2022 WAIRC 00776
APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 21 DECEMBER 2020
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00776

CORAM
: PUBLIC SERVICE APPEAL BOARD
COMMISSIONER T EMMANUEL - CHAIRPERSON
MS J COATES - BOARD MEMBER
MS J AUERBACH - BOARD MEMBER

HEARD
:
FRIDAY, 22 JULY 2022, WEDNESDAY, 25 MAY 2022, FRIDAY, 18 FEBRUARY 2022, THURSDAY, 17 FEBRUARY 2022

DELIVERED : TUESDAY, 8 NOVEMBER 2022

FILE NO. : PSAB 1 OF 2021

BETWEEN
:
MICHAEL JOHN MILLWARD
Appellant

AND

NORTH METROPOLITAN HEALTH SERVICE
Respondent

CatchWords : Public Service Appeal Board – Breaches of discipline – Negligence and carelessness in the performance of his functions – Misconduct – Dismissal – Meaning of ‘negligence’, ‘careless’ and ‘function’ – Dismissal a proportionate penalty – Appeal dismissed
Legislation : Health Services Act 2016 (WA): s 161(c), s 161(d), s 163(3)(b)(i) & s 172(2)
Industrial Relations Act 1979 (WA): s 80I(1)
Public Sector Management Act 1994 (WA): s 80(d)
Interpretation Act 1984 (WA): s 5
Result : Appeal dismissed
REPRESENTATION:


APPELLANT : MS F STANTON (OF COUNSEL)
RESPONDENT : MR J CARROLL (OF COUNSEL)

Cases referred to in reasons:
Blyth v Birmingham Waterworks Co (1856) 11 Ex 784
Briginshaw v Briginshaw (1938) 60 CLR 336
Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241
Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728
NU v NSW Secretary of Family and Community Services [2017] NSWCA 221; (2017) 95 NSWLR 577
Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266
Titelius v Director General of the Department of Justice [2019] WAIRC 00195
Titelius v Public Service Appeal Board [1999] WASCA 19; (1999) 21 WAR 201


Reasons for Decision
1 These are the unanimous reasons of the Public Service Appeal Board (Board).
2 Professor Millward was employed by North Metropolitan Health Service (Health Service) as a Consultant Medical Oncologist at Sir Charles Gairdner Hospital (SCGH) from about August 2003.
3 The Health Service found that Professor Millward committed two breaches of discipline related to the overtime claimed by and engagement as a contractor of another Health Service employee. The Health Service dismissed Professor Millward for those breaches of discipline.
4 Professor Millward appeals against his dismissal.
What the Board must decide
5 The Board must decide whether to adjust the Health Service’s decision to dismiss Professor Millward.
6 This involves deciding whether:
a. the allegations are substantiated; and if so,
b. dismissal is a proportionate penalty.
Legal framework and principles
7 This is an appeal under s 172(2) of the Health Services Act 2016 (WA) (HS Act) against the Health Service’s decision to dismiss Professor Millward under s 163(3)(b)(i) of the HS Act after the Health Service found that Professor Millward committed breaches of discipline under s 161(c) and s 161(d) of the HS Act. Specifically, the Health Service found that Professor Millward committed an act of misconduct and was negligent or careless in the performance of his functions.
8 Section 80(I)(1) of the Industrial Relations Act 1979 (WA) provides that the Board may ‘adjust’ the decision appealed.
9 It is common ground that the hearing is de novo: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728. The Board must consider the appeal based on the evidence before it and may substitute its view for that of the Health Service.
10 The nature of the allegations in this matter, in particular allegations about dishonesty, a lack of fidelity or corruption, mean that the Board must apply the Briginshaw standard set out by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 361-362:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
11 More recently, in NU v NSW Secretary of Family and Community Services [2017] NSWCA 221; (2017) 95 NSWLR 577, the Court of Appeal in New South Wales (Beazley P, McColl JA and Schmidt J agreeing) held at [53]:
The Briginshaw standard, like the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, is often misunderstood. Correctly applied, as the Court stated in Re Sophie at [50]:
The requirement stated in Briginshaw v Briginshaw, that there should be clear and cogent proof of serious allegations, does not change the standard of proof, but merely reflects the perception that members of the community do not ordinarily engage in serious misconduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, per Mason CJ, Brennan, Deane and Gaudron JJ; Palmer v Dolman [2005] NSWCA 361 at [41]-[47] per Ipp JA (with whom Tobias and Basten JJA agreed).
I accept that where there is an allegation such as of sexual abuse in circumstances such as arise in this case, it is appropriate and necessary to apply the Briginshaw standard, as properly understood. Indeed it is generally accepted that there is no underlying conceptual difference in the application of the Briginshaw standard and the Evidence Act, s 140.
12 The onus is on the Health Service to establish that the misconduct occurred: Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266 at 2266 (Raxworthy).
13 The Board must decide whether Professor Millward engaged in the alleged conduct, and if so, whether in the circumstances dismissal was a proportionate penalty.
The allegations
14 There is some complexity and a long history to the disciplinary process in this matter.
15 The Health Service put a number of allegations to Professor Millward. Ultimately the Health Service dismissed Professor Millward because it found that two of those allegations, Allegation 1 and Allegation 3, were substantiated.
Allegation 1
Between 30 April 2011 and 18 December 2018 at Perth you committed a breach of discipline contrary to section 161(d) of the Health Services Act 2016 by being negligent or careless in the performance of your functions.
Particulars

a. You are employed as a Consultant Medical Oncologist at Sir Charles Gairdner Hospital (SCGH) in Nedlands.
b. Between 30 April 2011 and 18 December 2018, Ms Judith Innes-Rowe was employed as a Clinical Trials Manager at the Clinical Trials Area with the Oncology Department, SCGH.
c. Ms Innes-Rowe reported to you while she was working at SCGH.
d. Between 1 July 2011 and 18 December 2018, Ms InnesRowe claimed and was paid $593,614.00 in overtime.
e. Ms InnesRowe was not entitled to claim overtime.
f. You received a copy of Ms InnesRowe’s overtime claims which was inconsistent with the approval process.
g. You failed to apply an appropriate level of oversight by not scrutinising the overtime forms submitted by Ms InnesRowe resulting in additional and unnecessary costs to the Clinical Trials Unit.
h. You failed to apply an appropriate level of oversight by not scrutinising the Payroll Certification Statements in relation to the overtime claimed by Ms Innes-Rowe resulting in additional and unnecessary costs to the Clinical Trials Unit.
…
If proven, [this] may constitute [a breach] of discipline.
Allegation 3
Between around 19 December 2018 and 3 June 2019 at Perth you committed a breach of discipline contrary to section 161(c) of the Health Services Act 2016 by committing an act of misconduct.
Particulars
a. You are employed as a Consultant Medical Oncologist at Sir Charles Gairdner Hospital (SCGH) in Nedlands.
b. On 19 December 2018, you approved Ms Judith InnesRowe to be engaged on a contract for service through Hays Specialist Recruitment (Australia) Pty Ltd (Hays) to work at the Clinical Trials Area with the Oncology Department, SCGH.
c. Between 19 December 2018 and 2 June 2019, Ms Judith InnesRowe continued to be engaged on a contract for service through Hays to work at the Clinical Trials Area with the Oncology Department, SCGH.
d. Ms Innes-Rowe reported to you while she was working at SCGH.
e. Prior to Ms InnesRowe commencing on the Hays contract, she had been employed to work at the Clinical Trials Area with the Oncology Department, SCGH, since 12 October 1995, and performing the duties of Clinical Trials Manager at Level G-9 since 30 April 2011 under various WA Health System – HSUWA – Pacts Industrial Agreements.
f. You were aware that Ms InnesRowe was not entitled to claim overtime while employed at Level G-9 under the WA Health System – HSUWA – Pacts Industrial Agreements.
g. You approved pay and conditions while Ms InnesRowe was employed on the Hays contract that were not in accordance with WA Health Industrial Agreement pay and conditions, which were more favourable than Ms InnesRowe could have achieved as an employee of North Metropolitan Health Service (NMHS), and were more detrimental to NMHS than if Ms InnesRowe (or any other person engaged in her role) was engaged as an employee of NMHS. By way of example, you approved Ms InnesRowe to work hours of her own choosing, and you agreed that hours worked after 5:00pm would be paid at overtime rates, irrespective of what time she commenced work on that day.
h. In an email dated 28 November 2017 from Ms Rebecca Wilson, Senior Payroll Officer, Health Support Services, you were made aware that as of 20 November 2017 the NMHS Authorisation Schedule had changed. From that date overtime required approval by a Tier 3 Officer. You are not a Tier 3 Officer and, therefore, you were aware that you could not approve overtime.
i. You approved payment by NMHS to Hays, including overtime, for the services provided by Ms InnesRowe, the last being on 3 June 2019 for the week ending 2 June 2019.
j. By approving Ms InnesRowe’s employment through a Hays contract, you facilitated Ms InnesRowe receiving overtime payments that you knew she was otherwise not entitled to claim or be paid if she continued to be employed through a WA Health System – HSUWA – Pacts Industrial Agreement.
If proven, this may constitute a breach of discipline on the following grounds:
1. Corruptly using your position to obtain a benefit for another person (being Ms InnesRowe), and to cause a detriment to NMHS.
2. Breaching your duty of fidelity and good faith, which you owe to your employer, by knowingly circumventing established employment processes, and approving of the engagement of Ms InnesRowe on terms and conditions which were detrimental to NMHS.
Factual background
16 The following facts are not in dispute.
17 Professor Millward is an eminent Consultant Medical Oncologist. He holds no qualification in business administration, industrial law or human resource management. He has been employed by the Health Service (and its predecessors) since around August 2003, working 0.4 full-time equivalent for the Health Service at SCGH. His employment was covered by the WA Health System – Medical Practitioners (Clinical Academics) AMA Industrial Agreement 2016 or its predecessor industrial agreements.
18 Professor Millward was the Head of Department of Medical Oncology at SCGH from 2007 to 2013. As Head of Department he managed the staff in the Clinical Trials Unit (CTU).
19 Since 2013, Dr Joanna Dewar has been Head of Department of Medical Oncology.
20 From before 2003 until she resigned in December 2018, Ms Judith Innes-Rowe was employed by the Health Service or its predecessor. Her employment was covered by the WA Health System – HSUWA – PACTS Industrial Agreement 2018 or its predecessor industrial agreements (HSU Agreement). From 2011 to 2017, Ms Innes-Rowe was engaged under consecutive maximum term contracts of employment as a ‘Research Data Manager’. Those contracts of employment entitled Ms Innes-Rowe to a salary of between G-8.2 and G-9.2 salary levels under the relevant HSU Agreement, even though the Research Data Manager position was at all times classified as level G-5.
21 In late 2017 a Briefing Note was prepared at Professor Millward’s request. It sought approval for the creation of two temporary positions within the CTU. One of those temporary positions was the Clinical Trials Manager position at proposed level G-9. The request to pay a temporary special allowance at level G-9 was approved by the Chief Executive on 11 July 2017 while the temporary positions were being created.
22 In 2018 Professor Millward sought and obtained approval for Ms Innes-Rowe to continue to be paid a temporary special allowance that enabled her to be remain paid at level G-9.2 while the position of Clinical Trials Manager could be formally created and classified. From 1 January 2018 to 30 June 2018, Ms Innes-Rowe’s contract of employment provided that she was employed at level G-5.4, although she was paid at level G-9.2 because of the temporary special allowance.
23 Ms Innes-Rowe’s last maximum term contract with the Health Service was for the period from 1 July 2018 until 29 December 2018, in the newly created position of Clinical Trials Manager at level G-8.2.
24 From 2011 until December 2017, Ms Innes-Rowe was paid at or above the G-8 salary level.
25 In around October 2018, Ms Innes-Rowe told Professor Millward that she intended to retire and on 14 November 2018 she gave notice of her resignation, with her last day of employment being on 14 December 2018.
Special Purpose Accounts
26 From around 2007 until he was dismissed, Professor Millward was one of two people able to authorise expenditure from each Special Purpose Account (SPA). The SPAs contained funds for use by the CTU to fund all the expenses of running the trials. Ms Innes-Rowe was the other person able to authorise expenditure from the SPA.
27 Wages and other amounts payable to CTU staff were funded by monies in the relevant SPAs. Each month, Professor Millward received fortnightly SPA statements showing income into each SPA, expenses paid out of each SPA and the balances of each SPA.
Overtime
28 During the relevant period, Ms Innes-Rowe was paid overtime of around:
- $70,999.00 in 2017;
- $89,989.00 in 2016;
- $70,392.00 in 2015; and
- $12,097.00 in December 2014.
29 Between 17 November 2014 and 27 November 2017, 66 of Ms Innes-Rowe’s fortnightly P6 overtime claim forms (P6 Overtime Forms) were emailed to ‘HCN Payroll General Queries’ or ‘HSS Payroll General Queries’. Professor Millward was named as her Manager in every one of those forms. Professor Millward was copied in to 62 of those 66 emails.
30 When opened in Excel, the P6 overtime claim form contains macros which provide instructions about how to complete the form and submit it to Health Corporate Network (HCN) or Health Support Services (HSS).
31 On 28 November 2017, a senior payroll officer from HSS emailed Ms Innes-Rowe, copying in Professor Millward, and told Ms Innes-Rowe that her overtime request could not be processed due to the change in the Health Service’s Delegations Schedule. The email identified relevant positions which could approve the overtime claim. Professor Millward’s position was not one of those positions. From then on, Ms Innes-Rowe did not claim any more overtime as an employee.
32 From at least March 2015 until November 2017, as authorising signatory to the SPA Professor Millward received pay certification statements relating to Ms Innes-Rowe’s pay, including overtime (Pay Certification Statements). Each fortnight Professor Millward would receive a covering email from HCN attaching the Pay Certification Statement (Covering Email). The Covering Email said:
Dear Certifying Officer
In accordance with the Health Accounting Manual you are required to certify the attached Payroll Certification Statement. Please ensure you familiarise yourself with your responsibilities in accordance with the procedures outlines in the manual.
1. Review the attached PDF document
2. Details on the content of the statement and the process are available in the PCS User Guide
3. If you are satisfied that all employees listed are entitled to receive payment for the pay period specified, select the Payroll Certification button at the bottom of the statement. You will receive an automated confirmation of your certification.
4. If you have an issue or query with the information on the statement select “click here” at the bottom of the statement and follow the instructions. You will receive an automated confirmation that you have conditionally certified the payroll statement and be directed to the HCN Intranet for further instructions.
5. Standard, Base, Personal and Leave Hours can be in hours or sessions depending on the employee type. Sessionals [sic] employees are not entitled to accumulate overtime hours (OT Hrs).
What should I check on my Payroll Certification Statement? For checking your statement Click Here
If you are no longer the appropriate receiving officer, it is vital that you notify HCN so that our Statement is referred to the correct officer. This includes temporary changes such as Leave, Higher Duties etc.
HCN Employee Benefits
Health Corporate Network
33 From 27 July 2016, the Covering Email was sent by HSS. The content of the email was very similar:
REPLIES TO THIS EMAIL WILL NOT BE MONITORED
Dear Certifying Officer
If you are no longer the appropriate receiving officer, it is vital that you notify HSS – Payroll Services through the links provided so that our Statement is referred to the correct officer. This includes temporary changes such as Leave, Higher Duties etc.
In accordance with the Health Accounting Manual you are required to certify the attached Payroll Certification Statement. Please ensure you familiarise yourself with your responsibilities in accordance with the procedures outlines in the manual.
1. Review the attached PDF document
2. Details on the content of the statement and the process are available in the PCS User Guide
3. If you are satisfied that all employees listed are entitled to receive payment for the pay period specified, select the Payroll Certification button at the bottom of the statement. You will receive an automated confirmation of your certification.
4. If you have an issue or query with the information on the statement select “click here” at the bottom of the statement and follow the instructions. You will receive an automated confirmation that you have conditionally certified the payroll statement and be directed to the HSS Intranet for further instructions.
5. Standard, Base, Personal and Leave Hours can be in hours or sessions depending on the employee type. Sessionals [sic] employees are not entitled to accumulate overtime hours (OT Hrs).
What should I check on my Payroll Certification Statement? For checking your statement Click Here
HSS Payroll Services
Health Support Services
34 Professor Millward certified the Pay Certification Statements that related to Ms Innes-Rowe’s pay, including overtime.
35 On 19 March 2018, Professor Millward met with Ms Sarah Whiteside (Human Resources Consultant) and Ms Viviane Jabr (HR Manager). By email after the meeting, Professor Millward was told that HSU staff paid at level G-8 and above are not entitled to be paid overtime except for in specific circumstances. Those special circumstances include where the employee is rostered to work regular overtime or instructed by the employer to hold themselves on call.
The Hays Contract
36 After Ms Innes-Rowe resigned from her employment with the Health Service, Professor Millward entered into a contract with Hays Specialist Recruitment (Australia) Pty Ltd (Hays) on behalf of the Health Service for Ms Innes-Rowe to provide services to the Health Service (Hays Contract).
37 The terms and conditions of the Hays Contract are set out in several emails. Relevantly:
a. for work during ordinary business hours, the Health Service would pay Hays $110.76 plus GST per hour of Ms Innes-Rowe’s work;
b. that hourly rate comprised $80 per hour for Ms Innes-Rowe plus Hays’ costs and charges;
c. Ms Innes-Rowe was not required to work any specific hours and could choose the hours she would work;
d. if Ms Innes-Rowe chose to work after 5pm on a business day, regardless of when she started work, she would be paid ‘standard overtime rates’ as well as overtime rates if she chose to work on a Saturday, Sunday or a public holiday. Those ‘standard overtime rates’ meant that Ms Innes-Rowe was paid ‘time and a half’ after 5pm on business days and Saturdays, and ‘double time’ on Sundays and public holidays; and
e. the Hays invoices, which were approved by Professor Millward, show that Hays’ costs were also multiplied by one and a half or two, respectively, when Ms Innes-Rowe chose to work at times that attracted the ‘standard overtime rates’. For example, when Ms Innes-Rowe chose to work on a Sunday, the cost to the Health Service was $221.52 plus GST per hour.
38 Professor Millward was emailed invoices for approval which showed Ms Innes-Rowe’s hours of work for the week identified in the invoice, including while Professor Millward was on long service leave from 7 January until April 2019.
39 Ms Innes-Rowe worked under the Hays Contract for about 23 weeks.
CCC proceedings
40 In June 2019 Professor Millward was summonsed to appear in July as a witness in Corruption and Crime Commission (CCC) proceedings in relation to possible misconduct by Ms Innes-Rowe.
41 In September 2019, the CCC released a report on misconduct risks in Health Support Services and the Health Service (CCC Report). The CCC Report concluded that Ms Innes-Rowe engaged in serious misconduct in relation to her unsubstantiated overtime claims between 2012 and 2017.
42 The day the CCC Report was released, Professor Millward sent an email to colleagues at the Health Service, saying ‘Although there has been no suggestion that I engaged in any misconduct, as Judith’s immediate manager, I will have to bear some responsibility for this.’
Disciplinary process
43 The Health Service sent Professor Millward a letter dated 15 November 2019 that set out two allegations of breach of discipline (Allegations 1 and 2). In January 2020 Professor Millward’s solicitor responded to those allegations.
44 The Health Service sent Professor Millward a letter dated 3 April 2020 that set out another allegation of breach of discipline (Allegation 3). The Health Service conducted an investigation into the allegations. On 6 November 2020 the Health Service gave Professor Millward a copy of the investigation report (including its attachments) and informed Professor Millward that:
a. Allegation 2 was not substantiated;
b. it was open to find Allegations 1 and 3 were substantiated; and
c. if Allegations 1 and 3 were found to be substantiated, the Health Service proposed to dismiss Professor Millward.
45 Professor Millward’s solicitor responded to the proposed finding and action.
46 The Health Service found that Allegation 1 and Allegation 3 were substantiated, and dismissed Professor Millward from his employment on 21 December 2020. The Health Service paid Professor Millward five weeks in lieu of notice.
Allegation 1
47 Although Allegation 1 refers to the period from 30 April 2011 to 18 December 2018, the following two matters are not in dispute:
a. no overtime was claimed by, or paid to, Ms Innes-Rowe after an email was sent to Ms Innes-Rowe (copying in Professor Millward) on 28 November 2017; and
b. Professor Millward was only copied in to Ms Innes-Rowe’s overtime claims from 16 November 2014.
48 Accordingly, the Board considers that the relevant period that relates to Allegation 1 is from 16 November 2014 to 28 November 2017.
49 To establish Allegation 1, the Health Service must prove:
a. Professor Millward had oversight and/or management of Ms Innes-Rowe’s overtime claims during the relevant period;
b. in all the circumstances, Professor Millward’s oversight of Ms Innes-Rowe’s overtime claims was negligent or careless; and
c. Ms Innes-Rowe was paid overtime payments to which she was not entitled.
Did Professor Millward have oversight and/or management of Ms Innes-Rowe?
Professor Millward’s evidence
50 Professor Millward’s evidence was that he was only Ms Innes-Rowe’s manager when he was Head of Department. When Dr Dewar became Head of Department in 2013, Professor Millward reported to her. At that time, they had a conversation and Dr Dewar asked Professor Millward to ‘continue to have some role providing direction to the CTU, acting as a resource for them and to sort of make sure there was someone around who they could approach if they were having issues and provide, I guess, strategic direction to the CTU.’
51 Professor Millward said:
She asked me to keep an eye on the trials unit, that's the only phrase I could specifically remember. I would have agreed to do so because obviously I'd invested a lot of time and effort in - in creating it and bringing it to where it was. I was still active in doing my own trials through the unit so I wanted it to continue. And because of my academic position and Cancer Council funding, I considered it to be part of my, if you like, reason for existence to support clinical research. So it seemed to me to fit with the sort of overarching goals of my academic position and the funders of that position.
52 No formal role was created and Professor Millward agreed that he remained responsible for the CTU budget. Professor Millward would not agree in cross-examination that he remained managerially responsible for Ms Innes-Rowe.
53 Professor Millward gave evidence about three Briefing Notes dated 4 July 2017, 29 December 2017 and 11 January 2018 which relate to arranging higher pay for the Clinical Trials Manager and Staff Development Officer. Professor Millward would not agree in cross-examination that he was involved in the production of those Briefing Notes because he was Ms Innes-Rowe’s manager. Professor Millward said his involvement was a continuation of the work he had done when he was Head of Department in trying to arrange for those positions to be reclassified.
54 Professor Millward denied his involvement in requesting of senior executives that Ms Innes-Rowe’s temporary special allowance be extended, and not copying in Dr Dewar, showed that he was managerially responsible for Ms Innes-Rowe:
CARROLL, MR: So in this email as you - your evidence yesterday, you're expressing some frustration but then also you're requesting those senior people above you that the temporary special allowance for Ms Innes-Rowe be extended, is that right?
MILLWARD, M: I'm requesting that the process be continued until such time as hopefully the positions are created.
CARROLL, MR: Created, yes?
MILLWARD, M: Yes.
CARROLL, MR: And you haven't copied Dr Dewar into this email, is that right?
MILLWARD, M: No, that's correct.
CARROLL, MR: And isn't it the case that the reason why it's you requesting the TSAs be extended is because you had managerial responsibility for Ms Innes-Rowe?
MILLWARD, M: No. I am sending this email because I've been involved in the process and I'm frustrated with the length of time and the difficulties that it's causing.
CARROLL, MR: But if you were not managerial - managerially responsible for Ms Innes-Rowe what - why does it matter to you what her pay level is?
MILLWARD, M: Because as I stated I was charged with providing advice and direction to the whole clinical trials unit and I was aware that there was an issue that was causing concern at the highest level of the North Metropolitan Health Service. So I considered that as someone involved in this process that I should continue to be involved in this process and should express you know on behalf of the trials unit the frustration of the difficulties that this was causing. This was of course not just related to Ms Innes-Rowe. It concerned another person as well.
CARROLL, MR: Ms Walker, is that correct?
MILLWARD, M: Correct.
CARROLL, MR: Yes. I suggest to you, Professor Millward, that your whole involvement in requesting the extension of these TSAs was because in your mind you understood that you had managerial responsibility for Ms Innes-Rowe, isn't that right?
MILLWARD, M: No, no. I did not do this because Ms Innes-Rowe reported to me. I did this because I was charged with looking after the clinical trials unit and I considered this to be an important issue. Further, it was one that I've been directly involved with while head of department and I had corporate knowledge about.
55 Professor Millward denied that the reason human resources staff met with him to discuss Ms Innes-Rowe’s overtime was because he was Ms Innes-Rowe’s manager.
56 Professor Millward gave evidence about Ms Innes-Rowe’s P6 Overtime Forms. He conceded that he was aware that he was named ‘Manager’ on those forms. He agreed that he did not raise an issue about being named as Ms Innes-Rowe’s manager. Professor Millward denied that this was because he considered himself to have managerial responsibility for Ms Innes-Rowe, saying it was because he ‘was an appropriate person as costs centre manager’ and that he ‘didn’t take that to mean [he] was her line manager.’.
57 In cross-examination the Health Service put to Professor Millward that it was implausible that Professor Millward would receive emails attaching Ms Innes-Rowe’s P6 Overtime Forms for three years and not raise with Payroll or Ms Innes-Rowe that he did not believe he was responsible for approving Ms Innes-Rowe’s overtime, if he did not consider that he was responsible for approving her overtime. Professor Millward said:
So it was never put to me that there was any discrepancy in the process. Clearly from what we know now the correct process was not being undertaken by Ms Innes-Rowe. The correct process would have been for her to email this form to myself or whoever she considered her line manager to - for that person to submit it. It was not - it did not occur to me during these three years that this process was in any way inappropriate but clearly it was.
58 When the Board noted that Professor Millward’s response did not answer the proposition put to him by the Health Service, Professor Millward said ‘No, I did not raise with Ms Innes-Rowe or anyone else that I considered that this process was in any way improper’ and ‘I did not consider that I directly approved these forms’. Professor Millward said he did not think he had ever considered who was approving the overtime.
59 The Health Service put to Professor Millward that the reason he negotiated the Hays Contract was because Professor Millward was managerially responsible for the person in the Clinical Trials Manager role. Professor Millward replied:
No, I didn't consider that this had anything to do with the line management of the clinical trials manager. This was a person, you know, who we wanted to engage through Hays to perform duties as a clinical trials manager for a brief period of time. I didn't consider that I was assuming any line manager responsibilities for the clinical trials unit. Sorry - it's actually clinical trials manager. I didn't consider that this engagement, you know, meant anything with respect to the position that was vacant.
60 The Board clarified that the proposition the Health Service was putting to Professor Millward was that Professor Millward was negotiating the contract, as opposed to somebody else, because he was managerially responsible. Professor Millward said:
MILLWARD, M: Yes, but the question was does that mean I'm responsible for the clinical trial manager position. I'm stating that I considered myself responsible for this engagement and yes, I considered myself responsible for the person who was engaged under these circumstances.
CARROLL, MR: But you wouldn't have considered - well, you wouldn't be responsible for that unless you had managerial responsibilities for the clinical trials unit, isn't that right?
MILLWARD, M: As I stated before I considered my position to be one of providing leadership and advice for clinical trials unit. And I considered this to be consistent with those responsibilities.
CARROLL, MR: Yes. So you considered that consistent with the responsibilities that you were taking on with the clinical trials unit is that you had authority to engage persons to be employed in that unit, is that right?
MILLWARD, M: I considered that as I stated yesterday the clinical trials unit had engaged short-term contractors before. That was a well-known process. And that I had - that I could engage Ms Innes-Rowe on a short-term basis while the substantive position was being advertised.
CARROLL, MR: Did    ?
MILLWARD, M: I didn't seek as part of this to say, "Well, actually, I think I should be the line manager of that position" rather than the JDF that was proof.
CARROLL, MR: Did you get Dr Dewar's approval to engage Ms Innes-Rowe through the Hays contract?
MILLWARD, M: Not specifically, no.
CARROLL, MR: No. And your evidence is that Dr Dewar was formally the line manager of the person in the clinical trials manager position, isn't that right?
MILLWARD, M: She was the line manager for the clinical trials manager, yes.
CARROLL, MR: Formally on the JDF?
MILLWARD, M: On the JDF.
CARROLL, MR: Yes?
MILLWARD, M: Yes.
CARROLL, MR: But isn't it the case that if you did not see yourself as having managerial responsibilities for the whole clinical trials unit you would have sought Dr Dewar's approval to enter into this contract?
MILLWARD, M: Um, as I stated, it - my - my, ah, mind at the time was that it was appropriate that I do this. It did not occur to me that I should seek anyone's formal approval, ah, to do it.
CARROLL, MR: Okay, so   ?
MILLWARD, M: Ah, I did not consider, if you like, that I was employing somebody as a clinical trials manager.
CARROLL, MR: You felt it was appropriate for you to do this because it fell within the responsibilities that you had understood Dr Dewar had given to you, is that right?
MILLWARD, M: Yes.
61 Later in cross-examination, Professor Millward agreed that he had remained the point of contact throughout the Hays engagement, but when asked if that was because he had ‘managerial responsibility’ for Ms InnesRowe, said:
MILLWARD, M: As I stated, ah, I considered it, ah, that I was an appropriate person to, ah, organise this engagement and obviously that requires someone, ah, to be an initial point of contact. Ah, this - this is obviously a - a fairly standard, ah, thing that Hays would put out, um, so it may be in other circumstances the - the person who is to be engaged is not known at all, so they would have to have a - what's termed a client supervisor or initial point of contact.
CARROLL, MR: But you didn't see anyone else within the hospital as having any direct oversight over Ms Innes-Rowe other than yourself, isn't that right?
MILLWARD, M: Ah, for this, ah, engagement through Hays I considered I was the appropriate person to be that initial point of contact or client supervisor as stated by Hays, yes.
CARROLL, MR: And not just as the initial point of contact but to be supervise - to supervise Ms Innes-Rowe for the period of her engagement?
MILLWARD, M: So the engagement, ah, did not require a supervisor as such. Ah, somebody who is engaged is not formally reporting to anybody in that organisation. What they are saying here is that I'm the person in the organisation, ah, who this person should contact when they initially start and this person will be supervising, ah, the engagement. It's not stating that I'm a line manager or that person is an employee, ah, reporting to me.
CARROLL, MR: But it's not correct to say that a contractor of this sort would have no one within in this case North Metropolitan Health Service who is supervising them doing their work, that's not correct, is it?
MILLWARD, M: Ah, my understanding was that she would work independently, ah, and not require day to day supervision and that I was not taking on a line managerial responsibility for her but I was the person approving and supervising the engagement.
CARROLL, MR: Yes, and I think you said that other contractor arrangements occurred in the clinical trials unit from time to time, is that right?
MILLWARD, M: That's correct, yes.
CARROLL, MR: And going back to when Ms Innes-Rowe was an employee as the clinical trials manager if a contractor was engaged you would consider that she was the person with supervisory responsibilities over that contractor, isn't that right?
MILLWARD, M: I would consider that if someone else was - when someone else was employed by Hays, ah, that that line would - stated was, ah, Ms Innes-Rowe.
62 Later in cross-examination, Professor Millward said that the reason that he sent an email to Dr Dewar and the other consultants in the Medical Oncology Department dated 27 December 2018 outlining changes to the CTU was not because he had ‘managerial responsibility’ for the CTU, but because Professor Millward ‘considered the organisation required for this exchange, ah, of clinical trials managers fell within what … it was considered that [he] would do for the clinical trials unit, ah, and that [he] was the person who could communicate best what was going on.’
63 Professor Millward gave evidence about his comments relating to the CCC investigation. On the day the CCC released its report finding that Ms Innes-Rowe had engaged in misconduct, Professor Millward sent an email to his colleagues:
Dear Colleagues,
As some of you will be aware, a report tabled in State Parliament today by the CCC has made major adverse findings against Judy Innes-Rowe. In essence, it found she had received benefits she was not entitled to through submission of overtime and taking time off work without submitting appropriate leave requests. There will be substantial media publicity about this, and reports have been posted by The West Australian, ABC, and Channel 7.
It is important to emphasize that no patient harm has resulted and no research misconduct has been alleged, but clearly there has been loss of funds that were part of our research income. Although there has been no suggestion that I engaged in any misconduct, as Judith’s immediate manager, I will have to bear some responsibility for this.
Following a meeting with Janet Zigari and David Joske this afternoon, I have been informed that NMHS has directed that I take leave effective immediately from SCGH. I hope this will only be for a short time, but it will extend at least until mid-next week when I leave for ESMO and so I am not permitted to undertake any clinical work at SCGH until at least my return from ESMO on October 3.
Of course this will result in unexpected (and I am sure unwanted) additional clinical load being placed upon others. I understand David and Jo plan to meet to devise a plan. When that is done, I am happy to organize a handover of patients. I think it is very sad that patient care could be put at risk because of issues that are not related to patient care, but this is the decision NMHS has made.
I will continue to undertake UWA work, other research work, Linear work etc so you will still see me around!
With best wishes
Michael
(emphasis added)
64 In his examination, Professor Millward said that when he says he ‘had to bear some responsibility for this’, he was referring to how he ‘had put trust in her’ and that because of that, he ‘felt [he] had been betrayed and this outcome had happened’.
65 In relation to the sentence that says ‘as Judith’s immediate manager’, Professor Millward had the following exchange in cross-examination with the Health Service and the Board:
CARROLL, MR: Can I draw your attention to the top of page 117, which is within your email?
MILLWARD, M: Yes.
CARROLL, MR: And you have a sentence there:
"Although there has been no suggestion that I engaged in any misconduct as Judith's immediate manager I will have to bear some responsibility for this."
Now, you said that in your email because you understood yourself to be Judith's - Ms Innes-Rowe's immediate manager, isn't that right?
MILLWARD, M: As I stated yesterday, I - I sent this   
EMMANUEL C: Professor Millward, I think you do need to, where they're such closed questions, answer yes or no, but if the answer's no and you want to say more about it, you've got counsel that can reexamine on the matter?
MILLWARD, M: Okay.
EMMANUEL C: Obviously if you don't know the answer to a question, don't say yes or no, tell us you don't know?
MILLWARD, M: Okay. Thank you. Sorry, would you say the question again?
CARROLL, MR: You've stated in this email that you were Judith's immediate manager. Now, the reference to "Judith" is Ms Innes-Rowe, isn't that right?
MILLWARD, M: That's correct, yes.
CARROLL, MR: And you've stated in the email that you were her immediate manager because in your mind you were, in fact, her immediate manager, isn't that right?
MILLWARD, M: Ah, I don't know what was in my mind then. I was certainly not stating - ah, I was responsible for the misconduct. What I was stating was that I worked closely   
CARROLL, MR: I'll stop you there?
MILLWARD, M:   with her.
CARROLL, MR: I don't think I'm suggesting at all that you were accepting responsibility for her misconduct. What I'm putting to you is you have referred in your email to being her immediate manager and the reason you did that was because you understood in your mind that you were her immediate manager?
MILLWARD, M: Ah, my belief is I was using the term to reflect that I worked closely with her and I'd invested trust in her. I don't think I was using a term to mean in any sort of reporting or strict managerial sense. However, clearly I had worked closely with her, ah, and, um, I felt in terms, as I said yesterday, that because I had trusted her that that meant that in some way some responsibility would have to be borne by me.
CARROLL, MR: That's implausible, Professor Millward. You say in the email that you were her immediate manager. That comes nowhere near simply saying that you had worked closely with her and reposed trust in her. You're stating to your colleagues that you were her immediate manager, isn't that right?
MILLWARD, M: I'm explaining what I thought at the time. Ah, clearly I'm using the term immediate in terms of working closely with, not in terms of any line management responsibility.
66 Professor Millward sent a further email on Monday 23 September 2019:
Dear Colleagues,
I want to thank you for all the calls/messages/emails of support that I have received.
I understand my patients have been divided up into the main clinics and inpatients allocated, so thank you to all who may encounter one. I have been phoned by Jo and Kevin about individual patients and I want to emphasise what I told Jo – I am happy to provide any advice about my patients by phone/message/email especially over the next few days before I leave for ESMO but also thereafter. This includes advice to our trainees and fellows. I think it is imperative that disruption to patient care be minimized and risk of adverse outcomes for both patients and medical staff be as low as possible.
Given some of the media reports following the release of the CCC report, I think it is important to emphasize some points that we all need to be clear on.
Firstly, as I stated below, there has been no harm to any patients, there is no suggestion of any research misconduct or failure to perform clinical trials properly. Our standards of trial documentation, data entry, accrual and other metrics have been and remain very good. I am very happy with our new trials manager, Ed and the team in place now is functioning very well. There are a lot of trials in submission and close to activation. Please defend and support our existing clinical trials unit.
Secondly, the SPA that Judy was paid from receives income from clinical trials based on the CTRAs. It does not receive money from research grants from NHMRC/CCWA etc or from donations to SCGH. Any suggestion that research grants have been ‘stolen’ is incorrect. If you have the opportunity, please reassure granting bodies that SCGH is a safe place to award grants to.
Thirdly, there is no financial ‘crisis’ in the clinical trials unit. I have financial balances for our clinical trial SPAs going back to January 2014. At the time the surplus was $1,507,351. In January 2018 (just after the period that was examined in the CCC report) it was $1,439,109. On 30/6/19 it was $1,979,332. We certainly do not require any financial bail-out as a result of Judy’s conduct reported by the CCC report!
Fourthly, it was stated in the CCC report that there were “two internal reports” recommending disciplinary action against Judy. I was not aware of any such reports prior to the release of the CCC report, and have never been shown these reports. Prior to the CCC report, I was not aware of any internal inquiry into the matters in the CCC report taking place.
I am sure you were all very surprised that this CCC inquiry was going on. I was served a witness summons on May 28 as what is termed a ‘red notice’. This means I was forbidden to tell anyone including colleagues, friends and family about it. Similarly, after giving my evidence on June 28, it was not allowed for me to say anything until the report was made public.
Best wishes
Michael
67 At the hearing, Professor Millward gave evidence:
And on the day of these first emails, Thursday, 19 September, the CCC released a report which stated that they found that Ms Innes-Rowe had engaged in misconduct, for two principal reasons, one of which related to, potentially, claiming overtime when she was not at work. This was, obviously, devastating to myself. I was then summoned to a meeting with the Chief Executive of Sir Charles Gairdner Hospital, it was Janet Zagari and David Joske, the Head of - the Medical Co-Director, and I was informed that, as a result of this, I was to be stood down. Again, this was, obviously, a completely unexpected, unforeseen, and devastating thing to hear. I was in a position where I was a clinician, I had patients in the hospital under my care, I had patients booked in at the clinics in the upcoming days, I had asked them what was to happen, and I hadn’t received an answer other than, “Well, we’ll take care of that”, and so I felt that I should write to my colleagues, informing them of this, and telling them, in essence, what I outlined in that email on the Thursday afternoon. It was a very different time, I felt - I had, obviously, you know, put a lot of trust in Ms Innes-Rowe, we’d worked together a long time, we had - you know, I felt that I had made a - an assessment of her, that she was an honest person, and was, you know, putting the needs of patients in the trials unit forefront, and to see that that may not be the case was very different. And obviously, you know, a big blow to my - well, a big blow to myself to think that I had invested trust in someone in that way.
68 The Health Service cross-examined Professor Millward about parts of the transcript from the CCC proceedings. Professor Millward was asked whether he had agreed before the CCC that Ms InnesRowe reported to him directly. Professor Millward initially said ‘I don't recall that. Ah, if I said she directly reported to me, then that was mistaken’, but after being taken to page  71 of the transcript, specifically lines 24 and 25, he agreed he had said that and added that ‘in the context of the question I believed that to be the case’.
69 In cross-examination Professor Millward confirmed that he agreed before the CCC that:
a. after he was Head of Department, he took on a supervisory role and would have been considered the person that Ms InnesRowe was primarily responsible to;
b. he was ultimately responsible for all staff and approving salary expenditure in the CTU; and that
c. this included approving the payment of Ms InnesRowe’s overtime.
70 The Health Service put to Professor Millward that despite his evidence that he was aware Ms Innes-Rowe frequently worked a lot of overtime, at the CCC hearing he had given evidence that he ‘couldn’t give an accurate answer’ but ‘thought Ms Innes-Rowe worked late once, maybe twice a week’ because it was the truth. Professor Millward said that was what he said at the time and that he was trying to give the CCC an ‘estimate’. He gave an average of the overtime Ms InnesRowe worked.
71 Professor Millward was further cross-examined on the CCC transcript:
CARROLL, MR: And do you recall giving evidence to the effect that since 2013 you have acted as the de facto person responsible for managing the clinical trials unit?
MILLWARD, M: Ah, yes, I don't recall stating that but if I stated that I accept it.
CARROLL, MR: Can I take you to tab 39 of the respondent's bundle that is? And this is a copy of the transcript of your evidence before the Corruption and Crime Commission, is that right?
MILLWARD, M: I believe so, yes.
And if I can take you to page - sorry.
EMMANUEL C: Thank you, go on.
CARROLL, MR: Can I take you to page 70 of the transcript and draw your attention to lines 26 to 28?
MILLWARD, M: Yes, correct.
CARROLL, MR: So you agree that your evidence was that since you were head of department you acted as the de facto person responsible for managing the unit?
MILLWARD, M: Ah, that's what I stated, that's what I thought was consistent with the arrangement that we've discussed, that, ah, I'd undertaken to do at Dr Dewar's request.
CARROLL, MR: And you agree that your evidence there was true in your - to the best of your knowledge and ability?
MILLWARD, M: Yes, yes.
And later:
CARROLL, MR: And do you recall agreeing with a proposition put to you before the CCC that you would be ultimately responsible for all staff and approving salary expenditure?
MILLWARD, M: I don't recall that specific point but   
CARROLL, MR: Can I take you to page 72? And I want to draw your attention to lines 48 to 49?
MILLWARD, M: Yes.
CARROLL, MR: And you agreed with that proposition because it's truthful, is that right?
MILLWARD, M: Yes.
CARROLL, MR: You agreed it's truthful that you were responsible for staff within the clinical trials unit and approving salary expenditure for those staff?
MILLWARD, M: Yes.
CARROLL, MR: And that included Ms Innes-Rowe?
MILLWARD, M: Yes.
CARROLL, MR: And that included approving Ms Innes-Rowe's overtime? Sorry, I withdraw that. It included approving the payment of Ms Innes-Rowe's overtime?
MILLWARD, M: Yes. As I stated, this was in reference to the - ah, to the payroll certification statement   
EMMANUEL C: Well, Professor Millward, I have said this to you a few times, it's not really for you to qualify now unless Mr Carroll's happy for you to continue to answer but if he's putting something to you, you just need to say yes or no. And your counsel will be able to   ?
MILLWARD, M: Okay.
EMMANUEL C:    reexamine you after this?
MILLWARD, M: All right, sorry.
EMMANUEL C: Did you want to put that last question again, Mr Carroll?
CARROLL, MR: You agreed or you do agree or you would agree, sorry, that you were responsible for approving the payments of Ms Innes-Rowe's overtime and this is in the period after you were head of department?
MILLWARD, M: Yes. As I stated, I was approving salary expenditure, that's what I'm saying in those lines, yes.
72 Professor Millward gave evidence that he was invited to and did attend a meeting with Ms Whiteside and Ms Jabr, who worked in human resources. Exhibit AD1 – document 9 is a chain that includes a summary of what was discussed at the meeting:
From: Michael Millward
Sent: Wednesday, 18 April 2018 6:15 PM
To: ‘Whiteside, Sarah’
CC: Millward, Michael; Jabr, Viviane
Subject: RE: [Confidential] Follow-up from HR meeting on 19 March 2018 – Clinical Trials Unit

Dear Sarah,
Thanks for the update. Can we meet on Monday to discuss and progress further. ?2.00pm/2.30pm/3.00pm [sic].
Best wishes
Michael
[email signature omitted]

From: Whiteside, Sarah [mailto:Sarah.Whiteside@health.wa.gov.au]
Sent: Monday, 9 April 2018 3:50 PM
To: Michael Millward <michael.millward@uwa.edu.au>
CC: Millward, Michael <Michael.Millward@health.wa.gov.au; Jabr, Viviane <Viviane.Jabr@health.wa.gov.au>
Subject: [Confidential] Follow-up from HR meeting on 19 March 2018 – Clinical Trials Unit

Dear Michael
I wanted to provide a summary of items discussed, following out meeting on 19 March 2018 with Viviane Jabr, SCGH HR Manager.
Temporary Special Allowances for Judy InnesRowe and Gemma Walker
I sent the completed documentation, including Briefing Note and Request to Fill Forms, to Meredith Walker and Joanne Newson in Medical Specialties Division on 19 March 2018. An update regarding the progress of these requests was provided by Joanne Newson on 4 April 2018, as attached below.
Superannuation on Temporary Special Allowances
As a related issue, I recently received advice from HS Payroll that superannuation is automatically paid on ‘Temporary Special Allowances’, when set-up as such in the payroll system. I know that this has been an issue of concern for Judy. I understand that Judy will be looking into this issue with her accountant at the end of financial year, in order to reconcile the payment amounts, and may submit a claim later in the year if there is a discrepancy.
Recruitment and Selection processes within the Clinical Trials Unit
Viviane Jabr and I will be meeting with Meredith Walker in the next couple of weeks to discuss recruitment and contract renewal processes within the Clinical Trials Unit. We would like to explore whether there are any changes to current practices that could be made to increase stability for your team members, such as longer-term contract periods. The purpose of this meeting would be to explore options for your consideration, and no changes would be made without first discussing them with you.
Overtime
It was recently identified that Judy has worked an excessive amount of overtime over (at least) the last 3 financial years, as shown in table-form below. As per the NMHS Fatigue Management Policy, we have an obligation to manage risks associated with fatigue, including extended or excessive hours of work.
Additionally, the HSU Agreement limits the payment of overtime to staff at HSU staff, particularly at levels G-8 at [sic] above. Staff can only be paid overtime if they are directed to work those additional hours – on each occasion - by their employer. Furthermore, staff at level G-8 and above can only receive paid overtime if (a) rostered to work regular overtime or (b) instructed by the employer to hold themselves on-call, neither of which are likely to apply to Judy’s situation.
Within the HSU Agreement, there is a preference for staff to take “time off in lieu”, rather than receiving paid overtime.
Summary of earnings – Judy Innes-Rowe
Summary of earnings
FY June 2016 – June 2017 [Pay periods 576-601]
Earning Name
Total
Hours
BACKPAY ADJUST WITH SUPER
631.60

BASE HOURS
120,628.50
1,900
GESB WEST STATE SUPER 558
11,979.78

OVERTIME @ 1.5
34,454.79
361
OVERTIME @ 2.5
7,518.36
47
OVERTIME AT DOUBLE TIME
47,050.00
370
PUBLIC HOLIDAY (OBSERVED)
4,842.30

Grand Total
227,105.33

Summary of earnings
FY June 2015 – June 2016 [Pay periods 549-575]
Earning Name
Total
Hours
ANNUAL LEAVE
9,541.52

BACKPAY ADJUST WITH SUPER
111.17

BASE ADJUST
(3,242.27)

BASE HOURS
115,777.98
1,848
GESB WEST STATE SUPER 558
12,596.65

LOADING 17.5% (76)
1,615.80

OVERTIME @ 1.5
39,012.17
415
OVERTIME @ 2.5
4,347.03
27
OVERTIME AT DOUBLE TIME
57,169.81
456
PERSONAL LEAVE CUMULATIVE
3,242.27

PUBLIC HOLIDAY (OBSERVED)
3,214.02

PUBLIC HOLIDAY 1.5
2,335.15
24.8
Grand Total
245,721.30

Summary of earnings
FY June 2014 – June 2015 [Pay periods 523-548]
Earning Name
Total
Hours
ANNUAL LEAVE
19,913.38

BACKPAY ADJUST WITH SUPER
2,582.96

BASE ADJUST
(241.43)

[Remainder of email chain not tendered]
73 Professor Millward gave evidence that at the meeting with Ms Whiteside on 19 March 2018 ‘it was conveyed’ to him that ‘the concern was related to the hours of work and the impact of fatigue’. Professor Millward said that following the meeting he was also told that ‘at a level of 9, [Ms InnesRowe] was not able to work overtime’ Professor Millward confirmed in cross-examination that following the meeting he was ‘informed that in fact Ms InnesRowe under her classification was not entitled to receive overtime’.
74 Professor Millward’s evidence about whether he was surprised that human resources met with him was unclear. He had the following exchange during cross-examination:
CARROLL, MR: Were you surprised when you were called to go to this meeting?
MILLWARD, M: No, because the majority of the meeting is discussing the things that we've already discussed - discussed. Things like the temporary special allowances and I - my understanding of the meeting was that it was primarily to continue the process that was already there. I didn't know until I got to the meeting or I received the invitation to the meeting that there was going to be any specific discussion about overtime.
CARROLL, MR: But when you did discuss overtime you weren't surprised that that discussion was being had with you and not with another person, isn't that right?
MILLWARD, M: It was put to me by Ms Whiteside at the meeting that Ms Innes-Rowe had been working a lot of overtime and there was something for the chief management. Now, why Ms Whiteside raised that issue with me particularly I don’t know but she clearly felt that you know I was the person who should be informed about this.
EMMANUEL C: So Mr Carroll is putting to you that you weren't surprised that it was raised with you?
MILLWARD, M: No.
EMMANUEL C: So is that the case or were you surprised that the issue was raised with you?
MILLWARD, M: I was surprised the issue was raised with me because I had not had any information or any issue relating to overtime before. Is that - is that question    
EMMANUEL C: Is that about being surprised about the content or surprised that it was raised with you as opposed to somebody else?
MILLWARD, M: I was not surprised that it was raised with me.
CARROLL, MR: You were not surprised that it was raised with you?
MILLWARD, M: I was not surprised that if there was such an issue, you know, that it would be brought to my attention.
CARROLL, MR: Yes. And that's because in your mind you were managerially responsible for Ms Innes-Rowe, isn't that right?
MILLWARD, M: No, I - I worked closely with her. I was involved in the work at the clinical trials unit.
I would assume that if someone said, "Look, this person had been required you know to work very long hours" and since then it would be brought to my attention. So because you know I would be a person who could say, "Well, how else could we, you know, restructure the trials unit or - or what could be done about it?"
CARROLL, MR: But wouldn't it be brought to the attention of the line manager, the person said to be working long overtime?
MILLWARD, M: I don't know if that was - would be usually the case or not.
75 When asked whether he thought it was for him to ask Ms InnesRowe to reduce her overtime, Professor Millward said yes. He denied that he was her line manager but said he ‘felt like it was a reasonable request for him to make of her’.
Professor Millward’s submissions
76 Professor Millward submits that at the relevant time, he was not Ms Innes-Rowe’s manager, he was not responsible for Ms Innes-Rowe and oversight/management was not within the ‘performance of his functions’. Professor Millward submits that his ‘functions’ were those he was contracted to perform. That did not include oversight of CTU staff. He argues that there was no contractual variation to make the allegedly negligent conduct part of his functions. Further, Professor Millward submits that he told Dr Joske in March 2019 that he had no line managerial responsibility for Ms Innes-Rowe.
77 More generally, Professor Millward says that he had no handover of, nor induction to, the Head of Department role. He was never given a JDF and he never received any training, advice or instruction about the duties of a Head of Department that were additional to his clinical and teaching duties as a clinical academic. Professor Millward says he received no advice about the industrial agreements that applied to staff for whom he was responsible. He was never given copies of those agreements or advice about their terms.
78 Professor Millward says he was never given any advice about the application of entitlements to overtime payments for any of the employees for whom he was responsible as Head of Department. Professor Millward submits that there was no basis for him to think Ms Innes-Rowe was not entitled to overtime.
79 Professor Millward argues that when Dr Dewar was appointed Head of Department of Medical Oncology, she was formally responsible for the staff employed to work in that department, including Professor Millward and Ms Innes-Rowe. Professor Millward agreed to ‘keep an eye on the CTU’ in a conversation with Dr Dewar but ‘the limits and parameters of Professor Millward’s responsibilities, taken on by reason of this conversation, were never articulated. Professor Millward received no additional remuneration or recognition for any continued role in respect of the CTU.’ Professor Millward argues that that informal arrangement did not alter the formal managerial structure of the Medical Oncology Department. Ultimate responsibility for the department, including the CTU, remained with Dr Dewar.
80 In effect, Professor Millward denies that it was his role or responsibility to approve Ms Innes-Rowe’s overtime. He says when overtime was paid to her, the payments were made without any action being taken on his part.
81 Professor Millward says he monitored the overall wages paid from the SPAs and the magnitude of overtime claims, ‘including as revealed by the Payroll Certification Statements’ to ensure the SPAs remained in credit.
Health Service’s submissions
82 The Health Service argues that the contemporaneous documents overwhelmingly support a finding that Professor Millward was managerially responsible for Ms Innes-Rowe at the relevant time, and responsible for approving her overtime. The Health Service submits that Professor Millward admitted as much under affirmation before the CCC.
83 The Health Service argues that the documents show Professor Millward:
a. was identified in briefing notes as Ms Innes-Rowe’s manager and as the person advocating for a special temporary allowance to be paid to her;
b. was the person human resources met with to discuss Ms Innes-Rowe and recruitment at the CTU;
c. received Ms Innes-Rowe’s P6 Overtime Forms for three years without objecting or telling anyone he should not be receiving them;
d. was the person to negotiate and arrange the Hays Contract relating to Ms Innes-Rowe;
e. notified staff about happenings and changes at the CTU as one would expect a manager would;
f. referred to himself as Ms Innes-Rowe’s immediate manager in the aftermath of the CCC report;
g. would be one of the signatories of new offers of employment to Ms Innes-Rowe; and
h. met with Ms Basile before taking long service leave to discuss the management of the CTU during his absence.
84 The Health Service submits that the only evidence suggesting Professor Millward was not managerially responsible for Ms Innes-Rowe was his evidence in chief before the Board. That evidence was self-serving and undermined by overwhelming evidence to the contrary.
Was Professor Millward’s oversight negligent or careless in all of the circumstances?
Professor Millward’s evidence
85 Professor Millward gave evidence that he was not given any training when he was made Head of Department. He was not given any instructions about how to approve overtime claims by people reporting to him. In examination in chief, Professor Millward gave evidence about his understanding about his responsibility for approving overtime from someone reporting to him, saying ‘I do not think I had a clear understanding. From a medical point of view… it’s basically done on trust.’ He said that when he was copied in to emails attaching Ms Innes-Rowe’s P6 Overtime Forms he generally did not look at them, saying ‘I can’t tell you that I never did but I certainly would not have routinely done so.’ Professor Millward said that he does not remember ever looking at a P6 overtime claim form and seeing a box popping up that required him to do anything.
86 Professor Millward gave evidence that he ‘didn’t directly approve the payments of overtime to Ms Innes-Rowe’ but that, because he received the P6 Overtime Forms, he was ‘aware that overtime was being worked by Ms Innes-Rowe and others. And in a sense that I was aware of it and was happy with it, yes, I was in approval of it.’
87 In cross-examination the Health Service put to Professor Millward that the following factors show it was careless of Professor Millward to not review the P6 Overtime Forms that were copied to him:
a. Professor Millward was identified as the manager on the forms;
b. Professor Millward never questioned why the forms were being sent to him over three years;
c. Professor Millward had looked at some of the forms, so he knew what they were about; and
d. Professor Millward was responsible for approving Ms Innes-Rowe’s salary, including overtime salary.
Professor Millward did not directly answer that proposition, saying:
MILLWARD, M: Ah, I was aware of her overtime, ah - ah, salary and overtime from the payroll certification form, so I wasn't relying - expecting to rely on a P6 form to tell me that information, ah   
EMMANUEL C: Just as a starting point do you disagree with the proposition Mr Carroll has put to you?
MILLWARD, M: Ah, I disagree that what you have said means that it was careless although in retrospect given what we know I can see how that could be inferred.
CARROLL, MR: And when you say "Given what we know" are you merely referring to that we now know Ms Innes-Rowe may well have been fraudulent?
MILLWARD, M: Yes.
CARROLL, MR: And so it's not those other factors that I identified, which you - sorry, I withdraw that. It's not the other factors which I identified which cause you to say in retrospect it may have been careless not to review those forms?
MILLWARD, M: No, I considered I was getting information about her overtime from the payroll certification forms.
CARROLL, MR: But the payroll certification forms didn't provide information as to what days she worked or what days she claimed to work overtime, is that right?
MILLWARD, M: That is correct, yes.
88 In cross-examination, the Health Service took Professor Millward to several of Ms InnesRowe’s overtime forms. The Health Service pointed to examples of where Ms InnesRowe claimed to have worked overtime including:
a. until 11:50pm on four occasions;
b. regularly more than 10 hours per day;
c. 15 hours per day on two days;
d. 14 hours per day another two days; and
e. 55 hours’ overtime across two weeks.
89 The Health Service put to Professor Millward that 55 hours’ overtime is substantial across two weeks. Professor Millward replied: ‘Um, so I guess if you look at the dates it goes from 15/2 to 3/3, which is roughly two and a half weeks but regardless, yes, I would agree that that’s a substantial amount of time.’ He said that Ms InnesRowe was ‘regularly working long hours’ and that the job required long hours. Professor Millward would not concede that he ‘should have asked her what particular tasks she was working at that time’. Initially Professor Millward did not concede that a reasonable manager would have questioned why an employee needed to work such long hours, explaining that ‘this is the health sector, people work very long hours it’s certainly not unusual’.
90 Professor Millward said that he was aware Ms InnesRowe was working overtime frequently and irregularly. There were some periods of time where she would not work overtime at all and some periods where she would work a lot.
91 Later, the Health Service put different examples of Ms InnesRowe’s overtime to Professor Millward and said:
CARROLL, MR: Would you agree that if you had reviewed this form properly at the time when you were copied in you should have questioned why Ms Innes-Rowe was working such long hours?
MILLWARD, M: Um, I think this is the same question you asked on the other form, so   
CARROLL, MR: It is?
MILLWARD, M:    I'd give the same response.
CARROLL, MR: Is the answer no?
MILLWARD, M: The answer is that, ah, I knew that she was working overtime on occasions and there were periods when she would do a lot of overtime.
CARROLL, MR: And that doesn't really answer the question. The question is would you agree, if you had reviewed this form properly at the time, that you should have questioned why Ms Innes-Rowe was working such long hours?
MILLWARD, M: Ah, if I had, ah, reviewed this form at that time, and I'm not saying I did or I didn't, you know, I would have, ah, been aware that she was working a lot of overtime, which I was aware that she did, ah, and I may have asked what particular issues were - were making her so busy at that particular time.
EMMANUEL C: I think Mr Carroll is putting something different to you and he's entitled to put whatever he likes as long as it's relevant. He is saying if you had reviewed it properly you should have done this thing. And I'm getting the impression you disagree with the proposition but you're not being clear about whether you do or don't. You're answering a slightly different proposition, so I'm going to ask you to answer what he's put. But your counsel will reexamine you on this?
MILLWARD, M: Sure. Sure, okay.
EMMANUEL C: I expect. I mean   ?
MILLWARD, M: All right.
EMMANUEL C:    it's open to her to reexamine you on matters that arise in crossexamination?
MILLWARD, M: Okay, sure.
EMMANUEL C: So you're saying a proper - is the gist of your question, Mr Carroll, a proper review meant that you should - you would have or you should have questioned why Ms Innes-Rowe was working such long hours? A proper review of this form means you should have questioned the long hours.
CARROLL, MR: Yes.
EMMANUEL C: Do you agree with that or not?
MILLWARD, M: Ah, yes.
EMMANUEL C: Okay?
MILLWARD, M: Yes.
CARROLL, MR: And would you agree that a proper review of the form would cause you to - should cause you to question whether it was safe for Ms Innes-Rowe to be working such long hours?
MILLWARD, M: I'm not sure what you mean by the word "Safe". Um, clearly it was subsequently bought to my attention that there was a policy relating to fatigue, ah, so but whether this form in itself would have meant that it would triggered a concern I don't know. As I said, it would require a longer period of time to determine, you know, the frequency of these events.
CARROLL, MR: But without knowing about a policy for fatigue you would agree, wouldn't you, Professor Millward, as someone who was a line manager for people when you were head of department that there's a responsibility to ensure that staff are able to perform their duties without being seriously fatigued and causing a risk to themselves?
CARROLL, MR: Would you agree with that?
MILLWARD, M: Yes, of course. Of course.
CARROLL, MR: Because on this form Ms Innes-Rowe is claiming to work to 11 pm having started at 8.30 am on a number of occasions. Wouldn't you query whether it's safe for her to be working those hours and then driving home late at night?
MILLWARD, M: Um, as I stated before, um, this is a - this is a health sector, you know, there are a lot of people who work very long hours, you know, so I'm not sure that it would have specifically raised that level of concern. I'm - I'm aware that people work a lot of long hours in health, in you know. Would I have been concerned that she would have been at particular risk of fatigue, ah, in driving home I don't think that would have occurred to me.
CARROLL, MR: Because you were aware people work long hours in health. Do you consider that means managers have no responsibility in health to worry about the long hours being worked by their subordinates?
MILLWARD, M: No, I totally agree they should.
92 When asked by his counsel whether he was ‘able to observe by any means the amount of work that [Ms InnesRowe] performed’, Professor Millward said:
MILLWARD, M: I certainly couldn't physically observe her at work. She - as the manager she would not usually come to a clinic or a specific clinical trial patient. This would be, you know, the lower level staff. Her office in the Clinical Trials Unit was not visible from where I was doing my clinical work in the cancer centre and you know, I would - if - to see her in her office I would have had to go to her office door and knock on it and see if she was actually there which I would not do unless I particularly needed to see her at a time.
STANTON, MS: So by what means did you have any knowledge of the work that Judith Innes-Rowe did?
MILLWARD, M: So obviously, you know, I was aware of things like protocols were being submitted, trials were opening and closing, I was aware - I would meet her generally on a weekly basis, sometimes just her sometimes with the level 7 person and we would discuss, you know, any particular issues that they felt they needed my input or advice on. Obviously I would see her from time to time in the department and I would receive emails and communications from her frequently about various topics.
STANTON, MS: About how often did you meet with her?
MILLWARD, M: It would have - generally about once a week.
STANTON, MS: Did you ever speak to her on the phone?
MILLWARD, M: From time to time but normally we would communicate by email because, you know, obviously if I happen to be seeing patients it wouldn't have been convenient for me to stop that and have a phone conversation. So our usual communications were by email.
STANTON, MS: And did you notice that you were receiving emails only in business hours or outside as well?
MILLWARD, M: I was receiving emails both inside and outside of, if you like, normal business hours. In fact, it - it became clear to me, you know, even before I was Head of Department that she was working long hours and I would receive emails, you know, often quite late in the evening.
STANTON, MS: So given those observations did you form any impression as to the likely usual weekly hours of work of Judith Innes-Rowe?
MILLWARD, M: I don't know that I formed a - in my mind a numerical figure but I was aware that she frequently worked after hours and on weekends.
93 Professor Millward also gave evidence that no one had suggested to him Ms InnesRowe might be dishonest or making dishonest overtime claims or given him any information about the times she entered and exited the CTU.
94 Professor Millward was asked in cross-examination about whether he approved Ms InnesRowe’s overtime:
CARROLL, MR: Yes. So you were approving the payment of salaries to staff in the clinical trials after you were head of department?
MILLWARD, M: I was completing the payroll certifications, yes.
CARROLL, MR: And you understood that that meant that you were approving the payment of salaries to those staff?
MILLWARD, M: Yes.
CARROLL, MR: And that included Ms Innes-Rowe?
MILLWARD, M: Yes.
CARROLL, MR: And you were also responsible for approving the payment of overtime to staff within the clinical trials unit?
MILLWARD, M: I didn't directly approve the payments of overtime to Ms Innes-Rowe. But as I discussed, because I received the P6, I was aware that overtime was being worked by Ms Innes-Rowe and others. And in a sense that I was aware of it and was happy with it, yes, I was in approval of it.
CARROLL, MR: But you were - not only were you in approval of it, you were the person responsible for approving the payment of overtime for Ms Innes-Rowe, isn't that right?
MILLWARD, M: From the P6 forms, yes. From the - sorry, the payroll certification forms, yes.
95 Later in cross-examination, Professor Millward confirmed that no other employees copied him into emails with P6 overtime claim forms between 2014 and 2017.
96 Professor Millward spoke about Exhibit AD1 – document 6, which was a reply from HCN (later renamed HSS) to an email sent by Ms InnesRowe that attached a P6 overtime claim form. The email is dated 28 November 2017 and copied in Professor Millward. It says:
Hi Judy,
We have received your request for overtime from the above employees. As of the 20/11/2017 the NMHS Authorisation Schedule has changed and consequently this form is unable to be processed at this time.
Please resubmit your request with updated authority.
Should you have any queries regarding this email, please contact NMHS HR Services.
Tier 3
Director Finance & Business

Nse-Mid Co-Director

Director Youth Mental Health

Service Co-Director

Nse Mid Co-Director

Nse Mid Co-Director

Nse Mid Co-Director

Nse Mid Co-Director

Director Allied Health Services

Director Safety Quality and Performance

Mid Director-Statewide Obstetrics

Director Regional and Support Services

Director Finance and Business

Director Projects

Director Projects

General Manager Dental

Director Clinical Services

Director Clinical Services

Director Genetic Services

Thank you
Rebecca Wilson | Senior Payroll Officer
97 Professor Millward explained that Health Corporate Network/Health Support Services was an entity created to undertake payroll and human resources tasks across the Health Service. He explained that this email was the first time anyone had brought to his attention that there had been an ‘authorisation change’.
98 The North Metropolitan Health Service Authorisations, Delegations and Decision Making Schedule is Exhibit RD1 – document 30. Professor Millward’s evidence was that the first time he saw this document was in preparation for these proceedings.
99 Professor Millward was cross-examined about the email at [96]:
CARROLL, MR: We're at tab 6 of the appellant's bundle. So this is an email from HSS to Ms Innes-Rowe, which you were copied into, is that right, Professor Millward?
MILLWARD, M: Ah, correct, yes.
CARROLL, MR: And in this email HSS or where a person from HSS is informing Ms Innes-Rowe that the North Metropolitan Health Service authorisation schedule had changed and the form was unable to be processed at this time?
MILLWARD, M: Ah, that's what it says, yes.
CARROLL, MR: And did you understand from that email that you did not have the authority then to approve overtime?
MILLWARD, M: Ah, I don't think I understood at the time exactly what it meant. I was copied into it, so I probably didn't pay a great deal of attention to it, but, ah, it says what it says, yes.
CARROLL, MR: But you would have understood at least that in order to approve overtime you needed to be authorised to do so?
MILLWARD, M: Ah, I would - ah, I would have understood that, yes. And that what it is stating here that there is a - a list of people or list of positions, um, which are labelled tier 3.
CARROLL, MR: Yes. And none of them were your position, were they?
MILLWARD, M: Correct, yes.
CARROLL, MR: In fact, they're all people who would when you weren't head of department they would be essentially two layers above you, is that right? You would report to the head of department and then the head of department and then the head of department would report to someone within these roles that are in front of you?
MILLWARD, M: Ah, I'm not sure I was aware at the time exactly what tier but, ah   
CARROLL, MR: Don't worry about the word tier?
MILLWARD, M: Yes.
CARROLL, MR: I'm just talking about those particular positions. So I think your evidence was that the head of department reports to one of the codirectors, is that right?
MILLWARD, M: Ah, yes, that's - that's what - that was correct when I was head of department. I'm not aware if there was a thing called a tier 3 or a tier 4 at that time.
100 Professor Millward was asked: ‘After that email was received, had you been copied into any overtime claim forms or had anything to do with any sort of approving of overtime?’. He replied: ‘I don’t recall being copied into any overtime claim forms, no.’
101 In relation to the Pay Certification Statements, Professor Millward gave evidence that he would usually click on the box that says ‘payroll certification’. He said there were ‘certainly some times when I didn’t click on it.’ No one would raise with him if he did not click it and he had never heard of people not being paid because he did not click the button.
102 The Health Service put to Professor Millward that in his Amended Notice of Appeal, Professor Millward denies that he approved Ms InnesRowe’s overtime. Professor Millward explained that he draws the distinction between ‘approval of the overtime P6 form and the authorisation of payment on the payroll certification form’. Professor Millward agreed that when he says he did not approve Ms InnesRowe’s overtime, he accepts that he approved the payment of her overtime through the Pay Certification Statements.
103 When asked if he was not only ‘in approval’ of Ms InnesRowe’s overtime, but whether he was ‘the person responsible for approving the payment of overtime for Ms Innes-Rowe’, Professor Millward said: ‘From the P6 forms, yes. From the - sorry, the payroll certification forms, yes.’
104 Professor Millward gave evidence about Exhibit RD1 – document 48, which contained a bundle of emails addressed to him as the ‘Certifying Officer’ and attaching Pay Certification Statements. He said that he would usually (but not always) click on the grey box that says ‘Payroll Certification’ and that this is part of what he did while he was ‘keeping an eye’ on the CTU for Dr Dewar. If he did not click it, he said that nothing happened. Professor Millward explained that staff were paid from two different SPAs.
105 Professor Millward’s counsel asked him whether he ‘formed an impression of Ms InnesRowe’s overtime claims as a result of looking at these documents’. Professor Millward said:
MILLWARD, M: Yes. I was aware that she was claiming overtime and was being paid overtime, yes, by looking at these documents.
STANTON, MS: Right. And did you form an impression about the magnitude of the claims?
MILLWARD, M: No, I didn't form a specific impression of the magnitude of the claims, I was aware that she was working quite a lot of overtime but I did not prior to 2018 consider that the magnitude in total and I hadn't, for example, sat down and totalled them up or anything like that.
STANTON, MS: Yes. So as - if you look at it in real time so putting yourself back into the - the point in time where you would be looking at these documents obviously fortnight by fortnight or period by period, as it went along did you form any impression or any assessment of the magnitude of the claims?
MILLWARD, M: No, not to the extent that I could have kept in my head a running total or anything like that. I was aware there were times when she claimed overtime. I was aware there were claim - times when she did not. I was aware that there were periods when she would work overtime more than other times but in terms of did I have an idea in my head of the exact number of hours or the number of - or the amount of overtime dollars, no.
STANTON, MS: Okay. And then what about on a - a fortnight by fortnight basis, so if you just focus on a - a - a moment in time when you're looking at payroll statements, did you form any view about the amounts that you would see on these payroll certification statements as you went through them in real time? Did you form any view about the amount claimed?
MILLWARD, M: Well, as I said, clearly at times there were fairly large amounts and sometimes there was none. But I didn't form an impression in the sense that there was any particular pattern to it or that there was any particular threshold that, you know, triggered in my mind that there was something potentially amiss, no.
STANTON, MS: Did - did the magnitude of the claims - and I'm talking on a fortnight basis, a payroll statement by payroll statement basis, did it ever surprise you?
MILLWARD, M: No, no, not surprise me, no.
STANTON, MS: And why is that?
MILLWARD, M: Because I knew that she was working quite a lot of overtime.
106 In cross-examination, Professor Millward agreed that he regularly received Pay Certification Statements to certify. He would receive them by email, and the email contained instructions about how to complete them. Examples of these are in Exhibit RD1 - document 48. Professor Millward agreed that he received statements like this about certifying Ms InnesRowe’s pay between 2015 and 2017, and clarified that he ‘probably received them after 2017 as well.’
107 Professor Millward denied that he ‘only considered [his] role in approving these forms was to ensure that there was enough money in the special purpose account to pay the stated amounts’. However he agreed that in his Notice of Appeal and the letter from his solicitor to the respondent in response to the allegations that he said the ‘primary’ reason he considered he was reviewing the Pay Certification Statements was ‘to gain understanding of the total amount of expenditure’ because it was his responsibility to ensure the SPAs remained in credit.
108 The Health Service pointed out that in the letter from Professor Millward’s solicitor to the Health Service putting Professor Millward’s response to the allegations to the Health Service, it was said on Professor Millward’s behalf that his ‘only role in relation to the payroll certification statements was to ensure the special purpose account remained in credit.’ Professor Millward agreed that is what the letter says and accepted that ‘in reviewing and signing off on those pay certification statements that part of [his] role was in that [he] needed to determine if the employees were entitled to receive the payment for the period specified’.
109 Professor Millward said he did not remember the instructions contained in the covering email to the Pay Certification Statements. The Health Service took Professor Millward to an example of the Covering Email and asked if Professor Millward agreed that he was told his role ‘was to ensure that the persons listed are entitled to the pay set out in the statement’. Professor Millward said:
MILLWARD, M: Ah, as I stated, I was - I - I understood, ah, that I was saying that this person is entitled to receive payment   
CARROLL, MR: Yes?
MILLWARD, M:    from this SPA.
CARROLL, MR: But also they were entitled to the quantum of payment, which was sought in the payroll certification statement?
MILLWARD, M: Ah, that I consider the quantum of payment reasonable, yes.
CARROLL, MR: Well, not reasonable, you needed to consider that they were entitled to the payment?
MILLWARD, M: That they were entitled to the payment, yes.
CARROLL, MR: Yes. And keeping on tab 1 on that email the emails that you received accompanying these statements provided links with further information about checking payroll certification statements, do you agree with that?
MILLWARD, M: Ah, yes.
CARROLL, MR: Did you ever click on these links?
MILLWARD, M: Not that I recall, no.
…
CARROLL, MR: But you still knew even if you didn't click on the link you knew that it was your responsibility for approving the payments in the pay certification forms, is that right?
MILLWARD, M: Correct, yes.
110 Professor Millward explained that each month, he received an account statement for both SPAs. He would look over them ‘to get an idea of the overall cash balance and make sure we weren't, if you like, running down our surplus and that it was maintained at a reasonably static or slowly increasing level.’
111 Professor Millward agreed during cross-examination that after he stopped being Head of Department he ‘remained responsible for the budget of the clinical trials unit’. When the Health Service put to Professor Millward that he ‘remained responsible for approving the payment of salaries for people in the clinical trials unit’, Professor Millward said: ‘I continued to receive the P6 payroll certification forms that we just discussed, which were sent to me as the signatory to the special purpose accounts from which their salaries were paid, yes.’ Later in his testimony Professor Millward agreed he approved the salary expenditure, which included the payment of Ms Innes-Rowe’s overtime.
112 Professor Millward said that he ‘had knowledge of the SPAs that [Ms Innes-Rowe’s contract] was being paid from’ and that he ‘approved the appointment of somebody to a position which would be paid from one of those cost centres’.
113 Professor Millward said he was not aware that there was any level of review of the SPA spending other than the Pay Certification Statements he was sent.
Dr Chee’s evidence
114 Dr Raphael Chee gave evidence for Professor Millward. He worked as a Radiation Oncologist Consultant at SCGH from 2009 to 2013. From 2011 to 2013, he was Head of Department of his unit. Dr Chee said that he expressed concerns to the Executive team that he did not feel well-equipped to take on the Head of Department role because he was very young and still learning the trade. Dr Chee received no formal induction or training about what was required of a Head of Department.
115 Dr Chee gave evidence that one of his Head of Department duties included approving overtime claims submitted by staff. Dr Chee said that he was not given direction, training or instruction about what to do with the forms, but was ‘just told to sign the forms.’ Dr Chee said that he had no way of knowing whether staff had worked the overtime they were claiming and he ‘assumed they were telling the truth.’
116 In cross-examination, Dr Chee explained that as Head of Department he approved overtime for 200-250 staff, including nurses, therapists, reception staff and junior doctors. Dr Chee said that he relied on his personal assistant to collate the overtime forms and review them before he signed off on them, ‘especially if there’s a few of them.’ Dr Chee’s evidence was that he ‘would have a quick glance over – over the – a quick glance over the page and see if anything stands out.’
117 Dr Chee agreed that junior doctors were only entitled to overtime if their overtime was authorised at the time they worked the overtime. Dr Chee agreed that if a significant amount of overtime was sought, he would question whether or not he should approve it, and he would be concerned about whether the junior doctor was working too many hours. Dr Chee agreed that if a person was regularly working until midnight, having started at 8.30am, he would question the claim for overtime ‘if it’s consistent.’ Dr Chee agreed that he would be concerned about that person’s welfare and whether strategies could be put into place so that they did not need to work such long hours.
118 Dr Chee gave evidence that he did not know what Pay Certification Statements are.
Dr Phillips’ evidence
119 Dr Martin Phillips gave evidence for Professor Millward. He was a Respiratory Consultant at SCGH from 1983 to 2017. During this time, Dr Phillips worked in different roles within the hospital and Health Department and was Head of Department of Respiratory Medicine from 1993 until 2003.
120 Dr Phillips said that it was part of his role while he was at SCGH (including when he was not Head of Department) to approve overtime for staff. He approved overtime for junior medical staff. Consultants did not have overtime. Dr Phillips also ran a clinical trials unit that had three or four staff members, including a Clinical Trials Manager. From time to time, Dr Phillips would approve overtime for them too, ‘but that was a separate system, ah, run on a special accounts – um, ah, a special purpose accounts, ah, fund.’ The effect of Dr Phillips’ evidence was that he approved overtime for the staff in the clinical trials unit from around 1984 until almost 2017 when he left.
121 Dr Phillips’ evidence is that he was never given any instruction or training on how to approach approving overtime for the clinical trials staff. He said:
PHILLIPS, M: I mean basically the SPA accounts, the special purpose accounts, were set up, um, ah, to be - well, they were - obviously came under the aegis of the, um, Health Department because of - for, ah, tax purposes in - in a sense, um, because they became nontaxable. But, ah, they really were there to run, ah, the trials and the moneys which went into them came from, ah, pharmaceutical companies or other - or other sponsors, um, and it was, therefore, our responsibility to manage those accounts. But the only instruction, well, there were two instructions, one was what would you spend the money on, for example, wages, ah, or salaries rather, ah, overtime, expenses related to the research, um, et cetera. But you - the only real, um, provision was that you maintained a positive balance, you remained in credit, so you couldn't overspend on the, ah, account and it had to be used for the purposes that had been established, ah, the ones which I have just detailed.
STANTON, MS: All right. So to come down to specifics, if the Clinical Trials Manager sends you by email or gives you in any other way a document that amounts to a claim for overtime when you were in that role of having to approve or disapprove of that overtime, what did you do? How did you approach the task?
PHILLIPS, M: Well, ah, provided that it appeared reasonable that - I mean there certainly were occasions when overtime was - was needed. I mean the roles of the Clinical Trials Manager, ah, was not only in dealing with actually running of the trial but also (indistinct 9.59.30) submission, um, ah, liaison with the pharmaceutical companies et cetera, um, establishing rosters, ah, for work. And - and the trials didn't necessarily fall into the need - you know, ah, eight to five weekdays, ah, they would extend to other occasions. Um, so those would be situations that I would sort of sign off on the actual time involved in - in maintaining the trial. Now, um, the Clinical Trials Manager would have, ah, ah, okayed to me in a sense, um, that, ah, the people who are, ah, under her, ah, were the other research members of the - other members of the research team had, in fact, um, done those, ah, tasks and that extra time was required and, um, and similarly for herself. But in this situation there's no particular way that I could, ah, check on it, um, because there weren't a sort of - there wasn't a clock in clock out mechanism or anything like that. Ah, so a lot of it was on trust and trust is obviously important in - in teams, small teams, and on the likelihood of it being appropriate in terms of the requirements and the time.
122 Dr Phillips gave evidence about Professor Millward’s workload and said that he thought the Medical Oncology CTU was ‘much more intense’ than the Respiratory clinical trials unit. He thought Professor Millward would have been involved in many more trials than Dr Phillips was and Medical Oncology was short-staffed.
123 In cross-examination, Dr Phillips agreed that:
a. one of the rules of the SPAs was to be sure that money being spent was for a purpose allowed under the account;
b. the second rule was that the SPA must remain in the positive;
c. he must think about the quantum of the expense and whether or not the expense is properly incurred; and
d. when he was given an overtime form, he would check that it looked reasonable in light of the facts he knew.
124 Dr Phillips also agreed in cross-examination that he approved overtime for employees in the CTU for periods when he was not Head of Department.
Ms Stagg’s evidence
125 Ms Melissa Stagg gave evidence for the Health Service. She is the Operations Manager for Payroll Services at HSS. HSS provides shared corporate services to the health service providers that make up WA Health. Previously, HSS was called HCN and was part of the Metropolitan Health Service.
126 Ms Stagg gave evidence that the Operations Manager is responsible for the daily payroll activities that occur for the whole of WA Health. Ms Stagg manages seven teams that do ‘transactional payroll activities’. Ms Stagg has also worked as Manager, Payroll Strategy Assurance and Compliance. She could not recall which role she was doing in 2013.
127 The effect of Ms Stagg’s evidence is that the Operations Manager oversees the fortnightly pays. She does this by meeting with a group of team leaders and receiving indirect reports from payroll consultants. Ms Stagg has regular daily meetings with those people. She said:
STANTON, MS: Right. And is part of the oversight to look for any irregularities in terms of HSS processes?
STAGG, M: Um, I - it's not - I don't proactively look for any irregularities in the, um - there is an assumption that there, um - a lot of our processes have been set up to, um, work as they should be in the line with, um, what's expected from our, you know, within proper authorised documents to come in in order to - to produce a payment.
We need our rosters authorised et cetera. From time to time it's bought to our attention that we can improve what we're doing and - and do better and we - we make adjustments accordingly.
STANTON, MS: Okay, but the data that's coming to you from your customers, your health service, health services, health service providers is part of what HSS is set up to do to make sure that the data that comes in is compliant with HSS processes?
STAGG, M: Yes.
128 Ms Stagg gave evidence that payroll staff are not required to have a particular qualification. Payroll consultants are paid at level 4 under the HSU Agreement.
129 Ms Stagg gave evidence about the payroll system and Ms Innes-Rowe’s salary rates. HSS deals with two payroll systems. About 75% of employees are paid using a very old system called Lattice that contains ‘everything we need to do in order to pay someone’, including a person’s position information, bank details, tax details, attendance and ‘information that goes into making up a fortnightly pay’. The system also contains a history of the payments that have been made. Ms Stagg said that the main way that data is entered into Lattice is manually, by payroll consultants who report to Ms Stagg. Ms Stagg said that she doesn’t have access to Lattice herself, because she does not make the payments, but her Team Leaders do. From the information those Team Leaders gave Ms Stagg, she can determine the salary level that Ms InnesRowe was paid between 2011-2018.
130 Ms Stagg gave evidence about Exhibit RD2A, which was a screenshot from the Lattice payroll system and another set of data that she said was extracted from the data warehouse that ‘just shows that there was, um, temporary special allowance’.
131 In relation to the Lattice screenshot, Ms Stagg explained that the column marked ‘DTE EFF’ means ‘date effective’. Where there is a change in salary, a new line is added. Where it is marked ‘AG4091’, that represents a level 9.1. AG4092 represents level 9.2 and AG4082 represents level 8.2.
132 For the warehouse data, Ms Stagg gave evidence that the table shows there was temporary special allowance paid. A temporary special allowance will top up a person’s base rate of pay, similar to a higher duties allowance. For example an employee could be on level 5.4 but be paid at level 9.1 by having a special allowance added to their base rate of pay. Ms Stagg confirmed that the warehouse data relates to Ms InnesRowe. The columns marked ‘period start date’ and ‘period end date’ represent the pay periods the allowance was paid for. The column labelled ‘Rate ID’ refers to the base salary rate that the person was on at the time. Earnings ID ‘would be the temporary special allowance ID’. A final table included in Exhibit RD2A showed the salary rate for Ms InnesRowe.
133 Ms Stagg’s evidence was that the person’s pay rate (from the relevant industrial agreement) is put into the system, and that then once the person’s hours are added, the system calculates the pay rate. Allowances are also entered into the system. The system does not highlight errors such as whether a person is entitled to overtime. The payroll officer has to notice that. HCN relies on the manager having made the approval for payment over and above what is in the industrial agreement. Sometimes payments are authorised above what is in an agreement. This authorisation is made on a form that has been approved by the appropriate delegated person.
134 Ms Stagg gave evidence about Exhibit RD2B. She said that document is also an extract from the data warehouse. It summarises what a person has been paid over a period of time without needing to go through screen by screen or pay by pay. Exhibit RD2B relates to Ms InnesRowe. It shows the pay period start date, end date and what was paid. In the code description section, one is coded 105 and the other 106. Ms Stagg explained that 105 means overtime at time and a half, and 106 means overtime at double time. The table shows which hours were at each different rate.
135 Ms Stagg gave evidence that where a person is being paid a higher temporary special allowance, if they are paid overtime then that overtime is paid at the higher temporary special allowance rate. The effect of Ms Stagg’s evidence was that Ms Innes-Rowe was paid $244,937.30 in overtime during the relevant period.
136 Ms Stagg gave evidence about approval of overtime. She agreed in cross-examination that in 2011, an employee could fill out a P6 overtime claim form, insert the name and HE number of the supervising person and send it in without any signature and without copying in the manager. At that time, it may not have been irregular but HCN subsequently ‘put something in place to say that we needed – the email needed to match the person, um, who had filled out the – the manager details.’ HCN processed overtime using the P6 Overtime Forms and then caused Ms Innes-Rowe to be paid in relation to both her salary and her overtime.
137 Counsel for Professor Millward put multiple examples of P6 Overtime Forms to Ms Stagg, including examples of P6 Overtime Forms where the name ‘Michael Millward’ is inserted as the manager, that were sent to HCN and that did not copy in Professor Millward. Ms Stagg agreed that at that time, that could have happened without HCN seeing it as irregular. She said it would not have been unusual for an assistant to fill in or submit forms on behalf of the manager. Ms Stagg agreed that there is no way of knowing from HCN’s point of view from looking at the overtime forms, where the form was sent to HCN by someone other than Michael Millward, that Michael Millward has approved the overtime.
138 Ms Stagg gave evidence about an email from Mr Siviour that says ‘On behalf of Michael Millward please process the following form’ and that attached a form with ‘Michael Millward’ named as manager:
STANTON, MS: A person has put it. So again, there's no indication using that example from Mr Siviour that Michael Millward has seen or approved the overtime, is there?
STAGG, M: Um, I - I don't know.
STANTON, MS: Really? Because all the other times I've asked you that question, Ms Stagg, you've been happy to agree with me that   ?
STAGG, M: But this   
STANTON, MS:    from HCN's point of view if the email wasn't copied to Michael Millward on the face of these documents there's nothing to show that Michael Millward has actually seen or approved this form. Isn't that your evidence?
STAGG, M: Ah, yes, but I've got no reason to believe that Mr Siviour didn't submit this form on behalf of Mr Millward and that Mr Millward had - could have filled this form out and Mr Siviour then submitted it on his behalf.
STANTON, MS: So you   ?
STAGG, M: As you said that in his email because the other emails didn't say that.
STANTON, MS: Okay. So you'd be trusting Mr Siviour by reason of him saying "On behalf of Michael Millward please process the following form", you'd be trusting Mr Siviour to have run it past Professor Millward?
STAGG, M: Yes.
139 Another example put to Ms Stagg related to a form attached to a covering email from Ms Granner, who said: ‘As this is my first time completing the overtime section I would appreciate your correcting these columns if they are filled out incorrectly.’ When asked what HCN payroll would do if they received a question or request like that, Ms Stagg said:
STAGG, M: Um, we would read the email. If there was anything that we felt was missing from the form we would go back and ask the person or let them know that there was something that was missing. So, for example, if the manager's approval at the bottom of the form was missing but if the - it would be reasonable to assume that the times that have been put into the form were correct and that we would process it on that basis.
STANTON, MS: And the fact that, if we look on page 420 to the accompanying P6, the fact that someone has written in Michael Millward and an HE number that wouldn't look irregular to the person even though they'd been asked to especially check this one?Um, no, it wouldn't be.
140 After looking at a number of P6 Overtime Forms from across two years, Ms Stagg agreed that ‘most of the time the person sending the email is not the person with their name at the bottom of the form as the manager of the claimant’.
141 Ms Stagg gave evidence about a P6 overtime claim form relating to the period 16 February 2014 – 26 February 2014. Ms InnesRowe had submitted her own form. Ms Stagg agreed that HCN should have been alert to that irregularity and should have sent the form back to Ms InnesRowe, asking for it to be resubmitted by the appropriate person. Ms Stagg said the appropriate person would have been the manager or somebody other than herself. Counsel for Professor Millward put a bundle of overtime forms to Ms Stagg, who accepted that ‘this is the way these forms are submitted on a regular basis all the way through 2014’.
142 Ms Stagg’s evidence was clear that although HCN payroll staff would read emails sent to them, their role is to process ‘the information that’s on the actual form itself that’s been authorised’. If they came across a form with very long hours claimed to have been worked, HCN would not raise any issues about that. In circumstances where an email was sent by Ms InnesRowe, attaching a form about hours that she claimed to have worked, with Professor Millward’s details on the bottom of the form, the payroll consultant would assume that Professor Millward is aware of the form and would not raise any issues.
143 Counsel for Professor Millward put a range of examples of emails and P6 Overtime Forms sent to HCN relating to Ms InnesRowe. Ms Stagg gave evidence that the payroll officer’s role is to provide ‘transaction services, so they would be actioning the form’. She disagreed that the payroll officer would take action in relation to whether an employee ‘is okay’ if they appear to be working long hours.
144 Ms Stagg gave evidence about the email sent by HCN to Ms InnesRowe on 26 November 2014, which says:
Good afternoon, Judy.
Please be advised that this form is invalid as it needs to be sent by the delegated authority who signed off on this. Please request that Michael Millward re-submits this form for processing.
Thankyou [sic]
145 Ms Stagg confirmed that despite this email, and the reply from Ms InnesRowe, it ‘was not the process’ to inform Professor Millward of the irregularity. At that time, was not uncommon for people to submit forms on behalf of senior people.
146 In re-examination Ms Stagg explained that a HE number is used as an identifier and an electronic signifier.
147 Ms Stagg’s evidence was that although there is no way of knowing that the designated manager had seen the form, there was also no way of knowing if the manager had not seen the form. Of the overtime forms Ms Stagg reviewed, she agreed that generally, but not always, Professor Millward was entered as the manager.
148 Ms Stagg agreed in cross-examination that sometimes the Pay Certification Statements show overtime that accumulated across more than one fortnight. She said that sometimes, they do not receive all the forms in time for the pays so it is possible that a claim relating to several weeks ago could be made in the current pay period. The Pay Certification Statements show the overtime that was a paid in the fortnight.
149 It is not in dispute that the Pay Certification Statements do not necessarily reflect the amount of overtime worked in the fortnight leading up to it.
150 Ms Stagg agreed that if the person who is the manager is on leave, employees will still get paid even if the manager has not clicked the grey button that says ‘payroll certification’. She also agreed that there is not always a perfect correlation between the P6 Overtime Forms and the Pay Certification Statements.
Mr Kerr’s evidence
151 Mr Andrew Kerr gave evidence for the Health Service. He was employed by the Health Service from October 2017 until October 2021 as Manager of Investigations.
152 Mr Kerr gave evidence about Exhibit RD1 - document 30. He explained ‘it’s the document that the Chief Executive and the Board Chair co-sign, which delegates responsibility or decision-making that is ordinarily invested with them to other offices in the organisation.’ The document is available on the policy section of the Health Service’s intranet.
153 Mr Kerr also gave evidence about the Covering Email. Mr Kerr said that he has seen emails like this before because he was the Payroll Certifying Officer for his area when he was Manager of Integrity for the Health Service. As the Payroll Certifying Officer, he was responsible for certifying the pay of people that report to him. If the link in the email is clicked, then it goes to the financial management manual, which explains the Pay Certification Statements.
Professor Millward’s submissions
154 As set out above, in effect Professor Millward denies that he had oversight of Ms Innes-Rowe and says if he did, his oversight was not careless or negligent in all of the circumstances.
155 Professor Millward says because the HS Act does not define ‘negligent’ and ‘careless’, those terms should be given their ordinary meaning. Relying on Titelius v Director General of the Department of Justice [2019] WAIRC 00195 (Titelius v DG) at [19], Professor Millward says ‘negligence’ involves being ‘inattentive to what ought to be done’ and ‘careless’ means ‘failing to take due care, being negligent, thoughtless or inaccurate.’ Professor Millward argues that if the functions allegedly negligently or carelessly performed fell outside of his remit, their exercise cannot have been negligent in the performance of his functions. As he was not Head of Department during the relevant period, his ‘functions’ were those he was contracted to perform. Professor Millward submits that those functions did not include oversight of the CTU staff. As Head of Department, Dr Dewar was responsible for managing the CTU and its staff. Professor Millward argues that it was Dr Dewar’s responsibility to deal with claims for overtime of those staff. Dr Dewar was responsible for ensuring the proper performance of those tasks.
156 Professor Millward argues that during the period that overtime was paid to Ms Innes-Rowe, the payments were made without any action being taken on his part. In relation to being copied in to Ms Innes-Rowe’s emails to HSS attaching the P6 Overtime Forms from 2014 to 2017, Professor Millward argues that he did not understand that it was necessary for him to do anything to approve the overtime claimed. He says that there was no basis for him to believe that the payment of the overtime depended on him doing anything to approve it.
157 Professor Millward argues that he did monitor the overall wages paid from the SPAs and the magnitude of overtime claims, including as revealed by the Pay Certification Statements. He reviewed the Pay Certification Statements and they revealed the overtime hours worked by Ms Innes-Rowe. Given the nature of Ms Innes-Rowe’s role, and her output, and the fact that she had to work independently without direct supervision, it was understandable that he was not alerted to any fraud on her part. Professor Millward argues:
Insofar as [the Pay Certification Statements] reveal Ms Innes-Rowe’s claimed overtime, the hours that Ms Innes-Rowe worked were not such as to cause Professor Millward to have any suspicion that the claims were fraudulent. That is because Professor Millward was aware of Ms Innes-Rowe working in the evenings and on weekends and because (as is accepted by the [Health Service]) he would frequently receive emails relevant to her work which were sent by her at those times. And further, Ms Innes-Rowe’s output was such that Professor Millward was not surprised by Ms Innes-Rowe working long hours. Indeed, he says that it would have been impossible for her to do her job without working hours in excess of a standard 38 hour working week.
158 Professor Millward says that in all of the circumstances, he honestly believed, on reasonable grounds, that Ms Innes-Rowe’s overtime claims were accurate in that they were likely to be commensurate with the actual amount of work performed and the actual times of its performance. Professor Millward argues that if Ms Innes-Rowe’s overtime claims are not fraudulent, then he cannot have done anything wrong.
Health Service’s submissions
159 The Health Service argues that Professor Millward’s own evidence was that he either did not, or would rarely, look at the P6 Overtime Forms in to which he was copied for the better part of three years. In circumstances where the Board can find that Professor Millward was managerially responsible for Ms Innes-Rowe and responsible for approving her overtime, Professor Millward’s failure to review the P6 Overtime Forms (or tell someone the forms should not be sent to him) is manifestly negligent and careless. By failing to review the forms or tell someone they should not be sent to him, Professor Millward deprived the Health Service of any oversight of the P6 Overtime Forms due to his serious negligence and carelessness.
160 The Health Service argues that any reasonable person in Professor Millward’s position would have at least been put on inquiry and would call into question whether the overtime claimed to have been worked was necessary and worked at all. On any view, the amount of overtime paid was excessive.
161 The Health Service submits that the Board should reject any suggestion that Professor Millward had a reasonable basis to consider that Ms Innes-Rowe was working the hours she stated. Professor Millward maintained he was not responsible for reviewing and approving Ms Innes-Rowe’s overtime and he did not review or approve it. He maintained that he did not review the P6 Overtime Forms that were emailed to him. In his Amended Notice of Appeal, Professor Millward maintains he only reviewed Pay Certification Statements to determine if there was enough money in the SPA to meet the payment, not to determine if the payment was reasonably and properly incurred. Accordingly, Professor Millward could not have formed any operative view about the reasonableness of Ms Innes-Rowe’s overtime. He did not turn his mind to that question. Professor Millward’s knowledge of her work patterns is not a relevant basis for undermining any allegation of negligence or carelessness. Further, the Health Service argues that even on Professor Millward’s evidence under affirmation before the CCC, Professor Millward could not honestly have considered Ms Innes-Rowe to be working anywhere near as much as she was claiming.
162 The Health Service submits that the question of training, expertise or knowledge about entitlements to overtime and how to review overtime claim forms is irrelevant because:
a. the Health Service relies on common sense and not on any special expertise or knowledge to establish negligent or careless conduct. Any reasonable person in Professor Millward’s position would review the P6 Overtime Forms in a similar manner to Dr Chee and Dr Phillips. That is, to see if anything stood out as being unreasonable, concerning or out of the ordinary. No technical training or knowledge is needed; and
b. any reasonable, sensible, intelligent person reviewing the P6 Overtime Forms would have seen the hours worked were significant and potentially dangerous from an occupational safety perspective. That person would have been put on notice to at least raise the issue with Ms Innes-Rowe or his own superior. Dr Chee accepted he would have done as much. It is reasonable that the Health Service expected as much.
Was Ms Innes-Rowe paid overtime to which she was not entitled?
Professor Millward’s submissions
163 Professor Millward submits that Dr Chee and Dr Phillips gave evidence that they were not trained in approving overtime. He believes that overtime was approved on trust. Professor Millward argues that the amount of Ms Innes-Rowe’s alleged fraud has kept changing and it is plausible on the evidence before the Board that Ms Innes-Rowe did work the days and times she claimed.
Health Service’s submissions
164 The Health Service says the effect of cl 16.5 of the HSU Agreement is that although Ms InnesRowe held a position classified at level G-5, she received salary at level G-9 and so was not entitled to overtime payments (unless she met one of the conditions is cl 16.5(a) of the HSU Agreement). The Board can find that neither of the cl 16.5(a) exceptions applied to Ms InnesRowe and so she was paid approximately $244,000 in overtime payments during the relevant period to which she was not entitled.
Allegation 1 – consideration
165 For the reasons set out below, the Board considers that there is clear and cogent proof of this serious allegation. We are satisfied that Allegation 1 is substantiated.
Did Professor Millward have oversight and/or management of Ms Innes-Rowe?
166 It is not in dispute that Ms InnesRowe’s JDF shows the Head of Department as her line manager. In his email to Dr Joske dated 10 March 2019, Professor Millward said he was not Ms Innes-Rowe’s line manager. Professor Millward gave evidence that he was not managerially responsible for Ms Innes-Rowe. However, the Board considers that evidence was self-serving and undermined by Professor Millward’s later evidence. The Board finds that the totality of the evidence indicates that Professor Millward had oversight and management of Ms Innes-Rowe at the relevant time.
167 In his email to Dr Joske dated 10 March 2019 in response to Dr Joske’s direction that Professor Millward end Ms Innes-Rowe’s contractor arrangement under the Hays Contract, although Professor Millward said he had no line managerial responsibility for the CTU, which he says is the reason he copied Dr Dewar in to the email, Professor Millward stated ‘Since I ceased being [Head of Department] in 2013, I have at [Dr Dewar]’s request continued to supervise and provide direction to the Unit’ (emphasis added). By continuing to supervise and provide direction to the CTU, Professor Millward had oversight and management of Ms Innes-Rowe.
168 In response to human resources’ email to him on 9 April 2018 saying that human resources would like to ‘explore whether there are any changes to current practices that could be made to increase stability for your team members, such as longer-term contract periods. The purpose of this meeting would be to explore options for your consideration, and no changes would be made without first discussing them with you’, Professor Millward thanked human resources for the update and asked to meet to progress the matter further. In July  2017, when HSS asked Ms Meredith Walker (copying in Professor Millward) about which of three options would be taken to appoint Ms Innes-Rowe at that time, it was Professor Millward who replied to HSS. Professor Millward notified staff of the Health Service by email dated 27 December 2018 about staffing changes in the CTU. Professor Millward met with Ms Basile before taking long service leave to discuss the management of the CTU during his absence. These matters lead the Board to find that Professor Millward had managerial responsibility for staff at the CTU.
169 Professor Millward ran the CTU for many years. He managed the CTU budget and approved salary expenditure. Professor Millward conceded that Ms Innes-Rowe reported CTU issues to him and he was the CTU cost centre manager. Professor Millward dealt with human resources about the payment of temporary special allowances to CTU staff and did not copy in Dr Dewar to his emails about that matter. Professor Millward, not Dr Dewar, is identified as the person seeking for Ms Innes-Rowe and another CTU staff member to be paid temporary special allowances because the classification of their positions did not reflect the work value of their roles. Those matters are inconsistent with the idea that it was Dr Dewar, and not Professor Millward, who had managerial responsibility for CTU staff.
170 Professor Millward did not raise any concerns about why human resources met with him about Ms Innes-Rowe’s overtime. Further, his evidence was that it was reasonable for him to ask Ms Innes-Rowe to reduce her overtime. In our view, those matters are inconsistent with Professor Millward considering that he was not Ms Innes-Rowe’s manager.
171 Professor Millward knew that he was copied in to emails attaching Ms Innes-Rowe’s P6 Overtime Forms for three years. Professor Millward knew that the P6 Overtime Forms he was copied in to were forms that contained a claim for overtime. It is not in dispute that on at least 66 forms Professor Millward was identified as Ms Innes-Rowe’s manager. There is no evidence that Professor Millward ever raised any concerns with anyone about being identified as Ms Innes-Rowe’s manager on those forms, or about the fact that the forms were copied to him. Indeed, when the first P6 Overtime Form was copied to him, Professor Millward replied ‘Thanks Judy’ to Ms Innes-Rowe.
172 Professor Millard entered into the Hays Contract for Hays to provide Ms Innes-Rowe to work for the Health Service. He approved payments made under the Hays Contract. Hays identified Professor Millward as the contact for Ms Innes-Rowe’s engagement. This conduct by Professor Millward also supports a finding that Professor Millward had, and considered he had, oversight and management of Ms Innes-Rowe.
173 Further, at the time the CCC report came out and before allegations of breach of discipline were made, Professor Millward said in the email to his colleagues that he was Ms Innes-Rowe’s ‘immediate manager’ and would have to ‘bear some responsibility’. Professor Millward’s evidence in cross-examination that by ‘immediate manager’, he meant that he worked closely with and trusted Ms Innes-Rowe, and not that he had any managerial responsibility for her, was implausible.
174 Professor Millward agreed in his affirmed evidence before the CCC that:
a. he had a supervisory role at the CTU;
b. Ms Innes-Rowe reported directly to him while he was Head of Department and since that time he has been the person she is primarily responsible to;
c. he was responsible for authorising salary payments to CTU staff;
d. ultimately he was responsible for all CTU staff and approving salary expenditure, including overtime;
e. he would receive and review every pay period a statement about how much salary, overtime and holiday leave loading staff were being paid; and
f. he approved the payment of Ms Innes-Rowe’s salary and overtime.
175 In our view, a fair reading of the CCC transcript shows that those answers relate to the period after Professor Millward was Head of Department.
176 Considering the evidence before us, and applying the Briginshaw standard, the Board is satisfied that Professor Millward had oversight and management of Ms Innes-Rowe at the relevant time.
Consideration about whether Professor Millward was negligent or careless in the performance of his functions
177 The HS Act does not define ‘performance’ or ‘functions’. However, s 161(d) of the HS Act mirrors s 80(d) of the PSM Act, which provides:
80. Breaches of discipline, defined
An employee who — 
(a) disobeys or disregards a lawful order; or
(b) contravenes — 
(i) any provision of this Act applicable to that employee; or
(ii) any public sector standard or code of ethics;
or
(c) commits an act of misconduct; or
(d) is negligent or careless in the performance of his or her functions; or
(e) commits an act of victimisation within the meaning of section 15 of the Public Interest Disclosure Act 2003,
commits a breach of discipline.
[Section 80 amended: No. 29 of 2003]
178 The PSM Act defines ‘function’ in s 3:
function has the meaning given by section 5 of the Interpretation Act 1984;
179 Section 5 of the Interpretation Act 1984 (WA) provides the following definitions:
function includes powers, duties, responsibilities, authorities, and jurisdictions;
…
perform, in relation to functions, includes the exercise of a power, responsibility, authority or jurisdiction;
180 Accordingly, the performance of a function includes the exercise of a power, responsibility, authority or jurisdiction.
181 The Board does not accept that a duty or responsibility must be expressly set out in a JDF or written contract of employment in order to for it to be part of an employee’s functions for the purpose of s 161(d) of the HS Act. We agree with the Health Service’s submission that an employee can be held accountable for their performance of duties and responsibilities that they carry out in the course of providing service where it falls within the scope of their contract of service, regardless of whether those duties and responsibilities are expressly set out in a written contract of employment or a JDF.
182 Professor Millward accepted that ‘in reviewing and signing off on those pay certification statements that part of [his] role was in that [he] needed to determine if the employees were entitled to receive the payment for the period specified.’ It was Professor Millward’s responsibility and duty to determine if employees paid out of the SPA were entitled to receive the payment (including any payment of overtime) for the period specified. We find that approving the payment of Ms Innes-Rowe’s overtime was part of Professor Millward’s powers, duties or responsibilities for years, including after he was Head of Department. In particular, approving the payment of Ms Innes-Rowe’s overtime was part of Professor Millward’s powers, duties and responsibilities as authorised signatory of the SPA. It was something he did in the performance of his functions during the relevant period.
183 Both parties referred to the Supreme Court of Western Australia decision of Titelius v Public Service Appeal Board [1999] WASCA 19; (1999) 21 WAR 201 (Titelius v PSAB). In that case, Malcolm CJ said (Ipp and Wallwork JJ agreeing):
70. It follows that the essence of the charge of negligent performance of “functions” was based upon a breach of duty or responsibility. Absent such a breach, the applicant would not be negligent: cf Macken, McCarry and Sappideen, The Law of Employment (2nd ed, 1984) at pp 120-121; Stroud’s Judicial Dictionary (5th ed, 1986) Vol 3 at pp 1688, 1699. In Blyth v Birmingham Waterworks Co (1856) 11 Ex 784, Alderson B said:
“Negligence is the omitting to do something that a reasonable man would do, or the doing something which a reasonable man would not do…”
71. Similarly, as to the word “neglect” in a comparable context, namely the Appeal Costs Fund Act 1964 (Vic): s 18(1)(c), McDonald J said in Grimwade v The Queen (1990) 51 A Crim R 470 at 476 that:
“‘Neglect’, as with the word ‘default’ is passive in its quality. It is to be interpreted in the context of s 18 of the Act as something which results in a trial being discontinued and a new trial being reordered. I am of the view that within that context the appropriate and proper meaning to be given to the word ‘neglect’ is to fail to perform a duty or obligation or to omit or to fail, through carelessness or negligence, to do something.”
184 We agree with the approach taken by the Public Service Appeal Board chaired by Senior Commissioner Kenner (as he then was) in Titelius v DG, that for the purposes of s 80(d) of the PSM Act, and relevantly here, s 161(d) of the HS Act, the words ‘negligent’ and ‘careless’ bear their ordinary and natural meaning. The Macquarie Dictionary defines ‘negligent’ as ‘guilty of or characterised by neglect, as of duty’ and ‘careless’ as ‘not paying enough attention to what one does’, ‘not exact or thorough’ and ‘done or said heedlessly or negligently; unconsidered’.
185 ‘Negligent’ and ‘careless’ comprehends an action or behaviour ‘which a reasonable [person] would not do’: Blyth v Birmingham Waterworks Co (1856) 11 Ex 784 cited by Malcolm CJ in Titelius v PSAB.
186 We agree with the Health Service that ‘negligence’ ordinarily contemplates whether conduct falls below an objectively reasonable standard. In the context of s 161(d) of the HS Act, the objectively reasonable standard of conduct is judged against a reasonable person in the position of the relevant employee. In this case, Professor Millward was a very experienced clinical academic who had financial responsibility for the CTU and had been Head of Department.
187 Arguments about it not being ‘surprising to any reasonable manager to find a person willing to work a significant amount of overtime’ do not assist Professor Millward. Willingness to work overtime and being entitled to claim or be paid overtime are different matters. Professor Millward should have properly overseen Ms Innes-Rowe’s working overtime and claiming overtime in circumstances where he agreed to keep an eye on the CTU, acted as Ms Innes-Rowe’s manager, was consistently copied in to her P6 Overtime Forms, was listed as her manager in those overtime claim forms for three years and approved the payment of her overtime as authorised signatory of the SPAs.
188 Professor Millward was Ms Innes-Rowe’s manager. Ms Innes-Rowe’s P6 Overtime Forms were copied to him for three years and after he had finished being Head of Department. Professor Millward did not question why the P6 Overtime Forms were being sent to him over that period. The Board finds that Professor Millward knew what those forms were about, because he had looked at some of them, but generally he did not look at the forms. At the same time, Professor Millward never questioned or raised with anyone why the forms were being sent to him or whether the P6 Overtime Forms should be sent to someone else. Any reasonable person in those circumstances would have reviewed the overtime claims or informed Ms Innes-Rowe and HSS/HCN if there was a reason why he could not or should not review and approve her overtime. The Board considers that, at a minimum, a reasonable person reviewing the overtime forms would have asked questions about the significant number (and pattern) of hours claimed as overtime by Ms Innes-Rowe. On the undisputed evidence, in the relevant period Ms Innes-Rowe was paid overtime of:
- $70,999.00 in 2017;
- $89,989.00 in 2016;
- $70,392.00 in 2015; and
- $12,097.00 in December 2014.
189 A review of the P6 Overtime Forms shows that Ms Innes-Rowe regularly claimed to work extraordinarily long hours. For example, in the relevant period Ms Innes-Rowe claimed a total of 2,149 hours of overtime (compared to 3,088 ordinary hours). Ms Innes-Rowe often, on more than 38 occasions, claimed to work to midnight. She regularly claimed to work to 10pm when starting at 8.30am each weekday. On approximately 12 occasions, Ms Innes-Rowe claimed more overtime hours in a single pay period than she had worked ordinary hours. The Board considers that, on any reasonable view, the amount of overtime claimed by Ms Innes-Rowe was excessive and any reasonable person would have been put on inquiry. As set out in [91], eventually Professor Millward conceded that a proper review of the P6 Overtime Forms would have meant that he questioned Ms Innes-Rowe’s long hours of work. He did not question her and he did not properly review the P6 Overtime Forms or the Pay Certification Statements.
190 Professor Millward’s evidence is that he knew Ms Innes-Rowe was ‘working overtime on occasions and that there were periods when she would do a lot of overtime’. Professor Millward said he did not form a specific impression of the magnitude of her overtime claims, nor any particular pattern or threshold of overtime claimed. It is not in dispute that Professor Millward was responsible for approving the Pay Certification Statements. That included approving the payment of salaries, including overtime, for the CTU staff. The Board considers that Professor Millward had a cavalier approach to matters in question, also demonstrated in cross-examination when in response to a direct question about whether he reviewed the P6 Overtime Forms, Professor Millward said he ‘was not saying [he] did or didn’t’. That approach was wholly unsatisfactory. Either Professor Millward did review the P6 Overtime Forms or he did not. Professor Millward repeatedly obfuscated during cross-examination. At times his evidence seemed to be tailored to suit his case. Often Professor Millward did not answer questions put to him.
191 Some of Professor Millward’s explanations for matters put to him in cross-examination were contrived or implausible. This was not to his credit. At times Professor Millward could not bring himself to make a concession when it clearly was called for. For example, when it was put to Professor Millward that after the email from HSS dated 28 November 2017, he knew that he did not have authority to approve overtime, his evidence was ‘I don’t think I understood at the time exactly what it meant. I was copied into it, so I probably didn’t pay a great deal of attention to it, but, ah, it says what it says, yes.’ Other examples of this are set out at [56], [57] and [65].
192 The Board does not accept that Professor Millward had a reasonable basis to consider that Ms Innes-Rowe was working the overtime hours she claimed. Throughout the disciplinary process and in his Notice of Appeal (including as amended), Professor Millward maintained that he was not responsible for reviewing and approving her overtime. His evidence was that generally he did not review the overtime claim forms. In his Amended Notice of Appeal, Professor Millward said that he only reviewed the Pay Certification Statements to work out if there was enough money in the account to meet the payment. He did not consider whether the payment was reasonably and properly incurred. The Board considers that Professor Millward could not have formed a belief about the reasonableness of Ms Innes-Rowe’s overtime claims because he did not turn his mind to that question. Having a general awareness that Ms Innes-Rowe worked long hours and often claimed overtime does not undermine the allegation of negligence or carelessness. Further, Professor Millward’s evidence before the CCC was that prior to 2018 Ms Innes-Rowe would work late on occasions, and in response to being asked how regularly, Professor Millward’s evidence was ‘I couldn’t give an accurate answer to that; once a week, maybe twice a week.’ In those circumstances, the Board is not persuaded that Professor Millward could have honestly considered Ms Innes-Rowe to be working anywhere near as much overtime as she claimed to be.
193 The Board accepts that Professor Millward lacked knowledge about the HSU Agreement or its application. We accept that Professor Millward was not given any training or assistance in relation to how to properly oversee overtime claims. This was consistent with the experience described by Dr Chee and Dr Phillips. In our view, at a minimum the Health Service lacked proper systemic controls. But even Dr Chee and Dr Phillips gave evidence about not simply signing off on overtime claims. Unlike Dr Chee, who received P6 overtime claim forms from 200 – 250 staff members, Professor Millward only received P6 overtime claim forms from one staff member, Ms Innes-Rowe. Even with his much larger case load of overtime approvals, Dr Chee said that he would not ‘merely tick and flick’. He would do a general check and would question excessive overtime. Dr Chee agreed that if he saw that an employee was working significant overtime or continually working very long hours, then he would have a concern about that person and might question the claim for overtime. Dr Phillips said that he would not blindly accept claims and he would only approve claims if they were reasonable in light of the facts of which he was aware. Like Professor Millward, Dr Phillips was responsible for approving overtime for a clinical trials unit when he was no longer Head of Department.
194 At a minimum, we find that Professor Millward was approving the payment of Ms Innes-Rowe’s overtime in circumstances where he had not reviewed, or at least had not properly reviewed, the amount of overtime claimed, the reasons for the overtime or whether the overtime had been worked at all. Arguments to the effect that Professor Millward’s responsibility went no further than ensuring the SPAs remained in credit are unpersuasive. An authorised signatory for the SPAs is responsible for ensuring the payment of expenses that are properly incurred, due and owing.
195 Further, it is not accurate for Professor Millward to say that he never received any instruction about how to oversee or approve overtime. In the relevant period, he received at least 73 Pay Certification Statements. Every one of those included a covering email that referred him to further information, explained what needed to be done and provided contact details for further instruction if needed.
196 Professor Millward’s counsel argued that:
At some point, overtime claimed has to be taken on trust, based on the manager's knowledge of the amount of work done. And in the absence of any guideline or protocol to follow, managers are then left to exercise their own judgment about the matter, and that's what Professor Millward did.
In our view, Professor Millward’s ‘own judgment about the matter’ fell well short of a reasonable or acceptable standard. His carelessness was remarkable, particularly given his responsibilities as authorised signatory of the SPA.
197 Even without any training or induction about particular steps to be taken in overseeing overtime claims, it is obvious that a person receiving overtime claim forms on which they are listed as ‘Manager’ and receiving Pay Certification Statements that set out the overtime hours claimed by an employee, where the Pay Certification Statements state ‘I certify that the employees listed are entitled to receive payment for the pay period specified’ (original emphasis) should review the overtime claim form and Pay Certification Statement and make sure that they are satisfied that the overtime should be paid. That involves considering whether the employee worked the hours claimed and whether the employee is entitled to be paid overtime for the hours. If they lack the knowledge to be satisfied of that, then they need to notify the appropriate person. Here, Professor Millward did neither of those things.
198 That there were systemic failures in this matter does not excuse Professor Millward’s conduct. We cannot accept Professor Millward’s submission that if Ms Innes-Rowe’s overtime claims were not fraudulent, then there is no negligence, or as it was put: ‘If the claims aren’t fraudulent, he can’t have done anything wrong.’ Regardless of any fraud, Professor Millward was negligent and careless in the circumstances.
199 The Board finds that Professor Millward was negligent and careless in the performance of his functions.
Was Ms Innes-Rowe paid overtime to which she was not entitled?
200 The Board does not consider that it is necessary to make a finding about whether Ms Innes-Rowe worked the overtime hours she claimed. In any event, it would not be possible to make a finding about that on the limited evidence led about that issue in this matter.
201 However, to the extent that it is necessary for the Board to decide whether Ms Innes-Rowe was paid overtime to which she was not entitled, the Board finds that she was. We make that finding based on the evidence before us.
202 It appears from Ms Stagg’s evidence, supported by Ms Whiteside’s email, that Ms Innes-Rowe was paid significant amounts of overtime, relative to her base rate of pay, for a number of years as set out at [188].
203 Based on Ms Stagg’s evidence and extracts from the Lattice payroll system the Board finds that:
a. between November 2014 and July 2017, Ms Innes-Rowe’s base salary was level G-9.2 of the HSU Agreement;
b. from 1 July 2017 to November 2017, Ms Innes-Rowe’s base salary was level G-5.4 but she received a Temporary Special Allowance that meant her salary was at level G-9.2 of the HSU Agreement; and
c. Ms Innes-Rowe was paid $244,937.30 in overtime payments in the relevant period that relates to Allegation 1.
204 Under cl 16.5 of the HSU Agreement, as an employee paid above level G-8 of the HSU Agreement, Ms Innes-Rowe was not entitled to be paid overtime except in the limited circumstances set out at cl 16.5(a), being if she was rostered to work regular overtime or instructed to hold herself on-call. Ms Innes-Rowe was supervised by Professor Millward. From his evidence the Board finds Ms Innes-Rowe was not rostered to work regular overtime, or instructed to hold herself on-call. Ms Innes-Rowe was therefore not entitled to overtime payments, but she was paid $244,937.30 in overtime.
205 The Board finds that Ms Innes-Rowe was paid overtime to which she was not entitled.
Allegation 3
Professor Millward’s evidence
206 Professor Millward’s evidence about reporting lines, managerial responsibility and Ms Innes-Rowe’s entitlement to overtime is set out at [50]-[75].
207 Professor Millward gave evidence about the Hays Contract. He said that the CTU was a ‘mobile workforce’ that was ‘predominantly younger women’. At times, it was ‘difficult to match the demand to the actual staff’. He said that often this was managed by hiring people on short term contracts from an external provider, in particular Hays Specialist Recruitment (Australia) Pty Ltd (Hays). The Clinical Trials Manager would contact Hays and say ‘we are short staffed’ or ‘we need someone to do this work’. Hays would send the Clinical Trials Manager a list of people’s CVs and ‘an arrangement would be made with Hays for that person to commence.’ Professor Millward was ‘not aware [the arrangement] was approved by anyone other than the department or the clinical trials unit’. He clarified that by ‘clinical trials unit’ he meant the Clinical Trials Manager, Ms InnesRowe.
208 The Board asked Professor Millward to clarify the process for engaging people through Hays. He said:
MILLWARD, M: Ah, so what - prior to the engagement of Ms Innes-Rowe, Ms Innes-Rowe had handled the engagement of other staff for the clinical trials unit. Ah, this would happen in a number of ways. Ah, firstly, ah, if we needed a - a junior person to work in the clinical trials unit, ah, we would ask Hays, ah, for a list of potential people. These would not be people necessarily who had worked in a clinical trials unit but people with an appropriate background, as I explained yesterday. Ah, there were occasions where we wanted to engage specific people and we would say, well, you know, we will engage you through Hays or through some other agency but you will have to go to them and - so we can engage you through them, which is closer to what was done for Ms Innes-Rowe. Ah, so there were a number of ways in which we would engage people through Hays. Ah, from time to time, ah, they would approach us and say, you know, we have a list of people who you might be interested in, ah, do you have vacancies or do you need additional staff. Ah, so there - there are a number of mechanisms that could lead to an engagement.
COATES, MS: Okay, and then the terms upon which they were engaged how did that - how was that evidenced? Was it a standard contract with Hays or how would anyone know on what terms they were engaged or was it different for everyone?
MILLWARD, M: Ah, it was different for everybody.
COATES, MS: Okay, and the approval process for the person to be engaged through Hays where would that - what lines would that go through?
MILLWARD, M: Ah, as I stated, ah, I was not aware it went through any lines. Ah, it was, ah, not something that I was aware required to be or was escalated to any level above the clinical trials unit.
COATES, MS: Did you deal with Hays directly on those occasions or was that done on your behalf?
MILLWARD, M: Ah, it was predominantly Ms Innes-Rowe, ah, who dealt with Hays, ah, for that. I would - I had met Ms Jennifer McGrath person on a couple of occasions because, ah, she was interested in seeing if she could supply staff to the clinical trials unit as it got busier and obviously we needed staff from time to time.
COATES, MS: And then you would sign it off?
MILLWARD, M: Pardon?
COATES, MS: And then you would sign off the arrangement?Ah, so what would normally happen was that the, ah, person who is engaged through Hays, ah, we would ask them - there was certain things that we insisted that they did, like have a Working with Children check and - and those things that are required to work in a hospital. Ah, and we would give them a thing saying while you're engaged and onsite you have to obey the hospital rules et cetera et cetera. But there was no formal contract that was signed.
EMMANUEL C: And I suppose on that point, what's your understanding of who was approving those engagements?
MILLWARD, M: Ah, approving them that they would - yes, that was predominantly Ms Innes-Rowe.
EMMANUEL C: Okay?
MILLWARD, M: And for the engagement of Ms Innes-Rowe it was myself.
COATES, MS: Are you aware if she sought further approvals up the line as far as the paperwork would go?
MILLWARD, M: Ah, I'm not aware that she did that, no.
209 When asked about whether, when other employees were engaged on short term contracts for the CTU, he would have expected Ms InnesRowe to ‘supervise’ those employees, Professor Millward said he ‘would have expected that Ms InnesRowe would oversee the work’ and that she would where necessary instruct them about what needed to be done.
210 In late 2018, Ms InnesRowe told Professor Millward that she intended to retire when her contract expired at the end of that year. Professor Millward’s evidence was that this was not a complete shock to him because he knew she was in her mid-70s, but it placed the CTU in a difficult position because Professor Millward was due to take his long service leave shortly after Ms InnesRowe’s contract would expire. Because there were clinical trials that were part way through, he considered it very important to organise a replacement for Ms InnesRowe as quickly as possible.
211 Professor Millward gave evidence about what he did to organise a replacement:
MILLWARD, M: So what had happened we submitted a request to advertise. Dr Dewar would have done that because as the person to whom the clinical trials manager formally reports to, she has to submit a request to fill a position. I undertook even though I was going on leave, to communicate with the relevant HSS people to make sure the advertisement went out as quickly as possible and I agreed that even though I was on long service leave, I would be the person who could be contacted for details of the position when it was advertised should people want further information. Obviously in an advertisement there's always someone who can be contacted and I said I would do that.
STANTON, MS: Right. And was there anything else that you did to safeguard the operation of the CTU apart from taking those steps in relation to getting a replacement employee?
MILLWARD, M: So I discussed with Ms Innes-Rowe whether she would be willing to continue for a short period on an engagement through Hays to provide temporary cover and ensure that at least some of the work that needed to be done, and there were a number of major tasks that were falling in that first threemonth period, would be done. I also arranged for another person to be engaged or requested that Ms Innes-Rowe organise another person to be engaged to assist with some of these tasks and it - we confirmed with the level 7 position who was then on maternity leave what she could do and unfortunately she was only able to return from her maternity leave for two mornings a week. One thought obviously that I had was if this person returns fulltime then that person could assume some of the duties but she was not able to do that.
STANTON, MS: Right. Now in giving that evidence you've obviously mentioned some discussions with Dr Dewar about seeking a replacement, do you remember any other discussions with your colleagues about this problem?
MILLWARD, M: So we had a weekly consultants’ meeting and it would have been raised there that Judith Innes-Rowe was leaving and I would have discussed with them and they would have discussed with me, you know, what impact this would have. We would have discussed a number of issues relating to the immediate care of the patients on the trials. I asked one of my colleagues, Dr Lim if during the time I was on long service leave if she would agree to be a person contactable by the Clinical Trials Unit staff if there were specific issues that they wanted medical input in about patients on trials. Normally that would be me but obviously sometimes those decisions had to be made quite quickly so someone needed to be put into that position.
212 Professor Millward gave evidence that both he and Dr Dewar approved the advertisements for the Clinical Trials Manager position after Ms InnesRowe resigned. Professor Millward said he was aware that someone higher up needed to approve a request to appoint, and approve a request for a temporary special allowance to be paid.
213 In relation to the negotiation of the contract with Hays, Professor Millward gave evidence about Exhibit AD1 – document 12. He confirmed that this email chain accorded with his understanding of what had been agreed with Hays, which was based on the terms of employment that Ms InnesRowe had put to him. She had said ‘she would not be able to work office hours’ because she had ‘other commitments’ but she would work as best she could to complete the tasks that needed to be done. Professor Millward considered that it was better Ms Innes-Rowe be there at the times she proposed than to have no one at all. Professor Millward said he was happy with her hourly rate because it ‘was actually I figured a bit less than what she was, you know, getting’.
214 In cross-examination, Professor Millward explained that he understood he was ‘agreeing to these terms and agreeing to the contract’ on behalf of the CTU. At the time, it did not occur to him that he was representing the Health Service or SCGH. Professor Millward denied that he negotiated this contract because he was ‘managerially responsible’ for the CTU and said that he ‘didn’t consider that [he] was assuming any line manager responsibilities for the clinical trials unit’. He denied thinking that he had the authority to employ people for the unit but said ‘the clinical trials unit had engaged short-term contractors before. That was a well-known process.’
215 Professor Millward said that he did not ‘specifically’ get Dr Dewar’s approval to engage Ms InnesRowe through Hays. He did not think the engagement required ‘a supervisor as such’, just a contact person. He said that he understood that Ms InnesRowe would ‘work independently’ and ‘not require day to day supervision’. His evidence was that he was not taking on line managerial responsibility for her but he ‘was the person approving and supervising the engagement’.
216 Professor Millward gave the following evidence about Exhibit AD2 which was a handwritten note. He said that he made the notes at a meeting with Tania Basile on 4 December 2018. The reason he knows it was 4 December is because he had written that date on the top of the document. Professor Millward said that he knows the meeting was with Ms Basile because when he found the note it had a post-it on it that said ‘Tania’.
217 The Board asked Professor Millward what he remembered about this meeting. He said at the meeting they discussed several issues including cover for his long service leave and what was going to happen to the CTU while he was on long service leave. Professor Millward mentioned the plan to engage Ms InnesRowe as a contractor for approximately three months while he was on long service leave.
218 The Board asked Professor Millward to clarify what was his independent recollection of the meeting and what had been prompted by the note, in circumstances where the evidence he was giving had not been included in his outline of evidence. Professor Millward explained that his memory was prompted by a conversation that he had with his representative the day before the hearing, when she referred to the email Professor Millward had sent his colleagues explaining that Ms InnesRowe would be returning as a contractor. Professor Millward said that his representative suggested that it would be helpful if there was any documentation from these meetings. He remembered that there might be and that he might have filed it with documents relating to long service leave rather than clinical trials.
219 Professor Millward said he was sure he had met with Ms Basile ‘at some stage’ prior to the beginning of Ms InnesRowe’s Hays Contract where he mentioned ‘that this was what’s going to happen’. He said that ‘from his recollection’ he and Ms Basile ‘had a least some conversation about the proposal to engage Ms InnesRowe through Hays as a short-term engagement while the, ah, position was advertised and recruited.’
220 On 27 December 2018, Professor Millward sent an email to Dr Dewar and other senior doctors in the Medical Oncology Department. He also copied in Ms Basile and Dr Joske who were the medical co-directors. Professor Millward gave evidence that he ‘had met with Tania and, you know, I wanted to make sure that everybody was aware of what the situation was.’ That email said:
Dear All,
As many of you know from our Consultant’s [sic] meetings and private conversations, there will be changes in our clinical trials unit. I want to let you all know what the plans are.
Judy Innes-Rowe has completed her current contract. After December 31, she will return as a contractor for approximately 3 months. During this time she will maintain continuity and primarily work on new and ongoing submissions and RGU activity. A request-to-fill and advertise for a new clinical trials manager has been submitted, and I will update you on the progress of this in the next week.
Gemma Walker has returned from maternity leave and is working Wednesday and Thursday mornings until approx. 1.30pm. She will return full-time in April.
Following the departure of Samantha Blades, a request-to-fill and advertise for new clinical trial staff has been submitted and again I will update you on this in the next week.
An RGS experienced contractor who will assist with protocol submissions and migration of older studies to RGS will be considered as a contractor in February.
During my long-service leave, Annette has agreed to attend the weekly clinical trial staff meetings (1230 Thursday) and help troubleshoot clinical issues etc.
A belated Merry Christmas to all!
Best wishes
Michael
221 Professor Millward’s evidence is that no one raised any concerns or made any suggestions about this approach to him.
222 While on long service leave, Professor Millward continued to respond to emails about advertising Ms InnesRowe’s position.
223 The Board asked Professor Millward whether he received and approved the Hays invoices while he was on long service leave. Professor Millward agreed that he did. Professor Millward denied that this was because he did not want someone else scrutinising the terms of the Hays Contract.
224 In cross-examination, Professor Millward explained that he thought engaging someone through Hays was different to appointing someone to a position, saying ‘One is referring to an employee and the other is referring to a short-term contractual arrangement’. Professor Millward’s evidence was that he did not think that ‘by engaging a contractor through Hays that we were entering into an employment relationship with Ms InnesRowe’.
225 In cross-examination, Professor Millward explained that he thought it was better to engage Ms InnesRowe on the terms she proposed than to not have her working at all. He was not aware that he lacked any authority to enter such an arrangement and, if he had been then, then he would not have done so. Professor Millward denied knowingly or willingly subverting or sidestepping any limits on his authority.
226 Professor Millward conceded that in this case, he did not follow the usual procedure for engaging someone through Hays (in which a list of possible candidates was given to the CTU). Instead he negotiated directly with Ms InnesRowe. Professor Millward gave evidence that ‘there are very, very few people who could potentially do this job’ and that he thought Ms InnesRowe was the only one who could do it at short notice. Professor Millward said that he understood Ms Innes-Rowe’s rate through Hays to be somewhat less than what she would be paid if she worked for the Health Service as a casual employee. However, once Hays’ fees and penalty rates were considered, Professor Millward conceded that Ms InnesRowe was paid substantially more than what she would have received had she been an employee of the Health Service.
227 Professor Millward maintained in cross-examination that he entered into the Hays Contract to minimise risk to the CTU because of Ms Innes-Rowe’s departure and his long service leave. He agreed that under the Hays Contract, Ms InnesRowe did not have to come to work if she did not want to but said he ‘obviously expected that she would do her absolute best to fulfil the terms of the engagement and [he] had no reason to suspect that there was any reason she wouldn’t.’
228 Professor Millward conceded that he did not ask whether there were any staff with requisite experience already employed by the Health Service. He considered whether the person who was working in Level 7 position could return from maternity leave early but she could not. Professor Millward said he was aware of all the oncology clinical trials managers in Perth and he knew there was nobody available at short notice who could step in.
229 Professor Millward gave evidence that even though he knew that Ms Innes-Rowe only had a 6-month contract, she had always been on 6-month contracts that were ‘renewed automatically’ so he did not realise that this time would be different. He had hoped that by the time Ms InnesRowe retired, the Level 7 person would be back from leave.
230 Exhibit AD1 – document 18 is an email chain between Ms InnesRowe and two Hays employees about Ms Innes-Rowe’s correct rate of pay. Professor Millward confirmed that he understood Ms InnesRowe would be paid on the basis that there would be differential rates, depending on when she did the work. Specifically, Ms Innes-Rowe’s base rate was $80.00 per hour, her double time rate was $160.00 per hour, on Saturdays she was paid time and a half and on Sundays she was paid double time.
231 Professor Millward said he stayed in ‘regular email communication’ with Ms InnesRowe while he was on long service leave. About once a month he would go into the office and meet with her briefly.
232 Professor Millward gave evidence that he received copies of Hays invoices for Ms InnesRowe’s work while he was on long service leave. There is what he described as a ‘timesheet’ embedded in the document. Professor Millward said that Hays would send these documents to Ms InnesRowe, then she would request payment from the SPA. A timesheet ‘is what was approved’ then ‘a request to pay an invoice was done’.
233 At first it was unclear from Professor Millward’s evidence to whom the Hays invoices were initially sent:
STANTON, MS: And is the reason that you say it would go to Judith Innes-Rowe and then to you, is that anything to do with you being on long service leave?
CARROLL, MR: Objection. Leading question.
EMMANUEL C: Yes. It is rather.
STANTON, MS: Why would you say that, initially, they would have been sent to Judith Innes-Rowe and then to you?
MILLWARD, M: I don’t   
EMMANUEL C: Well, did you say they went to Ms Innes-Rowe and then to you?
MILLWARD, M: I believe I said they would go to either of us. I don’t recall if they were directly sent to me, or to someone else, with “Attention” on there.
STANTON, MS: Now, if I could ask you to go to AD1?
EMMANUEL C: Just before you move away from these documents, it’s not very clear to me whether you're saying you did see these or not? These invoices. Professor Millward?
MILLWARD, M: Sorry?
EMMANUEL C: It’s not clear to me whether your evidence is that you did see these Hays’ invoices?
MILLWARD, M: Yes, I would have seen the Hays’ invoices. I’m sorry, I thought the question was more about what I was approving, or authorising, while I was on long-service leave, which was the bit on the left. So there were two processes there. There’s a, “Yes, this person, you know, has worked here”, and there is, subsequently, a request by Hays to pay an invoice.
EMMANUEL C: And is that what we’re looking at now, the invoice?
MILLWARD, M: Yes.
EMMANUEL C: Okay?
MILLWARD, M: Yes, that’s it. So   
EMMANUEL C: And can you tell us about the invoice? What was your involvement in dealing with the invoice?
MILLWARD, M: So the invoice would require a request, from totality, and not immediately, you know, obviously, we could accumulate invoices over a period of time, and either myself of Ms Innes-Rowe would submit, to HCN, a request to pay, which would include a list of people, engaged through Hays, and these documents. And then HCN would pay Hays the sum of the invoices that were submitted.
EMMANUEL C: I see. All right?
MILLWARD, M: Okay.
234 The Health Service attempted to clarify this during cross-examination. Professor Millward explained that he would authorise the timesheet himself, then later Hays would generate an invoice seeking payment. Invoices relating to Ms InnesRowe were sent to Professor Millward. He would then send a request to pay the invoice with HSS with a brief description such as ‘Hays engagement Ms InnesRowe’. Professor Millward was unclear about whether he approved the payment, saying:
CARROLL, MR: Yes. So you would agree then that you're the person approving the payment of these invoices?
MILLWARD, M: I'm requesting the payment of these invoices, yes. Ah, I - I accept, if you like, that I was approving payment to Ms Innes-Rowe, ah, as a - as an engagement through Hays.
CARROLL, MR: Approving payment to Hays that you understood that Hays would then pay Ms Innes-Rowe?
MILLWARD, M: I was requesting payment to Hays, ah, from, ah, the SPAs. Obviously I don't approve that payment, that's - that's actioned by HSS.
CARROLL, MR: They action it but what are you - what distinction are you drawing between approve and request?
MILLWARD, M: Ah, I'm not drawing a distinction.
CARROLL, MR: Well, I keep asking you if you're approving and you say you're requesting?
MILLWARD, M: Ah, you're asking if I'm approving payment to Hays. Ah, if you mean   
EMMANUEL C: Approving payment of the invoice I think is what's being asked?
MILLWARD, M: Yes. Ah, yes. If you - if you like, yes.
EMMANUEL C: You were approving the payments   ?
MILLWARD, M: Yes.
EMMANUEL C:    to Hays?
MILLWARD, M: Yes, yes.
CARROLL, MR: And isn't it the case that you were approving the payment of those invoices because you were Ms Innes-Rowe's supervisor at that point in time?
MILLWARD, M: Ah, I was approving the payments of the invoices, if you like, because, ah, I was her supervisor and I was able to request payments be made from the SPAs that I was a signatory for.
CARROLL, MR: Yes. And you understood that doing those duties, approving payment under this contract arrangement, fell within the scope of the duties that Dr Dewar had   ?
MILLWARD, M: Yes.
CARROLL, MR:    afforded to you? Yes?
MILLWARD, M: Sorry, I - I don't think she actually forwarded any statement of duties to me. Ah, and in terms of the discussion, as I understood what she requested me to do, yes.
235 Professor Millward conceded that he received invoices from Hays and that he was aware that Ms InnesRowe’s base rate (including Hays’ costs) was $110.76 per hour, which was doubled for Sundays and public holidays to $221.52 per hour. Professor Millward said he understood he was not authorised to approve overtime but ‘didn’t consider the two to be related’. He said ‘it was certainly not, you know, I want the ability to claim overtime.’ Professor Millward’s evidence was that he thought that it was ‘penalty rates’ and not overtime:
CARROLL, MR: Even though Ms Innes-Rowe is saying that your agreement was that she would be paid standard overtime rates?
MILLWARD, M: That's what Ms Innes-Rowe says. My understanding was that this was a penalty rate related to doing work at a nonstandard time.
CARROLL, MR: Well, why didn't you correct that in your email? You've said, yes, this is correct accepting that that was the terms of the engagement below?
MILLWARD, M: Ah, it didn't occur to me that the term standard overtime rates would be equated to overtime worked.
236 Professor Millward conceded that he received and approved most of the Hays invoices while he was on long service leave. Professor Millward denied that this was because he did not want another person to approve the invoices because he did not want scrutiny of the terms of the Hays Contract. Dr Joske, of the Medical Specialities Division Co-Directors informed Professor Millward while he was on long service leave that Ms InnesRowe’s contract through Hays was ‘contrary to HR principles’ and that it would ‘have to stop immediately’. Dr Joske ended the email by saying ‘I realise this may inconvenience your research and trials department. My apologies.’
237 Professor Millward replied to Dr Joske:
Dear David,
Thank you for your email. I am on long service leave, but am accessing emails from time to time. I would appreciate it if you would not refer to the Medical Oncology Clinical Trials Unit as ‘your’. It is an integral part of the Medical Oncology Department, and undertakes trials for all Medical Oncology Consultants. The trials for which I am the Principal Investigator is a minority of the total work. I have no line managerial responsibility for the Clinical Trials Unit, the reporting structure is to the HOD Medical Oncology (hence I am including Jo Dewar in this email) then to yourself. Since I ceased being HOD in 2013, I have at Jo’s request continued to supervise and provide direction to the Unit, as I believed this helped fulfill the reason for the creation, contracting and continued funding of my academic position based at UWA/SCGH by Cancer Council WA.
The situation regarding Judy and the Unit is as outlined in my email (attached) from 27/12/18. Judy is not currently employed by the Health Department and has no contract with it. The Clinical Trial Manager position is currently advertised with a closing date of 25/3/19.
At this time of transition in the Clinical Trials Unit, my decisions were made to minimize the following risks:
The clinical risk to patient care and patient safety for clinical trial patients by not having a Clinical Trials Manager.
The legal risk to the DoH which has signed contracts with external sponsors and companies to undertake trials safely to ICH-GCP standards and with an appropriate team in place to do this.
The reputational risk to SCGH as a site for conducting clinical research.
The management risk to lower level clinical trials staff needing experienced support and advice.
Please let me know what system yourself and Jo Dewar now propose to put in place.
Best wishes
Michael
238 Professor Millward said he did not hear anything further from Dr Joske about Ms InnesRowe’s engagement with Hays or ceasing the Hays Contract.
239 Professor Millward gave evidence that Ms InnesRowe ‘left’ in May 2019. A replacement had been appointed ‘so she had ceased the Hays engagement’. In June 2019, Professor Millward received a summons from the CCC to appear as a witness in relation to Ms Innes-Rowe’s ‘possible misconduct’. Professor Millward appeared before the CCC in July 2019.
Professor Millward’s submissions about Allegation 3
240 In essence, Professor Millward argues that it is unfair to blame him for entering into the Hays Contract. Professor Millward submits that he approved the Hays Contract in good faith, believing he had authority to do so and that the engagement was vital to the ongoing functioning of the CTU. He denies that approving the Hays Contract amounts to a breach of discipline.
241 Professor Millward argues that for Allegation 3 to be made out, the Board would need to find that at the relevant time Professor Millward knew that he lacked authority to engage Ms Innes-Rowe through Hays and that Professor Millward had a corrupt and dishonest motive. He says that there is no evidence that the Health Service told Professor Millward about the existence of the Delegations Schedule and its effect on his authority, or that Professor Millward knew about the Delegations Schedule at the relevant time. Further, Professor Millward submits that there is no evidence that he knew at the relevant time that the Delegations Schedule provided that he did not have authority to enter into the Hays Contract.
242 Professor Millward argues that the Board should not assume that he would have understood that if he lacked authority to enter into an employment contract, or approve a temporary special allowance (whether because of advice, experience or by reading the Delegations Schedule), that Professor Millward must have known he lacked authority to engage a contractor through Hays on a short-term basis.
243 Professor Millward submits that external contractors were ‘not infrequently’ used by the CTU and Professor Millward was never told that he had no authority for that.
244 Further, Professor Millward notes that when he emailed all of the Co-Directors, including Dr Joske and Dr Dewar as Head of Department, and told them about Ms Innes-Rowe’s retirement from her employment and the plan to have her return as a contractor on a temporary, short-term basis, no one raised any concerns with him about a lack of authority or other impropriety. He also argues that because Dr Joske does not mention in his email to Professor Millward dated 8 March 2019 that Professor Millward did not have authority, the Board can infer that Dr Joske was also unaware that Professor Millward did not have authority.
245 Professor Millward says that even if it could be found that he knew he lacked authority, that would not establish corruption. The evidence does not show that he caused the Health Service to enter into the Hays Contract to profit Ms Innes-Rowe. Instead the evidence shows that his concern at the time was to ensure continued proper functioning of the CTU despite the resignation of its manager of many years. He submits:
…the purpose of the CTU was to help treat cancer patients on clinical trials, such that it was vital that the CTU continued to function for the protection of those patients. Prof Millward was also cognisant of the contractual obligations owed to the pharmaceutical companies and research organisations that were its trial sponsors. A breach of those contracts by a failure to meet all of the requirements of all trial protocols would have been a very serious matter putting the Department of Health at risk of claims for damages.
246 Professor Millward submits that his anxiety about the situation was heightened because of his upcoming long service leave and because the next most senior member of the CTU was taking parental leave, and he had discovered she would only be able to return to work two mornings per week. Professor Millward says that it is understandable in those circumstances that he wanted to maintain continuity at the CTU until they could appoint a replacement.
247 Professor Millward argues that his:
[U]nselfish and conscientious involvement in recruiting a replacement Clinical Trials Manager, even when he was on long service leave, demonstrates that he was motivated to do all that he could, in good faith, to ensure the continued, successful operation of the CTU and to have a replacement Clinical Trials Manager appointed as soon as possible. That evidence is inconsistent with Professor Millward seeking to prolong the arrangement with Hays in respect of Ms Innes-Rowe, and it is inconsistent with a corrupt motive to improperly benefit Ms Innes-Rowe by means of that arrangement.
248 Professor Millward says that at the relevant time, there was little else that he could have done, and it ‘would have been foolish to have decided to quibble about the rate, the days and times when work would be done or the differential rates depending on the time when work was carried out.’ Further, he argues:
The arrangement with Hays was not, as has been submitted by the respondent, “extraordinarily detrimental” to the respondent. To the contrary, it was an arrangement made in order to avoid extraordinary detriment to the respondent such as would have been occasioned if the CTU did not continue to function so as to meet contractual obligations to sponsors pursuant to contracts entered into between those sponsors and the Department of Health. The failure of a single trial would have been highly detrimental to the reputation of the respondent. The failure of any trial also gave rise to risk of harm to patients. It was entirely reasonable that these serious risks eclipsed a concern about the commerciality of the arrangement.
249 Professor Millward argues that he never hid the Hays Contract arrangement. He says that telling his superiors about it by email and during his meeting with Ms Basile is inconsistent with corruption or dishonesty.
250 Professor Millward argues that the evidence lacks any hint of a motive for him to have acted as he did for the benefit of Ms Innes-Rowe. Rather, Professor Millward says the evidence ‘establishes that [his] motivations were honourable, and that his actions were undertaken in good faith for the benefit of the CTU, the Department of Health, the respondent and cancer patients on clinical trials.’
Professor Millward’s submissions about the disposition of the appeal
251 Professor Millward says neither allegation has been made out and the Board should reinstate him to his former position with effect from the date of dismissal without loss of wages or entitlements from that date.
252 If the Board finds any of the alleged misconduct has been made out, Professor Millward argues that it would be appropriate for the Board to adjust the decision by quashing the decision to dismiss. No penalty beyond a reprimand would be necessary or appropriate in light of the following mitigating factors:
a. lack of clarity about managerial responsibility – if Dr Dewar did delegate relevant managerial responsibility to Professor Millward, the parameters of that delegation were unclear. It would be unfair to punish Professor Millward, by way of dismissal, for failing to undertake a managerial exercise in a particular way when the relevant task had not been clearly or expressly delegated to him;
b. a lack of communication from HSS – including that there is no evidence that Professor Millward was informed about the reason why Ms Innes-Rowe began copying the P6 Overtime Forms to Professor Millward;
c. no knowledge of any potential fraud – suspicions about the accuracy of Ms Innes-Rowe’s overtime claims were not shared with Professor Millward. That information could have been shared before the matter was referred to the CCC, and the Executive could have intervened in the contracting arrangement to safeguard the CTU;
d. a lack of instruction about scrutiny of overtime claims – this is said to significantly mitigate any misconduct on the part of Professor Millward;
e. a lack of instruction about authority – Professor Millward should not be subjected to a penalty in circumstances where his employer did not bring the Delegations Schedule or limits of his authority to his attention;
f. Professor Millward’s long hours of work and wide range of important responsibilities;
g. age – Professor Millward is 64. Dismissal at this stage of his career is difficult to overcome. It would be hard for him to relocate in search of a comparable full-time position;
h. length of service and record – Professor Millward had 17 years of continuous service with an otherwise unblemished record;
i. Professor Millward has already suffered a very significant penalty – this disciplinary process has been very distressing for him. By the time the Health Service dismissed Professor Millward, he had been stood down and sporadically received advice of allegations being made against him for more than a year. Since his dismissal, the findings have hung over his head for a further year and a half. Professor Millward has not found any alternative comparable employment. He has lost income and reputation; and
j. it is in the public interest to deploy Professor Millward’s skills as a highly experienced and skilled medical oncologist for the benefit of the public.
Health Service’s submissions about Allegation 3
253 The Health Service says that it is the nature and the terms of the Hays Contract that establishes misconduct. The Health Service does not rely on Ms Innes-Rowe’s historical overtime claim forms lacking in veracity or validity as a basis for alleging that entering into the Hays Contract was misconduct.
254 The Health Service argues that Professor Millward used the Hays Contract to achieve what he knew he was unable to approve and achieve through usual employment arrangements, in circumstances that allowed Ms Innes-Rowe to achieve a benefit to which she was not otherwise entitled (extra pay than if she had been an employee), and where the Health Service suffered a detriment (a very detrimental contractor arrangement), and where Professor Millward obtained a benefit (being that he did not have to put in the effort to arrange for a person to be properly employed through the usual process).
255 The Health Service says that the evidence establishes that:
a. in November 2017 Professor Millward was told he did not have authorisation or delegated authority to approve overtime payments for any employee;
b. in March 2018 Professor Millward was told that the Clinical Trials Manager was not entitled to overtime except in very limited circumstances;
c. before December 2018 Professor Millward must have been aware that he did not have authority to employ a person in the Clinical Trials Manager position, and that approval from his superiors was needed;
d. before December 2018, Professor Millward had been told at least twice of limits to his or others’ authority under the Delegations Schedule. He knew of the Delegations Schedule;
e. despite the above knowledge, Professor Millward entered into the Hays Contract. Relevantly:
i. the terms allowed Ms Innes-Rowe to work the days and times of her choosing;
ii. the terms allowed Ms Innes-Rowe to be paid through Hays at overtime rates if she worked outside of business hours in circumstances where the Clinical Trials Manager was not entitled to overtime as an employee;
iii. Professor Millward approved payment of the Hays invoices, which had the effect of approving claims for overtime made by Ms Innes-Rowe, despite knowing that he did not have authority to approve overtime;
f. Professor Millward was on long service leave for most of the period in which he was approving invoices under the Hays Contract, so he knew that he had no way to scrutinise the accuracy of Ms Innes-Rowe’s claims about the hours she chose to work and said she worked.
256 The Health Service submits that the effect of the Hays Contract was that the Health Service had no contractual right to require certain work to be done. In effect the Health Service had to pay higher rates of pay based on when Ms Innes-Rowe chose to work, rather than whether and when work needed to be done. The rates to be paid to Hays exceeded, in some cases quite substantially, the rates of pay that the Health Service would have needed to pay an employee engaged in the same role. The Hays Contract was extraordinarily detrimental to the Health Service and very beneficial to Ms Innes-Rowe. The Health Service argues that Professor Millward used the Hays Contract as a vehicle to step around that which he knew he could not do. Further and in any event, the Health Service says that Professor Millward lacked delegation or authorisation to enter into such a contract on its behalf. In the circumstances Professor Millward should have known that the Delegation Schedule existed and that he did not have authority to enter into such an arrangement on the Health Service’s behalf.
257 The Health Service argues that Professor Millward very seriously undermined his employer by entering into the Hays Contract, because:
a. the conduct was corrupt (dishonest) given his knowledge about what he could not do. Professor Millward used his position to gain a benefit for Ms Innes-Rowe and cause a detriment to the Health Service;
b. Professor Millward’s conduct breached his duty of fidelity and good faith by knowingly circumventing established employment processes and approving Ms Innes-Rowe’s engagement on terms and conditions that were substantially detrimental to the Health Service and on terms and conditions that Professor Millward had no authority to approve (and he knew or should have known that he had no such authority).
258 The Health Service addressed the matters raised by Professor Millward by way of explanation or exculpation as follows:
a. Professor Millward did not seek advice from his superiors before entering into the contract, so there is no advice he can rely on to excuse that conduct;
b. Professor Millward did not take steps to work out if there was someone available to perform the role of Clinical Trials Manager on a short-term basis until recruitment could be completed, so the Board cannot accept that his conduct was reasonably necessary to minimise the stated risks;
c. even if Professor Millward was to enter into such a contract to minimise the stated risks (which he could not do without approval from the Chief Executive or the Health Service’s Board), there is no evidence that Professor Millward tried to negotiate better terms with Hays;
d. under the Hays Contract Ms Innes-Rowe was not required to work any hours. She could work any days or hours of her choosing and the Health Service had no contractual right to direct Ms Innes-Rowe or Hays to ensure work that needed to be done was done. Accordingly the Hays Contract did not mitigate the risks Professor Millward refers to and is not a reasonable basis to enter into the arrangement; and
e. Professor Millward knew from at least 1 July 2018, or should have known, that he needed to take steps to arrange for someone to be employed as Clinical Trials Manager from the first week of January 2019. Failing to take steps at an earlier time to ensure the role was filled in the first week of January 2019 suggests that Professor Millward did not consider the matters a risk.
Allegation 3 - consideration
259 Fundamental to Allegation 3 is that Professor Millward acted improperly in all the circumstances. Considering the evidence in total, the Board finds that he did.
260 Given the requirement to request the Executive Director or Chief Executive’s approval to fill a vacancy, as shown by Professor Millward’s evidence and the documentary evidence, the Board considers that before December 2018 Professor Millward must have been aware that he did not have the authority to employ a person in Ms Innes-Rowe’s position. Approval was required from his superiors.
261 The Board finds that before December 2018, on at least two occasions Professor Millward was informed about limitations to his or others’ authority under the Delegations Schedule. This is clear from Exhibit AD1 – document 6 and Exhibit RD1 – document 14. Professor Millward was aware of the Delegations Schedule and it is not in dispute that the Delegations Schedule could be accessed on the Health Service’s intranet.
262 The Board finds that Professor Millward was told by email on 28 November 2017 that he did not have delegated authority (and was not otherwise authorised) to approve overtime payments for any employee. On 19 March 2018, Professor Millward was told by email that the position in which Ms Innes-Rowe was then employed was not entitled to overtime, other than in very limited circumstances which did not apply to Ms Innes-Rowe.
263 It is implausible that Professor Millward could be aware, as he was, of the layers of authority required for (and the bureaucratic complexity involved in) appointing an employee to a position, arranging for the payment of a temporary special allowance or reclassifying a position, but that at the same time Professor Millward would not appreciate that he lacked authority to enter into the Hays Contract. This is even more so given the extraordinary terms of the Hays Contract.
264 The Board is satisfied that at the time that Professor Millward engaged Ms Innes-Rowe on the Hays Contract, Professor Millward was aware that Ms Innes-Rowe was not entitled to overtime and that he did not have authority to approve overtime payments. Further, Professor Millward was aware that he did not have authority to appoint a person to the Clinical Trials Manager position. Yet it was in those circumstances that Professor Millward entered into the Hays Contract.
265 The Board finds that Professor Millward negotiated the terms of the Hays Contract despite knowing he lacked authority to approve overtime payments or appoint a person to the Clinical Trials Manager position. Professor Millward concedes as much. It is also clear, and the Board finds, that under the terms of Hays Contract negotiated by Professor Millward:
a. Ms Innes-Rowe could work the days and times of her choosing;
b. Ms Innes-Rowe’s base rate was $110.76 per hour (including Hays’ costs);
c. Ms Innes-Rowe’s Sunday and public holiday rate was $221.52 per hour (including Hays’ costs); and
d. Ms Innes-Rowe could be paid through Hays at overtime rates if she worked outside of business hours in circumstances where the position in which she was working would not entitle an employee to overtime.
266 The Board considers that Professor Millward was deliberately vague when giving evidence about a number of material matters, including whether he approved the payments of the Hays invoices. Counsel for the Health Service and the Board had to repeatedly ask Professor Millward to answer the questions put to him. Eventually Professor Millward conceded that he approved payment of the Hays invoices. The Board finds Professor Millward approved payment of the Hays invoices, which had the effect of approving claims for overtime made by Ms Innes-Rowe, in circumstances where Professor Millward was aware that he did not have authority to approve overtime. Further, given Professor Millward was on long service leave for most of the period in which he approved the Hays invoices, he had no meaningful way to oversee or scrutinise the accuracy of Ms Innes-Rowe’s claims about the hours she chose to work and said she worked.
267 The Board accepts that the effect of the Hays Contract was that the Health Service had no contractual right to require any work to be done. Further, the Health Service effectively had to pay significantly higher rates of pay based on when Ms Innes-Rowe chose to work, rather than based on whether and when work needed to be done.
268 The Board accepts that on the whole the rates to be paid to Hays were substantially more than the Health Service would have had to pay an employee doing the same role. Ms Innes-Rowe worked under the Hays Contract for about 23 weeks. During that time, Hays invoiced the Health Service approximately $130,891 for approximately 805 hours worked by Ms Innes-Rowe. At the time, the full-time annual salary for a level G-8.2 position was $118,402. It would have cost the Health Service around $59,201 plus superannuation to employ a Clinical Trials Manager for 26 weeks, and that person would have provided 988 hours of work.
269 Professor Millward’s evasive evidence was unimpressive. Further, his insistence, on one hand, that he had no training or expertise in industrial relations or human resources and, on the other hand, the distinctions he drew (for example, between being ‘in approval’ of overtime versus approving overtime, or between the payment of penalty rates under the Hays Contract and the payment of overtime) were simply implausible. Further, despite Professor Millward’s attempt to argue that the Hays Contract did not involve the payment of overtime, Professor Millward confirmed in his email to Hays dated 18 April 2019 that he had approved the payment of ‘standard overtime rates’ to Ms Innes-Rowe. In any event, in the Board’s view, whether the inflated rates of pay that Ms InnesRowe could command under the Hays Contract were penalty rates or overtime rates is not to the point. The terms of the Hays Contract allowed Ms Innes-Rowe to be paid at rates that far exceeded ordinary time rates when she chose to work on particular days or at particular times.
270 The Board accepts that Professor Millward did not have the delegation or authorisation to enter into the Hays Contract on behalf of the Health Service. Under the Delegations Schedule only Tier 1 or Tier 2 Officers had such delegated authority. Professor Millward was not a Tier 1 or Tier 2 Officer. In circumstances where Professor Millward had been made aware of the Delegations Schedule and was aware that his authority was limited, the Board considers that Professor Millward should have been on notice that he did not have authority to enter into the arrangement under the Hays Contract on behalf of the Health Service.
271 We cannot accept Professor Millward’s submission that:
a. his activity was ‘generous and conscientious and going above his duty’; or
b. his reasoning in entering the Hays Contract was sound and appropriate.
272 In our view, Professor Millward had no reasonable basis to believe he had authority to enter into the Hays Contract. The Board accepts that Professor Millward knew he could not approve Ms Innes-Rowe’s overtime or engage her on a contract of employment but, despite that knowledge, he still entered into the Hays Contract which had the effect of achieving that which he knew he could not. Namely, he could (and did) approve the engagement of Ms Innes-Rowe to perform the Clinical Trials Manager role, without the approval of his superiors, paid at a rate of pay that exceeded the ordinary rate of pay under the HSU Agreement. The Board considers it open to find, and we do, that Professor Millward’s conduct in doing so was dishonest.
273 Further, we consider that Professor Millward’s conduct breached the duty of fidelity that he owed to the Health Service, by knowingly circumventing employment processes and approving Ms Innes-Rowe’s engagement on terms and conditions that:
a. were substantially detrimental to the Health Service; and
b. he had, and he knew that he had, or should have known that he had, no authority to approve.
274 Professor Millward did not seek advice from his superiors before he entered into the Hays Contract, nor did he discuss the terms and conditions of the Hays Contract.
275 The Board does not consider that Professor Millward’s conduct in entering into the Hays Contract can be excused or justified on the basis that it protected against risks, including risks to patient care and safety, legal risk to the Health Service because of executed contracts and reputational risk to the Health Service. Professor Millward did not take steps to find out if someone else (internal or external) could perform the Clinical Trials Manager role on a short-term basis until an employee could be engaged.
276 The Board is not persuaded that Professor Millward’s actions were reasonable because he ‘was aware that there was nobody who was available at short notice to, ah, step in like this’. Further, there is no evidence that Professor Millward tried to negotiate better terms with Hays, such as a term allowing the Health Service any control over the hours worked, or work done, by Ms Innes-Rowe. It was clear from Professor Millward’s evidence and his response to the allegations dated 20 January 2020 that he wanted to retain Ms Innes-Rowe’s services as Clinical Trials Manager at that time, regardless of the cost.
277 The Board is not persuaded that it was necessary or reasonable to enter into the Hays Contract to minimise the risks of not having a Clinical Trials Manager. The Hays Contract did not require Ms Innes-Row to work any hours. She could choose to work any days or hours. The Health Service had no contractual right to direct her or Hays to ensure work was done.
278 Professor Millward knew that Ms Innes-Rowe was employed on a 6-month maximum term contract that expired on 29 December 2018. He knew that she was in her mid-70s. By October 2018 Ms Innes-Rowe had told Professor Millward that she was going to resign and she gave notice of her resignation on 11 November 2018. We consider that Professor Millward ought to have known from at least July 2018 that it was necessary to take steps to arrange for a person to be employed as Clinical Trials Manager from January 2019. That undermines Professor Millward’s argument that he had no choice but to enter into the Hays Contract because he had mere weeks to organise a replacement Clinical Trials Manager.
279 We infer from Professor Millward’s diary entry that he met with Ms Basile on 4 December 2018. We accept that Professor Millward told his superiors by email and at that meeting that Ms Innes-Rowe would be engaged as a short-term contractor. But there is no evidence that Professor Millward told them about the terms of the Hays Contract, and it is the terms of that arrangement that are so objectionable and give rise to the misconduct.
280 The HS Act does not define ‘act of misconduct’ or ‘misconduct’ so those terms must be given their ordinary meaning, being conduct that is ‘improper or immoral by the standards of ordinary people’: Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241 at [31] per Anderson J (Hasluck and Parker JJ agreeing).
281 The Board accepts that Professor Millward did not receive a financial benefit from the Hays Contract. However, the Board does not accept that Professor Millward acted in good faith on reasonable grounds in entering into the Hays Contract. In our view, Professor Millward was not motivated to benefit Ms Innes-Rowe, although his actions certainly had that effect. We find that Professor Millward wanted to ensure the smooth operation of the CTU, he trusted Ms Innes-Rowe and considered that her services had to be secured, regardless of the cost or proper process that should be followed. In doing so, Professor Millward acted improperly and dishonestly. In the circumstances, given its terms, simply entering into the Hays Contract amounted to misconduct.
282 Even if Professor Millward was honestly motivated, we consider that his actions were wholly inappropriate and amounted to misconduct.
283 Applying the Briginshaw standard, in the Board’s view there is clear and cogent proof of this serious allegation. Professor Millward’s conduct was improper by the standards of ordinary people. We find that Allegation 3 is substantiated.
284 Specifically, we find:
a. Professor Millward approved Ms Innes-Rowe being engaged on the Hays Contract to work at the CTU;
b. Ms Innes-Rowe was engaged on the Hays Contract from December 2018 until May 2019;
c. Ms Innes-Rowe reported to Professor Millward while she worked at the CTU, even while Professor Millward was on long service leave;
d. Ms Innes-Rowe had been employed to work in the CTU and performing the duties of the Clinical Trials Manager since 1995 and paid above level G-8 since 30 April 2011 under the HSU Agreements;
e. from at least 9 April 2018, Professor Millward was aware that Ms InnesRowe was not entitled to claim overtime while being paid above level G-8 of the HSU Agreement;
f. Professor Millward approved pay and conditions while Ms InnesRowe was engaged on the Hays Contract that were not in accordance with the HSU Agreement pay and conditions, which were:
i. more favourable than Ms Innes-Rowe could have achieved as an employee of the Health Service; and
ii. considerably more detrimental to the Health Service than if Ms Innes-Rowe (or someone else in her role) was engaged as an employee of the Health Service (for example, Ms Innes-Rowe could work hours of her choosing and hours Ms Innes-Rowe worked after 5pm would be paid at what amounted to overtime rates, regardless of what time she started work that day);
g. On 28 November 2017, when Professor Millward received an email from a HSS Senior Payroll Officer telling him that the Health Service’s Authorisation Schedule had changed and overtime required approval by a Tier 3 Officer, Professor Millward knew that he was not a Tier 3 Officer. He had no reason to think he could approve overtime;
h. Professor Millward approved payment by the Health Service to Hays, including rates of pay that exceeded overtime rates under the HSU Agreement for services provided by Ms Innes-Rowe; and
i. by approving Ms Innes-Rowe’s engagement through the Hays Contract, Professor Millward facilitated Ms Innes-Rowe receiving the equivalent of overtime payments that Professor Millward knew she was not otherwise entitled to claim or be paid if she had continued to be employed by the Health Service under the HSU Agreement.
285 The Board finds that Professor Millward committed an act of misconduct that amounted to a breach of discipline contrary to s 161(c) of the HS Act. He dishonestly used his position to obtain a benefit for Ms Innes-Rowe and to cause a detriment to the Health Service. Professor Millward breached his duty of fidelity to the Health Service by using the Hays Contract to achieve what he knew he was unable to approve and achieve through usual employment arrangements. He did this in circumstances that allowed Ms Innes-Rowe to achieve a benefit to which she was not otherwise entitled (being more pay than if she had been an employee), where the Health Service suffered a detriment (being a very detrimental contractor arrangement), and where Professor Millward obtained a benefit (being that he secured the services of the person he wished to retain in the role at that time).
Is dismissal a proportionate penalty?
286 The Board is satisfied on the evidence that the Allegation 1 and Allegation 3 are made out. In our view, the conduct the subject of Allegations 1 and 3 clearly amounts to breaches of discipline.
287 Professor Millward accepted before the CCC that he was responsible for approving Ms Innes-Rowe’s salary and overtime but he abandoned that position once Allegation 1 was made against him.
288 We agree with the Health Service that Professor Millward’s lack of acceptance of responsibility by suggesting his role was simply to ensure the SPA remained in credit is an aggravating factor. Further, here the wrongdoing was sustained, serious and not the result of spontaneous, extreme circumstances.
289 Without the matters set out at [288], we may have been persuaded that a final warning would be a fair penalty for Allegation 1. Professor Millward says that his conduct was in good faith and he maintains that he has not done anything wrong. We have real concerns about Professor Millward’s lack of insight and awareness about why his conduct in Allegation 1 is serious and problematic. In our view, Professor Millward’s conduct fell far below the standard expected of a senior employee in the public sector. Professor Millward’s approach in this regard raises concerns about his suitability for continued employment in his role with the Health Service.
290 The conduct in Allegation 3 is serious misconduct. It was dishonest and a significant breach of Professor Millward’s duty of fidelity. We agree that it provided a significant benefit to Ms Innes-Rowe and significant detriment to the Health Service. Again, Professor Millward failed to acknowledge or have any insight into his wrongdoing. We consider that dismissal is a proportionate and reasonable response to the conduct in Allegation 3.
291 We are not persuaded that the mitigating factors set out at [252] above provide a basis for the Board to adjust the decision to dismiss.
292 We conclude that dismissal is a fair penalty in the circumstances. We are not persuaded that we should adjust the Health Service’s decision to dismiss Professor Millward.
293 We will order that application PSAB 1 of 2021 is dismissed.