Mr Boyatzis dated 5 September 2014 (AB 347 - 348).

(b) Although Mr Warner had on behalf of the employer written to Dr Savundra on 12 July 2013 acknowledging that the finding of misconduct was abandoned, the formal warning was withdrawn and the matter raised in PSAC 20 of 2013 (the incident on 15 February 2013) was withdrawn, the adverse findings that were made continued to be given currency by the employer in 2014 when the decision was made not to offer Dr Savundra a further contract to work at Royal Perth Hospital.

(c) The decision was made with non-compliance with the rules of procedural fairness, took into account considerations based on assumptions or conclusions that seemingly came out of thin air.  Put another way, the matters that were taken into account appear to be irrelevant and manifestly unreasonable.

(d) The decision was unfair to Dr Savundra and numerous other doctors employed at Royal Perth Hospital.  In particular, Dr Corrigan and Dr Williams who became joint heads of department, gave evidence about some of the practical difficulties they have been encountering at Royal Perth Hospital since Dr Savundra no longer works there because they have been unable to use his particular expertise in some areas.  In Dr Savundra's absence there are concerns about the quality of patient care at Royal Perth Hospital with particular conditions.

The employer's submissions

112   The employer points out that in order to be conditioned by the provision of procedural fairness the exercise of a power must be public as opposed to private in nature.  The exercise of the power must be apt to reflect adversely what is a sufficient interest of a party:  Plaintiff S10 [66].  It is pointed out that the AMA contend that the Arbitrator was in error in that she only looked for a 'legitimate expectation' rather than an 'interest' to support Dr Savundra's claim that he is entitled to procedural fairness in the making of the contract renewal decision.  However, the employer says that Dr Savundra had no greater interest in a further contract than any other person employed under a fixed term contract.  His desire and reasonable hope of a further contract does not objectively amount to a sufficient interest to attract the principles of procedural fairness.  Further, it is said that in any event the Arbitrator did not limit her examination to whether there was a legitimate expectation of a further contract.  At [116] of her reasons for decision, she found that there was no obligation on the employer to offer a new contract on the expiration of the previous one and there was no right to reappointment meant there could be no right to, interest in or legitimate expectation of a new contract.

113   The employer argues that statutory source of the general power to employ under s 19 of the Hospital and Health Services Act constitutes a bare power to contract and is not the type of power that attracts judicial review.  Further, it is said the industrial agreements that applied to Dr Savundra's employment cannot be considered to be in the nature of legislation, subsidiary or otherwise:  Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153.  Thus, it argued that the rights that Dr Savundra had pursuant to his contract of employment were private rights and do not arise out of a statutory power.

114   It is also argued that the nature of the power exercised by the employer in this case was to allow the contract to which he and Dr Savundra were parties to expire according to its terms without a further contract being offered.  The legal position is that it is a private right to decide whether or not to offer a further contract at the expiration of a fixed term.  This private right is one arising from the bargain struck to allow the contract to expire with or without reason or hearing without offering a further contract.  Such a decision is not public in character.

115   An application for judicial review does not extend to a pure employment situation.  It is confined to reviewing activities of a public nature as opposed to those of a private or domestic character:  R v British Broadcasting Corporation; Ex parte Lavelle [1983] 1 All ER 241; [1983] 1 WLR 23, 30 - 31 (Woolf J); cited in Whitehead v Griffith University [2002] QSC 153 [15] - [16].  The exercise of powers or assertion of rights under a contract of employment is not the exercise of a statutory power or public in nature:  Whitehead [16] - [17].

116   A bare power of appointment under a statute constitutes the appointee an ordinary servant without a right to be heard prior to dismissal:  Malloch v Aberdeen Corporation [1971] 2 All ER 1278, 1282 (Lord Reid).

117   In any event, the employer says there is no reviewable decision.  The parties have let occur what they agreed to, that is, it was agreed that the contract for work at Royal Perth Hospital would expire on the date specified.

118   Where the parties to a contract have agreed, as they did here, that employment will be for a specified term there can be no obligation on the part of the employer to offer further employment.  Nor is there any obligation to consider whether to offer further employment, provide reasons for not offering further work, have reasons for not doing so, or where there are reasons, to advise the employee of them and provide a hearing before finally deciding to allow the contract to expire.  If the position were to be otherwise employment for a fixed term would not be that.  It would become employment for so long as the employer had a fair basis to not offer a further term of employment upon the expiry of the fixed term contract.  That is employment for an indefinite term in all but name.

119   The employer argues that whilst there may be reason as to why a further period of employment is not offered that is irrelevant where the contract is simply permitted to terminate on the date the parties have agreed to.

120   The employer contends that Dr Savundra was in an analogous but inferior position to an applicant for employment.

121   In Jones [117], Hasluck J referred to Dawson J's approval in Attorney-General for the State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1, 59 of the observations of Lord Denning MR in Breen v Amalgamated Engineering Union [1971] 2 QB 175, 191 where he said:

If a man seeks a privilege to which he has no particular claim - such as an appointment to some post or other - then he can be turned away without a word. He need not be heard. No explanation need be given …

122   Thus, in Quin the majority of the High Court accepted that in ordinary circumstances the making of an appointment would not attract the rules of natural justice.

123   The employer, however, concedes that the rules of natural justice can be attracted where an employer makes a representation sufficient to displace the ordinary rule referred to in Quin or confer upon an applicant for employment an entitlement to procedural fairness based upon a legitimate expectation that he would be heard:  Jones.  In support of this contention, the employer also referred to the factual circumstances in Cole v Cunningham (1983) 81 FLR 158.  In that matter Cunningham had applied for reappointment to the Public Service which was refused on the ground of prior misconduct.  The Full Court of the Federal Court held that there were special facts or circumstances giving rise to a legitimate or reasonable expectation by Cunningham that an application for reappointment would not be refused on the ground of prior misconduct unless he was given an opportunity to answer the allegations made against him.  The special circumstances were that Cunningham had been induced to resign on the basis that he would leave his employment with a clear record and criminal proceedings would not be instituted in relation to the alleged misconduct.  Some weeks after resigning Cunningham sought to revoke his resignation which would have allowed him a hearing in relation to the alleged misconduct which his resignation had denied him.  In those circumstances, the Full Court found that these were special facts that Cunningham had a legitimate expectation that the question of his future employment in the Public Service would not be decided on the basis that his past record in the department was blemished.  If contrary to that expectation, his past record was to be treated by the department as blemished, the law required that he be afforded a proper opportunity to be heard.

124   The employer contends that the only circumstances of any representation that could possibly be of relevance in this matter is contained in the letter that was sent to Dr Savundra on 12 July 2013 advising him that the finding of misconduct in respect of the incident of 12 March 2013 would be abandoned, the formal warning was withdrawn and the matter was discontinued.  However, when all of the circumstances are examined, it is argued that the matters stated in that letter do not amount to, or cannot amount at law to a representation that would give rise to any special circumstances as it did in the facts of the decision in Cole v Cunningham.

125   The employer says that if the reasoning in Cole v Cunningham is applied on the evidence adduced at first instance in this matter, Dr Savundra had no right of procedural fairness in relation to the contract decision or to a further contract in the sense that term has been used in the authorities.  At most he had the hope of a further contract.  Thus, the Arbitrator after considering the evidence correctly found that Dr Savundra could have no genuine or objective expectation he would be offered a new contract.

126   The employer argues that the Arbitrator correctly set out the facts of the events that occurred on 15 February 2013.  He says:

(a) By letter dated 12 March 2013, Dr Savundra was suspended from duty pending the outcome of a preliminary inquiry in relation to his conduct concerning the status of Dr Rawlins and Dr O'Sullivan.  The particulars of the action taken by Dr Savundra were set out in that letter.

(b) Professor Stokes by letter dated 6 June 2013 advised Dr Savundra that the preliminary investigation had been complete and that it was plain that industrial action, in the form of withdrawal of labour, occurred and further action was threatened.  Further, he stated that this was entirely unacceptable and any repetition would necessitate retaliatory industrial action being taken by the hospital.  Professor Stokes also stated that it was plain that Dr Savundra failed to comply with a verbal direction given to him by the executive director of Royal Perth Hospital, Dr Daly, to the effect that he was not to attend the hospital on Friday, 15 February 2013.  It is apparent that Dr Savundra did attend the hospital and gave various directions in connection with the admission of patients in the furtherance of the industrial objectives then being pursued.  Professor Stokes warned Dr Savundra that if in future he failed to comply with his contractual obligations or unreasonably involve himself in matters pertaining to the organisation of the business of the hospital then disciplinary action, which may call into question his continuing association with the hospital, would be taken.

(c) Prior to the expiry of Dr Savundra's contract he met with Professor Stokes.  During the meeting Dr Savundra was advised by Professor Stokes that a further contract would not be offered to him by reason of unspecified evidence of bullying and intimidation by Dr Savundra towards other staff members.  There is nothing arising from the evidence to oblige the employer to accord Dr Savundra procedural fairness in deciding whether to offer him a further contract.  While it was not necessary to do this Dr Savundra was advised of the issues of concern by Professor Stokes and he had the opportunity to respond to them in the meeting that took place in October 2014.

(d) Even though the letter of 6 June 2013 which withdrew the earlier findings made by Professor Stokes it was legitimate for the employer to remain concerned regarding the actions of Dr Savundra on the evening of 15 February 2013.

127   Consequently, in light of these facts, as the Arbitrator found, Dr Savundra's conduct was that he:

(a) took matters into his own hands, beyond his authority;

(b) was given a verbal direction not to attend the emergency department and refused to comply with that direction; and

(c) acted without authority in providing instructions to staff at Royal Perth Hospital about what they would do and would not do in respect of receiving and treating patients, and went beyond that to make arrangements with another hospital, which resulted in that hospital making additional resources available.

128   The employer says there were more than sufficient circumstances to justify the remark made by Professor Stokes that the behaviour engaged in by Dr Savundra had not reflected well on him.

129   In any event, it is argued the letter that was provided to Dr Savundra in June 2013 did not cause or induce Dr Savundra to act to his detriment.  He did not take any action that he might otherwise have taken.  In any event, even though the findings were withdrawn, the employer's concern about the behaviour does not go simply because the findings were withdrawn.

130   The employer also contends that there can be no useful purpose in requiring it to revisit the decision not to renew Dr Savundra's contract after having heard Dr Savundra in relation to the matters that took place on 15 February 2013.  It is said that on Dr Savundra's own evidence it is obvious that Professor Stokes could reasonably conclude Dr Savundra's involvement in the events of 15 February 2013 was evidence he had not behaved well.

131   It follows from the nature of a fixed term of employment that there is no decision to be reviewed if the employer simply allows the contract to expire.  That is the nature of the employment, the bargain struck.  The interest argument raised on behalf of Dr Savundra cannot be made out as there is no right to a hearing in a decision not to offer a further contract of employment after a fixed term contract has expired.

Consideration of grounds of appeal

(a) Ground 1 of the appeal - did the rules of procedural fairness apply by application of the principles of administrative law to the decision not to offer Dr Savundra a further contract?

132   It is a rule of common law that a power conferred by statute is to be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power:  Quin (57) (Dawson J); Plaintiff S10 [97] (Gummow, Hayne, Crennan and Bell JJ); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [39] - [41] (Gaudron and Gummow JJ).

133   The rule is concerned with an obligation to provide a fair procedure and defects in the procedure of exercising a statutory power.  The concern of procedural fairness is to avoid practical injustice:  Lam [37].

134   In Aala [59], Gaudron and Gummow JJ observed:

[T]he conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures.

135   The AMA on behalf of Dr Savundra argues that the decision not to offer a further contract involved an exercise of statutory power.  In particular, the power to employ Dr Savundra was conferred upon the Minister for Health by s 19, read with s 7 and s 7A, of the Hospital and Health Services Act.  It is also argued that the power to determine Dr Savundra's terms and conditions of employment was also sourced in a statutory power by operation of the 2013 Agreement.

136   Section 19(1) of the Hospital and Health Services Act provided at the time the decision was made:

(1) A board may, for the purpose of the performance of its functions —

(a) employ or engage employees and other persons; and

(b) engage persons, whether or not natural persons, to perform functions on its behalf.

137   Pursuant to s 7 of the Hospital and Health Services Act the Minister was deemed to be the board of Royal Perth Hospital.  Section 7A(2) provided for general powers of the Minister, including a power to enter into contracts, as follows:

(2) For the purposes of the performance or exercise of the duties, powers or functions imposed or conferred on the Minister by or under this Act the Minister may —

(a) enter into contracts and make arrangements on such terms and conditions, which may include the payment of charges, as the Minister thinks fit; or

(b) make arrangements for the provision of services by an agency or agencies,

or both.

138   It is clear from these provisions that by operation of s 19(1) the Minister was conferred with a power to employ or engage employees for the purpose of performance of the functions of the board of Royal Perth Hospital.

139   The first question to be determined is whether a bare power to employ is sufficient to attract the rules of procedural fairness by application of the rules that apply to administrative law.

140   Relevant decisions on this point have been made by regard to the question whether a particular decision sought to be impugned is a decision of an administrative character made under an enactment and thus excluded from review by administrative tribunals which have been created by legislative schemes to replace review of government decisions through common law prerogative writs.

141   In Burns, the question was whether a decision by the council of the university to dismiss Professor Burns on grounds of permanent incapacity was a 'decision of an administrative character made … under an enactment' within the meaning of s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).  Section 23 of the Australian National University Act 1946 (Cth) (the University Act) empowered the council from time to time to appoint, among others, professors and have the entire management and control of the affairs and concerns of the university.  Pursuant to s 27(1)(g) of the University Act, the council was able to make, alter or repeal statutes with respect to manner of appointment and dismissal of professors.  However, at the time the matter was heard the council had not made any statutes in respect of the matters mentioned in s 27(1)(g).  The Full Court of the Federal Court found that although s 23 of the University Act was the source of the council's power to enter into contracts of engagement with professors and other staff, the decision to dismiss on grounds of permanent incapacity was made pursuant to the terms of Professor Burns' contract and not from s 23 of the University Act.  At (32) Bowen CJ and Lockhart J said:

Although s 23 confers no power in express terms to remove or suspend professors and others, such power arises from the more general powers conferred by the section on the Council after the express reference to the powers of appointment. In our opinion the control and management of the affairs of the appellant must include the suspension or removal of its deans, professors and others.

Notwithstanding that s 23 was the source of the Council's power to appoint and dismiss the respondent in 1966, it does not follow that the decision to dismiss him was made under the University Act. The answer to the question lies in the true characterization of the decision itself. It was not a decision to dismiss the respondent simpliciter. It was a decision to dismiss him on a particular ground namely, that he had become permanently incapacitated from performing the duties of his office. This was one of the grounds expressly provided for in condition 2(b)(ii) of the conditions of appointment which formed part of the respondent's contract of engagement. The University Act prescribes no essential procedural requirements to be observed before a professor is dismissed and lays down no incidents of a professor's employment.

In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act. Section 23 empowered the Council to enter into the contract on behalf of the appellant. Even if the Council, in considering the position of the appellant under the contract, might be said to be acting under s 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract.

142   A similar issue arose in Lewins.  In that matter, Mr Lewins unsuccessfully applied for promotion to a position of reader in accordance with a university policy set out in a promotions statement.  He sought review of a refusal to provide him with a statement of reasons of the decision pursuant to s 13 of the ADJR Act.  The Full Court of the Federal Court found that even though a promotions statement may have raised a legitimate expectation that the procedures set out in the promotions statement would have been followed, the ADJR Act did not apply as the decision was not made under an enactment.

143   The promotions statement in Lewins was not contractual in effect, but was imposed by a unilateral act of the university after presumably it was negotiated between the university and the relevant union.  The promotions statement was found to have been promulgated simply under the wide powers of the council in relation to the control and management of the university and it was found that the promotions statement was not one to which the University Act gave the university capacity to affect legal rights and obligations unilaterally.  Thus, it was found it was not made under an enactment and any capacity of the promotions statement to affect legal right may have been a matter of private law such as contract.

144   In the judgment of Lehane J in Lewins, his Honour approached the question whether a decision to vary an employment contract owed its capacity to bind, from the enactment of the legislation, or from contract, or some other source by analysing the question in the following way (103):

In this case, the relevant statutory power (in s 6(2)(k) of the ANU Act) is simply one 'to employ staff'. Obviously that, taken together with the general power to contract, empowers the University to enter into contracts of employment, to make consensual variations of employment contracts and to enter into new contracts with existing employees. But I cannot see how it is possible to construe a mere power to employ staff as enabling the University unilaterally to vary its contracts with its employees or to impose on them, without their consent, conditions which legally bind them — except, of course, to the extent that contracts of employment may themselves empower the University to make determinations which will be binding on the employees concerned (see, eg, Thorby v Goldberg (1964) 112 CLR 597).

145   This passage was approved by Gummow, Callinan and Heydon JJ in Tang.  In determining the meaning of the phrase 'a decision must be of an administrative character under an enactment', their Honours adopted the approach of Lehane J in Lewins.  In Tang, they observed [79] - [81]:

The decision so required or authorised must be 'of an administrative character'. This element of the definition casts some light on the force to be given by the phrase 'under an enactment'. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? (cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154) To adapt what was said by Lehane J in Lewins (1996) 68 FCR 87 at 103), does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? (General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 169)

If the decision derives its capacity to bind from contract or some other private law source, then the decision is not 'made under' the enactment in question. Thus, in Lewins, a decision not to promote to Reader a member of the staff of the Australian National University was not 'made under' the Australian National University Act 1991 (Cth) (the ANU Act).

146   Their Honours in Tang quoted the reasons given by Lehane J in Lewins at (103) which is set out in [144] of these reasons.  They then went on to say [82]:

For these reasons, a statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. A legislative grant of capacity to contract to a statutory body will not, without more, be sufficient to empower that body unilaterally to affect the rights or liabilities of any other party. The power to affect the other party's rights and obligations will be derived not from the enactment but from such agreement as has been made between the parties. A decision to enter into a contract would have no legal effect without the consent of the other party; the agreement between the parties is the origin of the rights and liabilities as between the parties.

147   Whilst it could be said that the observations in Lewins and Tang only have application to a review of decisions by a body that has jurisdiction to review decisions of an administrative character under an enactment, the power to review such decision by a court exercising prerogative relief are substantially similar.  This is simply because prerogative relief is confined to (pursuant to the rules of the court) the enforcement of public law remedies.  This point is illustrated in Lavelle.

148   In Lavelle, legislation establishing the BBC as a corporation gave it power to appoint, remove employees and to determine conditions of employment.  Ms Lavelle's contract of employment incorporated the BBC's regulations, which, in turn, incorporated a disciplinary procedure.  At (248) Woolf J observed that prerogative remedies of mandamus, prohibition or certiorari:

[W]ere not previously available to enforce private rights but were what could be described as public law remedies. They were not appropriate, and in my view remain inappropriate remedies, for enforcing breaches of ordinary obligations owed by a master to his servant. An application for judicial review has not and should not be extended to a pure employment situation. Nor does it, in my view, make any difference that what is sought to be attacked is a decision of a domestic tribunal such as the series of disciplinary tribunals provided for by the BBC.

(Applied by Chesterman J in Whitehead [15] - [16]).

149   Further, even if a duty arises under a statute, if it is a private right it is beyond the reach of prerogative relief:  John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400, 406 (Moffitt P) (Reynolds JA agreeing).

150   In this matter, the rights and obligations arising from Dr Savundra's engagement as a sessional consultant cannot be said to be derived from s 19 of the Hospital and Health Services Act.  The decision not to offer Dr Savundra a further fixed term contract for sessional work at Royal Perth Hospital was not made or acted upon under s 19.  Section 19 simply provided a bare capacity or power to contract.  The duration and rights arising under the contract were not conferred by s 19.  The operative effect of s 19 in the circumstances of this matter was to authorise the making of the contract between Dr Savundra and the employer in 2009.  The terms of the contract were set out in writing and had effect in the law of contract as private rights and obligations.

151   Leaving aside the issue whether an industrial agreement can be properly characterised as subsidiary legislation, it cannot be said that the decision not to offer Dr Savundra a further fixed term contract for work at Royal Perth Hospital was derived from the 2007 and 2013 Agreements.  Clause 21(1), cl 21(4), cl 21(5) and cl 21(6) of the 2007 Agreement and cl 20(1), cl 20(4), cl 20(5) and cl 20(6) of the 2013 Agreement provide that:

(a) appointments of senior practitioners are to be on five-year contracts unless there is written agreement to the contrary between the employer and practitioner;

(b) there shall be no automatic right of reappointment upon expiry of a contract;

(c) a practitioner who is unsuccessful in seeking a new contract shall be paid a contract completion payment; and

(d) a practitioner with permanent tenure may elect to convert to a fixed term.

152   These provisions, when read with cl 24 of the 2007 Agreement and cl 23 of the 2013 Agreement, contemplate that a contract for a five-year term may be entered into between a sessional practitioner and the employer.  However, these provisions also contemplate that a contract could be made for a shorter or longer term, or an indefinite duration.  Thus, whilst these provisions, together with s 19(1) of the Hospital and Health Services Act, authorised the making of the contract between Dr Savundra and the employer in November 2009, it is the terms of the contract which determined not only the term of the agreement, but also the form of a subsequent offer of renewal if the employer elected to make such an offer.  Thus, any 'right' or 'interest', if any, Dr Savundra may claim to have had in a decision whether or not to be offered a new contract was conferred by the terms of the 2009 contract.  Consequently, any 'right' or 'interest' the AMA claims on behalf of Dr Savundra must by necessity arise out of a private right and cannot be characterised as a public right.

153   For these reasons, insofar as ground 1 of the appeal relies upon the application of the rules of procedural fairness by application of the principles that apply to administrative law (when making a decision pursuant to a statutory power), this ground of appeal must fail.

(b) Ground 1 and ground 2 - the claim of procedural fairness as part of a claim of industrial fairness

154   Except for matters set out in s 80E(6) of the IR Act, s 80E(1) confers exclusive jurisdiction on the Arbitrator to enquire into and deal with any industrial matter relating to a government officer, a group of government officers or government officers generally.  Pursuant to s 80E(5), any act, matter or thing done by an employer in relation to an industrial matter is liable to be reviewed, nullified, modified or varied by an Arbitrator.

155   Plainly, the matter referred for hearing by the Arbitrator was an industrial matter.  An 'industrial matter' is defined in s 7(1) of the IR Act in subsections (c) and (ca) of the definition of 'industrial matter' to mean any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees and includes, among other matters, the employment of any person or the refusal to employ any person and the relationship between employers and employees.

156   The Arbitrator is required pursuant to s 26(1)(a) of the IR Act in the exercise of his or her jurisdiction to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.  However, as Ritter AP pointed out in Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543, s 26(1)(a) is not a source of jurisdiction.  It applies only to the exercise of jurisdiction granted by legislation:  [163].  His Honour also pointed out the Commission and the Arbitrator as a constituent authority of the Commission cannot ignore the substantive law in the exercise of its jurisdiction:  [164].  At [165] he said:

[I]n Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239, Basten JA with whom Beazley JA agreed at [89], cited the joint reasons in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 (Gubbins) with approval and reiterated that although the relevant body was required to act 'according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, it is clear that it must exercise its powers according to law: were it otherwise, the conferral of a right of appeal to this Court "in point of law" … would be significantly diminished, if not rendered otiose'. The same point was made in my reasons quoted above in LHMU. It was also succinctly made in Townsville City Council v Chief Executive, Department of Main Roads [2006] Qd R 77 at [43] where Keane JA with whom McMurdo P and White J agreed said:

'The authorities suggest that a statutory obligation to have regard to the "substantial merits of the case" means that the merits may not be able to trump a countervailing rule of law but that they are one factor that must be taken into account when exercising a discretion.'

157   The scope of the Arbitrator's jurisdiction conferred by s 80E of the IR Act does not depend upon or is not defined by the law and the principles of judicial review of administrative action in the exercise of statutory power.  As Wheeler and Le Miere JJ point out in Jones, an Arbitrator is required to conduct an inquiry into a relevant matter on its merits.  The Arbitrator has no power to engage in judicial review:  Jones [19] - [22] (Wheeler and Le Miere JJ).  In particular, the Arbitrator's jurisdiction is not confined to a review of matters that rely upon any notion of public rights, remedies or interests.  In Jones, Wheeler and Le Miere JJ explained [28] - [34]:

Turning, then, to the question of the proper construction of s 80E(5), read with s 80E(1), in our view the controversy which has arisen relates to a false issue. As we have noted, there is no power conferred by the Act upon the Arbitrator to engage in anything in the nature of 'judicial review', or to make a bare declaration. That is jurisdiction of a kind quite different from the merits-based inquiry contemplated by s 80E. To the extent that the reasons of the Full Bench might be read as suggesting that there is such power, they are in error.

However, the powers of the Arbitrator are very wide. They are to inquire into and deal with any industrial matter. To the extent necessary, the exercise by an employer in relation to a government officer of a power relating to that industrial matter may be reviewed, nullified, modified, or varied by the Arbitrator.

An inquiry into an industrial matter will, where that industrial matter is affected by other legislation, or where the actions of persons involved in the industrial matter are, in some respect, governed by other legislation, involve an inquiry into what was done, in that legislative context. In order to determine how to 'deal with' an industrial matter, the Arbitrator must find relevant facts. If it is the case that a relevant factual finding suggests that a person has been guilty of unlawful or improper conduct, that is a finding which it is open to the Arbitrator to make, not as an end in itself, but as a step in determining how the industrial matter is to be dealt with.

Where, as is presently the case, the way in which officers in the public service deal with each other is the subject of principles and requirements contained in legislation such as the PSM Act, it will often be desirable for the Arbitrator to consider whether the behaviour of individuals involved in the industrial matter has been in conformity with those principles and requirements. Again, findings of that kind would not be made as an end in themselves, but would be made in order to determine how, in the broad statutory context, it would be appropriate to deal with the industrial matter.

It will on occasion, as part of that process, be necessary for the Arbitrator to undertake a consideration of the relevant statutes, so as to ascertain how they apply to the facts as found. That exercise is undertaken, not in order authoritatively to declare the meaning of the statutory provision, but again as a step in the process of ascertaining what is required, in the statutory context, to deal with the industrial matter.

Those conclusions may on occasion lead to the view that it is necessary in order to deal appropriately with the industrial matter, to nullify, modify, or vary an action or decision of an employer, pursuant to s 80E(5). That subsection does not confer any independent jurisdiction to quash those decisions, but only to do so to the extent necessary to ensure that the industrial matter is dealt with as contemplated by s 80E(1). Similarly, the word 'reviewed' in s 80E(5) is plainly not intended to confer some independent power to review any decision of an employer, but only a power to review (and, if necessary, to differ from) the decision where it is necessary to do so as part of the process of dealing with an industrial matter.

When s 80E(1) and (5) are understood in the way in which we have endeavoured to explain, the controversy about the Arbitrator's power of 'judicial review' simply disappears. There is plainly no such independent power. Equally plainly, however, some of the questions which would be determined by a Court undertaking judicial review of the actions of government officers may be questions which it is necessary for an Arbitrator to consider and determine in order to deal with an industrial matter relating to those government officers. Those questions are dealt with by the Arbitrator, however, not in order to make an authoritative and binding determination concerning them, but as steps in the process of determining how the industrial matter is to be dealt with.

158   The facts in Jones and observations of Hasluck J in respect of the legal rights, if any, to procedural fairness of an applicant seeking appointment to a position are relevant to this matter.

159   In Jones, it was argued that the Full Bench erred in law in finding that the Arbitrator had jurisdiction to enquire by way of judicial review into the refusal of the Director General of the Department of Justice to appoint a government officer (Mr Jones) to a level 7 position following a selection process and to advise Mr Jones that he had been recommended for the position by a selection panel.  The Director General subsequently reopened the selection process and obtained referee reports.  At first instance, among other findings, the Arbitrator hearing the matter found Mr Jones was denied procedural fairness when he was not given the opportunity to review two adverse referee reports obtained by the Director General.  When considering these matters, Hasluck J referred to the fact that the Standards in Human Resource Management (established pursuant to s 21 of the Public Sector Management Act 1994 (WA)) and the Public Sector Management Act did not expressly require an applicant for appointment to be provided with referee reports or adverse material or be accorded a hearing before a decision is taken to make or refuse an appointment having regard to any such material.  His Honour then found [116] - [117]:

If it were a requirement, it would be a disincentive for referees to be frank, especially where they are not supportive of the applicant, and this would interfere with the objective of the recruitment process which on a competitive basis is to employ the most suitable candidate.

All of this suggests that it has never been a requirement of procedural fairness that adverse reports be made available to an applicant for an employment position for comment. It calls into question findings based on an assumption that contentious reports ought to be provided to an applicant for an employment position. In Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 the High Court accepted that in ordinary circumstances the making of an appointment would not attract the rules of natural justice. In the present case the appellant himself did not take any step or make any representation sufficient to displace the ordinary rule or confer upon Mr Jones an entitlement to procedural fairness based upon a legitimate expectation that he would be heard.

160   In Quin, Dawson J explained [58] - [59]:

It is one thing to expect to continue in a position; it is another to expect to be appointed to it. That distinction was drawn in F.A.I. Insurances Ltd. v. Winneke ((1982) 151 C.L.R. 342, at p. 377), between the initial application for a licence and an application for its renewal. No doubt even with an application for appointment to a position there may be special circumstances which make it only fair to accord some sort of a hearing. Cole v. Cunningham ((1983) 81 F.L.R. 158; 49 A.L.R.123) is an example. There an applicant for re-appointment to the public service had resigned under threat of prosecution and had unsuccessfully attempted to withdraw his resignation. However, in the absence of special circumstances, the situation is as described by Lord Denning M.R. in Breen v. Amalgamated Engineering Union ([1971] 2 Q.B. 175, at p. 191):

'If a man seeks a privilege to which he has no particular claim - such as an appointment to some post or other - then he can be turned away without a word. He need not be heard. No explanation need be given ...'

See also McInnes v. Onslow-Fane ([1978] 1 W.L.R. 1520; [1978] 3 All E.R. 211).

161   Reflected in this passage is the fundamental concept of employment law that an applicant for a new appointment is not entitled to procedural fairness.  In particular, an applicant for employment is not entitled to be provided with particulars of any adverse material or to be heard in respect of any such material (see also the discussion in Cole v Cunningham, the facts of which are referred to at [123] of these reasons).

162   In this matter, whilst the 'interests' of Dr Savundra identified by the AMA can legitimately be said to be genuine matters going to Dr Savundra's eminence and reputation as a highly skilled senior specialist plastic surgeon and the fact that he continues to be employed by the employer in other public hospitals in Perth are immaterial.  Such interests cannot be elevated to operate to override the express terms of the contract between Dr Savundra and the employer in November 2009 to apply the rules of procedural fairness.  The contract expressly provided that the employer was not to be liable to employ Dr Savundra (at Royal Perth Hospital) in any capacity beyond the specified term.  Thus, there was agreement that the employer had a right, unfettered by the rules of procedural fairness, to determine whether to offer a further contract to Dr Savundra.  It is inherent in the reasoning of the Arbitrator in this matter that she accepted the principle that parties should in the normal course be bound by the bargains that they make.

163   Thus, in this matter, when the relevant principles applying to employment contracts are applied, in the absence of special circumstances or representation sufficient to displace the ordinary rule applying to employment contracts, Dr Savundra was not entitled to be heard prior to a decision being made as to whether to offer him a new contract:  Quin; Cole v Cunningham and Jones.

164   In my opinion, the ordinary position at law of a person who wishes to be offered a further contract at the expiration of a contract for a fixed term is not in a different position to that of an applicant who has not previously been employed by the employer.  To displace this rule there must be special circumstances which relate to circumstances of a decision to offer a new contract.

165   The circumstances relied upon by the AMA to displace the ordinary rule are that:

(a) Dr Savundra was an ongoing employee of the employer;

(b) it was 'industrially unfair' for the employer to give currency to the adverse findings that had been made in relation to the incident that occurred on 15 February 2013 when the finding of misconduct and the formal warning was withdrawn; and

(c) the decision was unfair to Dr Savundra and other doctors employed at Royal Perth Hospital who are unable to access Dr Savundra's skills and expertise which has raised concerns about the quality of patient care Royal Perth Hospital is able to deliver to plastic surgery patients.

166   In all of the circumstances, the AMA says the decision not to offer Dr Savundra a further contract for work at Royal Perth Hospital was manifestly unreasonable.

167   As to the first matter, the evidence establishes that at the time the decision sought to be impugned was made Dr Savundra had ongoing employment with the employer at other hospitals.  It appears Dr Savundra was engaged to work at Fremantle Hospital and at Princess Margaret Hospital on a sessional basis for fixed terms.  The fact that he was engaged to work at other hospitals and had been engaged to work at Royal Perth Hospital on a series of fixed term contracts at the time the decision was made not to offer him a further contract for sessional work at Royal Perth Hospital does not in itself raise any special circumstances.

168   In respect of the second matter, it appears that Dr Savundra and the AMA did not rely upon the letter dated 12 July 2013 withdrawing the adverse findings of misconduct and the withdrawal of the formal warning in any material way that was adverse to his interests.  To the contrary, it is clear from the matters for hearing and determination (set out in [5] of these reasons) and the conduct of the hearing at first instance that a review of and an assessment of the circumstances of the conduct of Dr Savundra on 15 February 2013 was pressed by the AMA.  Consequently, other than the concessions made in the letter dated 12 July 2013, it cannot be said that the letter dated 12 July 2013 resulted in a settlement of the whole of the industrial matter before the Arbitrator in July 2013 or a significant part of it.  Proceedings in PSACR 20 of 2013 commenced after the letter was provided to Dr Savundra as the parties remained in dispute about a number of matters relating to Dr Savundra.  It is also notable that in the proceedings at first instance and on appeal no representations have been sought to be relied upon other than those contained in the letter itself.  Thus, it seems that it cannot be said that Dr Savundra altered his position in any material way after receipt of the letter, so as to confer on him a right to procedural fairness.

169   The third matter relies upon opinions given by former colleagues of Dr Savundra who gave evidence in support of him that Royal Perth Hospital needs to be able to access the services of Dr Savundra for services to be provided to patients.  These opinions were found by the Arbitrator not to:

(a) demonstrate 'substantial unfairness';

(b) demonstrate that Dr Savundra should continue to be employed; and

(c) be relevant to the question whether Dr Savundra had been treated fairly.

The Arbitrator also found that there was no real evidence of unreasonable workloads or demands placed on doctors at Royal Perth Hospital in the absence of Dr Savundra.

170   When the evidence given by Dr Savundra and his colleagues is reviewed, it is clear from the evidence that senior employees of Royal Perth Hospital made their opinions known to senior management of Royal Perth Hospital and Professor Stokes prior to Dr Savundra's 2009 contract coming to an end.  Professor Stokes was also provided by Dr Williams in September 2014 with three letters of recommendation from the orthopaedic surgery department, the plastic surgery department and plastic surgery trainees.  Whilst Dr Williams and Dr Duncan-Smith met with Professor Stokes after the decision was made not to offer Dr Savundra a new contract at Royal Perth Hospital, it appears from Professor Stokes' role in Dr Savundra's negotiations for a five-year contract at Fremantle Hospital in December 2013 and January 2014 that Professor Stokes had the capacity to review the decision made in July 2014 not to offer Dr Savundra a further contract at Royal Perth Hospital.  In fact, when Dr Williams and Dr Duncan-Smith first met with Professor Stokes on the first of two occasions in September 2014, he told them that he would look into the matter.

171   In any event, the opinions of Dr Savundra's colleagues are, as the Arbitrator found (albeit in a slightly different context) irrelevant.  The employer was, in all circumstances, entitled to ignore those opinions.

172   For these reasons, the circumstances raised by the AMA cannot constitute special circumstances which would displace the ordinary rule that a person is not entitled to be heard prior to a decision being made whether to offer a new contract of employment.

173   In this matter, no representation or other conduct has been identified which could give rise to a claim of industrial unfairness.

174   Consequently, in the absence of any right to procedural fairness in this matter, the delegates of the employer were entitled to have regard to any matter that they wished to consider in deciding whether to offer Dr Savundra a new contract.

175   Whilst it is not material to the disposition of this appeal, I do not agree with the observation made by the Arbitrator that her reasons for decision had given Dr Savundra the remedy he sought and in giving evidence he had an opportunity to respond to adverse allegations.

176   It is an accepted principle that a hearing of an industrial matter may cure a breach of procedural fairness if the person aggrieved by a decision is allowed to canvas the issues that he or she would have raised if the original process had been properly conducted:  see the discussion by Forbes J R S in Justice in Tribunals (4th ed, 2014) [14.10]; citing Baker v University of Ballarat (2005) 225 ALR 218; [2005] FCAFC 210 [51] - [52].

177   In this matter, the employer elected not to go into evidence.  One matter of importance is that it is clear Dr Savundra if provided with a hearing prior to the decision being made would have sought to clarify the allegation made by Professor Stokes that one of the reasons he was not offered a new contract at Royal Perth Hospital was because of 'evidence of bullying and intimidation towards other staff members'.  In the absence of any particulars of this allegation, it could not be said that Dr Savundra had an opportunity to canvas or explore all adverse allegations made against him.  Consequently, in light of the unchallenged finding that Dr Savundra was denied procedural fairness in the making of the decision not to offer him a further contract, in the absence of particularisation of all allegations that were taken into account by the delegates of the Minister making this decision or a consequent opportunity to address those allegations before the decision was made, it cannot be said the hearing before the Arbitrator cured the defects in procedural fairness.

178   However, Dr Savundra did not have a right to be provided with procedural fairness prior to the decision being made.  Consequently, I am of the opinion that the grounds of appeal have not been made out and that an order should be made to dismiss the appeal.

KENNER ASC

179   I have had the benefit of reading the draft reasons for decision of Her Honour, the Acting President.  I agree with those reasons and have nothing to add. 

EMMANUEL C

180   I have had the benefit of reading the draft reasons for decision of Her Honour, the Acting President.  I agree with those reasons and have nothing to add.