DISPUTE RE DISCIPLINARY ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00134

DELIVERED : Thursday, 10 March 2016

FILE NO. : PSACR 20 OF 2013

Applicant

AND

The Minister for Health

Respondent

CatchWords : Public Service Arbitrator – Matter referred for hearing and determination pursuant to s 44 – Medical practitioner – Plastic Surgeon – Non-renewal of contract of employment – Alleged misconduct – Suspension from duty – Termination of employment – Procedural fairness – Contract negotiation – Termination Form – Contract Completion Payment – Fixed term contract expires due to the effluxion of time

Legislation :  Industrial Relations Act 1979  s 44

  Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2013

Result : Matter dismissed

Representation:

Applicant : Mr R Hooker of counsel and with him Ms D Webb of counsel

Respondent : Mr D Matthews of counsel and with him Ms C Reid

Reasons for Decision

1         The issues in this matter revolve around Dr James Savundra having contracts of employment with the respondent, particularly at Royal Perth Hospital (RPH) and Fremantle Hospital (FH), the renewal of the FH contract, the non‑renewal of the RPH contract, and whether Dr Savundra was denied procedural fairness in the decision not to renew the RPH contract. 

2         The applicant, on behalf of Dr Savundra, challenges the respondent’s decision to not renew Dr Savundra’s contract of employment to work at RPH and seeks a review of the decision and the circumstances which preceded it, and that it be nullified. 

3         The respondent says that a number of the issues arising as part of the applicant’s and Dr Savundra’s grievances have already been resolved and that the RPH contract came to an end in accordance with the terms of the contract.  In those circumstances, the Arbitrator ought not intervene, and the matter should be dismissed. 

4         It is my understanding that surgeons are entitled to the title of ‘Mr’ or ‘Ms’, however, various doctors and surgeons were referred to during the hearing as ‘Dr’ and at other times as ‘Mr’ or ‘Ms’.  For the purposes of these reasons, it is convenient to refer to each of them as ‘Dr’. 

Dr Savundra’s employment with the respondent

5         Dr Savundra is a senior plastic surgeon.  He commenced employment with the WA public health system in 1993 as an intern.  The evidence of his various contracts of employment is not complete but it shows a number of short term contracts of varying lengths in 2002‑03. 

6         More recently, Dr Savundra had a contract as Consultant (Sessional) at RPH which was renewed for five years from 1 November 2009 (exhibit A1, tab 69) and which was due to expire on 31 October 2014.  It contains, amongst other provisions: 

The date of commencement of renewal is 1st November 2009.  Your contract will be for five years from the date of commencement. 

The Employer shall not be liable to employ you in any capacity beyond the specified term.  In the event that the Hospital does elect to make a subsequent offer of employment, it will be in the form of a written offer subject to such terms and conditions as may be contained in that offer to you. 

Exhibit A1, tab 69

7         During at least some of the time Dr Savundra was employed by the respondent, he had a series of contracts to work at Fremantle Hospital (FH).  At the beginning of 2013, he had a contract which was due to expire on 12 December 2013. 

8         Dr Savundra’s employment was covered by the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2013 (the Agreement).  It provides in Part 3 – Senior Practitioners, at clause 20 – Contract of Service, subclause (1)(a): 

All appointments shall be on 5 year contracts unless there is written agreement to the contrary between the employer and practitioner.

9         At subclause (4), it provides ‘[t]here shall be no automatic right of reappointment upon expiry of a contract.’

10      It also provides at subclause (5), that in circumstances of there being no new contract, there is a Contract Completion Payment equal to 10% of their final base salary for each year of continuous service. 

The incident at RPH on 15 February 2013

11      In February 2013, according to Dr Savundra, there were two plastic surgeons employed at RPH as senior registrars; Dr O’Sullivan, a fully trained plastic surgeon from the Republic of Ireland, and Dr Rawlins, who finalised his training in Perth and had worked as a specialist in the United Kingdom.  As I understand it, each doctor is required to be accredited to work at a particular hospital.  They are accredited or classified at a particular level, for example as registrar or consultant.  These two doctors were accreditable in Australia as specialist plastic surgeons which would mean they could be classified and paid at a higher level, as consultants.  But, he says, due to some errors made by the Health Department, they were not yet accredited, unlike the equivalents at Sir Charles Gairdner Hospital (SCGH) who were credentialed as consultants.  The terms ‘specialist’ and ‘consultant’ have been used interchangeably during the hearing, and I note that there is a combined definition of ‘Consultant/Specialist’ in clause 8 – Definitions of the Agreement. 

12      From July 2012, Dr Savundra and others at RPH were pushing for Dr O’Sullivan and Dr Rawlins to have recognition as specialists within the hospital.  By February 2013, this had gone on for six months.  According to Dr Savundra, they were senior registrars rather than consultants, however RPH was, in effect, using them as consultants and had them doing plastic surgery work as well as being on‑call consultants.  He said that ‘we thought the Department was being incompetent.  Like - like with so many other things, we thought that they weren’t able to do what we said they needed to be’ (ts 79). 

13      Dr Savundra gave evidence that registrars and senior registrars, although qualified medical practitioners, require supervision by consultants.  Therefore, the consultant plastic surgeons had to be on‑call as a backup to supervise Dr O’Sullivan and Dr Rawlins when they were on‑call because they had not been credentialed as consultants.  The consultants were, therefore, doing what Dr Savundra said was ‘a second on-call system, unpaid, so that these guys could do first on-call as Senior Registrar slash … unofficial consultant’ (ts 79).  Without a consultant to cover him, Dr O’Sullivan was saying that he could not perform the role of senior registrar.

14      Dr Savundra had no difficulty with Dr O’Sullivan’s clinical skills, experience and training, but it was just that he had not been employed as a consultant.

15      In the period leading up to 15 February 2013, Dr Frank Daly was Executive Director, RPH, and Dr Mark Duncan‑Smith was Head of Department of the Plastic Surgery Department at RPH.  According to Dr Savundra, Dr Daly was telling Dr Duncan‑Smith to sort it out and Dr Duncan‑Smith was saying that he could not sort it out, it was up to the Department. 

16      At that point, Dr Savundra was participating in the on‑call roster, and was on duty until 6.00 pm on Friday, 15 February 2013.  He was to leave the country at 8.00 am the next day, for three weeks, to do voluntary surgery.  Dr Savundra says that others were also away and so they, the consultants, let Dr Daly know two weeks in advance that if the problem was not resolved by 6.00pm on 15 February 2013, there would be a difficulty as there would be no consultants willing to do the unofficial, second on‑call roster.

17      By letter dated 6 February 2013, Dr Savundra, Dr Anthony Williams, Dr Brigid Corrigan and Dr Paul Quinn, all surgeons at RPH’s Plastic Surgery Department, and Dr Duncan‑Smith, the Head of Department, wrote to Dr Daly saying that while they had presumed that Dr Rawlins and Dr O’Sullivan had been engaged as consultants, it had come to their attention that they were senior registrars.  In those circumstances, they were concerned about patient care and these two doctors having ultimate responsibility for patients who were actually the responsibility of consultants.  They said that if the hospital recognises them as senior registrars, then the plastic surgeons would do likewise.  Otherwise, the senior registrars require supervision.  They continued: 

Unless both Mr Jeremy Rawlins and Mr Barry O’Sullivan are given equivalent appointments as Consultant Plastic Surgeons and equivalent remuneration and employment conditions, including access to the Consultant Plastic Surgeon Roster Agreement 2011, they are not able to act as Consultant Plastic Surgeons for the On Call Roster at Royal Perth Hospital. 

The Plastic Surgery Department has already deemed it unsafe to do more than 5 weeks On Call per year at Royal Perth Hospital.  Therefore we are unable to cover Mr Rawlins and Mr O’Sullivan when they are supposedly On Call as Consultants. 

Plastic Surgeons advise you that as of 6 pm Friday, 15 February 2013, we will not be able to cover Mr Rawlins or Mr O’Sullivan in the present appointments as Senior Registrars/Senior Medical Practitioners. 

This means that Mr Barry O’Sullivan who is on‑call from that time will be unable to complete duties as the specialist Plastic Surgeon on‑call for Royal Perth Hospital.  Mr O’Sullivan will not have any supervision or back up from any consultant Plastic Surgeon at Royal Perth Hospital or Fremantle Hospital. 

Mr O’Sullivan will not be able to supervise the training Registrars, rotating Registrars, Resident Medical Officers and Interns as the Consultant Plastic Surgeon On Call.  There will be no other Consultant available to cover Mr O’Sullivan.  The Head of Department will have no option but to explain to these junior medical staff that they will be unable to see patients safely without Consultant Plastic Surgeon oversight and supervision. 

This situation needs to be resolved as soon as possible so that Mr Jeremy Rawlins and Mr Barry O’Sullivan can be given admitting rights and responsibilities as Consultant Plastic Surgeons.  This means admitting rights and access to all pay agreements available to Consultant Plastic Surgeons in the State.  We certainly feel they have the appropriate qualifications for this appointment and they are both proceeding with obtaining their FRACS qualifications. 

We note that there have been similar appointments at Sir Charles Gairdner Hospital for Surgeons with similar qualifications and they have been recognised by Supervised Consultant Plastic Surgeons. 

Exhibit A1, tab 4

The letter was signed by each of them. 

18      Dr Savundra gave evidence that by late afternoon on Friday, 15 February 2013, the issue was not resolved. 

19      Dr Savundra intended to go to RPH prior to 6.00 pm when his on‑call rostered period ended before he went on leave that night.  There had been a discussion between Dr Savundra and his colleagues sometime prior to his going into RPH, that as he was the most senior plastic surgeon on the on‑call trauma roster at RPH, and he had spoken to SCGH, that he was going to RPH and would initiate action. 

20      At some stage (I infer that it was both prior to his going to RPH and during that afternoon) Dr Savundra spoke to Dr Patterson, the Head of Department of RPH Emergency Department (ED), and Dr Ruven Gurfinkel, the plastic surgeon on‑call for the weekend at SCGH.  He told Dr Patterson of the situation, that, having checked the on‑call roster for specialist plastic surgeons for the weekend, he noted that Dr O’Sullivan was rostered.  So he advised Dr Patterson, that in the circumstances, there would be no consultant plastic surgeon on call for the weekend.  He told Dr Patterson that Dr O’Sullivan had been contracted by RPH as senior registrar/senior medical practitioner, ‘not as a specialist plastic surgeon and therefore could not carry out certain duties without consultant oversight’ (exhibit A2 [23] – [24]). 

21      Dr Savundra told Dr Gurfinkel at SCGH, of the situation.  Dr Gurfinkel organised extra operating theatre time on the weekend at SCGH and advised the plastic surgery registrars at SCGH of the situation. 

22      At around 4.30 pm that day, as Dr Savundra was driving to RPH, he received a call from Dr Daly.  He asked Dr Daly whether there was a plastic surgeon consultant on call for RPH from 6pm Friday 15 February 2013 and               Dr Daly did not answer.  He told Dr Daly that he was on his way to RPH and he was going to the ED.  He told Dr Daly that he had already spoken with Dr Patterson about the situation. 

23      Dr Savundra says: 

15. Dr Daly directed me multiple times over the telephone not to attend RPH’s ED.

16. I said to Dr Daly words to the effect that I had to make sure all plastic surgery patients were safe and that was why I was going to the ED.

17. I also said to Dr Daly that I could not follow his directive and do my job properly. (I emphasise for the avoidance of any doubt that whilst Dr Daly in this phone conversation used the word ‘direct’ or its derivatives, I denied, and continue to deny, that any material direction from him to me was either lawful or a reasonable direction).

18. The reason I went to the ED was to ensure patients were safe, and the resident medical officers, registrars and senior registrar (Barry O’Sullivan) understood what work they could do without consultant oversight.

19. I went to the triage area and checked whether the hospital computer system had a specialist plastic surgeon listed as on call for the weekend.

20. The system listed the senior registrar Dr O’Sullivan in the consultant box.

21. I spoke to Dr Patterson the HOD of the ED.

22. I said to him words to the effect that there was no consultant plastic surgeon on call for the weekend.

23. I told him that Dr O’Sullivan had been contracted by RPH as Senior Registrar/Senior Medical Practitioner.

24. I said that Dr O’Sullivan was not contracted as a specialist plastic surgeon and therefore could not carry out certain duties without consultant oversight.

25. Together with Dr Patterson, we checked that there were no patients with serious injuries in the ED requiring plastic surgeon consultant attention.

26. I told the plastic surgery doctors that the patients who were already admitted to the plastic surgery department would have consultant oversight over the weekend, but they were the last of the patients that we could admit given the inadequate staffing levels.

27. Patients who presented to RPH ED and required prompt plastic surgery care were to be given a piece of paper with SCGH’s address.

28. I told Dr Patterson words to the effect that any non-urgent injury could be seen on Monday in the RPH plastic surgery trauma clinic.

29. This clinic was scheduled to run as per usual on the Monday.

30. I also told Dr Patterson that any other more urgent treatment would require the ED to contact the plastic surgery registrar on call, to assess if it was a life or limb threatening emergency.

31. I told the plastic surgery registrar to assess those patients, stabilize them and organize appropriate transfer to SCGH.

32. I told Dr Patterson that any non-limb threatening or non-life threatening emergency would not be able to be seen by the plastic surgery registrar because there was no consultant oversight. I said if the patient needed treatment prior to Monday morning, the patient would need to be transferred to SCGH.

33. I went on three weeks planned leave from the very next day, 16 February 2013, to partake in voluntary surgery in Laos.

Exhibit A2 [15] – [33]

24      Dr Savundra elaborated on this in cross-examination saying that in his telephone conversation with Dr Daly, and agreed that he told Dr Daly that if Dr O’Sullivan ‘got accredited at 10 to 6 that would have been okay’ (ts 82).  He says the patient safety issue was the fact that Dr O’Sullivan was not willing to take the responsibility of being a consultant when the hospital had him credentialed not as a consultant.

25      Dr Savundra told the registrars and staff in the ED not to admit any patients over the weekend who might need emergency treatment by plastic surgeons and to refer them to SCGH.  If the situation was dire, they could stabilise the patient and transfer them to SCGH, if there was no specialist plastic surgeon on call at RPH. 

26      He says Dr Daly had the option to have a specialist plastic surgeon cover the shift, which it appears is what ultimately happened. 

27      Dr Daly directed him not to attend the ED.  Dr Savundra says he responded that as he was the consultant on call until 6.00 pm and he was ‘going to make sure that all the patients are safe’ and that Dr Daly could not tell him to ‘not to go to the Emergency Department’ (ts 84, 85). 

28      In cross‑examination, Dr Savundra was asked: 

I know that I’ve summarised, but tell me if it was the essence, of Frank saying, ‘Butt out.  I’ll manage this.’  Is that fair or not?‑‑‑Something like that, yeah.

ts 85

29      He was asked: 

But Frank [Daly] didn’t satisfy you that he would be getting coverage over that weekend, did he?‑‑‑He made it clear to me that he wouldn’t tell me. 

Okay, so he wasn’t able to satisfy you?‑‑‑No.

Okay.  So when you went in there and started talking to people you didn’t preface it with, ‘If there is no coverage,’ did you, you just said ‑ ‑ ‑?‑‑‑No, I ‑ ‑ ‑

‑ ‑ ‑  that this is what should be happening?‑‑‑I said to them, ‘At this stage - at this stage there is no plastic surgeon.’

No, the way I read it, ‘I said to him words to the effect that there was no plastic surgeon on call for the weekend’?‑‑‑Yes.

ts 87

I had not placed any finite time on that and, um, the - the complexities of the discussion that went - went on are not all carried out in this - in these paragraphs, but what I can safely say is that I went to all the people involved in patient care from the Head of Department, to emergency, to my juniors and Registrars, and I said to them, ‘This is the situation.  At the present ‑ ‑ ‑‘

Okay, well, perhaps ‑ ‑ ‑?‑‑‑I had ‑ ‑ ‑

ts 88

30      He also said in respect of what he told the registrars and staff: 

Yes?‑‑‑I said to them, ‘I’ve spoken to the Executive Director, and he refuses to answer my questions ‑ ‑ ‑ 

Yes.  Yes, absolutely?‑‑‑ ‑ ‑ ‑ a specialist in his hospital ‑ ‑ ‑

That’s right ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ asking the Executive Director a very important question. 

Yes.  Yes ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ and he refuses ‑ ‑ ‑

I’m sorry ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ to answer it. 

And I understand ‑ ‑ ‑ ?‑‑‑And it’s a very reasonable question. 

…

Frank was not able to satisfy you that there would be plastic surgery coverage over that weekend?‑‑‑Frank was not willing to answer my question. 

That’s right.  And a result of him not answering your question was that you came to the conclusion that there wouldn’t be plastic surgery coverage over the weekend?‑‑‑Well, for some time. 

Okay.  For some time. 

ts 88-89

31      I note for completeness that Dr Duncan‑Smith, the Head of Department, was suspended from duty soon after the incident of 15 February 2013. 

32      When Dr Savundra returned from being away for three weeks, he was asked to attend a meeting at which Dr Daly handed him a letter dated 12 March 2013 from Mr Marshall Warner, Director, Health Industrial Relations Service, suspending him from duty, in the following terms:

The Director General has directed me to undertake a preliminary inquiry into your conduct in connection with industrial action by medical staff of the Plastic Surgery Department of Royal Perth Hospital.

The Director General has given this direction as delegate of the Board of the Metropolitan Health Service in which capacity he acts as your employer.

The purpose of this preliminary inquiry is to establish whether or not there are grounds to initiate a formal disciplinary investigation.

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

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

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

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

I would be obliged if you would make yourself available to meet with Dr Daly and myself at the earliest opportunity.

You are not obliged to do so, however in the circumstances it would be prudent if you were accompanied at the meeting by an Australian Medical Association representative.

The purpose of this meeting will be to establish the chronology of events, elicit your perspective on the matter and such documentary evidence as is presently available.

You are not obliged to cooperate in this preliminary inquiry however, if you do not a formal disciplinary investigation may be initiated without further notice.

Dr Daly’s office will be in contact with you today to arrange a mutually convenient time to meet.

On the recommendation of Dr Daly, the Director General has determined that you be suspended from duty with full pay pending a decision on whether a formal disciplinary investigation is warranted.

Accordingly, I communicate that you are directed not to attend for duty at Royal Perth Hospital with immediate effect and until further notice. Further you are directed not to communicate with Hospital staff on any matter pertaining to the operations of the Plastic Surgery Department of the Hospital generally. You will continue to be paid as if you had attended for duty.

Exhibit A1, tab 6

33      On 27 March 2013, Dr Savundra wrote to Dr David Russell‑Weisz, addressing him as Director General, regarding patient care in his absence.  Dr Savundra then went away to Africa for some weeks, again to undertake voluntary surgery.

34      In accordance with Mr Warner’s letter, on Dr Savundra’s return a meeting was arranged.  It took place on 16 May 2013.

35      By letter dated 13 May 2013, Dr Savundra’s lawyers sought, amongst other things, his reinstatement and that this occur by 15 May 2013.

36      By letter dated 15 May 2013, Dr Savundra’s lawyers also raised other issues regarding the preliminary inquiry referred to in Mr Warners’ letter.

37      It appears from a letter from Dr Savundra’s lawyers to Mr Warner dated 23 May 2013 that there was a meeting on 16 May 2013, however, there was no evidence as to what occurred in it. 

38      By letter dated 6 June 2013, Professor Stokes, Acting Director General, wrote to Dr Savundra in the following terms:

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

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

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

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

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

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

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

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

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

Exhibit A1, tab 19

39      Dr Savundra duly returned to work at RPH on 10 June 2013.

40      There were continuing proceedings in the Commission during this time. 

41      Mr Warner wrote to the Executive Director of the applicant, a letter dated 12 July 2013, in the following terms: 

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

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

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

Exhibit A1, tab 22

The Fremantle Hospital contract renewal

42      As I have noted above, Dr Savundra also had a contract to work at FH which was due to expire on 12 December 2013. 

43      By letter dated 4 December 2013, Dr David Blythe, Consultant Intensivist, Executive Director FH, wrote to Dr Savundra in the following terms:

I am advised that you have concurrent appointments at Royal Perth Hospital and Fremantle Hospital with different terms. Your appointment at Fremantle Hospital is technically due for renewal on 13 December 2013 and at Royal Perth Hospital on 31 October 2014.

I am advised that your appointment at Fremantle Hospital can be extended to match the longer term.

Accordingly, I propose that your appointments be synchronised by extending the Fremantle Hospital appointment to 31 October 2014.

In these particular circumstances no other appointment formalities need be completed and you may indicate your acceptance of the extended term by signing the attached copy of this correspondence and return it to my office as soon as possible before 13 December 2013 to ensure your appointment at Fremantle does not lapse.

Exhibit A1, tab 27

44      Dr Savundra wrote back, a letter dated 10 December 2013, acknowledging that he had concurrent appointments at RPH and FH with different terms.  He sought renewal of the FH contract for five years and said that if the contract dates were to be aligned, then the RPH contract renewal could be brought forward and renewed for five years from 13 December 2013 (exhibit R3). 

45      Dr Blythe responded by email dated 12 December 2013 indicating that:

The Hospital is unable to accommodate your request.  The offer of the appointment to 31 October 2014, as set out in my letter dated 4 December 2014, remains open to you accept and I encourage you to do so. 

I would greatly appreciate your immediate confirmation, by return email, of acceptance or rejection of the offer. 

Exhibit A1, tab 28

46      There were further correspondence and telephone calls between Dr Savundra and Dr Blythe.  Dr Savundra wrote an email to Dr Blythe on 15 December 2013 to confirm their telephone conversation of 12 December 2013.  He said, amongst other things: 

During that phone call you suggested that:

1.   You were unable to offer me a 5 year contract.

2.   You wanted me to bring my contract in line with RPH for convenience and not because you could not offer me a 5 year contract. 

3.   If I did not accept this 10 month extension to my contract, I would be without a job here at Fremantle Hospital on Monday 19 December 2013. 

4.   You could not bring my RPH contract forward to align with my Fremantle contract because you had no influence over what Frank Daly could offer me at RPH. 

5.   You had got advice from Health Department Industrial Relations team regarding my contract prior to this phone call we had. 

Exhibit A1, tab 32

47      Subsequently, a further four weeks’ extension to Dr Savundra’s contract was initially agreed.  However, Dr Savundra then advised Dr Blythe that he would only extend the contract for long enough to allow the paperwork for a five year contract to be done.  He did not agree to a lesser term.  He noted that another doctor, Mr Stewart Fleming, had his five year contract renewed only two months previously, a matter known to Dr Savundra in his capacity as Head of Department at FH.  The exchange of correspondence included arguments and counter-arguments about putting patient care at risk.

48      Around this time, there was also communications between the applicant and Dr Blythe about Dr Savundra’s contract.

49      Also, on 12 December 2013, Dr Blythe wrote an email to Mr Steve Gregory, who was involved in HR management, about Dr Savundra’s contracts and his proposal to align them.  He said, amongst other things: 

James has a contract which expired Dec 13 2003 and has been continuously employed at Freo since then without a written contract - so the expiry date of his (presumed) contract is tomorrow. I found this out fairly recently. We are beginning a process of looking at all contracts and trying to rationalise them so that they are sensible and concurrent. James also has a contract with Royal Perth Hospital which expires in 2014.

I wrote to him last week suggesting that the first thing we should do is to get the two contracts aligned and offered him an extension of Freo to the RPH expiry date next year. He has declined, saying he wants a five year contract, and that if the contracts are to be aligned, the RPH date should align with a renewed five year Freo contract.

My problem is that I don’t know what sort of plastics service I will be needing from about October next year when elective surgery starts moving to FSH [Fiona Stanley Hospital]. It will be smaller and my feeling is that I shouldn’t be employing plastic surgeons on my own at Freo - they should be joint appointments with FSH or RPH in support of an area-wide service. I have explained this to James but I don’t think he accepts it.

We agreed on a four week extension, in order to try and sort this out. If James were to resign now, it would leave a significant hole in my service and affect other services too, so I would like him to stay on in the immediate future. He and I have had our differences in the past, but at the moment things are fine. However, if I give him a five year contract and I don’t have much of a service here, I am making a decision on behalf of other hospitals which I clearly cannot do. Hence my preference for a short term contract until things are clearer

Exhibit A1, tab 65

50      Mr Gregory responded that day, amongst other things:

In short we can offer a contract for less than 5 years and given the circumstances it seems reasonable that Dr Savundra be offered a contract to 31 October 2014.

Exhibit R4

51      Mr Gregory and Mr Warner corresponded over the issue, including that Mr Gregory sent Mr Warner an email on 16 December 2013, noting that he had ‘spoken to David earlier and there are some issues with the proposed response, given that a decision has yet to be made as to Plastic Services at this stage’ (exhibit R4). 

52      Dr Savundra says that Dr Blythe explained to him the issues set out in his email to Mr Gregory about not having yet sorted out ‘what sort of plastic service [he would] be needing from about October last year when elective surgery starts moving to FSH’ (ts 55).  However, Dr Savundra did not accept this.  This is because, he says, only two months earlier, Dr Fleming had been given a five year contract. 

53      By letter dated 23 December 2013, Dr Blythe wrote to Dr Savundra saying:

Further to our recent discussions I have discussed your position with the Chief Executive South Metropolitan Health Service and the Director General.

In the short term, the DG is of the opinion that aligning the contracts between Fremantle and RPH is a reasonable step for all practitioners with multiple contracts, and we would like to repeat our offer of a contract at Fremantle until October 2014.

In the longer term, the Director General wishes to speak to you about future employment within South Metropolitan and has requested that you make an appointment to see him personally. If you ring his office on [phone number] his Liaison Officer … can arrange a time.

Exhibit A1, tab 34

54      In late December 2013, Dr Savundra met with the Director General, Professor Stokes, as he had been asked.  According to Dr Savundra, at the end of the meeting, the Director General told Dr Savundra that he would look into the question of Dr Savundra’s five year contract.  Dr Savundra had a clear impression from what the Director General said to him in that meeting that Professor Stokes believed Dr Savundra did not want a five year contract at FH rather than the other way around.

55      Following the meeting, Dr Savundra sent Professor Stokes an email setting out information apparently requested by Professor Stokes as to the FTE for plastic surgery specialists at RPH and FH (Exhibit A1, tab 35).  He also referred to his involvement in the Plastic Surgery Review Implementation Committee and that he ‘would be happy with a further 5 year contract across SMHS [South Metropolitan Health Service], allowing me to work at all 3 campuses, depending on where the work is’.  He also referred to issues associated with Dr Daly and tension and morale at RPH. 

56      During 11 and 12 February 2014, Dr Blythe as Executive Director FH, Professor Daly as Executive Director of RPH and Dr David Russell‑Weisz as Chief Executive FSH Commissioning, exchanged emails regarding a five year contract for Dr Savundra and the plastic surgery FTE and sessional requirements at FH, FSH and RPH.  This culminated in an email from Dr Blythe to Dr Daly and Dr Russell‑Weisz of 11 February 2014 in the following terms:

James is 0.3 FTE (out of contract) with me and 0.3 with Frank (contract expires 1 Nov 14). He also has 0.1FTE with PMH - a five-year contract, which expires on 2 Nov 2016.

Our departmental service plan for plastics at Fremantle (Level 4 service) indicates we will need not very much. There is no outpatient service at all and inpatient activity is confined to low-moderate complexity procedures, largely as same-day admissions. We estimate about one theatre session per week and I suppose that equates to 0.2FTE at most. If we developed a hand service at Fremantle, which has been discussed, then that would change significantly.

For further discussion ..... and then I will send the info to DG ?

Exhibit R5

57      On 20 February 2014, Dr Savundra was advised he would be offered a five year contract at FH, and this was subsequently provided to him, and he signed and returned it.  It was for a fixed term of five years commencing on 4 February 2014 to 4 February 2019 as a Sessional Plastic Surgeon Consultant. 

58      Dr Savundra believes that Dr Blythe had received instructions from someone else to align his FH contract with his RPH contract, and that Dr Blythe found an excuse to try to do so.  He says it was quite peculiar that the contract for 0.3 FTE at FH was justified on the basis of operational needs.

The RPH contract not renewed

59      As I noted earlier, Dr Savundra signed a five year contract with RPH in 2009.  This was his second such contract.  Dr Savundra says he expected that when his 2009 contract was due to expire in 2014 it would be renewed.  He says he was expecting that the usual process of a recommendation for such a renewal would be made by his Head of Department and acted upon.  However, Dr Savundra said that he was aware that at least six other doctors did not get a new contract when theirs expired.

60      On 19 March 2014, Dr Aresh Anwar, Director of Clinical Services at RPH, wrote to Dr Savundra saying that a decision would be made as to whether a further contract of employment would be offered to him on the cessation of his existing contract on 1 November 2014 (exhibit A1, tab 37).  The letter also noted that should he not be offered a further contract, he would be eligible for a Contract Completion Payment in accordance with the Agreement.

61      By letter dated 28 July 2014, Mr Alex Smith, A/Executive Director, Royal Perth Group SMHS, wrote to Dr Savundra informing him that ‘a further contract of employment will not be offered’.  The letter noted the terms of cl 20(4) of the Agreement that ‘there shall be no automatic right of reappointment upon expiry of a contract’.  His employment at RPH would cease at close of business on Saturday, 1 November 2014 and he would receive the Contract Completion Payment (exhibit A1, tab 39).

62      The evidence of the considerations given by the respondent to whether or not to renew Dr Savundra’s RPH contract are contained in a series of emails between various staff; Dr Savundra’s record of a meeting with Professor Stokes on 8 October 2014, and some very limited evidence given by a number of Dr Savundra’s colleagues of the responses they received to enquiries they made.  There is also evidence in the emails recited above that the respondent was considering where and whether Dr Savundra’s services were needed as part of the area wide plastic surgery service, including FH and the soon to be opened FSH. 

(i) The emails

63      A number of emails covering the period of March to October 2013 were received into evidence.  They provide little more than an indication that consideration was being given to the renewal of the contracts of nine consultants at RPH, one of whom was Dr Savundra.  There is no evidence of how many of the other eight were offered new contracts. 

64      An email of 24 September 2014 from Dr Daly to Professor Stokes, copied to David Russell‑Weisz, the subject ‘Mr James Savundra’, said that: 

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

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

Exhibit A1, tab 63

65      The only response in evidence is from Dr Russell‑Weisz to Dr Daly, the next day, asking ‘Any response?’ (Exhibit A1, tab 63).  The applicant challenges the respondent’s advice that no such confidential file note, which was to be prepared by Grant Waterer, could be found. 

66      According to Dr Savundra’s evidence, prior to the expiration of his five year contract with RPH but after he had been told he would not be offered a new contract there, Professor Stokes arranged for a meeting with him, to be held on 8 October 2014. 

67      On the advice of two of his colleagues, Dr Savundra went to the HR office at RPH to examine his employment file in anticipation of that meeting, to check what his records indicated.  He says he was surprised at how small his personal file was because he had heard about the reasons he was not going to be given another contract.  He says there were no documents of a negative nature, except for two:  the letter advising him of his suspension received at the meeting with Dr Frank Daly on 12 March 2013 (exhibit A1, tab 6) and the letter of 6 June 2013 from Professor Stokes (exhibit A1, tab 19).  That of Mr Warner of 12 July 2013 (exhibit A1, tab 22) was not on the file.

68      The file contained a note regarding a meeting Dr Savundra and his AMA representative, Mr Bucknall, and Dr Savundra’s professional representative, Dr John Ker, had with Dr Mark Platell, Director of Clinical Services at RPH and Dr Daly in June 2012.  This arose because Dr Savundra says he had made an inappropriate note in a patient’s medical notes.  He said he made this notation out of frustration with hospital administration about transferring the patient.  The notation Dr Savundra made was ‘If anyone in Executive blocks my ability to transfer this patient for proper care I will be taking it further’ (ts 35).  He says the meeting was over very quickly. 

69      Dr Savundra disagrees with the file note on his record which identifies two issues being discussed, the first being ‘[h]ow staff working with him and around him perceived his work and personality style?’  The second was in respect of the proper approach to notations on a patient’s notes.

70      The file note says that both issues were vigorously discussed and debated.  It also noted:

The outcomes of the meeting were positive and were that Mr Savundra was aware of how he impacted upon other staff and Mr Savundra agreed as to what were appropriate and inappropriate notations within the medical record.

Exhibit A1, tab 55

71      The file note indicates that it was signed by Dr Platell and Dr Daly (exhibit A1, tab 55).

72      Dr Savundra says there was no vigorous discussion and debate, and the only issue dealt with was regarding his note on the patient’s records. 

(ii) Dr Savundra’s meeting with Professor Stokes

73      In accordance with Professor Stokes wanting to meet Dr Savundra, a meeting between them took place on 8 October 2014.  Dr Savundra made notes of that meeting.  He said that Professor Stokes stated that his contract at RPH should not be renewed due to several issues regarding Dr Savundra’s behaviour at RPH.  Professor Stokes suggested that there was evidence of bullying and intimidation towards other staff members.  Dr Savundra asked for specific details about the alleged misconduct, taking into account that there is no such documentation on his HR file. 

74      Professor Stokes suggested that surgeons he had spoken to had stated Dr Savundra was a highly competent surgeon, but that he had a ‘polarising effect on the people’ he works with and he ‘needed to learn to work with management in a more cohesive way’ (exhibit A1, tab 45). 

75      Professor Stokes proposed that Dr Savundra could work an extra two sessions at FH in lieu of his contract terminating at RPH.  Professor Stokes also stated that Dr Savundra could attend RPH to teach registrars and other doctors and to give advice on difficult cases such as the management of complex pressure sores.  He said that after 12 months of this service he would personally review the merits of Dr Savundra returning to RPH. 

76      Professor Stokes also said that a young plastic surgeon who was asked whether they would work at RPH, stated that they would not work there due to the intimidation of working with Dr Savundra. 

77      Professor Stokes stated that the circumstances surrounding Dr Savundra’s suspension from RPH were evidence that he had not behaved well. 

78      Dr Savundra says he advised Professor Stokes that he expected to receive approximately $45,000 contract completion payment and $20,000 for leave owed, and that he felt this was a waste of public health funding. 

79      Dr Savundra expressed to Professor Stokes concerns about patients at RPH, particularly the socially disadvantaged patients, getting proper care, and about proper, specialty treatment of patients. 

80      He asked Professor Stokes why he, as the Director General, needed to be involved in his contract renewal at FH in December 2013.  Dr Savundra said that he felt it was irregular that Professor Stokes asked him to come and visit him on 30 December 2013, to discuss the length of renewal of the contract, and reminded Professor Stokes that two weeks following that meeting, Professor Stokes reversed Dr Blythe’s decision to offer him a nine month contract and requested that he be offered instead, a five year contract.  Professor Stokes did not give a reason for this involvement. 

81      They also discussed work at FSH. 

(iii) Dr Savundra’s colleagues’ evidence

82      Dr Duncan-Smith, Dr Corrigan and Dr Williams are all plastic surgeons and in the case of Dr Duncan-Smith he was formerly Head of Department at RPH, and Dr Corrigan and Dr Williams are co-Head of Department at RPH.  They each gave evidence about enquiries they made about the reasons for Dr Savundra not being offered a renewed contract at RPH. 

83      Mr Duncan-Smith says that at one of his meetings –

… Professor Stokes said to me words to the effect that:

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

(b) there had been issues with James over the industrial action;

(c) he was aware of concerns about an incident involving an entry James had made in a patient’s medical record at Shenton Park Hospital; and

(d) some information raised by the plastic surgery review committee regarding James being a bully.

Exhibit A6 [65]

84      Dr Corrigan says Dr Waterer told her that Dr Savundra’s appointment was being blocked further up the line than himself and that Dr Savundra cannot be reappointed because he was difficult.  Towards the end of 2014, someone in management told her that Dr Savundra would not be given a five year contract because he was difficult and there had been allegations of bullying against him.

85      Dr Williams gave his account of the meetings he attended with Dr Duncan-Smith with the Director‑General, Professor Stokes.  He say Professor Stokes said at the second such meeting that Dr Savundra’s contract at RPH would not be renewed because he ‘had been a naughty boy’ (exhibit A4, [52]).

86      Dr Williams says that all recommendations of appointments as Consultant Plastic Surgeon that he and Dr Corrigan had made to Dr Waterer had been accepted except the recommendation in respect of Dr Savundra.

Other evidence of Dr Duncan-Smith, Dr Corrigan and Dr Williams.

87      In addition to their evidence of their knowledge of the circumstances of Dr Duncan‑Smith’s suspension from duty on 18 February 2013, Dr Duncan‑Smith, Dr Corrigan and Dr Williams gave evidence of their knowledge and opinion as to Dr Savundra’s skill, expertise and dedication and of the need for such skill and expertise in the WA public health system. 

88      The evidence includes letters of support for Dr Savundra directed to him and to Professor Stokes, arguing for Dr Savundra’s retention at RPH, citing his high level of skills and expertise and his commitment to his patients. 

89      For completeness, I note that as at 30 July 2015, Dr Savundra continued as an employee of the respondent, working one day per week at FH and one day per fortnight at Princess Margaret Hospital, as well as doing on-roster work at RPH.  Dr Savundra also has a private practice. 

The Dispute and the remedies sought

90      The applicant complains that: 

1. Dr Savundra was not heard, properly or at all, before his suspension in March 2013 and being given the directions to not attend for duty at RPH or to communicate with RPH staff. 

2. The Acting Director General made adverse findings against Dr Savundra that: 

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

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

 The adverse findings were made without:

(a) according Dr Savundra any procedural fairness; or

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

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

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

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

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

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

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

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

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

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

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

(a) the adverse findings;

(b) allegations by the respondent that Dr Savundra:

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

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

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

7. The decision to not renew Dr Savundra’s contract was made without the adverse findings or the allegations being put to Dr Savundra or the applicant, nor has the respondent provided a fair hearing (or any hearing at all). 

8. The RPH Contract Decision was accordingly made:

(a) in a manner devoid of natural justice;

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

(c) manifestly unreasonably;

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

(e) unlawfully.

9. The applicant seeks that I: 

(a) review the decision not to offer Dr Savundra a new contract at RPH and the circumstances which preceded it;

(b) nullify that decision with the effect that:

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

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

(iii) a decision is made by the respondent about Dr Savundra’s employment at RPH lawfully, fairly and transparently. 

91      At the hearing, the applicant indicated that it does not press the remedy set out in paragraph 19(b)(ii) of the Schedule to the Memorandum, and reflected in [93]9(b)(ii) above, that ‘Dr Savundra has an opportunity to be offered more employment with the respondent at [RPH]’. 

92      The respondent says: 

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

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

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

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

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

2. The employment at RPH came to an end by agreement between Dr Savundra and the respondent, set out in a letter headed ‘RENEWAL OF FIVE YEAR CONTRACT’ signed by Dr Savundra on 17 December 2009. 

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

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

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

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

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

8. Although the respondent accepts that findings as to jurisdiction have been made ([2015] WAIRC 00333; (2015) 95 WAIG 590), the respondent maintains all of its previous jurisdictional challenges to any order being made which has the effect that a genuine fixed term contract does not operate according to its terms. 

9. The agreement between the parties to the contract that it will come to an end at a given time is a powerful factor against the Arbitrator exercising discretion, in the event it finds it has such discretion, to intervene in the current matter in the way the applicant seeks. 

10. The respondent seeks that the matter be dismissed. 

Consideration

93      The Arbitrator’s role is not to undertake judicial review, where it would be concerned with the fairness of the procedure adopted as an end in itself.  It is concerned with the equity and substantial merits of the case.  That role is set out in the joint judgment of Wheeler and Le Miere JJ in Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2006) 86 WAIG 231 at [21] – [34].  The appropriate question may be, did the respondent act unfairly in deciding to not renew Dr Savundra’s contract at RPH, or in not advising him of the issues it would consider and not giving him a hearing before deciding, that is, in denying him procedural fairness? 

94      For the following reasons, I conclude that in the particular circumstances the respondent was not obliged to provide procedural fairness. 

95      The applicant has raised a number of issues about a series of events.  The issues contained in the Schedule to the Memorandum of Matters Referred for Hearing and Determination (the Schedule) include the suspension, the directions, and the findings arising from the incident on 15 February 2013.  These matters caused the applicant and Dr Savundra to be aggrieved for two reasons.  The first is those things of themselves and their direct consequences.  The second is the effect they appear to have had on the respondent’s decision to not renew Dr Savundra’s contract at RPH.  This includes whether Dr Savundra was denied procedural fairness in that decision. 

1. The suspension, directions and findings arising from 15 February 2013

96      The applicant raised a number of matters said to arise from these issues including their effect on Dr Savundra’s professional standing, reputation and potential adverse action by the Medical Board; his patients’ well‑being and the restriction on his freedom of communication pertaining to his profession and his employment.  However, there was little evidence in respect of these matters.  I infer that this is because these things, while they are of concern to the applicant and Dr Savundra, they are not the main concern.  The main concern is that, while the respondent acknowledged in Mr Warner’s letter of 12 July 2013 (exhibit A1, tab 22) that ‘Mr Savundra was not afforded procedural fairness in connection with this matter cannot be contested’, advised that the finding of misconduct was abandoned, the formal warning was withdrawn and the matter was discontinued, the respondent is said to have continued to believe and act as if they remain valid. 

97      As the respondent has acknowledged the failings regarding the suspension, the directions and the adverse findings, and abandoned the finding, and withdrawn the warning, I do not need to address those issues.  I intend to treat them as being accepted, that is, that: 

1. Dr Savundra was denied procedural fairness in connection with that process;

2. There is no finding of misconduct; and

3. There is no formal warning;

in respect of the incident of 15 February 2013. 

98      The issue arises later as to whether the respondent continued to hold to the findings and its view of the incident in spite of them having been effectively withdrawn.  I will also address the consequences as part of that consideration. 

99      As to the issue of the respondent attempting to impair Dr Savundra’s freedom of communication on matters pertaining to his profession and his employment, this was not addressed to any extent, and likewise, I conclude that it is peripheral to what I have described above as the main concern. 

2. The non‑renewal of the RPH contract

(a) Fixed term contract expiry effect

100   Where an employer allows a fixed term contract to expire and does not offer a further contract, it is not a dismissal (Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166; (2003) 83 WAIG 3053 [4]‑[7]).

101   When an employee accepts employment for a fixed term, the employee must be taken to have consented to the position that the contract comes to an end on a specified day (Ex parte Wurth; Re Tully (1954) NSW (SR) 47, 59 – 60, 62 – 63).  In this case, there are two important documents that recognise this concept. 

102   Firstly, the industrial instrument that covers Dr Savundra’s employment, the Agreement, makes five year fixed term contracts for those in Dr Savundra’s circumstances, the norm (see cl 20 – Contract of Service, subclause (1)(a)).  It not only explicitly recognises that ‘there shall be no automatic right to reappointment’, but also provides compensation of 10% of final base salary for each year of continuous service. 

103   Secondly, the contract signed by Dr Savundra provided that it would be for five years and that there could be no expectation of employment beyond that point.  It provided:

The Employer shall not be liable to employ you in any capacity beyond the specified term.  In the event that the Hospital does elect to make subsequent offer of employment, it will be in the form of a written offer subject to such terms and conditions as may be contained in that offer to you. 

Exhibit A1, tab 69

104   Dr Savundra signed this contract on 17 December 2009. 

105   Where an employee is engaged on a fixed term contract, there is provision for that contract to come to an end according to its terms.  In this case, that is the deal that both parties made.  The Agreement provides the employee with compensation for the non-renewal of a contract.

106   Dr Savundra knew some months before the expiry of his contract that the respondent was considering whether to offer him a new contract. 

107   In all of those circumstances he could have no genuine or objective expectation that he would be offered a new contract.

(b) Procedural fairness in the non‑renewal decision

108   The evidence demonstrates, and I find, that the respondent made a decision not to renew the contract.  It was a deliberate decision.  I say this because it did not merely allow the contract to come to an end and do nothing about it.  Rather, the evidence is that from at least 19 March 2014, when Dr Anwar wrote to Dr Savundra saying there would be a decision made about whether to offer him a further contract, a number of people within RPH were going through a consultative and deliberative process about that matter. 

109   Corrina O’Connor raised the issue of Dr Savundra’s contract renewal with Professor Waterer as part of the consideration of the renewal of eight other employees’ contracts (exhibit A1, tab 64).  Professor Waterer appears to have sought Dr Daly’s view.  Dr Daly conferred with Dr Russell‑Weisz and Professor Stokes. 

110   Dr Savundra was then notified by Mr Smith in his letter of 28 July 2014 that a further contract would not be offered. 

111   According to Dr Savundra, when he met Professor Stokes in October 2014, after the decision was conveyed to Dr Savundra, Professor Stokes outlined the reasons why his contract should not be renewed.  Those reasons related to Dr Savundra’s behaviour, said to be ‘bullying and intimidation towards other staff members’, that he had a ‘polarising effect on people he works with’ and ‘needs to learn to work with management in a more cohesive way’.  The circumstances of his suspension from RPH were said to be evidence that he ‘had not behaved well’.

112   Professor Stokes is also said to have told Dr Duncan‑Smith that there had been issues with Dr Savundra over the industrial action, the entry in patient’s notes, and an issue having been raised of Dr Savundra being a bully. 

113   Therefore, I conclude that a decision was made to not offer Dr Savundra a new contract at RPH.  There appear to be particular reasons behind that decision.  Those reasons appear on their face to include conclusions, findings and opinions associated with the incident on 15 February 2013, which the respondent had advised the applicant were made without affording Dr Savundra procedural fairness and which were effectively withdrawn.  Dr Savundra was not informed before the decision was made of those reasons, nor was he given a chance to be heard before the decision. 

(c) Is Dr Savundra entitled to procedural fairness in the non‑renewal decision? 

114   In Jarratt v Commissioner of Police of New South Wales and Another [2005] HCA 50; (2005) 224 CLR 44, Gleeson CJ noted that ‘in Annetts v McCann (citation omitted) it was said that it can now be ‘taken as settled’ that the rules of natural justice regulate the exercise of such a power (to remove the applicant from public office) unless they are excluded by plain words of necessary intent’.  His Honour went on to state that: 

We are concerned with a statutory scheme for the management of the Police Service and for the employment of its members, likely to have been intended to embody modern conceptions of public accountability.  Where Parliament confers a statutory power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, Parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. This principle of interpretation is an acknowledgment by the courts of Parliament’s assumed respect for justice. 

115   This was a case of a decision to remove an officer, not a decision to not renew a contract, that is to employ or re‑employ. 

116   In my view, the fact that the Agreement and the contract expressly state that there is no obligation on the respondent to offer a new contract on the expiration of the previous one and that there is no right to re‑appointment means there can be no right to, interest in or legitimate expectation of a new contract.  Past practice might have led Dr Savundra to hope for that outcome, but it is also clear from the negotiations for the FH contract that this was not a foregone conclusion.  Further, a number of other doctors did not receive new contracts, as acknowledged by Dr Savundra.  Also, Dr Savundra did not receive a hearing before previous decisions to renew his contract were made, with the possible exception of the FH contract renewal.  However, that was a matter not of non‑renewal but of the term of the contract.  I would describe that process not as procedural fairness but as negotiation, which resulted in Dr Savundra getting what he wanted. 

117   In my view, a decision to not offer a new contract is not dissimilar to a decision to not employ in the first instance.  An employer is free to choose whom they wish to employ and whom they do not wish to employ, and on grounds they choose.  It is quite different to a decision to dismiss where an existing right is affected.  In this case, in particular, there are express provisions in the Agreement and the contract which deny such a right. 

118   Further, neither the Agreement nor the contract place any obligation on the respondent to afford procedural fairness in that decision.  There are no authorities that would suggest that there is an obligation to afford procedural fairness in a decision to offer or not offer a new contract.  To now create a new requirement to afford procedural fairness in the employer making a decision of this nature would have widespread effects on employment practices, particularly, from my knowledge, in the public sector where such contracts are regularly used for particular purposes.  To do so would open the floodgates. 

119   To require employers to justify those decisions to not offer a further contract in the circumstances where the parties had agreed that there could be no expectation in the future is not reasonable, both in contractual terms and in public policy terms.  In this case, such a process would be unreasonable given the basis upon which the parties had entered into their agreement in the first place. 

(d) Unfairness demonstrated in the records

120   The applicant also claims that Dr Savundra was denied industrial fairness because, amongst the other issues raised, the respondent’s records indicate that the respondent continued to hold the views it previously held regarding the adverse findings and the warning even though they had been withdrawn.  Dr Savundra’s file at RPH included the letter of 12 March 2013 suspending him, and the letter of 6 June 2013 where the findings and warning were set out.  However, it did not contain the letter from Mr Warner withdrawing those things following the acknowledgement that Dr Savundra had been denied procedural fairness. 

121   The applicant also relies on the T1 – Termination Form as reflecting the respondent’s view that Dr Savundra had been dismissed. 

(i) The RPH personnel file

122   As to the employment file, this was quite clearly incomplete.  There is no indication whether it was called upon by the respondent in making a decision to not offer a new contract.  However, given the involvement of a number of the same people in the events of 15 February 2013 and their aftermath, and the decision to not offer a new contract, and given that the matter of Dr Savundra’s and the applicant’s grievances about those matters still being before the Arbitrator when the decision was made, I find it most likely that the decision was made based on the personal knowledge and opinion of those participants, particularly Professor Stokes and Dr Daly, without necessarily relying on an incomplete file. 

123   In the circumstances, the incomplete file neither adds to nor subtracts from the fact that the respondent made a decision based on views of people who had dealt with Dr Savundra.  It is most likely that the fact that the formal adverse findings and the formal warning were withdrawn did not mean that Dr Daly and Professor Stokes had changed their minds about Dr Savundra’s conduct on 15 February 2013.  That would appear to be the case from Dr Savundra’s evidence of his meeting with Professor Stokes in October 2014. 

(ii) The termination form

124   The applicant asserts at paragraph 14 of the Schedule that the respondent’s employment records for Dr Savundra include a ‘Termination Form’ which reflects an understanding by the respondent that there was a termination by the respondent of part of Dr Savundra’s employment with the respondent, that is, there was a dismissal. 

125   The T1‑TERMINATION FORM (exhibit A1, tab 38) provides a section headed ‘(D) CESSATION DETAILS’ and provides for a choice between two boxes to be ticked.  The first box says ‘I’m an Employee wanting to terminate my employment’.  The second box says ‘I’m a Manager wanting to terminate someone else’s employment, in accordance with employment conditions.’  There are no other options provided such as the employment came to an end by the effluxion of time or that it is the end of a contract.  There is then a box to be completed which provides ‘Reason For Termination’. 

126   In the case of Dr Savundra’s T1 form, the second box is ticked and the Reasons for Termination box contains the words END OF CONTRACT. 

127   In those circumstances, I do not believe it is reasonable to conclude that T1 form could be said to reflect that there was a ‘termination of employment’, as meaning a dismissal.  I think that it is more appropriate to describe the ‘termination’ as being the end of the employment without it necessarily meaning either a dismissal or a resignation.  It simply means the employment relationship terminated, as in it ended.  In those circumstances, I do not accept that the T1 form reflects a view of the respondent that Dr Savundra was dismissed. 

(e) ‘unfairness to numerous other doctors employed by the respondent’ and to the interests of patients

(i) Unfairness to other doctors

128   Paragraph 18(d) of the Schedule sets out a claim that the decision to not offer a new contract at RPH was made ‘unfairly to Dr Savundra and numerous other doctors employed by the respondent at RPH’. 

129   Even if it is appropriate to consider whether the respondent’s decision to not renew Dr Savundra’s contract was made unfairly to Dr Savundra, there is no substantive evidence of unfairness to other doctors employed by the respondent at RPH by that decision. 

130   There is some limited evidence to support the appointment of another plastic surgeon, and that there are clinical reasons why Dr Savundra fits the bill, but it is not that only his appointment would satisfy any workload issues. 

131   The evidence of the impact of the decision to not renew Dr Savundra’s contract at RPH, beyond its impact on Dr Savundra, is that of Dr Corrigan, Dr Williams and Dr Duncan‑Smith.  Yet their evidence is of not having an understanding of why the decision was made and why it was not reversed; the impact on the on-call roster in relation only to patient care, and about patient care generally.  There is no real evidence of unreasonable workloads or demands placed on any doctors as a consequence of Dr Savundra not having a contract at RPH.

132   Dr Williams described the staffing situation at RPH as untenable, that the staffing levels are not enough to run a sustainable on-call service.  He cited a number of reasons for this but each of them relates to patient care, training, skill mix and complexity of cases.  His only reference to the impact on staff is in the final paragraph of his witness statement where he makes a general comment about being ‘regularly asked by the rest of the team why we are not appointing James, why we are putting the rest of the department through stress being understaffed’ (exhibit A4 [76]).  His frustration is that he has no meaningful answers.

133   Dr Duncan‑Smith’s evidence was of the benefits to the patients and the system which Dr Savundra brings, rather than of any particular unfairness to other doctors brought about by the decision of the respondent to not offer Dr Savundra, in particular, a further contract.

134   Dr Williams noted in his witness statement, that the executive team at RPH ‘has a different approach and an agenda which can be inflexible.  The executive agenda is often focussed on limited resources, which can at times, be contrary to the patients’ best interests’ (exhibit A4 [21]).

135   While I accept that there may be a view amongst doctors at RPH about Dr Savundra’s professional skills and they see a real demand for such skills, I am of the view that the matter referred for hearing and determination was never really about unfairness to other doctors at RPH consequential upon the decision to not renew the contract. 

136   The inclusion of this issue in the Schedule occurred in the final preparation of the Memorandum but was never the subject of conciliation discussions.  Perhaps this is because, as Mr Hooker says, following my decision on the scope of the matter to be referred for hearing and determination and the issue of jurisdiction, given the passage of time and the change in circumstance, this issue was never discussed. 

137   However, the reference in paragraph 18(d) to unfairness to numerous other doctors employed at RPH is oblique and not at all in keeping with the tenor of the remainder of the matters canvassed in the 18 detailed paragraphs setting out the applicant’s case.  That tenor is about the treatment of Dr Savundra and a denial of natural justice.  The inclusion of reference to unfairness to other doctors, with respect to the applicant, seems a stretch beyond that issue.

138   In any event, in the circumstances, whether the management of RPH decided to take some action against an individual doctor for good reason or ill, its impact on the doctor’s colleagues is not directly material, nor appropriate to be dealt with in these Reasons.  It could just as reasonably be argued that, regardless of the reasons for a non-renewal of a contract or, in different circumstances, the dismissal of an employee, the fact that a particular individual’s skills are, in the view of that individual’s colleagues, necessary for the wellbeing of patients means the person ought to continue to be employed.  It is not relevant to whether that individual has or has not been treated fairly in all of the circumstances.

(ii) ‘Impact on patients’ of the contract decision

139   Paragraph 18(c) of the Schedule raises this issue.  The impact on patients, even if it is an industrial matter, which I doubt, although I make no determination one way or the other, is to be treated in the same way as unfairness to other doctors.  It is not that it is of no consequence.  I am sure that it is, but it is not a matter for this decision. 

140   Therefore, I do not intend in these reasons for decision, to take account of the evidence of Dr Savundra’s colleagues as to their views of the need for his particular skills at RPH or of the evidence regarding the benefit of his involvement in care of particular patients or patients in general.

141   I note in passing that the management of an organisation, regardless of its nature, needs to make decisions about the type of work the organisation will perform, how it will perform that work, and the structure, equipment and personnel it will utilise for that purpose.  Whether individuals or groups of employees agree with those arrangements is not to the point.  I am aware that often employees have invaluable information and well informed views and opinions about those things and organisations can benefit from those views being engaged.  But the decisions are for management, whether they are made well or badly.  The management personnel are the ones who have the duty and responsibility for such decisions.  It is not for the employees or the Commission to decide how those things will be done.  The exception to that is the extent to which the employees are treated unfairly as a consequence of those decisions.  The Commission has a jurisdiction to deal with allegations of unfairness.

142   Even if, as Mr Hooker says, in light of the ‘obstinacy’ of RPH in there being a moratorium on Dr Savundra working at RPH, ‘in the face of a demand that would suggest he’s tailor-made to be permitted to work there’, it is for the employer to choose how and by whom it staffs its service.  Whether it treats him fairly is another matter entirely.

Alternatively

143   If I am wrong, and there is an obligation on the employer to provide procedural fairness in deciding whether to offer a new contract, the evidence is clear that before the decision to not offer a new contract was made, Dr Savundra was not informed of what matters would be taken into account and was not given an opportunity to be heard. 

The remedy

144   The applicant seeks that: 

1. the decision not to offer a new contract and its circumstances be reviewed;

2. that the decision be nullified; and

3. an opportunity be given for Dr Savundra to understand and respond to any ‘adverse allegations’ the respondent wishes to make against him; and

4. a new decision be made by the respondent ‘lawfully, fairly and transparently’. 

145   It does not pursue an opportunity for Dr Savundra to be offered more employment with the respondent at RPH.  His evidence is that he has re‑established his private practice. 

146   The applicant sought that I review the decision to not offer a new contract and I have done so.  In putting its case and the process for the hearing, the applicant has elicited evidence of at least some of the reasons for the respondent not offering Dr Savundra a new contract.  They include those things are set out in [111] and [112] of these reasons. 

147   Dr Savundra has answered many of those things as part of his response through his evidence, as part of the process of the enquiry in this matter.  He also had the opportunity to hear from Professor Stokes as to his reasons in the meeting of 8 October 2014, even though it was after the decision was made.  From my observation of Dr Savundra and from what he said to Professor Stokes in their two meetings, it is clear that Dr Savundra is up to the task of responding to issues put to him, and does so without demur. 

148   As to the issue of writing on patients’ notes, Dr Savundra seems to have been dealt with in respect of that matter and he appeared to accept, at the time, that he should have done things differently.  The note he wrote is demonstrative of an attitude towards hospital administration which is reflected in his conduct and attitude in the incident of 15 February 2013, particularly his comments which I have reflected at [12] and [30] of these reasons. 

149   Dr Savundra’s own evidence of the incident of 15 February 2013 demonstrates and I find that: 

1. In consultation with others in the department, as the senior plastic surgeon on‑call at the time, Dr Savundra attended RPH ED. 

2. He went to the ED contrary to an explicit and repeated instruction from Dr Daly, the Executive Director at RPH.  He was frustrated not merely because of the situation with Dr O’Sullivan’s and Dr Rawlins’ credentialing, but because Dr Daly would not answer a question he felt he was entitled to have answered. 

3. He instructed those under his clinical, but not organisational, supervision to refer patients to SCGH by giving them a piece of paper with directions how to get there, and in the case of an emergency to stabilise the patient then transfer them to SCGH.  Dr O’Sullivan remained at the hospital on duty.  Dr Savundra’s evidence suggests that Dr Savundra had told Dr O’Sullivan and Dr O’Sullivan was prepared, to deal with any patients in an emergency to stabilise and transfer them but not to take responsibility for them as a specialist. 

4. He made arrangements with another hospital to receive patients and that other hospital appears to have made additional resources available to deal with that situation. 

5. He instructed more junior doctors as to what was to occur in a time frame when he was no longer to be on duty or on-call and, in fact, when he was to be out of the country, to not receive patients at the ED, but to provide them with directions to go to another hospital, except in the case of an emergency to stabilise the patient and transfer them, but not to take responsibility for the patient. 

6. He did so in circumstances where he appears to have had no managerial or organisational authority.  He was not Head of Department – that was Dr Duncan‑Smith.  The letter the plastic surgeons wrote on 6 February 2013 said that the ‘Head of Department will have no option but to explain to these junior medical staff’ etc.  However, it was Dr Savundra who did this and more.  There is no suggestion that he did so in any authorised capacity.  On the contrary, he did so in the face of a direction to not go to RPH. 

7. Whilst he says Dr Daly was interfering in the care of his patients, Dr Savundra was not going to the ED to deal with the care of his then or future patients because he was about to end his on‑call roster and within less than a day, to leave the country for some time.  His intention was to intervene in the organisation of the hospital’s operations as part of his pursuit, along with that of his colleagues, of the hospital acting in relation to the credentialing of other doctors. 

8. There was no real or genuine risk to patient safety as alleged by Dr Savundra or the applicant.  Dr Savundra said that Dr O’Sullivan was competent to deal with patients who presented, it was that he had not yet been credentialed.  Further, Dr Daly arranged for another senior plastic surgeon to take on the on-call responsibility.  Dr Savundra did not know this until he had returned from overseas some weeks later. 

150   Therefore, he took matters into his own hands, beyond his authority. 

151   I find without hesitation, that Dr Savundra’s own evidence makes clear that he was given a verbal direction by Dr Daly to not attend the ED at RPH on 15 February 2013 and that he refused to comply with that direction. 

152   The respondent says that Dr Savundra’s conduct that day demonstrates, not the merits of the suspension from duty, but that Dr Savundra could stand up for himself.  I find that combined with the evidence of his negotiations for a five year contract at FH and the evidence of his pursuit of his patients’ interests, it does indeed demonstrate that Dr Savundra is a person who will pursue what he believes is appropriate, whether in the interests of his patients, other colleagues or in his own interests. 

153   Whether his and others’ conduct in regards to that day constitutes industrial action was not argued before me and it is unnecessary to make any findings. 

154   Dr Savundra appears to have acted without authority in providing instructions to staff at RPH about what they would and would not do in respect of receiving and treating patients, and went beyond that to make arrangements with another hospital, which resulted in that hospital making additional resources available. 

155   Dr Williams expressed clearly the inherent tension between the health service management and clinicians.  The former are required to make decisions about the type of service and the allocation of resources, by taking a broad view of the best interests of the organisation, and, in this case, how that fits within the WA health system.

156   On the other hand, the clinician is focussed, quite properly, on the best interests of each patient and obtaining the best possible care for each of them.

157   There is an immediate tension between those two, and this can lead to conflict.  It is how the two, the management and the clinicians, work together and cooperate, each understanding the other’s position and interests, which allows the whole system to work in the best interests, not merely of one patient or some patients, but the whole of the patients.  That involves compromises, as resources are limited.  Where that arrangement is difficult, where compromise and cooperation are troublesome, management will be entitled to make necessary decisions, and employees are not entitled to take things into their own hands regardless of the strength of their beliefs about those decisions. 

158   It was interesting to note that in both Dr Savundra’s and Dr Williams’ evidence, there was an indication that they do not fully recognise or accept that their decisions about patient care might need to fit with management’s need to run an efficient facility or service with limited resources.  There seems to be a reluctance to acknowledge that, from an organisational perspective, they are subject to someone else’s directions or decisions. 

159   As to nullifying the decision, I do not see that is necessary because the decision was to not do something, that is, to not offer a new contract.  Nullifying such a decision has no effect.  Dr Savundra and the applicant do not specifically seek that a new contract be offered, rather that Dr Savundra have an opportunity to know what is against him and respond to it, and that the respondent consider that and make a decision.  If I found in his favour, those other things might flow without the need for the original decision to be nullified. 

160   The inquiry into the matter by the hearing and these reasons has given Dr Savundra the remedy sought of an opportunity to understand and respond to adverse allegations, and in giving his evidence, he has responded to them.  Given my findings about Dr Savundra’s conduct, I would not require the respondent to revisit the decision, particularly as Dr Savundra does not seek an opportunity to be offered another contract at RPH as part of the remedy. 

Conclusion

161   I find that the issues associated with the suspension, directions and findings regarding the events of 15 February 2013 do not require any further action because of Mr Warner’s letter 12 July 2013. 

162   I also find that a deliberate decision was made to not offer Dr Savundra a new contract at RPH.  It was made for reasons which included those associated with Dr Savundra’s conduct, or perception of that conduct.  He was not told of those reasons or given an opportunity to respond before the decision was made, however, he was told later in a meeting with the Director General. 

163   I find that there is no obligation on the respondent to afford procedural fairness in deciding not to offer a new contract, particularly in the circumstances of the terms of the contract and the Agreement. 

164   The other grounds said to justify the making of orders are not relevant issues. 

165   The hearing of this matter has otherwise enabled the applicant and Dr Savundra to know what was against him, if he did not already know. 

166   The matter will be dismissed.