Doctor in denial of the real reasons for her dismissal
In a recent decision, the Federal Court has rejected a Doctor’s misguided attempt to overturn her termination on the basis that it emanated from her exercise of a workplace right as opposed to her breach of professional boundaries and confidentiality directives.
In Rudakova v Congregation of Religious Sisters of Charity of Australia trading as St Vincent's Private Hospital, Sydney, Justice Geoffrey Flick upheld the Federal Circuit Court (FCC) decision that the dismissal of Dr Rudakova (the Doctor) was due to her serious misconduct.
The Doctor was undertaking a fixed one-year internship at St Vincent’s Private Hospital (the Hospital) when she was dismissed halfway through. The termination of her services was “the culmination of a process that involved two consecutive and overlapping procedures”. One process involved complaints made by the Doctor and the investigation of her concerns as to (inter alia) “bullying behaviour by her medical superiors”. The other related to complaints made about the Doctor’s own conduct.
The investigation into her serious misconduct followed complaints made by two medical practitioners that she:
- jeopardised the health of a patient;
- persisted in discussing “complaints” she had about other staff and the failure “to teach her things and support her at the Hospital”; and
She was also investigated separately for failing to comply with a lawful and reasonable direction to maintain confidentiality in relation to a bullying claim.
The allegations were substantiated and the Doctor was been found to have breached the Medical Board of Australia’s Code of Conduct in respect of professional boundaries and the Hospital’s code of conduct, as well as failing to comply with a lawful and reasonable directive to maintain the confidentiality of her bullying complaint. The decision to terminate the Doctor was made by the then Chief Executive Officer (CEO) of the Hospital and comprehensively explained in her termination letter.
At the first instance, the FCC rejected the argument advanced on behalf of the Doctor that a reason for the making of the decision to terminate her services was the fact that she had exercised her “workplace right” to make a complaint. In doing so, the FCC accepted the evidence of the CEO that the letter of termination set forth the reasons for his decision.
The issue in contention was whether there was any appellable error made by the primary Judge in making the findings of fact set forth repeatedly in the reason for decision. It was established that findings of fact can be reviewed on appeal but an appellate court does not proceed as if the initial findings had not been made (Whittaker v Child Support Registrar  FCAFC 112).
Following its examination of the initial decision, the Federal Court held that there was no appellable error in the primary Judge’s fact-finding. The findings of fact (particularly in respect to the CEO) involved an assessment as to his credibility when denying that he had taken into account the fact that the Doctor had also raised a number of “grievances” in respect to her employment at the Hospital.
It was accepted that the findings of fact made by the CEO during the investigation constituted “serious misconduct” and it was held that:
"… when a comparison is made between the seriousness of those findings and exercise of the workplace right by [the doctor] to make a complaint as to bullying, there is no reason to question the evidence of [the chief executive] and the findings of fact made by the primary Judge by reference to his evidence.”
Implications for you
Generally, termination of employment by an employer may constitute adverse action for the purposes of the Fair Work Act 2009 (the Act). However, for there to be a breach of the Act, the decision to terminate must be taken because of a workplace right or the exercise of a workplace right.
The key takeaway for employers to minimise the risk of an adverse action claim in circumstances where there are overlapping investigations into an employee’s complaint or query, and investigations of alleged misconduct, is to ensure there is a separation of issues in each investigation process. This way, there is clarity as to what had influenced the decision-maker to dismiss the employee.
This article was authored by Laura Sowden, Anna Ly, Theresa Au.
  FCA 1222 (26 August 2020).