APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 3 APRIL 2017

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00991

DELIVERED : Friday, 8 dECEmber 2017

FILE NO. : PSAB 5 OF 2017

Appellant

AND

Ms Elizabeth MacLeod Chief Executive

East Metropolitan Health Service

Respondent

CatchWords : Industrial Law (WA) - Appeal against decision to terminate appointment as Head of Department - Jurisdiction of the Public Service Appeal Board - Whether a disciplinary decision or finding was made - Whether disciplinary action was taken in relation to a breach of discipline - Lack of trust and deterioration of relationship - Construction of s 80I(1)(c) of the Industrial Relations Act 1979

Legislation : Industrial Relations Act 1979 (WA) s 80C(2), s 80I, s 80I(1)(c)

  Health Services Act 2016 (WA) s 6(e), s 6(g), s 161(c), s 161(d), s 163(3)(b)(i), s 172(1), s 172(1)(b), s 172(1)(d), s 172(2), s 172(3), s 172(6) 

  Public Sector Management Act 1994 (WA) s 78(1)     

Result : Appeal dismissed for want of jurisdiction

Representation:

Appellant : Mr T Smetana (of counsel)

Respondent : Ms J van den Herik (as agent)

Cases referred to in reasons:

Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760

State Government Insurance Commission v Johnson (1997) 77 WAIG 2169

Reasons for Decision

1         These are the unanimous reasons for decision of the Public Service Appeal Board (Board).

2         Dr Loh has appealed to the Board.  In his amended notice of appeal, he appeals the East Metropolitan Health Service's decision to terminate his appointment as Head of the Department of Geriatric Medicine (DGM) at Royal Perth Hospital (Removal).

3         Dr Loh is still employed by the Health Service as a Consultant Physician Geriatrics but he is no longer Head of Department.

4         Dr Loh has brought his appeal under s 172(2) of the Health Services Act 2016 (WA) (HS Act), which allows a government officer to appeal a disciplinary decision or finding made about him.  Dr Loh says the Removal was a disciplinary decision or finding by the Health Service pursuant to s 172(1)(d) of the HS Act because it was:

1. disciplinary action pursuant to s 163(3)(b)(i) of the HS Act because the Removal was the result of the Health Service finding that Dr Loh had committed a breach of discipline; and
2. disciplinary action as defined by s 6(e) and s 6(g) of the HS Act because of the Removal's effect.

5         The Health Service objects to the Board hearing and determining Dr Loh's appeal because it says the Board lacks jurisdiction.  In summary, the Health Service says the Removal was not a disciplinary decision or finding and it was not disciplinary action.  The Health Service says it merely exercised its discretion under cl 20(13)(e) of the WA Health System – Medical Practitioners – AMA Industrial Agreement 2016 (Agreement), which states:

(e)  An appointment as Head of Department may, at the discretion of either party, be terminated by either the Employer or the Head of Department giving to the other 1 months' [sic] notice or in lieu of the giving of the notice, the payment or the forfeiture of payment, as the case may be, of the Head of Department Allowance for that period.

6         It is common ground that Dr Loh is a government officer.  The Board must decide whether the Health Service made a disciplinary decision or finding about Dr Loh.

7         For the reasons set out below, the Board finds the Health Service did not make a disciplinary decision or finding about Dr Loh and did not take disciplinary action against him.

Circumstances leading to Dr Loh’s appeal

8         Dr Loh was appointed Head of Department in November 2014 for five years, subject to satisfactory performance and annual performance reviews.  His performance was reviewed in 2013, 2014, 2015 and 2016 and was assessed as ‘exceeds expectations’ or ‘meets expectations’.

9         Dr Loh’s relationship with the Health Service’s management deteriorated as a result of the following events.

10      In 2015, Dr Anwar, who was then Acting Executive Director of Royal Perth Bentley Group at the Health Service, stood down a doctor in the DGM.  In response to that incident, in early 2017 Dr Anwar organised team-building exercises for the DGM physicians which involved one-on-one sessions with a psychologist.  Initially Dr Loh supported the team-building exercises but then asked Dr Anwar to cancel them. 

11      In December 2016, Dr Wright started work for the Health Service as Acting Co-Director (Medical) Service One at Royal Perth Bentley Group.  In early January 2017 Dr Wright did a walk-through at Bentley Hospital with Ms Brearley, who is Service Co-Director (non-clinical).  Junior doctors told Dr Loh that they were asked questions about consultants and workload during the walk-through.  Dr Wright met with Dr Loh in late January 2017 to understand how the DGM operates.  They discussed the staffing profile.  Dr Loh thought Dr Wright had an agenda to cut the DGM’s full-time equivalents (FTE) and sent an email to staff saying as much. 

12      In around April 2017, another consultant in the DGM, Dr Donaldson, retired after many years’ service.  Though engaged on a full-time basis, in the lead up to his retirement Dr Donaldson had been working 0.8 FTE and taking 0.2 FTE long service leave for some months. 

13      Dr Loh thought that Dr Donaldson’s replacement should be employed on a full-time basis.  Dr Loh organised the paperwork for Dr Donaldson’s replacement and the advertisement called for a 1.0 FTE role.  After the Health Service changed the advertisement to call for a 0.8 FTE role, the following emails were exchanged:

From: Loh, Pk

Sent: Thursday, 23 March 2017 5:29 PM

To: Bennett, Lesley

Cc: Anwar, Aresh; McCoubrie, David

Subject: FW: FTE TO BE AMENDED - 00102414_CONSULTANT_PHYSICIAN_GERIATRICS ADVERT_Year 1-9_BHS/RPH ADVERT

Importance: High

Hi Lesley

We would really appreciate the courtesy of being informed that you wish to withdraw clinical resources from the department after the advertisement has gone live & disseminated to all our colleagues.

Leon works in SJOGML as a clinical academic it is a different site with different roles.

Many thanks.  Best wishes.  PKL

From: Anwar, Aresh

Sent: Friday, 24 March 2017 1:26 PM

To: Loh, Pk

Cc: Wright, Steve 

Subject: RE: Attending 75 bed TCP briefing Frid 16 Dec 9am

Dear PK,

I am going to intervene – a number of emails are bubbling through which on the face of them suggest significant levels of antipathy expressed towards Lesley.

This is obviously not right or indeed acceptable.  The FTE decisions are made with the service co-directors taking into account demand articulated through job plans.

My reading of the email from Liz is not one that is making demands that you provide but rather offers the opportunity for you to articulate the need for more if there is need that cannot be met.

Happy to chat through but I would advice [sic] caution re the language we use for it very much sets the tone within the organisation[.]

Aresh

From: Loh, Pk 

Sent: Friday, March 24, 2017 4:52 PM

To: Anwar, Aresh

Cc: Wright, Steve 

Subject: RE: Attending 75 bed TCP briefing Frid 16 Dec 9am

Hi Aresh

Many thanks for your phone call. As discussed I think the decision to reduce the DGM FTE was made without knowledge of the tranche of TCP beds coming to EMHS & aged care service requirements that come with it from 1st of May.

I look forward to discussing this with Steve next week.  Unfortunately, the new advertisement has come out with the reduced FTE as of 10 mins ago.

Best wishes. PKL

From: Bennett, Lesley

Sent: Monday, 27 March 2017 8:00 AM

To: Loh, Pk

Cc: Anwar, Aresh

Subject: RE: FTE TO BE AMENDED - 00102414_CONSULTANT_PHYSICIAN_GERIATRICS ADVERT_Year 1-9_BHS/RPH ADVERT

Dear PK

As you should be aware, this is not my budget and it is clear from the email trail below that I was simply double checking with Linda and Steve what FTE they had signed off and for which they had CE approval.  Steve and I have undergone a period of handover and I wanted to be sure we all had the same information.  Steve replied to the email below to state it should be 0.8, for some reason, his response seems to have not been included in the attachment below.

I also need to express the disappointment and concern I feel having read the correspondence and the omission of important and very significant information therein in the process of escalation.  In ideal circumstances I would have liked to have been given the opportunity to, at the very least talk, through the concerns with you so as to ensure any misunderstandings were addressed before the issue was escalated.  As you will no doubt realise there is significant potential for recipients to misconstrue the message and as a consequence doubt my integrity.

As a consequence of your actions, the appropriate next step is a meeting with the ED and I will request a formal meeting this week.

Lesley

From: Loh, Pk

Sent: Monday, March 27, 2017 8:14 AM

To: Bennett, Lesley

Cc: Anwar, Aresh

Subject: RE: FTE TO BE AMENDED - 00102414_CONSULTANT_PHYSICIAN_GERIATRICS ADVERT_Year 1-9_BHS/RPH ADVERT

Thnks [sic] Lesley.  That may be helpful.  Apologies may be in order from my side.  Best wishes.  PKL

[Outline of evidence of Dr Loh - Annexures]

14      Dr Anwar asked Dr Loh to attend a meeting on 30 March 2017 with him, Dr Wright and Ms Brearley.  Dr Loh understood the meeting’s purpose was to discuss a clinical issue and he invited Associate Professor Etherton-Beer and Professor Flicker to attend the meeting as well.

15      The evidence about exactly what was said at the meeting is not agreed, but broadly the parties agree that Dr Anwar told Dr Loh that things were not working out with him as Head of Department and there was an erosion of trust between Dr Loh and management.  Dr Anwar asked Dr Loh to step down as Head of Department and indicated that the Health Service would terminate Dr Loh’s appointment as Head of Department because of Dr Loh’s emails.

16      All witnesses gave evidence truthfully and to the best of their ability.  Their evidence about the events in question was broadly consistent and it is accepted by the Board.  As set out below, central to the matter to be determined is that the parties characterise the evidence differently.  Dr Loh says the Board should find that what occurred was a disciplinary matter, whereas the Health Service says the Board should find that what occurred was solely an exercise of its discretion to terminate a Head of Department appointment in accordance with the Agreement. 

Law

17      Section 80I(1) of the Industrial Relations Act 1979 (WA) (IR Act) provides:

(1) Subject to the Public Sector Management Act 1994 section 52, the Health Services Act 2016 section 118 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;

(b) an appeal by a government officer under the Public Sector Management Act 1994 section 78 against a decision or finding referred to in subsection (1)(b) of that section;

(c) an appeal by a government officer under the Health Services Act 2016 section 172 against a decision or finding referred to in subsection (1)(b) of that section;

(d) an appeal, other than an appeal under the Public Sector Management Act 1994 section 78(1) or the Health Services Act 2016 section 172(2), by a government officer that the government officer be dismissed,

and to adjust all such matters as are referred to in paragraphs (a), (b), (c) and (d).

18      Section 172 of the HS Act relevantly states:

172. Certain decisions and findings may be appealed or referred

(1) In this section —

disciplinary decision or finding means —

(a) a decision made under section 159(1)(b) or (c); or

(b) a finding made in the exercise of a power under section 165(5)(a)(ii); or

(c) a decision made under section 147, 148 or 164 to suspend a government officer or other employee on partial pay or without pay; or

(d) a decision to take disciplinary action made under section 150(1), 163(3)(b) or 166(b); or

(e) a decision to terminate the employment of a government officer or other employee under section 168(1).

(2) Subject to sections 118 and 173, an employee or former employee who —

(a) is, or was, a government officer; and

(b) is aggrieved by a disciplinary decision or finding made in respect of the government officer,

may appeal against that decision or finding to the Industrial Commission constituted by a Public Service Appeal Board appointed under the Industrial Relations Act 1979 Part IIA Division 2.

(3) A Public Service Appeal Board has jurisdiction to hear and determine an appeal under subsection (2) in accordance with the Industrial Relations Act 1979 Part IIA Division 2.

…

(6) If it appears to the Industrial Commission or the Public Service Appeal Board that the employing authority failed to comply with the relevant policy framework or the rules of procedural fairness in making the decision or finding the subject of a referral or appealed against, the Industrial Commission or Public Service Appeal Board —

(a) is not required to determine the reference or allow the appeal solely on that basis and may proceed to decide the reference or appeal on its merits; or

(b) may quash the decision or finding and remit the matter back to the employing authority with directions as to the stage at which the disciplinary process in relation to the matter is to be recommenced by the employing authority if the employing authority continues the disciplinary process.

19      Section 163 of the HS Act relevantly states:

163. Dealing with disciplinary matter

(1) In dealing with a disciplinary matter under this Division an employing authority —

(a) must proceed with as little formality and technicality as this Division, the relevant regulations and the circumstances of the matter permit; and

(b) is not bound by the rules of evidence; and

(c) may, subject to this Division and the relevant regulations, determine the procedure to be followed.

(2) Even though an employing authority decides to act under section 162(a), the employing authority may, at any stage of the process, decide instead that it is appropriate —

(a) to take improvement action with respect to the employee; or

(b) that no further action be taken.

(3) After dealing with a matter as a disciplinary matter under this Division —

…

(b) if the employing authority finds that the employee has committed a breach of discipline that is not a section 173(2) breach of discipline, the employing authority must decide —

(i) to take disciplinary action, or both disciplinary action and improvement action, with respect to the employee; or

(ii) to take improvement action with respect to the employee; or

(iii) that no further action is to be taken. (emphasis added)

20      Section 6 of the HS Act defines disciplinary action as follows:

disciplinary action, in relation to a breach of discipline by an employee, means any one or more of the following —

(a) a reprimand;

(b) the imposition of a fine not exceeding an amount equal to the amount of remuneration received by the employee in respect of the last 5 days during which the employee was at work as an employee before the day on which the finding of the breach of discipline was made;

(c) transferring the employee to another health service provider with the consent of the employing authority of that health service provider;

(d) if the employee is not a chief executive, transferring the employee to another office in the health service provider in which the employee is employed;

(e) reduction in the monetary remuneration of the employee;

(f) reduction in the level of classification of the employee;

(g) alteration of the employee’s scope of practice or duties, or both;

(h) dismissal. (emphasis added)

21      A breach of discipline is defined in s 161 of the HS Act:

161. What is a breach of discipline

An employee commits a breach of discipline if the employee —

(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

(iii) a policy framework;

or

(c) commits an act of misconduct; or

(d) is negligent or careless in the performance of the employee’s functions; or

(e) commits an act of victimisation within the meaning of the Public Interest Disclosure Act 2003 section 15. (emphasis added)

Dr Loh's case

22      Dr Loh says the Health Service made a decision to take disciplinary action against him under s 163(3)(b) of the HS Act when it gave him notice of the Removal on 3 April 2017.

23      He says the Health Service found that he committed a breach of discipline because:

1. there is no set form or procedure set out in the HS Act about how and when the Health Service must deal with a disciplinary matter;
2. the Health Service could not have removed him as Head of Department for no reason.  It must have been for a reason or reasons; and
3. he was not given detailed reasons for the Removal.

24      Dr Loh argues that the Board should find the Removal was a disciplinary decision or finding because the Health Service, through Dr Anwar, formed the opinion that Dr Loh had committed misconduct or was negligent or careless in the performance of his functions, in accordance with s 161 of the HS Act, based on the following:

1. the Health Service believed Dr Loh was not supportive of the team-building exercises that Dr Anwar organised for February 2017;
2. the Health Service was unhappy that Dr Loh advocated for Dr Donaldson’s replacement in the DGM to be employed on a full-time, rather than part-time, basis in March 2017; and
3. the Health Service believed Dr Loh did not support management doing a walk-through at Bentley Hospital when Dr Loh advocated for that hospital’s junior doctors on 30 March 2017.

25      Dr Loh argues that the decision to remove a Head of Department should be subject to review by the Board to afford natural justice and because Heads of Department perform an advocacy role within the health system.

Dr Loh’s evidence

26      Dr Loh gave evidence that he understood it is part of the Head of Department role to represent the views of the DGM physicians to the Royal Perth Hospital management. 

27      From Dr Anwar’s comments in 2015 and 2016, Dr Loh thought Dr Anwar felt he did not support Dr Anwar's decision to stand down the DGM doctor.  Dr Loh concedes he did not support Dr Anwar’s decision, because of the significant implications for service delivery and lack of proper investigation.  However, Dr Loh says he did everything Dr Anwar asked him to do, despite being uncomfortable about it.

28      Dr Loh gave evidence that he asked Dr Anwar to cancel the team-building exercises that Dr Anwar had organised because the majority of the DGM's physicians did not want to have a one-on-one session with a psychologist.  Dr Loh says he did everything Dr Anwar asked him to do in relation to the doctor who had been stood down and the team-building exercises.  Dr Anwar told Dr Loh that Dr Anwar felt it was Dr Loh’s duty as Head of Department to convince physicians to meet the psychologist in one-on-one sessions.

29      Dr Loh gave evidence that he believed that on 6 January 2017, Dr Wright, Ms Brearley and Dr Bennett made a surprise visit to Bentley Hospital.  They asked junior doctors about consultants’ workloads and routines.  Dr Loh says when he met with Dr Wright in late January 2017, he told Dr Wright that the DGM’s physicians felt that more physicians were needed.  In cross-examination Dr Loh said although Dr Wright never said to him that Dr Wright intended to cut FTE, Dr Loh formed that belief based on their meeting and the questions asked during the walk-through at Bentley Hospital.

30      Dr Loh gave evidence that Dr Anwar was unhappy about Dr Loh’s email on 23 March 2017 (set out at [13]).  Dr Loh believes Dr Anwar, Dr Bennett and Dr Wright thought that Dr Loh committed misconduct when he sent the email and they did not trust him to carry out his role as Head of Department.

Meeting on 30 March 2017

31      On 30 March 2017 Dr Loh attended a meeting with Dr Anwar, Ms Brearley, Dr Wright, Associate Professor Etherton-Beer and Professor Flicker.  Dr Loh says he understood the meeting’s purpose was to discuss extra beds.  After that matter had been discussed, Dr Anwar asked Associate Professor Etherton-Beer and Professor Flicker to leave.  Dr Anwar asked Dr Loh if he wanted a support person.  When Dr Loh said he did, Dr Anwar replied that they should press on.

32      Dr Loh says Dr Anwar said things were not working out, there was a lack of trust and he asked Dr Loh to leave as Head of Department.  When Dr Loh asked why, Dr Anwar said there was no reason, but that things were not working out.  Then Dr Anwar said that it was due to Dr Loh’s emails from the previous week, when Dr Loh accused Dr Bennett of withdrawing resources from the DGM. 

33      Dr Loh gave evidence that he did not feel that he had an opportunity to present his case at the meeting.  He asked for another meeting with a legal support person to discuss his dismissal as Head of Department.  Dr Anwar agreed and his assistant tried to set a meeting at a time when Dr Loh had clinic.  Dr Anwar’s assistant told Dr Loh that a meeting may be held on 6 or 7 April 2017.

34      On 3 April 2017, the Health Service sent Dr Loh a letter confirming the Removal. 

35      Dr Loh gave evidence that the reason for the Removal was because Dr Anwar and Dr Bennett considered that Dr Loh committed misconduct or was negligent in the performance of his duties.

36      Dr Loh agreed in cross-examination that he did not commit an act of misconduct and was not negligent in the performance of his duties.  He did not think any aspect of his behaviour would give rise to the Health Service suspecting he committed a breach of discipline.  He agreed the Health Service did not allege that he had done any of those things.  Dr Loh agreed that no allegations of a breach of discipline were put to him and no disciplinary process was followed.

37      Dr Loh gave evidence that he lost duties and an annual allowance as a result of the Removal.

The Health Service's case

38      The Health Service says it made no disciplinary decision or finding and took no disciplinary action in relation to Dr Loh. 

39      Rather, it says it exercised its discretion under cl 20(13)(e) of the Agreement.  The Health Service says at best this is a dispute about the application of that clause.

40      The Health Service says it must comply with its Discipline Policy in circumstances where a breach of discipline is alleged.  This was not a disciplinary matter and it did not comply with that policy because it is not relevant to the Health Service giving notice to a Head of Department under cl 20(13)(e) of the Agreement.

41      The Health Service does not dispute Dr Loh’s contention that it gave him notice of the Removal because there was an erosion of trust between Dr Loh and management and there was 'no longer any trust with [Dr Loh] by management’.  But it says that does not mean it must suspect or find a breach of discipline because of a lack of trust.

42      Dr Anwar and Dr Wright gave evidence for the Health Service.  Dr Anwar is Executive Director, Royal Perth Bentley Group at the Health Service.  Dr Wright is Medical Director, Service Four at Fiona Stanley Hospital. 

Dr Anwar’s evidence

43      At the time of relevant events, Dr Loh as Head of Department reported to Dr Wright and Ms Brearley.

44      Dr Anwar gave evidence that he was concerned about the tone of Dr Loh’s emails and that Dr Loh was undermining Dr Wright and Dr Bennett, who was Acting Director Clinical Services.

45      Dr Anwar said ‘the spirit of communication of the information at its core promoted conflict rather than being constructive’.  The Board understands that Dr Anwar felt Dr Loh interpreted management’s actions in a negative way.

46      Dr Anwar’s view was in part due to Dr Loh’s ‘resistance to embracing the staff welfare [initiative Dr Anwar] had put in place with the engagement of [the psychologist]'.  The Board understands this to mean the team-building exercises.

47      Dr Anwar gave evidence that he concluded he should remove Dr Loh as Head of Department based on a number of email exchanges and informal conversations with Dr Loh.  His personal observations were supported by conversations with other people about Dr Loh’s interactions with Dr Wright and Dr Bennett.

48      Dr Anwar was told by medical administration staff that he needed to give Dr Loh one month’s notice to end his Head of Department appointment.  He wanted to communicate the decision to end Dr Loh’s appointment as Head of Department in a dignified way, so he invited Dr Loh to meet him on 30 March 2017.  Dr Anwar considered it appropriate for Dr Wright and Ms Brearley to attend the meeting because Dr Loh reported directly to them.

49      Dr Anwar said he was surprised Dr Loh invited Associate Professor Etherton-Beer and Professor Flicker to the meeting to discuss strategic direction.  Once that part of the meeting was over, they left.

50      Dr Anwar’s evidence is that he told Dr Loh that the spirit of the relationship between the Head of Department and management was not constructive.  He did not say there was no longer any trust with the Head of the Department by management.  Dr Anwar said it would be better for Dr Loh to leave the role and step down, because ‘this was not working’. 

51      Dr Anwar says Dr Loh asked on what grounds he should step down.  Dr Anwar replied that no reasons needed to be provided but he was prepared to elaborate that the reason for the role ending was because of the previous week’s emails.

52      Dr Anwar then said he had ‘no faith in the spirit in which [Dr Loh presented the facts]’, for example in relation to the 0.8 FTE vacancy.  Dr Anwar agreed they could meet again and that Dr Loh could bring a support person.

53      Dr Loh acknowledged at the meeting the verbal notice of termination.  Dr Loh said he was advocating for resources, had the support of departmental colleagues and was not aware of the other issues Dr Anwar referred to. 

54      Dr Anwar gave evidence that Dr Loh’s emails were underpinned by reasonable advocacy but the behaviour and tone in his emails went beyond normal advocacy.  A Head of Department must work in ‘an open and transparent and safe environment’.  It is critical to the role to challenge and highlight risks.  A Head of Department does not always have to agree with management.  Dr Anwar says he regularly has and relies on robust discussions with staff.  Views are appropriately expressed and debated in various forums, including the Heads of Department meeting.

55      Dr Anwar gave evidence that he did not think Dr Loh’s performance was unsatisfactory, nor that Dr Loh had committed an act of misconduct or been negligent in the performance of his duties.  Dr Anwar said he did not discuss an unsatisfactory work performance process or disciplinary process for Dr Loh with Dr Bennett, Dr Wright or anyone else.

56      The gist of Dr Anwar’s evidence was that the Health Service did not consider or take disciplinary action against Dr Loh.  This was not a disciplinary matter.  The Removal was because of a lack of trust between Dr Loh and management, which on Dr Anwar’s part was due to Dr Loh’s emails and attitude to the team-building exercises.

Dr Wright’s evidence

57      Dr Wright gave evidence that, as part of his orientation, on about 6 January 2017 he visited Bentley Hospital with Ms Brearley.  They could not locate a consultant to talk to, so they asked a registrar ‘How do the teams work here?  When do the consultants do their rounds?’.  Dr Wright was introduced to staff during the walk-through.

58      At the time of the visit, Dr Wright was not given any indication of anything untoward about the manner of the walk-through or the walk-through itself.  It was not until the meeting on 30 March 2017 that Dr Wright realised Dr Loh had concerns about the walk-through.

59      Dr Wright met with Dr Loh and Ms Brearley on 24 January 2017 to understand how the DGM operated.  Dr Wright did not say that the DGM had been allocated too many FTE and they did not discuss cutting FTE.

60      Dr Wright felt Dr Loh misrepresented him to the DGM’s staff when Dr Loh sent them an email saying Dr Wright’s agenda was to cut FTE.  Dr Wright gave evidence that he did not have an agenda to cut FTE.

61      Dr Wright gave evidence that the decision to replace Dr Donaldson at 0.8 FTE had been made before Dr Wright started in his role.  It was based on reduced geriatric clinics and the fact that Dr Donaldson’s 0.8 FTE arrangement had been in place for about a year.

62      Dr Wright said he and Ms Brearley attended the meeting with Dr Anwar and Dr Loh on 30 March 2017.  Dr Wright understood that the meeting’s purpose was to discuss ending Dr Loh’s Head of Department appointment.  Dr Wright’s evidence about the meeting was broadly consistent with Dr Anwar’s evidence.

63      Dr Wright gave evidence that he had been a Head of Department for three years at Fiona Stanley Hospital.  He understands that either party can give one month’s notice to end the Head of Department arrangement.  When that happens only the payment of the allowance changes.  The hours are absorbed into clinical duties. 

64      Dr Wright gave evidence that a Head of Department finds the right balance between representing staff views and supporting managerial views and decisions.  While one does not always have to accept management’s view, there is an appropriate forum to put forward a different view, such as directly or in a Heads of Department meeting with Service Co-Directors.

65      Dr Wright gave evidence that he did not discuss with Dr Anwar or Dr Bennett an unsatisfactory work performance process or disciplinary process for Dr Loh.

Consideration

66      The Board does not have jurisdiction to enquire into and deal with all industrial matters that relate to government officers.  The Board’s jurisdiction is not unlimited. 

67      The Board’s jurisdiction is set out in Part IIA Div 2 of the IR Act, in particular in s 80I, and referred to in relevant sections of the HS Act.

68      The Board can hear and determine appeals against specific decisions of employing authorities.

69      Given Dr Loh's appeal, where the Health Service objects to the Board’s jurisdiction, Dr Loh must establish as a jurisdictional fact that the Health Service took disciplinary action against him when it removed him as Head of Department.

Preliminary issue – reference to s 172(1)(b) only

70      The Board considers it necessary to deal with a preliminary issue relevant to the question of jurisdiction.  Namely, whether the Board’s jurisdiction to hear and determine Dr Loh’s appeal, which relates to s 172(1)(d) of the HS Act, is enlivened in circumstances where s 80I(1)(c) of the IR Act only refers to s 172(1)(b) of the HS Act and not any of the other subsections in s 172(1) of the HS Act. 

71      Because neither party dealt with this preliminary issue at the hearing, the Board invited Dr Loh and the Health Service to make written submissions about it.

72      The Health Service says the answer to the Board’s question is no.  It does not appear to distinguish between Dr Loh’s standing to make an appeal and the Board’s jurisdiction to hear and determine his appeal.  The Health Service’s submission seems to be that the Board only has jurisdiction to hear and determine Dr Loh’s appeal under s 172(1)(d) of the HS Act because Dr Loh’s amended notice of appeal referred to that subsection and not to s 80I(1)(c) of the IR Act.  Further, the Health Service seems to conclude that because Dr Loh referred his appeal under s 172(1)(d) of the HS Act, the Board’s jurisdiction is not enlivened.  The Health Service says to the extent of any inconsistency, the HS Act prevails over the IR Act.  It submits this is Parliament's clear intention, particularly given s 172(6) of the HS Act.

73      The Health Service accepts that under s 172(3) of the HS Act the Board’s jurisdiction is in accordance with Part IIA Div 2 of the IR Act.  It is not clear from the Health Service’s submission where in Part IIA Div 2 of the IR Act the Board’s jurisdiction is dealt with, if not in s 80I.

74      The Health Service says the Board’s question is irrelevant, Dr Loh’s amended notice of appeal relates to s 172(1)(d) of the HS Act and to answer the Board’s question ‘as to whether other powers are enlivened is arguably extending the powers of the [Board] to "enquire into" and "deal with" as opposed to "hear" and "determine" an appeal.’

75      The Health Service argues ‘[t]he responsibility of the Board is to hear and determine not to enquire into or deal with an appeal by posing a question as to whether the Appellant should have made his appeal on different jurisdictional grounds.’

76      With respect, the Health Service appears to misunderstand the Board’s question.  The question is not whether Dr Loh should have made his appeal ‘on different jurisdictional grounds’, as the Health Service puts it.  The question is whether, even if Dr Loh could establish that the Health Service made a disciplinary decision or finding about him, the Board has jurisdiction to hear and determine Dr Loh’s appeal. 

77      The Board asked the question because of its view that the Board’s jurisdiction is conferred by s 80I of the IR Act.  Dr Loh’s appeal relates to a decision referred to in s 172(1)(d) of the HS Act.  On its face, it may be argued that s 80I of the IR Act does not appear to expressly confer jurisdiction to hear and determine an appeal brought under s 172 of the HS Act against a decision referred to in s 172(1)(d) of the HS Act.

78      Contrary to the Health Service’s submission, it is entirely proper for the Board to raise an issue relating to jurisdiction in circumstances where the parties have not.  The issue of jurisdiction is always at large: SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760 (Sharkey P, Gregor C & Kennedy C).

79      The question is relevant because the Board’s jurisdiction is conferred by s 80I(1)(c) of the IR Act.  Section 172(2) of the HS Act enables an employee, like Dr Loh, who is aggrieved by a disciplinary decision or finding to appeal to the Commission constituted by a Board.  Section 172(3) of the HS Act makes it clear that a Board has jurisdiction to hear and determine an appeal under s 172(2) of the HS Act in accordance with Part IIA Div 2 of the IR Act.

80      Part IIA Div 2 of the IR Act is about constituent authorities.  The Board’s jurisdiction is set out in s 80I of the IR Act.  The Board has power under s 80I(1) to adjust the matters referred to in s 80I.  Relevant to the circumstances of this matter is the Board’s jurisdiction under s 80I(1)(c) of the IR Act to hear and determine an appeal by a government officer under s 172 of the HS Act.  Section 80I(1)(c) of the IR Act seems to be the only provision that expressly deals with the Board’s jurisdiction to hear and determine such an appeal and its powers in the exercise of its jurisdiction.  Section 172(6) of the HS Act does not confer jurisdiction or condition the exercise of the Board’s jurisdiction. Rather, it confirms some of the options that are open to the Board where it appears to the Board that an employing authority failed to comply with the relevant policy framework or the rules of procedural fairness in making the decision or finding the subject of an appeal.

81      The Board considers that the reasoning in the unanimous decision of the Industrial Appeal Court in State Government Insurance Commission v Johnson (1997) 77 WAIG 2169 is relevant.  Although that case related to equivalent provisions as they were in 1994, the same reasoning applies to this matter.  That case involved an appeal made by a government officer from his employer's decision that he be dismissed.  Section 80I of the IR Act relevantly provided:

(1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine –

...

(e) an appeal…by any Government officer…from a decision, determination or recommendation of the employer of that Government officer that the Government officer be dismissed,

and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d), and (e).

82      Like the current s 78(1) of the Public Sector Management Act 1994 (PSM Act) and s 172(2) of the HS Act, at the time of that decision s 78(1) of the PSM Act gave a government officer standing to appeal to the Board, relevantly, a finding that the government officer committed a breach of discipline and the action taken as a result of that finding.

83      Franklyn J held:

The jurisdiction of the Public Service Board is that and only that conferred on it by the Industrial Relations Act 1979 (WA) (the Act).  Anderson J has set out the relevant provisions of s 80I(1) which confers on the Board the 'jurisdiction to hear and determine' the appeals identified in pars (a) to (e) thereof and 'to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e)' (emphasis added).  No other section confers jurisdiction (2170). (original emphasis) 

84      Anderson J held:

The Board is established and its functions and jurisdiction are set out in Part IIA of the Industrial Relations Act 1979.  Section 80H provides, relevantly –

'80H (1) For the purpose of an appeal under s 80I there shall be established, within and as part of the Commission [the Industrial Relations Commission], a Board to be known as the Public Service Appeal Board…'

As to jurisdiction, s 80I provides –

'80I. (1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

...

(e) an appeal…by any Government officer…from a decision, determination or recommendation of the employer of that Government officer that the Government officer be dismissed,

and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d), and (e).'

Neither s 52 of the Public Sector Management Act 1994, which refers to chief executive officers, nor sub-s(3) of s 80I, which refers to appeals from decisions to do with redeployment and redundancy, has any application. None of the paras (a), (b), (c) or (d) has any relevance. Thus if the Board has the jurisdiction or power to hear and determine a claim for compensation by a dismissed government employee that jurisdiction or power must be found within s 80I(1)(e) and specifically within the power 'to adjust all such matters as are referred to in' para (e) (2170).

85      The Board’s view that its jurisdiction is set out in s 80I of the IR Act is consistent with the Industrial Appeal Court's approach in State Government Insurance Commission v Johnson (1997) 77 WAIG 2169.

86      One way of construing s 80I(1)(c) of the IR Act is that it refers only to a decision or finding referred to in s 172(1)(b) of the HS Act and not a decision referred to in s 172(1)(d) of the HS Act, which is the subsection Dr Loh relies on, nor to a decision referred to in any of the other subsections of s 172(1) of the HS Act.  If s 80I(1)(c) of the IR Act is construed in that way, the Board would not have jurisdiction to hear and determine Dr Loh’s appeal even if he were able to establish that the Health Service made a disciplinary decision or finding about him. 

87      However, the Board finds that s 80I(1)(c) of the IR Act should not be construed in that way. 

88      First, the Board accepts Dr Loh’s submission that ‘a court construing a statutory provision must strive to give meaning to every word of the provision’: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71].  Meaning must be given to the words of the provision.  Unlike s 172(1)(a), s 172(1)(c), s 172(1)(d) and s 172(1)(e) of the HS Act, s 172(1)(b) relates to a finding and not a decision.  The word ‘decision’ in s 80I(1)(c) of the IR Act would be meaningless if a Board could only hear and determine appeals about findings referred to in s 172(1)(b) of the HS Act.  Similarly, s 172(1)(a), s 172(1)(c), s 172(1)(d), s 172(1)(e) and s 172(2) of the HS Act would be meaningless if the Board lacked jurisdiction under s 80I of the IR Act to hear and determine and adjust such decisions. 

89      Second, it is possible that Parliament intended s 80I(1)(c) of the IR Act to be read as relating to an appeal against a decision under s 172 of the HS Act, which would include a decision referred to in s 172(1)(a), s 172(1)(c), s 172(1)(d) and s 172(1)(e), and also relating to an appeal against a finding referred to in s 172(1)(b).  It is also possible that the reference to ‘(1)(b)’ in s 80I(1)(c) of the IR Act is simply a typographical error and the reference should be to ‘(1)’ instead.

90      It is clear that Part IIA Div 2 of the IR Act must be read in conjunction with the HS Act: s 80C(2) of the IR Act.  It is clear from s 172(2) of the HS Act that Parliament intended that an employee who is a government officer and is aggrieved by a disciplinary decision or finding may appeal against that decision or finding to the Board.   

91      The Board therefore considers that s 80I(1)(c) of the IR Act should be construed to give the Board jurisdiction to hear and determine appeals against decisions or findings referred to in s 172(1)(a), s 172(1)(b), s 172(1)(c), s 172(1)(d) and s 172(1)(e) of the HS Act.  The Board finds that if Dr Loh establishes that the Health Service made a disciplinary decision or finding about him, then the Board will have jurisdiction to hear and determine Dr Loh’s appeal.

Did the Health Service make a disciplinary decision or finding about Dr Loh?

92      It is clear, and the Health Service does not dispute, that the effect of the Removal was to reduce Dr Loh’s remuneration and alter the scope of his practice or duties. 

93      However, for the Removal to fall within the definition of disciplinary action under s 6(e) and s 6(g) of the HS Act, it must be in relation to a breach of discipline. 

94      The evidence does not show that the Health Service dealt with this matter as a disciplinary matter.  The evidence does not show that any allegation of a breach of discipline was put to Dr Loh, that there was an investigation or that a finding was made.  The evidence does not show anything to suggest that the Health Service found that Dr Loh committed a breach of discipline, or that the Health Service took disciplinary action, other than Dr Loh’s assertion that disciplinary action was taken when his remuneration was reduced and his scope of practice or duties was altered.  Those were the effect of the Removal.

95      That the effect of the Removal happens to fit part of the definition of disciplinary action does not mean that disciplinary action has been taken.  Remuneration could be reduced and the scope of practice or duties altered for any number of reasons, including by agreement or at an employee’s initiative.

96      The Board accepts that the relationship between Dr Loh and management had deteriorated.  Indeed, Dr Anwar and Dr Loh both gave evidence that there was a lack of trust between Dr Loh and management.  But a lack of trust or deterioration in the relationship does not equate to a finding of a breach of discipline. 

97      Clearly Dr Anwar did not care for Dr Loh’s approach or communication style.  The Board accepts that there was a lack of trust on the Health Service’s part because of Dr Loh’s email exchanges with Dr Bennett and Dr Loh’s resistance to the DGM’s physicians attending one-on-one sessions with a clinical psychologist.  That lack of trust was the reason for the Removal.

98      Dr Anwar agreed in cross-examination that he found Dr Loh’s behaviour in relation to these issues to be disappointing, inappropriate, unacceptable and not proper.    Dr Loh says misconduct 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; (2002) 82 WAIG 2845 [32] (Anderson J). 

99      Although Dr Anwar agreed that he thought Dr Loh’s email was unacceptable and not proper, that does not amount to a finding that Dr Loh committed misconduct or was negligent in the performance of his duties.  It was clear from Dr Anwar’s evidence that he did not consider Dr Loh committed misconduct:

CROSS-EXAMINATION BY MR SMETANA

…

And you thought Dr Loh’s email to Dr Bennett of 23 March was unacceptable, didn’t you?---Um, I did.

And you said that in your email to Dr Loh dated 24 March, haven’t you?---I did, yes, absolutely. 

And you thought Dr Loh’s conduct in sending an email to Dr Bennett accusing her of withdrawing clinical resources was unacceptable conduct by him, didn’t you?---I thought the manner in which the, ah, concerns were raised, um, they were - were hostile and unnecessary.

Would you say that you thought Dr Loh’s email to Dr Bennett, dated 23 March, was unacceptable conduct by him?---I think it’s disappointing.  I mean, it - it - it’s disappointing.  It’s not the what, it’s the how.  Um, we’d discussed spirit, we discussed engagement, we’d talked about, um, standards of behaviour, we’ve talked about values, and those are all embodied in the way we communicate with our colleagues.  The - the message maybe warned us, that was legitimate for challenge, it’s all in the how.

Yes. 

So would you agree that the content of Dr Loh’s email to Dr Bennett, dated 23 March, was unacceptable conduct by Dr Loh?---It was disappointing.  It was - did not - - -

EMMANUEL C:   So that’s number 3, I think you just need - - -?---Okay.

- - - to do a yes or no?---What - was it unacceptable?  Yes, it was unacceptable.

SMETANA, MR:   Unacceptable conduct by him?‑‑‑It was not disciplinary, but it was - it was disappointing, yes.  It was unacceptable.

Unacceptable conduct by him?‑‑‑Well, ah, ah ‑ ‑ ‑

EMMANUEL C:   You’re going to get an opportunity, I think, to expand on this ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ with ‑ ‑ ‑?‑‑‑It was ‑ ‑ ‑

‑ ‑ ‑ Ms van den Herik?‑‑‑ ‑ ‑ ‑ unacceptable conduct by him.

SMETANA, MR:   Thank you. 

…

Certainly.  And you thought the tone of Dr Loh’s email to Dr Bennett of 23 March was inappropriate, is that correct?‑‑‑I absolutely did.

Yes.  Is it fair to say that you thought the tone of Dr Loh’s email to Dr Bennett of 23 March was an act of misconduct?‑‑‑No, never.

But you would agree that the tone of the email was inappropriate?‑‑‑It is inappropriate.

Would you agree that the tone of Dr Loh’s email to Dr Bennett, dated 23 March, in your opinion, was not proper?‑‑‑There are lots of things that happen proper but don’t cross the line in terms of becoming disciplinaries.  So yes, I would suggest it was not proper.  Um, but I didn’t believe that it crossed the line to such an extent that it would invoke a disciplinary process.

…

Isn’t it correct that you decided that Dr Loh had misconducted himself, if I could put it that way, by agreeing to the Critical Components program and then seeking it to be cancelled?‑‑‑No, no misconduct.

And isn’t it correct that you decided that Dr Loh had misconducted himself by sending his email dated 23 March to Dr Bennett, accusing her of withdrawing clinical resources?‑‑‑Not misconduct, no.  Um, disappointingly demonstrating antipathy but not misconduct.

…

RE-EXAMINATION BY MS VAN DEN HERIK:

VAN DEN HERIK, MS:   Dr Anwar, in cross‑examination, it was put to you that you made a finding about Dr Loh’s withdrawal of support, or perceived withdrawal of support ‑ ‑ ‑?‑‑‑Sure.

‑ ‑ ‑ for the team building initiatives?‑‑‑Sure.

Do you say you made a finding?‑‑-No, we formed an opinion.  I apologise - I mean, I - I apologise, it would been that we formed an opinion.  There is - ah, we weren’t part of any structured process to have any findings, so, um, that would’ve been a - the wrong adjective to use or verb.

It was also put to you in cross‑examination that you’d formed a view that Dr Loh did not meet the standard of performance required of a Head of Department.  In other words, his standard of performance was unsatisfactory.  What’s your response to that?‑‑‑It was, um, I mean, ah - sorry, maybe it - it does require an expanded explanation.  It - we were disappointed in the spirit of collaboration that was being demonstrated as part of our working relationship and that spirit of trust and collaboration is a central tenant to how we work together.  Um, how that forms into a standard, um, I think is pretty difficult to articulate.  It’s a spirit, not the transactional elements of working as a Head of Department, that we found disappointing.

Also in cross‑examination, it was put to you that the conduct of the emails - the exchange of emails on 23 March were in fact unacceptable conduct?‑‑‑I - I did try and articulate several times, I hope the records would show, that I found them disappointing.  I, eh, I was drawn to the evidence where I talk about behaviour and values and that I felt that they didn’t adhere to the behaviours and values set that the organisation is hoping to achieve - aspiring to achieve.  And as a consequence, yes, they fell short.  But I didn’t feel they crossed a line to such an extent as to warrant a formal disciplinary process.  In fact, as I previously articulated, that did not cross our mind and was not part of the framework we were thinking about when we met him that evening.

100   Dr Loh’s remuneration was reduced and the scope of his practice or duties was altered because the Health Service chose to terminate his appointment as Head of Department in accordance with cl 20(13)(e) of the Agreement.  The effect would have been the same had Dr Loh chosen to exercise his right under that clause to terminate his appointment as Head of Department.

101   The parties to the Agreement decided the circumstances in which a Health Service and an employee may terminate a Head of Department appointment.  All the Agreement requires is that either party give the other party one month’s notice or, in lieu of giving notice, paying (or forfeiting, as the case may be) the Head of Department allowance for that period.  That the effect of terminating a Head of Department appointment may have the same effect as disciplinary action does not give this Board jurisdiction to hear and determine Dr Loh’s appeal.

102   The Board finds that the Health Service did not find that Dr Loh committed misconduct or was negligent or careless in the performance of his functions.

103   The Board is not persuaded that the Health Service found that Dr Loh committed a breach of discipline.  Therefore the Removal was not ‘disciplinary action in relation to a breach of discipline' (emphasis added).  There is no disciplinary decision or finding to appeal to the Board.

104   For these reasons the Board must dismiss Dr Loh’s appeal.