Industrial Relations Commission of New South Wales CITATION: Wojtulewicz v. New South Wales Health Department [2009] NSWIRComm 1077 APPLICANT Australian Salaried Medical Officers' Federation PARTIES: RESPONDENT New South Wales Department of Health FILE NUMBER(S): IRC 367 of 2007 and 2123 of 2008 CORAM: Connor C CATCHWORDS: termination of employment - medical profession - threat of dismissal - employee suspended - proceedings restraining the employer from terminating the services of an employee - allegations of bullying and harassment by applicant - alleged offensive comments, jokes and inappropriate conduct by applicant - claim that proposed dismissal unfair - remedies for unfair dismissal - onus and standard of proof - rules of evidence - claim for reinstatement in employment not pressed - alternative employment sought - the concept of condonation - some allegations against applicant not substantiated - some allegations against applicant considered trivial - some allegations against applicant considered stale - continued employment confirmed - directions to parties to confer over issues in dispute and to locate new employment opportunities for applicant Anti Discrimination Act 1977 Evidence Act 1995 LEGISLATION CITED: Health Administration Act 1982 Industrial Relations Act 1996 Medical Practice Act 1992 Occupational Health and Safety Act 2000 Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 Attorney-General's Department v. Miller (2007) 160 IR 185 Australasian Transport Officers Association v. Department of Motor Transport (1988) 25 IR 235 Australian Salaried Medical Officers' Federation v. Director General of the New South Wales Health Service [2008] NSWIRComm 229 Bankstown City Council v. Paris (1999) 93 IR 209 Bigg v. New South Wales Police Service (1998) 80 IR 434 Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 Briginshaw v. Briginshaw (1936) 60 CLR 336 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 Castlemaine Toohey Limited v. State of South Australia (1986) 161 CLR 148 CCH Australia Limited v. Bowen (1998) 79 IR 206 Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Coles Myer Limited v. Shop Distributive and Allied Employees' Association (1989) 27 IR 299 Electricity Commission of New South Wales v. Nieass (1995) 81 IR 46 Federal Supply and Cold Storage Company of South Africa v. Angehrn (1910) 103 LT 152 Four Sons Pty Limited v. Limsiripothong (2000) 98 IR 1 Hales v. Kerr (1908) 2 KB 601 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 John Lysaght (Australia) Limited v. Federated Iron Workers Association; re York (1972) AILR 517 Jones v. Dunkel (1959) 101 CLR 298 Re Loty and Holloway and the Australian Workers Union (1971) AR 95 M v. M (1988) 63 ALJR 108 Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 CASES CITED: Maitland v. Royal Blind Society of New South Wales (2004) 138 IR 75 Makin v. Attorney-General for New South Wales (1894) AC 57 Martin v. Osborne (1936) 55 CLR 367 North v. Television Corporation Limited (1976) 11 ALR 599 O'Callaghan v. Loder (1984) 5 IR 320 Oswald v. New South Wales Police Service (1999) 90 IR 42 Outboard World Pty Limited v. Muir (1993) 51 IR 167 New South Wales Public Service Professional Officers' Association v. Forestry Commission of New South Wales (1990) 39 IR 46 Pacific Power v. Crump (1993) 48 IR 296 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 PDS Rural Products Limited v. Corthorn (1987) 19 IR 153 Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 Public Service Association of New South Wales v. Public Service Board of New South Wales (1988) 25 IR 148 R v. Anderson; ex parte Ipec- Air Pty Limited (1965) 113 CLR 117 R v. Smith (1915) All ER Rep.262 St Aloysius College Case (1976) AR 91 Sewell v. New South Wales Police Force (2008) 174 IR 247 State of New South Wales v. Seedsman - unreported Subramaniam v. Public Prosecutor (1956) 1 WLR 965 Tipping's Case (1957) AR 273 Ueckert v. Australian Water Technologies Pty Limited [2000] NSWIRComm 123 Van Huisstede v. Commissioner of Police (2000) 98 IR 57 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 Watters v. Zig Zag Railway - unreported Western Sydney Area Health Service v. Australian Salaried Medical Officers' Federation (2004) 138 IR 203 HEARING DATES: 24/06/2009, 25/06/2009, 26/06/2009, 01/07/2009, 02/07/2009, 03/07/2009, 08/07/2009, 09/07/2009, 10/07/2009, 13/07/2009, 14/07/2009, 26/08/2009, 27/08/2009, 28/08/2009, 04/11/2009, 06/11/2009 DATE OF JUDGMENT: 18 December 2009 APPLICANT Igmar Taylor LEGAL REPRESENTATIVES: RESPONDENT Martin Einfeld DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 18 December, 2009 Matter No IRC 367 of 2007 and 2123 of 2008 Julian Wojtulewicz and the New South Wales Department of Health Application by the Australian Salaried Medical Officers' Federation under S.84 of the Industrial Relations Act, 1996 Notification of an industrial dispute by the Australian Salaried Medical Officers' Federation under S.130 of the Industrial Relations Act, 1996 DECISION [2009] NSWIRComm 1077 Background 1 On Thursday, 27 March, 2007 the Australian Salaried Medical Officers' Federation lodged a notification of an industrial dispute with the New South Wales Health Department under S.130 of the 1996 Industrial Relations Act. The S.130 notification by the ASMOF concerned the suspension of its member, Dr Julian Wojtulewicz, from his employment as a senior staff specialist in neonatology in the Grace Centre for Newborn Care at the Westmead Children's Hospital. Neonatology in which Dr Wojtulewicz was engaged at the GCNC is a speciality area of paediatrics, providing health care to sick newborn infants, whether premature or not, and complimentary support to the families of such infants. 2 Dr Wojtulewicz was suspended from employment on Thursday, 22 June, 2006. The S.130 notification was allocated initially to McLeay C and later Bishop C. Dr Wojtulewicz's status became an issue for consideration by internal disciplinary measures and assessment of his fitness to practice (which I will discuss later in this decision). Ultimately, when conciliation failed to settle the matter, Bishop C issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner. In fact, on Friday, 22 August, 2008 Dr Wojtulewicz had received correspondence purporting to terminate his services. The ASMOF sought an urgent hearing of the matter then before Bishop C. The ASMOF sought interlocutory orders restraining the termination of Dr Wojtulewicz's services. 3 The ASMOF had made an application under S.173 for the arbitration of that matter to be conducted before another member of the Commission and, in the light of that S.173 application, proceedings with respect to it were convened before Boland J, the President of the Commission, on Friday, 22 August, 2008. His Honour was informed at that time that the Health Department was not intending to proceed with the termination of Dr Wojtulewicz's services and the letter of Friday, 22 August, 2008 was withdrawn. Instead, the Department of Health indicated it was prepared to engage in further discussions with the ASMOF with a view to resolving the issues in dispute. The matter was allocated to Grayson DP for that further conciliation which has also proven to be unsuccessful. 4 On Friday, 7 November, 2008 the ASMOF filed a notice of motion seeking an order under S.137(1)(c) that Dr Wojtulewicz not be dismissed pending a hearing and determination of the matter. S.137(1)(c) provides in that respect that: "....the Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so..." 5 The ASMOF also lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90], complimenting S.137(1)(a). S.83(5) extends so far as to provide a remedy with respect to a threatened dismissal and the remedy in such cases is in S.89(7), viz: "In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat." That is to say, the remedy for a threat of dismissal is essentially injunctive. It is customarily interim in nature (but, as I will discuss in more detail later in this decision, the current proceedings still rely on S.89(7) and the ASMOF seeks a more permanent form of order). 6 His Honour heard the matter on Wednesday, 26 November, 2008. In his Honour's unreported decision of Tuesday, 2 December, 2008 he found for the ASMOF, restrained the Department of Health from terminating the services of Dr Wojtulewicz for the present time, pending the hearing and determination of all issues in dispute between the parties with the Part 6 application. 7 Essentially, the principles for cases of the type before Boland J were summarised by Mason ACJ of the High Court in Castlemaine Toohey Limited v. State of South Australia (1986) 161 CLR 148 at p.153, viz: "…The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction…" 8 In his Honour's decision of Tuesday, 2 December, 2008 he had this to say (at pp.18 and 19): "....I do not consider the respondent can escape the proposition that if no order was made under S.89(7) and Dr Wojtulewicz was dismissed from his employment, that it would do harm to his reputation or standing in the medical and in the larger community, including prospective patients. The dismissal would presumably be on the basis of '...a complete breakdown of trust and confidence...'. That is to say the respondent would have moved on the basis that Dr Wojtulewicz was no longer trusted. That is to seriously impugn a person's character, especially one holding a senior medical appointment in a public hospital... Dr Wojtulewicz is a senior medical practitioner working in a small, specialised field. Reputation and standing are important elements in his profession in ensuring his peers, the employees in the hospital system and patients, have confidence in him. To be dismissed on the basis that his employer no longer had trust and confidence in him would be devastating. No doubt, if Dr Wojtulewicz was reinstated he would recover some ground, but that gives insufficient weight to the continued hurt to Dr Wojtulewicz pending the final hearing and to the danger that by the time of vindication of his reputation by an order for reinstatement, not all of those who have read or heard of the dismissal may have become aware of the final outcome. To the extent I have considered whether Dr Wojtulewicz is likely to suffer injury for which damages will not be an adequate remedy, the balance of convenience lies in his favour. In addition to the foregoing considerations, I must consider whether any injustice would be caused to the respondent by maintaining the status quo . It was submitted for the respondent that if the status quo were maintained, it would incur additional cost in circumstances where the Health Service is under significant financial pressure. Further, that dismissal of Dr Wojtulewicz would provide some closure for the staff of the GCNC as they would observe the hospital taking a decisive step forward, in order to move from the circumstances and that it would also alleviate some of their anxiety and stress. The respondent also notes that Dr Wojtulewicz has a considerable amount of accumulated leave to his credit..." And his Honour concluded (at pp.21 and 22): "...I am satisfied that the harm or inconvenience that would be suffered by the respondent is outweighed by the damage that would be done to Dr Wojtulewicz were I not to make the order under S.89(7). Accordingly, I propose to make orders under S.89(7). However, I note that Dr Wojtulewicz has accumulated a significant amount of leave. In weighing up the balance of convenience, Dr Wojtulewicz should take up to eight weeks of that leave, the actual amount of leave to be taken to depend upon when a final hearing can be scheduled... I consider an order to take leave is reasonably incidental to the substantive order and that it is open to me to make it... Nevertheless, I would prefer the parties to come to an agreement about the taking of leave that is mutually convenient rather than the Commission make an order. I will, however, provide for liberty to apply if no agreement can be reached..." 9 The two files - the initial S.130 notification and the Part 6 application - were then allocated to me for hearing with a request that I deal with the matters as expeditiously as possible. I considered that, in the circumstances, there was some urgency with the matter. I set the S.130 notification by the ASMOF and the Part 6 application down for mentions and programming on Wednesday, 3 December, 2008 and Wednesday, 10 December, 2008 to ensure that I could co-ordinate my diary commitments with the requirements of the parties. However, the parties sought considerable time to prepare for the hearing of the matter. I adjourned the proceedings to permit that to occur. 10 Ultimately, the matter did not proceed to hearing for some time and, when it did it extended over 16 days: Wednesday, 24 June, 2009, Thursday, 25 June, 2009, Friday, 26 June, 2009, Wednesday, 1 July, 2009, Thursday, 2 July, 2009, Friday, 3 July, 2009, Wednesday, 8 July, 2009, Thursday, 9 July, 2009, Friday, 10 July, 2009, Monday, 13 July, 2009, Tuesday, 14 July, 2009, Wednesday, 26 August, 2009, Thursday, 27 August, 2009, Friday, 28 August, 2009, Wednesday, 4 November, 2009 and Friday, 6 November, 2009. In the hearing Mr Taylor represented Dr Wojtulewicz and the ASMOF and Mr Einfeld represented the Department of Health. Annexed to this decision, is a list of witnesses called to give evidence in the proceedings by either Mr Taylor or Mr Einfeld. Since much of that evidence centres around medical terms and abbreviations, I have also set out those terms and abbreviations at the end of this decision as well. 11 In opening his preliminary submissions for the hearing on Wednesday, 24 June, 2009, Mr Taylor indicated that he was not pressing the original S.130 matter and was content to rely on the Part 6 matter alone. I therefore set the S.130 matter aside for the present time and will mention it again on Thursday, 11 February, 2010 to determine what further action may be necessary with respect to it. But it would appear to me that in the light of my decision in the Part 6 matter before me, it now serves no good purpose and may be treated as redundant. That, however, is a matter for the parties. 12 Also at the commencement of the hearing Mr Taylor crystallised and amended Dr Wojtulewicz's claims in the Part 6 application lodged on his behalf by the ASMOF. He was no longer seeking to return to work in the GCNC but was still seeking that his dismissal not be effected by the Health Department, that he be reinstated in a senior staff specialist position and that he return to work in a suitable teaching hospital that permits him to be re-skilled as a paediatrician, ie essentially to update his skills, working in another Sydney teaching hospital to assist him in that process. He has sought further discussions with the Health Department for the retraining necessary for any alternative speciality acceptable to him in that respect. He has expressed an interest in sleep medicine, which I understand flows naturally out of training in paediatrics (but which Mr Einfeld argues is contrary to the contract under which Dr Wojtulewicz is engaged with the Department of Health. 13 In those circumstances, I believed it was appropriate to further explored conciliation with the parties. In that respect, S.87 reads as follows: "(1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under S.89, dismissing the application or making any other order it is authorised to make under this Act. (2) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order." It is a long established policy of industrial tribunals in this country that in any matters before them the process of conciliation be exhausted before any arbitrated decision is made. In view of the fact that the previous numerous attempts at conciliation for Dr Wojtulewicz's claim had fallen on fairly stony ground, there appeared to me to only be limited scope for any further constructive conciliation. Nevertheless, in the light of the recent clarification of Dr Wojtulewicz's claims, I considered it appropriate for me to again explore conciliation and I did so at the commencement of the hearing. I was nevertheless unsuccessful in that attempt and the matter proceeded into arbitration. 14 Furthermore, Mr Einfeld has raised that current amended claim made on Dr Wojtulewicz's behalf as actually falling outside the scope of his employment as a senior staff specialist in neonatology with the Department of Health and, in fact, outside my jurisdiction under S.89(7) which is confined to consider only whether the termination of Dr Wojtulewicz's services should go ahead and not to place any restrictions or conditions on that employment inconsistent with the initial contract of employment. I will deal with that issue more fully later in this decision. 15 As I see the position, my task in this hearing falls essentially under two headings, viz: (i) to determine whether or not the proposed termination of Dr Wojtulewicz's services by the Health Department would be justified in the circumstances, ie whether or not he actually had (or would upon any subsequent termination of his services) received a "fair go", to use the long established concept approved by Sheldon J of the former State Industrial Commission in Re Loty and Holloway and the Australian Workers Union (1971) AR 95 at p.99 or, more accurately, whether or not, using the actual language of S.84(1), it would be "harsh" , "unreasonable" or "unjust" to terminate his services [ Outboard World Pty Limited v. Muir (1993) 51 IR 167 at pp.182 and 183, Busways v. Johnson (1994) 55 IR 255 at p.261 and Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 at p.192]; and (ii) if so, to determine whether he should remain in employment with the Department of Health as a senior staff specialist or whether, in the circumstances, monetary compensation is the appropriate remedy for him (or demotion to a less senior position of staff specialist, for instance): preference is always given by the Commission to reinstatement and re-employment over any monetary compensation where that is practicable [ Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346 and Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 at p.115]. The Question of Unfairness 16 The key to my jurisdiction under Part 6 are the words "harsh", "unreasonable" or "unjust" and those words are to be read individually and not cumulatively. As the Full Bench of the Commission (Wright J - President, Peterson J and Bishop C) commented in Bankstown City Council v. Paris (1999) 93 IR 209 at p.212: "...As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust; other permutations may apply..." Nevertheless, it has been my experience there is usually sufficient similarities in the words "harsh", "unreasonable" and "unjust" to suggest that in most cases all three words will be relevant at the same time in a particular dismissal of an employee. In Parker v. Capital Painters Pty Limited (1996) 68 IR 100, for instance, I commented in that respect (at p.104) that: "…I recognise a certain amount of imprecision in the expressions 'a fair deal' or 'a fair go all round' in Loty's Case , but it still seems to me that the words 'harsh', 'unreasonable' or 'unjust' contemplate that long established principle of industrial fairness in the State unfair dismissal jurisdiction under the 1996 Act (as it did under the 1940 Industrial Arbitration Act) and which, to my mind, flows naturally out of the ordinary meaning of the words 'harsh' (meaning too severe, having regard to all the circumstances), 'unreasonable' (meaning immoderate, excessive or extravagant) and 'unjust' (meaning unfair, inequitable, undeserved or biased)..." 17 That having been said, a dismissal may be unfair because it was not justified in the first place on the basis that the allegation against a dismissed employee is not established (substantive unfairness). Alternately, a dismissal may be substantively unfair if it is too harsh in the circumstances: to use the words of the Full Bench of the Commission (Fisher J - President, Hungerford J and Connor CC) in Pacific Power v. Crump (1993) 48 IR 296 at p.302), "...the ultimate sanction of termination of employment was too severe a penalty...". A dismissal may also be unfair because the manner in which it was put into effect was unfair in some manner (procedural unfairness). 18 With respect to the question of procedural unfairness, the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Redman C) in Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 commented (at p.389): "…We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under S.84. Further…where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust…" The High Court (Brennan CJ, Dawson and Toohey JJ) in its judgment in Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 concluded (at p.468) that: "…the propositions we have set out support the submissions for the respondent that it was necessary for the Full Court to look at the whole of the relevant circumstances which were taken into account by the primary judge in determining that there had been no breach of the Award; and, in particular, that it was an error to reverse that ultimate holding purely for reasons associated with what are identified as procedural defects in the steps taken by the respondent to dismiss the appellants. Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. The submissions for the respondent in the present appeals appear to concede this. But the burden of the respondent's submissions is that there was an error in determining the issue without regard to the very material circumstances of the finding of the primary judge as to the complicity of the appellants in pilfering. Those submissions should be accepted…" 19 It is Mr Taylor's claim in opening submissions that: "....the approach of the respondent has been, at the very least, disappointing. Certainly there's grounds to be angry about the way in which it's been dealt with. To use a technical term, it has stuffed it up from the beginning. There was a complete absence of a fair go at all relevant times, resulting in a position where we have a senior medical practitioner unable to practice for a substantial period of time and now (faces the prospect of) being dismissed summarily without good cause, indeed without any cause..." 20 Mr Einfeld disputes that there was any procedural unfairness in the treatment of Dr Wojtulewicz by the Department of Health. He indicated further in his written submissions that: "....Because these proceedings involve a future , not past , dismissal, procedural fairness issues do not loom as large as they otherwise might; all of the relevant issues have been fully ventilated at the hearing and the applicant has had every opportunity to consider and respond to the issues as to his conduct before his dismissal takes place..." But principally what had actually stopped Dr Wojtulewicz's dismissal was the decision of Boland J on Tuesday, 2 December, 2008. I still believe that issues associated with procedural unfairness are as relevant in this hearing as they would be if Dr Wojtulewicz's dismissal had actually been put into effect, as was intended by the Department of Health: it is still its intention. The Appropriate Remedy 21 As I indicated earlier in this decision, Dr Wojtulewicz's claim is now to restrain the Department of Health from bringing his employment with it to a conclusion, making an order under S.89(7) that the Department's threat to terminate his services not be implemented. He is not seeking to return to employment in the GCNC which, in any event, I am satisfied would clearly be impracticable for him. He is seeking an order which would permit his return to work as a senior staff specialist in paediatrics, with the necessary re-training in another Sydney teaching hospital which can provide that necessary re-training. 22 Whilst such an order would not have the interim nature of the order made by Boland J in his decision of Tuesday, 2 December, 2009 (which must expire on the outcome of my decision from this hearing), it should not be regarded as entirely open-ended either [Western Sydney Area Health Service v. Australian Salaried Medical Officers' Federation (2004) 138 IR 203 at p.212]. Otherwise, Dr Wojtulewicz would enjoy total immunity from dismissal in the future, notwithstanding any future misconduct on his part. That is an issue which obviously would need to be addressed by the parties in discussions in the light of a decision in this matter in favour of Dr Wojtulewicz's continued employment with the Department of Health. In my opinion, in the circumstances, such re-engagement would likely be confined in the first instance to a reasonable period of retraining for him. At which time, his continued employment as a senior staff specialist would need to be reviewed by the Department. 23 I note in that respect that Dr Wojtulewicz recorded in his affidavit in reply that: "....my medium to long term aims are...to look to retrain in an area of paediatrics such as sleep medicine with a view to leaving neonatal intensive care..." In other words, his claim now is to return to work in paediatrics would be only temporary, subject to a reasonable period of retraining, essentially to bring him up to date on developments in paediatrics during his lengthy absence on suspension. The Early Employment History of Dr Wojtulewicz 24 I now turn to examine the evidence in this hearing. Dr Wojtulewicz graduated from Sydney University in 1983. He completed his intern year at Concord Hospital and began his training in general paediatrics as a resident medical officer at the Royal Alexandra Hospital for Children. He had developed a particular interest in the care of newborn children and he applied for a position as a neonatology fellow in Canada (Toronto), subsequently working during the period of 1989 to 1991 at three hospitals in Canada, supervising the care of sick babies, with what he claimed in his affidavit was a "...heavy educational workload for registrars, nurses and residents..." and "...research into respiratory failure in term infants...". 25 When Dr Wojtulewicz returned to Australia in 1991, he successfully applied and became a fellow of the Royal Australasian College of Physicians, beginning his training as a paediatric resident and working as paediatric and neonatal locums at various hospitals - Wagga Wagga, Dubbo, Gosford, Newcastle, Hornsby and St George. In 1993 he applied successfully as a staff specialist in neonatology at the Westmead Childrens Hospital, including rotations in the Baxter Unit (now the GCNC). 26 In the middle of 1996 the first of a series of complaints began to emerge concerning Dr Wojtulewicz's conduct. At that time Ms Jennifer Elliott, the nurse manager of the GCNC, had raises with Dr Robert Halliday, the then head of the GCNC complaints she had over alleged difficulties nurses were experiencing in working with Dr Wojtulewicz. I will provide greater details of the numerous complaints later in this decision as they form a significant part of the reason for the decision of the Department of Health to seek to bring Dr Wojtulewicz's employment in the GCNC to a close. But for present purposes, at that time Ms Elliott expressed concern over incidents where Dr Wojtulewicz had acted aggressively to nursing staff and she sought that "...positive steps be taken to overcome this problem...". 27 Those concerns by Ms Elliott took the form of a letter to Dr Halliday which he subsequently brought to the attention of Dr Wojtulewicz and held discussions with him. Early in 1997 Ms Elliott forwarded a further letter to Dr Halliday concerning what Ms Elliott regarded as Dr Wojtulewicz's unprofessional attitude to nursing staff. Dr Halliday did not necessarily see it as his responsibility to oversight the issues concerning Dr Wojtulewicz, however. The complaint by Ms Elliott was also referred by Ms Elliott to Mr Garry Gordon, the human relations officer at the hospital. 28 Mr Gordon took the view that at that time there were no grounds for any further action against Dr Wojtulewicz. And no such action was apparently taken against him. Mr Gordon forwarded an e-mail to Ms Elliott (with a copy to Dr Halliday) indicating that Ms Elliott's correspondence: "...provides an overview but does not provide any substantial evidence on which the hospital can act..." Nevertheless, complaints against Dr Wojtulewicz apparently continued. In the middle of 1999 Dr Halliday wrote (twice) to Dr Jonathon Gillis, the Chairman of the Division of Critical Care and Diagnostic Services at the CHW, suggesting a formal interview with Dr Wojtulewicz and those meetings took place later in 1999. In early 2000 Dr Halliday and Ms Elliott brought to the attention of Professor Peter Procopis, at that time the Director of Clinical Governance at the CHW, complaints concerning the alleged misconduct of Dr Wojtulewicz - his alleged persistent lateness at work, difficulties in establishing contact with him whilst he is on-call and his argumentative and intimidating conduct with more junior staff - both medical and nursing. 29 That letter, dated Monday, 14 February, 2000 and signed by both Dr Halliday and Ms Elliott, recorded: "....The complaints have centred on Dr Wojtulewicz's persistent lateness for rounds and departmental meetings, difficulty in establishing contact when he is on-call and the quality of his professional interaction with staff, both within and without the hospital. He is described as argumentative and at times intimidating. It has been a frequent occurrence for house staff to report varying incidents of intimidation at exit interview, although they have been generally unwilling to make formal complaints. There have been at least two cases at the end of 1999 of relieving registrars refusing to be seconded to the unit if Dr Wojtulewicz was on-call during their expected period of duty. Following the meeting in October and November, 1999 with Drs Gillis and Halliday there was some reduction in the volume of complaints, although complaints persist. A number of senior staff members from outside the unit have approached both of us expressing concern for Dr Wojtulewicz and reiterating the difficulties that they have had and still have in dealing with him. Many have adopted a strategy of avoidance in order to avoid conflict. We have met with our colleagues who share our concern about the effect that this pattern of behaviour is having on Dr Wojtulewicz, the staff of the unit and the reputation of the unit and the hospital. It is clear that major disruption to the conduct of our clinical service has occurred and it is our belief that our referral patterns have been affected. During an interaction in late December, 1999 with Jenny Elliott, Dr Wojtulewicz expressed his belief that he was unable to continue to work with her and suggested that she should resign. Whilst the meetings with Drs Gillis, Halliday and Wojtulewicz have covered many issues, there has been no definable agreements reached as to how these difficulties might be resolved. Consequently, we suggest that a formal interview be undertaken in the near future..." 30 A disciplinary interview, initially delayed at the request of Dr Wojtulewicz and the ASMOF, was subsequently conducted on Tuesday, 7 March, 2000. Shortly before that meeting, Professor Procopis wrote to the ASMOF in the following terms: "....The hospital agreed to postpone the disciplinary interview at the disciplinary interview at the request of Dr Wojtulewicz and the Federation. It is the hospital's view that Dr Wojtulewicz's performance has been questionable for some time. The matters outlined in the letter from Dr Halliday (Department Head) and Ms Elliott (Nursing Unit Manager) are long standing and consequently issues that have arisen in the past are directly relevant. It is the hospital's belief that the contents of the letters provided to Dr Wojtulewicz are self-explanatory, however the following comments are provided for clarification: * Persistent lateness for rounds and departmental meetings. Dr Wojtulewicz is often late for meetings: for example he was 40 minutes late for a 60 minute meeting on Friday, 11 February, 2000. He is often late for rounds or does not turn up at all and provides no explanation. * Difficulty in establishing contact whilst on call. This is self-explanatory and is a common event: one example was an incident in late 1999 when the Newborn and Paediatric Emergency Transport Service could not contact Dr Wojtulewicz. Note: you will be aware that staff specialists are regarded as senior staff and, as such, have a degree of autonomy not usually afforded other employees. Staff specialists are not required to clock on and off, but are required to meet basic obligations without other staff monitoring their time keeping or whereabouts, which in all reality would be considered offensive by the medical profession. * Verbal complaints are common events regarding Dr Wojtulewicz's professional interactions. These have originated from a range of departments and staff associated with neonatology. Individually these verbal complaints are, generally, not significant and have not attracted written documentation. However, the consistency of these complaints and the fact that staff are now adopting avoidance strategies in respect to Dr Wojtulewicz is a major concern. This clearly affects referral patterns and may compromise the care of patients... * Intimidation at exit interviews. This refers to end of term appraisals of junior medical staff. Dr Halliday reports that junior medical staff members have often verbally complained to him of public humiliation/ intimidation by Dr Wojtulewicz. Some staff have been in tears when recounting these incidents but understandably do not want to make formal complaints for fear of jeopardising their careers. * Refusal by registrars to be seconded to neonatology. Dr Halliday reports that registrars have verbally refused to be seconded to the unit and cite Dr Wojtulewicz as the reason. This occurred as recently as the Christmas/New Year period. Whilst the hospital accepts that some of the abovementioned issues are generalised, the number of verbal complaints and other issues reported to Dr Halliday (Department Head) and Ms Elliott (Nursing Unit Manager) are of such a concern that the organisation would be remiss to not address these with Dr Wojtulewicz. Whilst the issues are viewed seriously, the outcome of the disciplinary interview is not pre-determined and Dr Wojtulewicz will be given every opportunity to respond to the matters at hand..." Among others, Dr Halliday and Dr Gillis attended the meeting with Professor Procopis. (Ms Elliott did not.) No disciplinary action appears to have been taken against Dr Wojtulewicz following that meeting, however. The Promotion 31 On Friday, 14 February, 2003 Dr Wojtulewicz applied unsuccessfully to become a senior staff specialist. The position of senior staff specialist is defined in Clause 2, Definitions, of the Staff Specialists (State) Award as a person who: "...(a) has been employed by an employer on the maximum salary provided by this award or the award for a specialist for a period of at least three years; and/or (b) has gained such experience and attained such ability in his/her specialty acceptable to the employer after consideration by the Medical Appointments Advisory Committee of the employer to justify appointment to the classification; and (c) is appointed to a position having such duties and responsibilities as are deemed by the employer to require the services of a senior specialist..." 32 The grading committee to consider Dr Wojtulewivz's application for promotion was chaired by Professor Procopis (with Dr Gillis and Dr Halliday and another medical practitioner as part of the panel). On Monday, 19 May, 2003 the regrading interview committee's recommendation was to reject the application and on Friday, 18 July, 2003 its report was as follows: "....After discussion, the panel agreed to recommend to the Medical Advisory Committee that Dr Wojtulewicz NOT be promoted to the level of senior staff specialist. It is noted that the criteria in the award for promotion were loose and somewhat vague but made its decision based on Dr Wojtulewicz's previous behaviour leading to disciplinary proceedings, especially his judgement in using a non-approved drug. The committee believed their decision was relevant to Clause 2 part (b) of the award, viz: '...has...attained such ability in his/her speciality acceptable to the employer...'..." The Medical Advisory Committee accepted that recommendation of the regrading interview committee at that time. 33 In the middle of 2003 Dr Wojtulewicz had travelled to the United States of America (Washington) on sabbatical studying and to undertake a doctoral program in medical ethics. In the meantime - on Monday, 11 August, 2003 - the ASMOF wrote to Professor Procopis arguing that since Dr Wojtulewicz met the criteria for promotion set out in Clause 2, Definitions, of the Staff Specialists Award, he should be promoted. The ASMOF claimed that the reasons given were inconsistent with the award definition, as outlined above. The ASMOF letter indicated that: "...your letter to Dr Wojtulewicz does not rely on any of these three grounds. You state that '...this decision was based on the grounds of previous behaviour leading to disciplinary proceedings...'. The award does not entitle the employer to use this as a basis for rejecting an application for senior specialist status..." I would expect that, notwithstanding any such State award provision and the views expressed by the ASMOF in its letter, issues going to the disciplining of any employee would still be legitimate issues for consideration of his possible promotion. I do not believe that the entire test for promotion should be confined to the award provision. 34 When in the middle of 2004 Dr Wojtulewicz returned to Australia, and his position in the GCNC, he renewed his application for the position of senior staff specialist. The CHW referred Dr Wojtulewicz's application for promotion for independent assessment by two senior staff specialists acting under delegation from the MAC - Dr Ion Alexander at Sydney Children's Hospital and Dr Paul Garvey at the Royal Hospital for Women - which recommended that his promotion be accepted. 35 The application for Dr Wojtulewicz's promotion had nevertheless been opposed by some of his colleagues, essentially on the grounds of his alleged behaviour at work - his alleged intimidation of junior staff, tardiness in attending ward rounds, failures with respect to non-clinical work, etc. Dr Nadia Badawi, who was called to give evidence in this hearing by Mr Einfeld, indicated in an affidavit she provided that she had been interviewed by Dr Alexander and Dr Garvey and she: "....advised them of my concerns about Dr Wojtulewicz. I was upset that someone who was such a destructive influence in the unit was now working the system to coerce the hospital to appoint him at a more senior level. I was also disappointed that no-one ever seemed to stand up to Dr Wojtulewicz or to insist on a reasonable standard of behaviour..." 36 The CHW submission over Dr Wojtulewicz's application for promotion, dated Wednesday, 22 September, 2004 concluded: "....It is acknowledged that Dr Wojtulewicz's behaviour and attendance has improved since his initial application (February, 2003). The Department Head has not received any complaints subsequent to his return from overseas. He is currently pursuing further education in medical ethics that will potentially contribute to the profession. At the MAC meeting of Friday, 18 July, 2003, the committee declined to regrade Dr Wojtulewicz to senior staff specialist, however recommended that he re-apply when he believed that the time was appropriate. It is acknowledged that if his application was reconsidered upon his return from overseas in July, 2004 a different outcome may now be reached, however, this will require consideration by the MAC..." 37 Dr Wojtulewicz was promoted to senior staff specialist on Thursday, 28 October, 2004 but the promotion applied retrospectively from the date of his return to work in the GCNC following his overseas sabbatical. Dr Badawi, for one, seems to have been prepared to bury the hatchet at that time, telling Dr Wojtulewicz: "Well, I hope this is a new beginning. Let's try and make things better in the unit." Examiner with the Royal Australasian College of Physicians 38 From 1998 to 2001 Dr Wojtulewicz had been appointed firstly as an observer and later as an examiner for the RACP. He was informed that he had offended some of the examiners and he was asked to resign - in some disgrace, as far as Mr Einfeld is concerned. He ultimately did so in late 2005 in the light of complaints. Mr Einfeld recorded in written submissions: "....The RACP had received complaints that the applicant had made remarks carrying sexual overtones to co-examiners during examination sessions in Perth and Hobart... True to form, the applicant denied the allegations made against him, although unable to explain why the complainants would have reported the matters if they were without substance. Tellingly, however, the doctor himself acknowledged to the RACP's Standards Committee that '...there is a problem that must be addressed. These complaints are similar enough to suggest a pattern that needs to be recognised and remedied... I believe I need to be more sensitive in my management of conflict with peers, and on the basis of these complaints, clearly so with my female colleagues..'... NB this acknowledgement was given well after completion of the doctor's therapeutic ethics course in America..." Mr Einfeld's emphasis. There was nevertheless very limited evidence before me concerning Dr Wojtulewicz's role with the RACP. Dr Wojtulewicz was not subjected to any comprehensive cross-examination on it and no RACP representative was a witness in the hearing. Dr Wojtulewicz's Mental Health 39 Ms Kathryn (Kaye) Spence, a clinical nurse consultant employed in the GCNC, was called to give evidence in the hearing by Mr Einfeld. She recorded in her affidavit a conversation she had with Dr Wojtulewicz in at around 6.00pm when he was sitting in her office. The conversation caused her some concern. At that time there was a breakdown in one of Dr Wojtulewicz's personal relationships and she recalled him saying: "I am depressed and feel suicidal and would like to be able to call you on the weekend if I need to. Would that be okay?" Ms Spence offered to help Dr Wojtulewicz but also indicated that she would like some other person involved and Dr Wojtulewicz gave her a name of a person Ms Spence knew. 40 I also accept that neonatology is very stressful work and the GCNC is a particularly sensitive and demanding work environment. Late in 2005 Dr Wojtulewicz admitted that he felt tired and depressed at work. He did not believe that his judgment and clinical care was adversely affected but that was not a view shared by many of the medical and nursing staff that worked with him in the GCNC. He attributed his state of health at the time to the hospitalisation of his father and a large on-call workload. 41 It was suggested to him by Dr Badawi, who by that time had taken over from Dr Halliday as co-head of the GCNC (with Ms Elliott) - partly at least, it would appear from the evidence, with the intention of "...sorting out the Julian issue..." (to use her words) - that Dr Wojtulewicz take some time off work. He took two separate periods of sick leave - one week in both cases - in late 2005 and in early 2006 he sought professional help from two psychiatrists. One of those psychiatrists (Dr Loyola McLean) assessed Dr Wojtulewicz as suffering a depressive illness which had reached "...severe levels of depressed, anxious and occasionally irritable mood with panic attacks...". She prescribed medication and therapy sessions twice weekly. She was not a witness in this hearing but has provided two comprehensive reports concerning Dr Wojtulewicz's mental state. 42 The first report by Dr McLean was dated Saturday, 1 April, 2006. It relevantly concluded: "....I wish to make it clear that from my assessment of (Dr Wojtulewicz), I consider him fit for day-to-day duty. However, the 'concern' expressed by another staff member raises two issues: 1. Dr Wojtulewicz's high anxiety will have been palpable to some staff members and perhaps led to concerns about him. While it is understandable that they are concerned for him, I have no current evidence that his clinical decision making is impaired. Furthermore, the intensity of this anxiety has begun to settle and should continue to do so with treatment. Additionally, his anxiety does not require that other staff members refrain from directly addressing any issues they have with decisions he has made in the normal fashion. Avoidance of direct discussion is not in any way helpful or appropriate. I have repeatedly found him capable of robust interchange. 2. Whilst it is obvious that the fatiguing aspect of on-call will deplete his scant reserves of energy and disrupt his treatment, Dr Wojtulewicz nevertheless derives a deep sense of enjoyment and satisfaction from his on-call work and has a deep sense of duty to his hospital and patients. He is acutely aware of staff shortages and absences and does not wish to burden his colleagues with having to cover for him. As a result, he has not wanted to ask to be excused from current on-call duties. Some of his reticence is clearly derived from his ongoing difficulties in asking for appropriate help...and his tendency to push himself to his limits. As his treating psychiatrist, I consider it ideal for his recovery and rehabilitation that he be excused from on-call work for a period of three months, to then be reviewed. However, perhaps there is a compromise that can be reached that balances the needs of the hospital, the need for treatment and care of Dr Wojtulewicz and his need to continue to practice on-call as an important part of his recovery and rehabilitation. Such a minimum suitable compromise might be the following: that for the next three months, subject to review, he continue the bulk of his on-call duties but is covered for the Wednesday mornings and for the full Friday of each on-call week so that his therapy is not disrupted and that the on-call can be a little interspersed with opportunities to recover. The matter of taking leave on Wednesdays and Fridays needs to be settled administratively so that Dr Wojtulewicz can be assured of access to the therapy he requires. His prognosis for recovery with adequate treatment is good... " 43 However, on Tuesday, 13 June, 2006 Dr Halliday, Dr Badawi, Ms Elliott and two other neonatologists engaged in the GCNC - Dr Peter Barr and Dr Alison Loughran-Fowlds - wrote to Dr Mary McCaskill, who had replaced Professor Procopsis as Director of Clinical Governance and Medicine at the CHW. They expressed concern over the conduct of Dr Wojtulewicz, both with respect to his clinical work and his behaviour with nursing and medical staff. The letter read: "...We are writing to you to express our concerns about recent incidents in the GCNC that have been reported to us and for which we have written reports. These involve aspects of Dr Wojtulewicz's behaviour and judgment in newborn intensive care. Our ongoing concerns led us to seek letters from two psychiatrists who have been treating Dr Wojtulewicz for depression in the last few months. Since October, 2005 he has had several periods of sick leave where he has not been able to practice clinically.... We are concerned that his judgment and behaviour are deteriorating. Given the many years of concern about his behaviour and judgment, we are worried that we and the hospital may be putting the babies in our care at risk if Dr Wojtulewicz continues to practice in his present state. In addition, we are concerned for Dr Wojtulewicz's mental health and long-term welfare. We seek your advice about how to best proceed with this delicate matter, particularly whether he should continue his clinical practice until such time as the situation has been resolved..." I would expect that the report of Dr McLean on Saturday, 1 April, 2009 would have been known to all of the signatories of the letter. Certainly, Dr Badawi indicated in her evidence that she was aware of it. In Mr Taylor's view, the letter by Dr Halliday, Dr Badawi, Dr Barr and Dr Loughran-Fowlds was misleading because it was not they who had sought the psychiatrists for Dr Wojtulewicz and they made no comment concerning the positive report that had been known by at least one of them concerning Dr Wojtulewicz. Furthermore, there had been no recent incidents of sick leave by Dr Wojtulewicz following the two weeks he was absent late in 2005. Nevertheless, at that time Dr Wojtulewicz was suspended and placed on the Impaired Registrant's Program. 44 After that letter had been forwarded to Dr McCaskill, Dr Badawi visited Dr Wojtulewicz in his office and indicated that she wished to speak to him about some complaints concerning his behaviour. The conversation was interrupted for some reason but later Dr Wojtulewicz came and spoke to her and Dr Badawi recalled that in the conversation Dr Wojtulewicz said: "Well, you know what happened before with people that tried to get rid of me. They had to take it back. I don't respond well to being threatened this way." To which Dr Badawi responded: "I'm sorry Julian but this is out of my hands and I can't talk to you about the matter." 45 On Friday, 23 June, 2009 Dr Badawi and Ms Elliott provided a further more detailed letter concerning Dr Wojtulewicz to Dr Penna, the chief executive at the CHW and Dr McCaskill outlining in more detail their concerns and detailing incidents extending over the lengthy period of Dr Wojtulewicz's employment. Someone, no doubt Mr Frank Horn, the director of workforce development at the CHW, had scribbled notes on that letter. One such note indicates: "....I have very serious concerns about such a letter that contains information not substantiated or relates to past events that are concluded. Surely they should stay in the present ..." Sensible advice, I would think. 46 On Friday, 7 December, 2007 Dr McLean had provided a further report on Dr Wojtulewicz's mental health which went beyond a medical assessment of Dr Wojtulewicz into areas of concern to me in this hearing, viz: "...I find no evidence that Dr Wojtulewicz is currently impaired by virtue of his mental health and, given his original and ongoing commitment to voluntary and unmandated treatment, I respectfully find no reason for him to be on the Impaired Registrant's Program. His employer has made it clear that the neonatologists of the Grace Nursery he works with do not want him back, despite other staff on the ward and other staff within and without the hospital being happy to work with him. He has an industrial conflict that will come to a resolution in due course. I find it insufficient and unsatisfactory to declare him an impaired practitioner because his immediate colleagues on this ward do not like him and, on the evidence of the last few years he can cite reasonable personal and ethical reasons why he might not like them. The hospital appears to have never taken any serious prior action to resolve the work relationship and cultural difficulties on the ward. It is my current professional opinion that this colleague should never have been referred to the Board at the time that he was, nor in the manner that he was and that, respectfully, he does not currently fit within the Board's definition of impaired. I am concerned as his clinician that the original referral to the Board by the hospital has damaged this man's career and reputation without adequate cause. The hospital could have conducted its review before referring him. The subsequent and much delayed 'independent review' has not found him clinically compromised. In the end the substantive issue appears to be a clash of personalities and ethical conflicts on the ward that constitutes an industrial matter that could have been investigated and dealt with in the first instance by the hospital. Dr Wojtulewicz has recovered because he has sought out and complied with treatment, not because he was referred to the Medical Board by his employer. If he can make and maintain his recovery as he has to date during this extraordinarily difficult period of personal challenge and professional conflict, I see no reason to assume that any vulnerability to mood disorder needs to be managed by conditioning his registration. Furthermore, he has remobilised a most active friendship and support network. He includes amongst his friends a psychiatrist...who originally suggested the referral to me, who apparently does and would speak frankly to him if he thought his mood was slipping. He has a very engaged relationship with me and accepts challenge and confrontation from me when necessary. I have noted that he is now very aware himself of shifts in his energy and mood and can now take corrective action or ask for help in a direct and appropriate way. As his treating clinician I believe that Dr Wojtulewicz needs to work and is fit to do so. Given the process-engendered absence from clinical care he will need to be supported in his return to work. Such true support is unlikely to come from the CHW which as an institution remains in dispute with him at time of writing. However, he has many colleagues that wish to mentor him and see him return to work. Any conditions put on his registration are not required for the recovery or maintenance of his mental health and will instead effectively limit his capacity to find suitable employment and probable retraining. He is a super specialist within the Sydney metropolitan area where there are few opportunities for employment within this sub-speciality. His short term goals are to return to work and to rehabilitate his professional life and reputation. He plans to take up the research project he had set up before being stood down on alpha-feto protein and to continue his training as a bio-ethicist by undertaking his PhD with Sydney University. His medium to long term aims are to retrain in an area of paediatrics such as sleep medicine with a view to diminishing his time in neonatal intensive care so that he transitions to a new role that does not require the physical and emotional vigilance of neonatal intensive care. These are reasonable goals. If his registration is not conditioned then he may in due course be able to take up offers to pursue an academic and clinical career in bioethics at Georgetown University where senior academics have maintained an interest in him and would be prepared to mentor his career aspirations there. Conditioning his registration would close that door forever..." The Suspension 47 As I indicated earlier in this decision, at a meeting with Dr McCaskill on Thursday, 22 June, 2006 Dr Wojtulewicz was suspended. He was provided with a letter confirming his suspension at a further meeting with Dr McCaskill on Wednesday, 28 June, 2006, viz: "...In April this year a report was sent to the hospital with your permission from your psychiatrist detailing your medical condition so that the hospital could support your treatment in this area. On Tuesday, 13 June, 2006 a letter was received from the senior medical and nursing staff of GCNC detailing their concerns both for your health and the clinical care you were providing to infants in the nursery. On the basis of this risk to the children in the hospital's care...I relieved you of your duties while this matter was investigated. The meeting on Wednesday, 28 June, 2006 is to formally notify you of that. Given the seriousness of these clinical concerns and your health, I plan to refer you to the New South Wales Medical Board to the Impaired Practitioner Program. I have discussed this with the Medical Board and they will assess and investigate the concerns and recommend rehabilitation so we can plan to have you return to work when that would be safe for patients and when your health is restored... During this time you will be on special leave unless the Medical Board feels you are unwell in which case this will be sick leave. Your reputation will be maintained as the staff of the GCNC have been told you are unwell. During this period I will require you not to contact the staff of the GCNC either by e-mail, computer, phone or in person and to refrain from coming to the workplace for your own benefit and also to avoid disruption to the neonatal service. Failure to comply with this directive will result in disciplinary action..." 48 Dr Wojtulewicz disputed that there was any proper basis for his suspension or the allegations made against him. (Dr McLean appears to share that view, confirmed in the report she provided on Friday, 7 February, 2007.) The Medical Board constituted the IRP following the referral by the hospital and at a hearing on Friday, 3 November, 2006 the IRP adjourned the inquiry until the hospital dealt with the question of Dr Wojtulewicz's clinical performance. 49 Early in 2007 a decision was made by the hospital for an independent investigation concerning Dr Wojtulewicz and Dr Badawi was asked to name persons to conduct that investigation. On Thursday, 1 February, 2007 solicitors representing Dr Wojtulewicz wrote requesting that the CHW ensure that investigation is conducted by an independent third party in accordance with the established policy and solicitors representing the CHW replied in a letter dated Wednesday, 21 February, 2007 that such an independent investigation had already been arranged, setting out the terms of reference for that inquiry. 50 By that time - on Monday, 5 February, 2007 - Dr Stuart Dorney had been appointed as Acting Director of Clinical Governance and Medicine at the CHW in place of Dr McCaskill. He was permanently appointed to that position on Friday, 11 May, 2007. From the outset of his appointment in an acting capacity, Dr Dorney had carriage of the suspension of Dr Wojtulewicz. He communicated with solicitors representing Dr Wojtulewicz and liaised with solicitors representing the CHW. 51 Dr Wojtulewicz had some concerns over the breadth of the terms of reference and the proposed appointees to the independent review panel. Consequently, on Thursday, 27 March, 2009, the ASMOF notified the matter as an industrial dispute under S.130. Mr Horn informed Dr Dorney of the S.130 notification by the ASMOF. Over apparent objections by Dr Wojtulewicz, the hospital finalised the terms of reference and the investigation took place by the IR's, comprising Dr Sandie Bredemeyer, the clinical nurse consultant at the Royal Prince Alfred Women's and Babies Hospital and Professor David Tudehope, the director of neonatology at the Mater Mothers Hospital. 52 The IR's handed down its report in the middle of 2007. The report commented: "...Based on the evidence before the IR's, ie the patient's medical reports and interviews with the GCNC and with Dr Wojtulewicz, the IR's conclude that there are no grounds for Dr Wojtulewicz to be considered medically incompetent. His ability to provide competent care for sick neonates is not questioned..." But the IR's went on to say that: "...there is sufficient evidence to identify that professional misconduct has occurred. The behaviour of Dr Wojtulewicz has demonstrated a significant lack of respect for colleagues and others, particularly those colleagues in positions of less authority. This behaviour has significantly impacted on staff relations, the morale in the GCNC and clinical practice..." And: "...Dr Wojtulewicz's contribution to the non-clinical activities of the GCNC fall below the level expected of a senior staff specialist... These performance measures are outlined in the Senor Medical Practitioners' Performance agreements signed by Dr Wojtulewicz in 1996 and 2005..." 53 But the report concluded that: "....The IR's do not have the expertise to determine whether Dr Wojtulewicz's mental health may adversely impact on his ability to practice neonatology, his clinical care or judgement. To ensure a transparent, equitable and non-prejudicial process for both Dr Wojtulewicz and the CHW, we recommend that an independent assessment of both Dr Wojtulewicz's mental health status and personality traits be made by a non-treating psychiatrist to provide assurance to senior management of the CHW that Dr Wojtulewicz is able to return to duty, is safe and mentally competent and to provide senior management of the CHW with strategies for the future performance management of Dr Wojtulewicz. We also recommend that follow up assessment by this independent practitioner be undertaken after 12 months or before if concerns are unresolvable or differences between senior management and Dr Wojtulewicz arise... The IR's cannot recommend that Dr Wojtulewicz be re-instated to his position in the GCNC because we consider it impossible for Dr Wojtulewicz to resume working there. There has been a mutual disintegration in trust, respect and confidence between Dr Wojtulewicz and other senior staff of the GCNC that appears to be permanent and irreparable. The staff in the GCNC have informed the IR's during the course of the review that they will not and cannot work with Dr Wojtulewicz should he be reinstated. Indeed, the team in the GCNC has moved on without him and the IR's are of the opinion that it is too late to change direction and reinstate him in his previous role in the GCNC. Following the non-treating psychiatrist review, providing that it is considered that he is fit to return to work at a senior staff specialist level, an alternative position for Dr Wojtulewicz at the CHW should be considered by senior management of the CHW... Dr Wojtulewicz will require guidance and behavioural counselling to improve his insight into the impact his behaviour may have on colleagues and others who are in a position of less authority. Dr Wojtulewicz will require close clinical supervision. Dr Wojtulewicz will require close performance management. A performance management plan should be signed and agreed by both Dr Wojtulewicz and senior management at the CHW. This should include performance measures and a suitable time frame for achievement..." No such plan appears to have been developed, however. And no alternative position ultimately emerged for Dr Wojtulewicz. 54 Dr Dorney, who was called to give evidence in the hearing by Mr Einfeld, explained the position, viz: Mr Taylor: You recall that the independent reviewers' report contained certain recommendations? Dr Dorney: Yes. Mr Taylor: Are you able to say to the Commission whether the hospital ever decided to accept or not accept any of those recommendations? Dr Dorney: Yes. The hospital accepted the recommendation that he, Dr Wojtulewicz, not be reinstated within the Grace Centre and the other recommendation relating to an alterative position for Dr Wojtulewicz. Commissioner: But it was at the hospital, wasn't it? Dr Dorney: Yes, it should be considered by senior management. Commissioner: Subject to certain conditions. It was still internal to the hospital, not a position somewhere else? Dr Dorney: In the recommendations, yes. Therefore, the outcome from the IR's report should have been the re-engagement of Dr Wojtulewicz at the CHW, albeit not in the GCNC and on certain conditions. That did not ultimately occur, however. 55 In any event, Dr Wojtulewicz had challenged the findings of the IR, raising through his solicitors in a letter dated Friday, 24 August, 2007 serious questions about the nature of the investigation and what he regarded as the denial of basic procedural fairness to him. In particular, Dr Wojtulewicz asserted that the review was flawed because it was based on material with respect to which he had not been given an opportunity to respond or the material was so vague and unsubstantiated that it was not possible to respond to it in any meaningful way. Dr Wojtulewicz took the view that, to the extent that the IR's report made negative findings against him, they were largely concerned with issues of his style of personal communication and they did not justify his suspension. 56 The hospital wrote to the Medical Board on Tuesday, 20 November, 2007 informing it that the IR's had found that there were: "...no grounds for Dr Wojtulewicz to be considered medically incompetent and that his ability to provide competent care to sick neonates is not questioned..." 57 The IRP inquiry then resumed on Wednesday, 9 January, 2008 and its report was handed down on Tuesday, 12 February, 2008, viz: "....In view of the positive reports from both the Board nominated and treating psychiatrists, from Dr Wojtulewicz himself, and his very changed presentation at the Inquiry, the panel concluded that he was not currently suffering from any impairment as defined under the Medical Practice Act and did not need to be involved with the Health Program..." Indeed, as I indicated earlier in this decision, in her report of Friday, 7 December, 2007 Dr McLean had indicated that in her: "...current professional opinion...this colleague should never have been referred to the Board at the time that he was, nor in the manner that he was and that, respectfully, he does not currently fit within the Board's definition of impaired. I am concerned as his clinician that the original referral to the Board by the hospital has damaged this man's career and reputation without adequate cause. The hospital could have conducted its review before referring him..." The Dismissal 58 Until the middle of 2008 ASMOF was involved in negotiations on behalf of Dr Wojtulewicz and representatives of the Department, oversighted by McLeay C and later Bishop C and Grayson DP. Those negotiations were conducted with a view to Dr Wojtulewicz's secondment to the Sydney Children's Hospital with retraining in sleep medicine. In a memorandum dated Monday, 11 August, 2008 Dr Michael Brydon, the Director of Clinical Operations for the Sydney Children's Hospital, agreed to Dr Wojtulewicz's secondment on certain terms which Dr Wojtulewicz found acceptable. However, on Wednesday, 20 August, 2008 ASMOF was informed (informally) in a telephone conversation from Mr Terrance Clout, the chief executive of the South Eastern Sydney and Illawarra Area Health Service [SESIAHS], that the Health Department had decided not to approve Dr Wojtulewicz's secondment and on Friday, 22 August, 2008 Dr Wojtulewicz was served with a letter from Dr Penna purporting to terminate his services. 59 That letter read as follows: "...As raised with you on a number of occasions, there are significant issues with respect to your conduct, such conduct being incompatible with your obligations and duties as an employee. This has resulted in a complete breakdown of trust and confidence in the employment relationship. On account of the breakdown of trust and confidence, agreement was reached to find an alternative role by way of secondment to the Sydney Children's Hospital. As you are aware, the secondment was subject to approval from the South Eastern Illawarra Health Service and the New South Wales Department of Health. We have been recently informed that the application for secondment has been refused by the South Eastern Illawarra Health Service. Regrettably, as we are unable to provide you with an alternative position, your employment is terminated immediately. You will receive payment in lieu of notice together with your accrued but untaken statutory entitlements..." That letter was sent to Dr Wojtulewicz notwithstanding the efforts made to conciliate the matter before Grayson DP, which appeared, at least initially, to have made some progress, and the views expressed in the report of the IR's that suggested that an alternate position be found for Dr Wojtulewicz. 60 But, as I outlined earlier in this decision, the termination of Dr Wojtulewicz's employment at the hospital has been stayed by the decision of Boland J on Tuesday, 2 December, 2008 and that letter had either been withdrawn by the Department of Health or effectively became redundant with the interim decision of Boland J on Tuesday, 2 December, 2008 restraining the termination of Dr Wojtulewicz at this time. Nevertheless, it clearly remains the intention of the Health Department to bring Dr Wojtulewicz's employment to an end and that is the submissions made on behalf of the Health Department in this hearing by Mr Einfeld and what the Health Department is seeking to achieve. The Allegations Against Dr Wojtulewicz 61 Having regard to the fact that the letter terminating Dr Wojtulewicz's employment had been expressed in fairly vague terms - "...significant issues with respect to your conduct...incompatible with your obligations and duties as an employee..." and "...a complete breakdown of trust and confidence in the employment relationship..." - and had either been withdrawn by the Health Department or replaced by the decision of Boland J, there remained some doubts in the mind of Mr Taylor concerning Dr Wojtulewicz's actual status. In proceedings before me on Wednesday, 10 June, 2009 Mr Taylor sought clarification of the matter. 62 Mr Taylor held some concern that the actual reasons that Dr Wojtulewicz faced the termination of his services remained unclear at that time or, at least, was insufficiently detailed for him to provide proper arguments in defence of his position in any arbitrated proceedings. Mr Taylor sought better particulars of the allegations against Dr Wojtulewicz. He also sought an adjournment of the hearing scheduled to commence on Wednesday, 24 June, 2009 to permit that to occur. Mr Einfeld opposed the adjournment and I rejected Mr Taylor's submission on that issue, determining that the hearing would commence as it had originally been scheduled. 63 But it is trite to say that any employee should be informed the reason he faces dismissal to permit him to provide proper arguments in defence of his position [Tipping's Case (1957) AR 273 at p.277 and the St Aloysius College Case (1976) AR 91 at p.96]. Bauer J of the former Commission in Public Service Association of New South Wales v. Public Service Board of New South Wales (1988) 25 IR 148 summarised the position (at p.154) when he stated that: "...an employer may, except where required by award or legislation, refrain from giving reasons for dismissal; that the failure to provide an explanation is not sufficient by itself to call for reinstatement; that all the circumstances of the dismissal must be examined; that the failure to provide an explanation is part of those circumstances; that if on facts such a prima facie case of the dismissed employee being treated unfairly is made out an explanation is called for; that in the absence of such explanation it is open to the tribunal to conclude that the employee's dismissal was unfair…" Also in Bigg v. New South Wales Police Service (1998) 80 IR 434 the Full Bench of the Commission (Bauer and Schmidt JJ and Murphy C) commented (at p.454): "…an employee is entitled to know prior to dismissal the nature of and, as necessary, the detail of the material known to the employer which is against the employee's interests. The employee is also entitled to an opportunity to respond to that material. If an employer fails to give an employee such an opportunity before dismissal, that is a matter which the Commission may take into account in proceedings brought...determining whether the dismissal was harsh, unreasonable or unjust…" 64 Of course, the documentary evidentiary material by way of affidavits from medical and nursing staff which have already been supplied for the hearing by the Health Department (and which I will discuss later in this decision in more detail) would have provided some indication of the actual nature of the allegations made against Dr Wojtulewicz. But those affidavits would have been supplied after Dr Wojtulewicz had provided his evidence in chief. Any allegations against an employee which forms the basis of his dismissal should, in my opinion, be provided to him from the outset with sufficient particularity to permit him to be able to meet those allegations so that he may prepare his initial affidavits for arbitrated proceedings. As far as Dr Wojtulewicz's legal representatives were concerned, there still remained some uncertainty concerning the allegations actually made against him on which the Health Department was basing its view that he should be dismissed. 65 Consequently, on Friday, 22 May, 2009 the solicitor representing Dr Wojtulewicz's wrote to solicitors for the Health Department, viz: "....The current state of the respondent's affidavit evidence...is that there is no evidence as to who made the decision to terminate (Dr Wojtulewicz), for reasons and upon what basis, and in reliance upon what material and/or considerations. Given the very large volume of affidavit material relied upon by the respondents, including events going back to 1993, the absence of such evidence is materially prejudicial to the applicant as we are unable to determine either the relevance or, if relevant, the materiality of the bulk of the affidavit material to the reasons for termination... In all the circumstances, we request that you file and serve on or before Friday, 29 May, 2009 an affidavit setting out who made the decision to terminate Dr Wojtulewicz's employment on or about Friday, 22 August, 2008, what were the reasons for that decision and what material was relied upon by the decision maker..." 66 The solicitor representing the Health Department responded with a letter dated Thursday, 28 May, 2009, viz: "....The applicant seeks orders for reinstatement or, alternatively, re-employment under S.83 of the Act. The respondents will assert that their evidence discloses ample grounds to justify a refusal by the Commission of the relief sought, irrespective of the reasons adopted or processes followed by the decision-maker. In any event, the reasons for the decision taken in August, 2008 are disclosed in the evidence...as follows: (a) conduct incompatible with your client's obligations and duties as a senior neonatologist at the Grace Centre for Newborn Care; (b) a complete breakdown of trust and confidence in the employment relationship; and (c) an inability to obtain approval for the doctor's secondment to the Sydney Children's Hospital..." 67 On Wednesday, 3 June, 2009 Dr Wojtulewicz's solicitor wrote again to the solicitors for the Health Department seeking more detailed particulars and they were subsequently forthcoming in a further letter from the solicitors for the Health Department on Tuesday, 9 June, 2009, viz: "...The respondent's case is that it has an entitlement to terminate your client's employment. The grounds upon which the Commission will be asked to conclude that termination will not be unfair, and would be justified, arise from a protracted history of inappropriate conduct which includes: (a) conduct towards female nursing and medical staff, in particular: (i) making sexual overtures to female staff; (ii) making suggestive comments with implicit and explicit sexual overtones; (iii) making comments to members of staff which were inappropriate in the workplace. (b) making, in the presence of others, offensive remarks; (c) humiliating and embarrassing junior staff in the presence of others; and (d) failing or being unwilling to work at the Grace Centre for Newborn Care [GCNC] at a level consistent with that of a senior staff specialist, including in relation to research, project and non-clinical work. Such conduct is entirely inappropriate in a workplace delivering critical care to newborn infants and has resulted in a collective loss of trust and confidence in the applicant and an unwillingness of medical and nursing staff to continue employment in the GCNC if your client were to return to his former position. The decision to terminate your client's employment was not taken lightly or peremptorily, but only after lengthy attempts to resolve (by conciliation and otherwise) the difficulties created by your client's conduct. That conduct is sufficiently inappropriate to warrant such termination and makes your client's ongoing employment untenable..." 68 Where a dismissal flows from specific allegations, those allegations and no other issue initially forms the basis of inquiry by the member of the Commission. For instance, in New South Wales Public Service Professional Officers' Association v. Forestry Commission of New South Wales (1990) 39 IR 46 Cahill J - Vice President of the former Commission commented (at p.52) that in cases: "…where specific charges have been laid, an inquiry has been held by the employer, the charges have been found proven and dismissal action has been taken…the primary matter for the tribunal's consideration is surely whether, on all the evidence, the charges on which the dismissal had been based have been made out. In this regard it is relevant to note that, in these appeal proceedings, counsel for (the Forestry Commission), after taking instructions, conceded that, if it were adjudged that charges on which a dismissal had been based were not made out, then, as a matter of fundamental justice, reinstatement should follow, and that the employer should not then attempt to rely on alleged difficulties in restoring the employment relationship in order to frustrate an order that reinstatement should not take place…" 69 Dr Wojtulewicz has himself admitted some of the allegations made against him in the evidence in this hearing, but denied that he consistently conducted himself in an improper manner. He has conceded that on occasions he has told rude jokes of a sexual and/or offensive nature to other staff members in the GCNC, including female staff, and that he has at times conducted himself in a manner in the GCNC that he now believes to have been inappropriate. He now regrets that conduct and wishes to apologise to the employees concerned (although he has not to date done so and, in fact, in view of the time that has elapsed since many of the incidents in question, no good purpose would really be served by an apology from him now anyway). 70 In his affidavit, Dr Wojtulewicz conceded: "....I accept that, like others who work in a high pressure position, from time to time I have communicated with others in a manner that may have been less than ideal. This may have been particularly the case in late 2005/2006 when I was experiencing some symptoms associated with depression and the medications used to treat it. I do not believe, however, that I ever acted in a way that would justify the termination of my employment. My motivation has always been and remains focused on the provision of the highest standard of patient care and support for their families..." Dr Wojtulewicz has denied other allegations made against him entirely, however, and his evidence in this hearing is at odds with the evidence of many of the other witnesses. 71 It is Dr Wojtulewicz's belief that he has been subjected to a vendetta by certain members of the GCNC staff. In particular, he claims that Dr Halliday, Dr Badawi, Dr Barr and Ms Elliott have embarked on a vendetta against him. Other medical and nursing staff who gave evidence in this hearing he does not necessarily see as part of that alleged vendetta, albeit that they have given far from flattering evidence against him in this hearing. That appears to have been Dr Wojtulewicz's view from the outset. 72 Mr Einfeld rejects such an assertion as fanciful, commenting in his written submissions: "....This suggestion was no doubt made by the applicant in an attempt to provide some explanation for the raft of complaints about his unacceptable behaviour. Instead of facing up to the reality, and accepting responsibility for his own conduct, the applicant sought to convey that the complaints were not genuine, but rather the product of a plot or conspiracy against him. The Commission should reject the proposition as spurious..." 73 Ms Elliott, who was called to give evidence in the hearing by Mr Einfeld, recalled a conversation with Dr Wojtulewicz over nine years ago. She had spoken to Dr Wojtulewicz in the following terms: "Julian, some of the staff have been complaining about you. You've got to be more mindful of what you say or do, particularly around the newer and younger nurses and registrars who don't know what you're like. They say that you don't listen to what they say and that you simply just dismiss them." To which comment Dr Wojtulewicz allegedly replied: "It's your fault Jenny. You have turned all the nurses and registrars against me because you remember what I was like when I was a registrar and have held it against me all these years." 74 As I indicated earlier in this decision, in the middle of 1996 Ms Elliott had written to Dr Halliday highlighting incidents where she believed Dr Wojtulewicz had behaved angrily and belittled nursing staff, viz: "....The nursing staff are now choosing to discuss clinical issues with other members of the team to avoid confrontation with Julian. I am unable to discuss this matter with him as he says I cannot adjust my biases to his new level of seniority as a neonatologist. He believes I am encouraging the nurses to be disrespectful. The ward cannot keep working like this, with the staff anxious when Julian comes on service and relieved when he goes off, afraid to raise relevant issues for fear of being belittled in front of other staff and parents, or told they do not know what is happening with the care of the patients. I have made a previous verbal complaint about Julian's attitude. I now wish that positive steps to be taken to overcome this problem. I believe this problem demands a solution and I look forward to hearing from you in the near future..." The Alleged Breach of Contract by Dr Wojtulewicz 75 At the close of Mr Einfeld's case, and after all evidence had been led by Mr Taylor and Mr Einfeld, Mr Einfeld foreshadowed that the Health Department would be seeking to add a further ground for its decision to terminate Dr Wojtulewicz's services, ie that he had actually repudiated his employment contract in his apparent refusal to work as a neonatologist, seeking instead work in the more general field of paediatrics. In fact, Mr Einfeld has raised that current amended claim by Dr Wojtulewicz as falling outside the scope of his employment with the Department of Health, pointing out in his written submissions: "....Dr Wojtulewicz has for many years been employed at the GCNC as a neonatologist, first as a staff specialist and then at senior staff specialist levels. His announcement on the first day of the hearing...that he no longer wishes or seeks to pursue employment in the capacity for which he is presently employed (confirmed in his oral evidence) is critical. The applicant does not now wish to pursue his designated employment as a neonatologist but to obtain re-skilling as a general paediatrician and then to retrain as a sleep and respiratory physician... Thus, the applicant has formally and clearly declared his intention not to carry out the terms of his employment for the very purpose for which he is employed... In those circumstances, his dismissal could not be harsh, unreasonable or unjust..." Later in his written submissions, Mr Einfeld indicated: "....Here the applicant seeks orders that would compel the employer to provide to the employee facilities permitting him to be re-skilled and retrained. Such conditions would impose obligations which do not fall upon the employer under the existing employment contract. Such an additional burden is not contemplated (and not permitted) by S.89(7)..." 76 Mr Taylor has argued in his written submissions that "....to attempt, after the evidence was completed, and in the absence of any cross-examination to this effect, to add a further fifth 'ground', namely that Dr Wojtulewicz is refusing to work as a neonatologist..." would constitute a procedural unfairness to Dr Wojtulewicz. Nevertheless, if Dr Wojtulewicz is to be reinstated in employment with the Department of Health the work to which he returns to perform must be consistent with his contract of employment with the Department of Health. What Dr Wojtulewicz is seeking is re-training and re-skilling as a paediatrist, albeit his professed ultimate intention is to embark on an (independent) career in sleep medicine. Mr Taylor has indicated in his submissions that Dr Wojtulewicz's intention to work in sleep medicine is his long term aim only. 77 In my opinion, in the case of any employment of professional employees, there is always an implied condition in the contract of employment that the employer would facilitate training, re-training and re-skilling of a type relevant to the work in question. Indeed, in view of the lengthy period when Dr Wojtulewicz has not been working in neonatology it would be no more than common sense that he be permitted to refresh his knowledge in that work and bring himself up to date with developments while he has not been working. 78 The position as I see it, is not a case where Dr Wojtulewicz would be in breach of his contract of employment with the Department of Health by ultimately wishing to work in sleep medicine. He has simply been frustrated by the events I outline later in this decision which effectively have denied him employment in the type of work to which he was originally trained and performed in the GCNC and which, up to the hearing of the matter before me, was still his preferred position. I perceived that Dr Wojtulewicz was always content to work in neonatology (at the level of senior staff specialist for which he is qualified) in a public hospital providing such work. Mr Taylor asserts that the type of retraining he seeks is only available in a public hospital. 79 Effectively, as was acknowledged by Mr Taylor, an order that he be reinstated in employment would be inappropriate for Dr Wojtulewicz. He is presently still employed by virtue of the decision of Boland J, albeit not performing any useful work for the Department of Health. At the present time there is no obligation on the Health Department to actually provide him any such work - provided, of course, that they continue to pay him his salary. But such a course would be in the interests of neither Dr Wojtulewicz, the Department of Health, nor for that matter the general community, having regard to the fact that Dr Wojtulewicz is so clearly anxious to resume constructive work but has been prevented from doing so. 80 But there is an issue of jurisdiction in that respect on which Mr Einfeld also relies, ie whether such an arrangement is within the jurisdiction of S.89(7). He argues that my jurisdiction under S.89(7) goes no further than to either reject or confirm the decision of Boland J on Tuesday, 2 December, 2008. Pursuant to S.83(5) a dismissal in Part 6 proceedings extends to include a threat of dismissal and in that respect S.89(8) provides: "An order under this section may be made on such terms and conditions as the Commission determines." That must mean that, if I conclude there is no justification to terminate his services, it is still open to me to place such restrictions or conditions on his re-engagement as in my discretion I consider appropriate. Any orders made by virtue of S.89(8) would, as Mr Taylor submitted, be ancillary to an order made under S.89(7). I note in that respect comments made by the Full Bench (Wright J - President, Boland J and Patterson C) in Western Sydney Area Health Service v. Australian Salaried Medical Officers' Federation (at p.212), viz: "....Whilst we note that S.89(8) enables the Commission to make an order under S.89(7) on such terms and conditions as the Commission determines, we do not consider an order that would have the effect of preventing the employer from terminating an employee's employment for a reason not related to the alleged threat or from varying the contract of employment in any respect , was an order necessary or incidental to the primary order under S.89(7) or an order necessary to the proper and effectual performance of the primary order..." My emphasis. Therefore, I may not make any order under S.89(8) outside what may be reasonably contemplated as incidental or ancillary to the primary remedy under S.89(7) for Dr Wojtulewicz. 81 But whatever the jurisdictional niceties that arise from my decision, which the parties readily concede have certain unusual features and very little by the way of precedent to which I may turn to find support, I would not expect the Department of Health to act obstructively if my decision was to preserve the employment of Dr Wojtulewicz with it. Mr Einfeld suggested that the Department of Health would act in good faith in the light of my decision. Support for Dr Wojtulewicz 82 Notwithstanding the general criticisms of Dr Wojtulewicz, it appears from the evidence before me that he still had considerable support by some hospital staff (but, as Mr Einfeld highlighted in his submissions, it appears, not necessarily many of the medical and nursing staff who work exclusively in the GCNC and who come into more constant contact with him in the period immediately prior to his suspension). Mr Taylor has suggested in his submissions that the GCNC is factionalised into two camps - the supporters of Dr Wojtulewicz and those who are opposed to him. 83 Dr Wojtulewicz also appears to have the support of some parents of children in care in the GCNC whose views, I would think, should be respected in that regard and carry considerable weight. Some parents have, in fact, provided correspondence thanking the staff of the GCNC and, in particular, Dr Wojtulewicz, for their attention on behalf of their children in care in the GCNC. For instance, Ms Cathy Minter and Ms Annette Consadine - who provided affidavit evidence on behalf of Dr Wojtulewicz (but whom Mr Einfeld did not require for cross-examination) clearly support Dr Wojtulewicz. 84 Dr Wojtulewicz records in this affidavit in reply that: "....I maintain that over the period of some 13 years I have been a staff specialist and a senior staff specialist...that I have had an effective working relationship with the vast majority of the nursing and medical staff with whom I interacted on a day to day basis, both within and outside the GCNC..." And he adds: "...the parents of several babies have seen fit to provide statements supportive of the degree of care and attention that I provided to their very ill babies when they were under my care at the GCNC..." 85 For instance, Ms Minter wrote in her affidavit: "....My time at the hospital was a paradox of experiences. On one hand, I held the sick dying body of my first beautiful daughter which tore myself to shreds - a heart breaking grief, reckless and relentless in its heaviness and, on the other hand, I was held by the exceptional professionalism, skill and deep compassion of Dr Wojtulewicz who was a lifebuoy to myself and my family and indeed my child as we nursed her in dying. I cannot express enough how Dr Wojtulewicz's compassionate temperament and professional care and skill during that 24 hour nightmare has positively impacted not only on the acute stages of our grief process, but has stayed with us for the long haul over the past ten years. I have no doubt that this is why, in part, we have survived such a trauma so well with our marriage still intact..." 86 And Ms Consadine recorded in her affidavit: "...On Sunday, 6 March, 2005 my daughter had surgery requiring multiple bowel resections. Dr Wojtulewicz was part of the team that supervised her recovery during the following weeks until her discharge on Saturday, 9 April, 2005. She was readmitted on Saturday, 16 April, 2005 with complications and finally discharged on Wednesday, 4 May, 2005... I sent a letter to the hospital thanking the hospital and its team that provided the care for their support during the time she was at the GCNC. At the time I emphasised my appreciation for the work done and the contributions made by all the members of the neonatal team. In my view, each of the team members had different personalities and performed different functions and I noticed that some were good at communicating with parents and often explained the work done by other team members. I include Dr Wojtulewicz in this category. In my view, he was a fine communicator and took the trouble to fully explain some of the complicated procedures and risks in a sympathetic and concise manner... Dr Wojtulewicz's skills and communication and problem solving were called on again on Friday, 13 May, 2005. My daughter had stopped breathing and was rushed to Gulgong Hospital in a distressed condition. The Newborn and Paediatric Emergency Transport Service staff called him at home at 2.30am on Saturday, 14 May, 2005 for advice and on his recommendation she was immediately transferred to Dubbo Base Hospital. Dr Wojtulewicz, through his commitment and expertise, convinced me that in a neonatal crisis situation he was one I want on the team providing treatment... During my time at the hospital I observed Dr Wojtulewicz during his rounds and listened to the way he ensured that all of those involved in the process were fully aware of their obligations and responsibilities. On occasions, he drew attention to small breakdowns in procedure where the recommendation made on previous rounds had not been carried out. I observed him to always be polite and supportive of the nursing staff on these occasions, but firmly reinforced the recommendations and the expected standards..." 87 Ms Jill Ditton, a social worker (now retired) who worked in the GCNC with Dr Wojtulewicz, was called to give evidence in the hearing by Mr Taylor. She regarded Dr Wojtulewicz as a competent neonatologist who cared for the neonates in his care with affection. She indicated in her evidence that she respected him. However, Ms Ditton has not apparently worked with Dr Wojtulewicz since 2002. In the affidavit which formed the basis of her evidence in this hearing Ms Ditton commented that: "....to me, Dr Wojtulewicz appeared very interested in his work and seemed confident in his ability. He always seemed to try his best. Dr Wojtulewicz encouraged a multi-disciplinary team approach. During his ward rounds he encouraged staff members to know the condition of the neonates well, as I think he believed this would help in them assisting the parents of the neonates. In his dealings with the other members of the staff Dr Wojtulewicz came across as reasonable. At times Dr Wojtulewicz engaged in debate which could become quite excited but, to be honest, I thought other members of staff baited him a bit and Dr Wojtulewicz seemed to have a tendency to want the 'last word'. In my experience, Dr Wojtulewicz's ward rounds often turned into 'teaching sessions' as he has a natural ability to teach. Although I do not doubt that some cases were very complex and interesting, at times I found some teaching sessions a little too detailed as I am a 'lay person' and not a medical person. I found Dr Wojtulewicz to be a compassionate person, extremely compassionate at times... I am not aware of Dr Wojtulewicz having abused or belittled registrars. I did not observe such conduct on the ward rounds that I accompanied him on. However, I have observed Dr Wojtulewicz show frustration with a registrar if he did not appear to know what Dr Wojtulewicz seemed to think he should know. It was my observation that during the exam period Dr Wojtulewicz would question the registrars more closely on their knowledge and seemed to try his best to get the correct answers from them. As the hospital was a teaching hospital it seemed to me to be appropriate that he would expect the registrars to know their stuff. I am not aware of Dr Wojtulewicz having abused or belittled nursing staff but I have observed the odd interchange now and then relating to differing opinions as to case management. Although the occasional interchange became 'heated', I could never describe his approach as 'abusive'. I am not aware of Dr Wojtulewwicz making racist, sexist or derogative jokes. Although I observed Dr Wojtulewicz to have a sense of humour which was, in my view, a bit 'school-boyish', it was not offensive or inappropriate. I am not aware of Dr Wojtulewicz behaving in a manner which could in any way be construed as sexual harassment. I have heard Dr Wojtulewwicz described as a ladies' man but I have not observed him to act in a flirtatious manner towards anyone.." 88 Ms Melinda Yeung, a pharmacist working in the GCNC, was also called as a witness in the hearing by Mr Taylor. She asserted in her affidavit that: "....With regard to personal conduct, Dr Wojtulewicz came across as a fairly calm person. His speech was well-paced and the tone fairly even. He may have suffered from, and occasionally succumbed to, a low frustration threshold. This was reflected in an incident in which his frustration became evident after he, as a staff specialist, was prevented from writing a pharmaceutical benefit prescription for a special infant feeding formula due to a change in practice policy that he was unaware of, to enable the patient's parents to take their baby home over the weekend. I did not consider this remarkable as in my experience over the years working alongside intensive care doctors of all ranks I have noted a decrease in their tolerance for frustration after a long shift, particularly after an overnight shift or towards the end of one week of being on-call. In my professional interaction with Dr Wojtulewicz, he was approachable and courteous. Prior to me meeting Dr Wojtulewicz as a new pharmacist in the GCNC, I had been informed by my colleague, a young female pharmacist of Asian ethnicity (who previously was the pharmacist) that Dr Wojtulewicz was quite friendly. During my time working with Dr Wojtulewicz, when his opinions were at variance with mine on some contentious research topics, he demonstrated a willingness to listen, engage in debate and share his thoughts, even admitted his own ignorance and limitations as a sub-specialist, all of which clearly reflected his self-confidence, emotional maturity and willingness for self-improvement. Dr Wojtulewicz's attitude towards me was in stark contrast to the condescending manner of some of the other medical specialists. I never had any doubt that Dr Wojtulewicz treated me with respect and as his equal, irrespective of my Chinese ethnicity, being a female and being an allied health practitioner. I have observed Dr Wojtulewicz treating the parents of babies under his care with courtesy and respect, speaking to them in an unassuming manner when explaining their babies' complex conditions... I have also observed Dr Wojtulewicz engaged in discussions with a neonatology registrar, a young Indian lady, in a manner consistent with that of the two colleagues of equal standing on more than one occasion. I have neither seen, nor heard, nor experienced Dr Wojtulewicz behaving as a sexist or racist and I was never aware of his alleged inappropriate staring at or touching of any female staff member. I have observed Dr Wojtulewicz treating sick babies with kindness and affection, eg picking up a crying baby for a cuddle prior to the baby being transferred to operating theatre for surgery..." 89 The evidence of Dr Christopher Seton, a staff specialist working in the respiratory support service and the sleep investigation unit, who was also called to give evidence in the hearing by Mr Taylor is to similar effect. He wrote in his affidavit that he liaises with the neonatal team in the GCNC and has worked with Dr Wojtulewicz since 1995. He wrote in his affidavit that: "....I have always observed Dr Wojtulewicz to conduct himself professionally in the work environment. I have never seen Dr Wojtulewicz display an inappropriate communication style or be abusive or belittle junior doctors or nurses. Dr Wojtulewicz is a friendly person who includes junior staff in discussions of patient management. He is an excellent teacher and a role model to junior doctors. I have heard Dr Wojtulewicz tell jokes and anecdotes in the work environment, but not within the ward. For example, the hospital organises a short coffee session each Tuesday morning and all the staff are invited as a means to get the medical staff together for a short time. It is a chance to see people that you do not see elsewhere in the hospital. You can have coffee and cake and it lasts approximately 20 minutes. It is an informal, friendly environment for social interaction with peers. I have heard Dr Wojtulewicz tell jokes and anecdotes in this environment but I have never seen anyone in that morning coffee environment take offence at such conversation. I have never seen him staring or engaging in any inappropriate touching behaviour of a sexual nature. I have never heard anyone talk about any such allegation..." 90 In his evidence Dr Seton described Dr Wojtulewicz's jokes and anecdotes as "...sometimes mildly risqué...". That would hardly be grounds for dismissal but Dr Seton's description of Dr Wojtulewicz's jokes and anecdotes differs remarkably from that given to me in evidence by many of the witnesses called to give evidence by Mr Einfeld to which I will refer later in this decision. Overall, the evidence of Ms Minter, Ms Consadine, Ms Ditton, Ms Yeung and Dr Seton provide very positive testimonies to Dr Wojtulewicz's competence, dedication and sympathetic approach with respect to children in his care and the parents of those children which is at odds with much of the evidence adduced through witnesses called in this hearing by Mr Einfeld. 91 Andrew Berry, the medical director for the NETS, who was also called to give evidence in the hearing by Mr Taylor, generally shared positive views of Dr Wojtulewicz. He wrote in the affidavit which formed the basis of his evidence in this hearing that: "....I am aware that Dr Wojtulewicz does not enjoy the support of a number of his colleagues: both medical and nursing. I hear informally many stories of professional and inter-personal behaviours but have no direct knowledge which substantiates them. I am not in a position to comment on that reputation other than to say that since his return from the United States of America I have not found him difficult to work with, unavailable or inappropriate. I have always found his clinical judgment to be sound..." 92 The affidavit of Dr Richard Hawker, a paediatric cardiologist at the CHW was admitted into evidence without Mr Einfeld requiring him for cross-examination. In his affidavit Dr Hawker indicated: "....In his management of newborn babies and their families, I have never seen evidence that Dr Wojtulewicz has had other than their best interests in mind. At no time in the last 16 years has a member of the nursing staff of the Children's Hospital at Westmead approached me about Dr Wojtulewicz's clinical competence. I have always found him to be of sound clinical judgment. I have observed that other neonatologists in the Grace Neonatal Nurseries differ significantly from the applicant in their management of neonates with conditions that might result in a future life with major disabilities..." And Dr Hawker concludes his affidavit: "....In my opinion, Dr Wojtulewicz can continue to make a significant professional contribution to neonatal medicine in New South Wales..." 93 Ms Carol Selmeci, a nursing clinical co-ordinator (nurse unit manager) employed in the GCNC, was called as a witness in the hearing by Mr Einfeld. Whilst Ms Selmeci still had concerns over Dr Wojtulewicz's attitude at work (which I will discuss in detail later in this decision), she had respect for his clinical competence, acknowledging in her affidavit: "....I had a lot of respect for Dr Wojtulewicz's clinical competence. He is a very knowledgeable and skilful neonatologist. However, he could be very dogmatic in the way he wanted to provide the care for the babies. Although this was his prerogative as the neonatologist, it could be frustrating if he came on call and wanted to change the management of a patient from what was set by the previous neonatologist on duty. He did this regularly, although I did not challenge his decisions because he was ultimately responsible for patient care..." Ms Selmeci also recorded in the affidavit that: "....After some time working in the GCNC I formed an opinion of Dr Wojtulewicz that he was a very self-confident and competent neonatologist. However, I learnt relatively quickly that he would irritate some staff members. I knew this because I had observed Dr Wojtulewicz having heated discussions with some of the other consultants from other teams on various occasions. Further, I had observed Dr Wojtulewicz speaking on the telephone and he was often raising his voice or arguing with the person on the other end. Notwithstanding, I initially found Dr Wojtulewicz to be amicable and easy to get along with..." 94 Ms Spence recorded in her affidavit that: "....I had observed Dr Wojtulewicz's attitude to teamwork to be somewhat controversial in that he was open about his comments on other members of the health team and freely offered his opinion on what ought to occur. Dr Wojtulewicz appeared to me to be a person who wanted to be liked and popular and he liked to '...buck the system...' by being controversial in his opinions of others. He often spoke openly to all members of the team present about his personal life and...his divorce..." 95 I have very conflicting and confusing evidence before me in this hearing concerning perceptions to Dr Wojtulewicz's attitude and general conduct and behaviour in the GCNC. But with comments - pro and con Dr Wojtulewicz - I now turn to examine in more detail the specific allegations against Dr Wojtulewicz on which I believe the case against him by Mr Einfeld essentially relies. Mr Einfeld has relied in particular on more recent incidents involving Dr Wojtulewicz but the whole range of issues were before me in the hearing and I regard is appropriate to address all issues raised in the evidence. Clinical Duties 96 Some of the allegations made from time to time by medical staff in the GCNC concern the question of the competence of Dr Wojtulewicz and his ability to provide proper care for sick neonates. That is a criticism of Dr Badawi going back as far as 1999 and in the letter to Dr McCaskill by Dr Halliday, Dr Badawi and Dr Barr (and Ms Elliott) on Tuesday, 13 June, 2009 they indicated that there were "...many years of concern about his...judgment...". Of course, that is not something which I can effectively address in this hearing and it is not pressed by Mr Einfeld. But I am satisfied that the issue has, in fact, been addressed elsewhere. As I indicated earlier in this decision, the report of the IR's in the middle of 2007 had this to say concerning Dr Wojtulewicz's medical competence: "....Based on the evidence before the IR's, ie the patient's medical reports and interviews with the GCNC and with Dr Wojtulewicz, the IR's conclude that there are no grounds for Dr Wojtulewicz to be considered medically incompetent. His ability to provide competent care for sick neonates is not questioned..." 97 That, in fact, should be the end of any criticism in that respect. But it seems to me that has not been the case. Dr Badawi continues to take the view that Dr Wojtulewicz's clinical performance was inadequate and some of the issues raised as criticisms of Dr Wojtulewicz's conduct shortly before his suspension, which I will discuss in more detail later in this decision, do still raise issues concerning Dr Wojtulewicz's clinical performance. Dr Badawi recorded in her affidavit: "....If Dr Wojtulewicz were to return to the unit I would find it impossible to work with him. Further, I could not roster Dr Wojtulewicz on in good conscience noting the concerns that I have had for many years regarding his clinical care and judgment, the consistent way in which he makes improper comments to staff and his generally inappropriate and unprofessional attitude. This behaviour puts the babies in our care at risk and takes the attention away from our clinical duties and makes the focus continuously on Dr Wojtulewicz and dealing with his behaviours..." 98 I note that Dr Wojtulewicz commented in his affidavit in reply: "...Some of the respondent's affidavits raise alleged concerns as to my ability to provide competent care for sick neonates. Dr Badawi, in particular, claims that she held such concerns as long ago as 1999... While I believe that it is a normal part of professional interaction for medical staff to feel comfortable in challenging each other's views on patient care from time to time, I am able to say categorically that, with the exception of the events immediately before my suspension and, in particular, the letter of Tuesday, 13 June, 2006..., none of my fellow neonatologists at the GCNC ever said to me that they believed I was unable to provide competent care for our patients - notwithstanding that (as their actions in June, 2006 suggest that they themselves believed) if they held such concerns then they had ethical and legal obligations to do so. In raising concerns as to my ability to provide competent care for sick neonates, the respondents' affidavits...do not set out any clinical incidents said to provide justification for those concerns other than the five clinical matters the subject of review during the investigations by the IR's..." Non-Clinical Duties 99 There has been an allegation that Dr Wojtulewicz has not performed the non-clinical work - research, projects, etc - to the level that would otherwise be expected of a neonatogist at the senior staff specialist level. For instance, Dr Halliday, who was called as a witness in the hearing by Mr Einfeld, indicated in the affidavit which formed the basis of his evidence: "....In general, it was considered that Dr Wojtulewicz did not contribute in any meaningful way to the non-clinical activities of the GCNC. It is difficult to point to anything for which Dr Wojtulewicz was responsible. During the Tuesday morning meetings with all of the neonatologists in the GCNC, I had on a number of occasions enquired of Dr Wojtulewicz when he was going to contribute something to the unit..." 100 Dr Halliday recalled asking Dr Wojtulewicz: "When are you going to contribute something to the unit?" To which Dr Wojtulewicz allegedly responded: "I do. I attend clinical meetings and am involved with teaching." Dr Halliday indicated in his affidavit: "...In my view a satisfactory answer was not forthcoming. Nor was there any evidence of a concrete contribution or activity. The teaching involvement was essentially bedside teaching during ward rounds and his attendance at clinical meetings involved being present and contributing to general discussion, rather than taking a role in the preparation and presentation of cases or a role in the development of protocols and guidelines. There were some instances of suitable contributory activities. However, they were few in numbers, inconsistent and at a level far below that expected of a senior medical practitioner..." 101 Those may very well be legitimate value judgments of certain colleagues but the evidence before me in this hearing to support an allegation on that aspect is very unimpressive, in my opinion. Ultimately, the concerns surrounding Dr Wojtulewicz's non-clinical duties may simply boil down to a question of degree - something on which there may be grounds for further discussion with him but not for any disciplinary action to be taken, let alone dismissal. And if that was an area of concern, it should have been raised with Dr Wojtulewicz in the first place with considerably more force than appears to have been the case. All that appears to have occurred is a brief exchange of views between Dr Halliday and Dr Wojtulewicz. On-Call Arrangements 102 It has also been suggested by the evidence of many of the witnesses called by Mr Einfeld in this hearing that Dr Wojtulewicz has not always been anxious to attend the hospital when he is on-call which, of course, is an important condition of his employment in the hospital. For instance, Dr Kathryn Carmo, a staff specialist in the GCNC was called to give evidence in the hearing by Mr Einfeld. She claimed in her affidavit evidence that: "....during the years that I worked in the GCNC with Dr Wojtulewicz, I would try to avoid ringing him when he was the consultant neonatologist on call. I found him to be unhelpful and also had known from experience that he would not return to the GCNC if I felt there was something wrong with a baby in any way. This is in stark contrast to the other consultant neonatologists, who were always ready and willing to come into the ward when required, or even if just to offer support to the registrar..." 103 Ms Catherine Brown is a nursing clinical co-ordinator [NUM] in the GCNC. She was also called as a witness in the hearing by Mr Einfeld. Among other things, she has claimed in the affidavit which formed the basis of her evidence that Dr Wojtulewicz: "....was less likely to come in than other consultants... Dr Wojtulewicz was not as readily available to the parents of the babies as the other consultants for discussion and support. However, if he noticed that the mother was particularly attractive, he would spend more time with her..." 104 Ms Jennifer Denner is a clinical nurse specialist attached to the GCNC. Her work there is predominantly on the night shift. She was also called as a witness in the hearing by Mr Einfeld. Her concerns centred on Dr Wojtulewicz's apparent reluctance to come in on-call for urgent matters. Her affidavit records: "....I observed that it was not unusual for registrars to come off the phone from Dr Wojtulewicz upset and frustrated. They would relay to me that Dr Wojtulewicz had dismissed their concerns and said something to the effect: 'Just deal with it yourself.' It was Dr Wojtulewicz's responsibility as the consultant to guide the registrars, as they were only learning and could not make the final call on patient care. From time to time, there would be a baby who was acutely unwell and who was likely to die. On at least a couple of occasions, Dr Wojtulewicz refused to come into the GCNC to support the registrar or the parents of the baby. This was particularly important because the parents would be very distressed and emotional and the neonatologist should generally try to help the parents through that final period. This is particularly so as the neonatologist would have developed a rapport with the parents and often the registrars were inexperienced in dealing with death... I would call Dr Wojtulewicz when the registrar was physically busy with the baby and felt the registrar could not leave the baby (for instance, where he was performing resuscitative activities). It was not unusual for the registrar to ask me to contact the on-call neonatologist to convey our concerns and ask for guidance or a management decision. Further, there were at least a few occasions where a registrar on duty would come off the phone from Dr Wojtulewicz, saying that he would not assist and they would have to make the decision..." 105 That evidence is fairly vague, of course, and Dr Wojtulewicz denies that he was difficult to contact whilst on-call - except on one occasion when there were some difficulties with his mobile telephone which he quickly rectified. He claims that he has never been counselled or disciplined over an alleged refusal to obey a request to come into the GCNC whilst on call. He records in his affidavit in reply: "...I have been on call over approximately 1,000 nights in my time at the GCNC and the occasions upon which, to my knowledge, I have not been able to be immediately contacted would number less than 10 and on each occasion I have remedies the reason for my being unable to be contacted immediately. One such occasion that I do recall, although I do not remember precisely when this was, was when my home phone was not working and my mobile phone was flat. I was not contactable for several hours. When I was made aware of this, I was extremely concerned and the next day bought a two base cordless home phone kit so that there would always be a charged phone on which I could be contacted.... I deny refusing a request to come in on call where it was appropriate for me to do so. I always told the registrars and nurses that if I am on call just tell me and I will come in..." 106 I note that Dr McLean recorded in her first report of Saturday, 1 April, 2006 (to which I referred in detail earlier in this decision) that: "....whilst it is obvious that the fatiguing aspect of on-call will depete his scant reserves of energy and disrupt his treatment, Dr Wojtulewicz nevertheless derives a deep sense of enjoyment and satisfaction from his on-call work and has a deep sense of duty to his hospital and patients. He is acutely aware of staff shortages and absences and does not wish to burden his colleagues with having to cover for him. As a result, he has not wanted to ask to be excused from current on-call duties..." Odd comments when placed against the comments of the witnesses who claim that he was reluctant to attend the hospital when on-call. 107 Dr Badawi indicated in her affidavit that: "...On account of my experience with Dr Wojtulewicz and comments that he made in my presence, together with the verbal complaints I had received, from about 1999 I requested that I not be rostered on call before or after Dr Wojtulewicz. I found that when I followed Dr Wojtulewicz's on-call, I had to do a lot of 'damage control'. For example, I would often have to sooth and calm down people who Dr Wojtulewicz had offended during the week or I would have to spend extra time attending to families who had been given unrealistic advice by Dr Wojtulewicz. I was also put under additional pressures because I was getting a higher number of requested transfers of babies into the GCNC than normal. This was because many other hospitals or teams within our own hospital began to delay transfer of care until the week after Dr Wojtulewicz's on call week when they had a patient needing transfer towards the end of that week. These teams chose not to deal with Dr Wojtulewicz because of his temper and his critical commentary on their care..." 108 Ms Lucy (Sandra) Holmes, a nursing clinical co-ordinator in the GCNC [NUM], who was called as a witness in the hearing by Mr Einfeld, recalled a specific conversation with a registrar (whose name she cannot now recall) when she asked: "Have you spoken to Dr Wojtulewicz yet?" And the registrar replied: "No, not yet. I don't want him to yell at me. I don't like calling Dr Wojtulewicz because he makes me feel as if I am disturbing him unnecessarily." Ms Holmes apparently advised the registrar that he should speak to Dr Halliday or Dr Badawi if he had any such concerns. It may be that there was a reluctance on the part of some of the medical staff in the GCNC to approach Dr Wojtulewicz because they did not wish to have an argument with him. But, after all, they are supposed to be interested in proper patient care. Their personal feelings should take second place to that. And if some registrars chose not to call Dr Wojtulewicz in when he was on-call, the fault may lay primarily with them and not Dr Wojtulewicz. To delay admissions in such a situation raises ethical concerns, to my mind. Ward Rounds 109 It has been alleged that Dr Wojtulewicz was frequently late for his ward rounds. As Dr Procopsis indicated in his letter to the ASMOF on Tuesday, 7 March, 2000, whilst staff specialists are not required to clock on and off and have a certain amount of autonomy in the performance of their duties, they are nevertheless required to meet basic obligations concerning their timekeeping in the hospital and any delays in arranging ward rounds would obviously affect other medical and nursing staff in the GCNC. 110 Ms Brown commented in her affidavit on Dr Wojtulewicz's lateness to attend for ward rounds, commenting: "....Dr Wojtulewicz was regularly late for ward rounds. As the consultant neonatologist in charge, Dr Wojtulewicz was responsible for leading the ward rounds, which involves going from patient to patient to discuss patient care. The round is attended by the night registrar, two day registrars (one for the Intensive Care Unit and one for the High Dependency Unit), neonatal fellow, clinical nurse specialist, discharge nurse, nursing clinical co-ordinator, registered nurse caring for each infant at the bedside and the parents of each infant. On some occasions, we would be joined by a social worker, pharmacist, occupational therapist and visiting medical and allied health staff. Sometimes Dr Wojtulewicz would telephone in and say words to the following effect: 'I'm caught in traffic.' However, he had a whole repertoire of excuses that he would cite. Other times, Dr Wojtulewicz would not telephone in at all and simply turn up late. On weekends particularly, Dr Wojtulewicz could be up to an hour late..." 111 Ms Brown recalled a conversation she had with Dr Wojtulewicz in her affidavit when she remonstrated with him for always being late for his ward rounds. She claimed that Dr Wojtulewicz replied: "But I live in Mosman. The traffic can be bad." And Ms Brown allegedly responded: "Yeah, so you live in Mosman. I know other people in Mosman who manage to get here on time. You could too if you planned to leave home earlier." In his affidavit in reply, Dr Wojtulewicz denies that he was regularly late for his ward rounds or that he simply did not turn up for them. He denies the conversation which Ms Brown recalls in her evidence. 112 Dr Wojtulewicz recorded in his affidavit in reply: "....A common reason for the late commencement of rounds was the attendance of the nursing clinical co-ordinator at a morning meeting called 'Discharge Planning'. These meeting would usually conclude after 9.00am. If the nursing clinical co-ordinator had not returned to the ward by 9.20am I would usually commence the round anyway, asking another nurse to act as the co-ordinator. This seemed more appropriate to me than asking up to six to eight other individuals to continue to wait any longer..." 113 Ms Brown continued in her affidavit: "...Dr Wojtulewicz had a tendency to make ward rounds longer than they should have been. He would often be discussing one of the patients and end up digressing or going off on a tangent about something irrelevant. This became increasingly regular as time went on to the point where it was occurring at least once a day when he was on duty. Often, I would just walk away because I could not afford to spend so much time on the ward round. Both Dr Wojtulewicz's lateness in turning up for ward rounds and his protracted ward rounds were frustrating. It had the effect of delaying the round and therefore holding people up from attending to their other duties and registrars who were waiting to come off shifts..." 114 Ms Yeung takes another view of Dr Wojtulewicz's allegedly protracted ward rounds, commenting in her affidavit: "....One outstanding quality of Dr Wojtulewicz's professional ability that I observed during the morning rounds is his natural ability to teach. Dr Wojtulewicz devoted more time and effort to cot-side teaching than his fellow consultant neonatologists. He would explain and articulate in some detail his practical knowledge of neonatal intensive care to the physician-in-training and allied health practitioners. As someone with a professional interest in clinical education, it was readily perceptible to me that Dr Wojtulewicz enjoyed sharing his clinical reasoning thought process, applying a teaching/learning technique of reflection-in-practice and reflection-on-practice. As a consequence, Dr Wojtulewicz's morning ward rounds could take a little longer in comparison with those of his fellow consultant neonatologists...In my opinion, the time Dr Wojtulewicz invested in his teaching/reflection was worthwhile, as such activity had immediate relevance to patient care as well as an important part of the clinical education of those attending..." 115 Dr Wojtulewicz recorded in his affidavit in reply: "....My rounds may well have taken longer than those conducted by some of my colleagues but I believe in, and gave priority to, the teaching aspect of the rounds and I would take time to explain to the junior doctors the nature of my diagnosis and/or ask them questions to assist them to learn..." I do not believe that Dr Wojtulewicz should be criticized for taking more time on his wards rounds than what some nursing staff may consider necessary. In my opinion, it would be wrong to equate a speedy round of a ward with efficiency. I am sure that the parents of babies in care would appreciate considerably more attention being paid by all concerned in the ward rounds. I would regard it as of more of a concern if the ward rounds were conducted in a cursory manner. I appreciate that ward rounds may represent to some nursing staff a distraction from their other equally important duties but that is a problem that should not be solved by cutting back on the time for ward rounds. Collaboration Between Medical Staff and Nursing Staff 116 It seems that part of the criticism of Dr Wojtulewicz is that he was regarded generally as not a "team player" in the GCNC. Dr Badawi indicated in her evidence that because of the sensitive nature of work in the GCNC if the medical and nursing staff did not operate as a team, patient care was adversely affected. Ms Katie McKenna (nee Elder), a nurse educator employed in the GCNC, called as a witness in the hearing by Mr Einfeld, recorded in her affidavit: "....The environment in the GCNC is extremely stressful because staff are dealing with not only critically ill babies but also the psychological and emotional issues of those babies' families. It is a constant challenge to deliver expert clinical nursing skills to the babies. As a result, it is crucial that the infrastructure is there to support and assist the staff of the GCNC in delivering the highest level of patient care. Teamwork is absolutely essential in the GCNC and the nursing staff work collaboratively with the medical staff. The medical staff view the nurses as partners. If the senior medical staff are not working well together or are in conflict, this has a detrimental effect on the whole team and inevitably affects patient care... Previously, it was clear to all staff in the GCNC that there was tension between Dr Wojtulewicz and the other neonatologists, particularly Dr Barr. The neonatologists would often have quite different opinions on the management strategies for the babies, which often led to conflict..." And Ms Holmes had this to say concerning Dr Wojtulewicz's conduct: "....I found Dr Wojtulewicz to be frequently unyielding in his approach to patient care. When visiting consultants or visiting registrars from other specialities would provide Dr Wojtulewicz with their opinion about a particular patient, Dr Wojtulewicz would regularly oppose their advice and go ahead with what he thought to be the best course. I observed at times Dr Wojtulewicz to be inflexible and non-collaborative..." 117 Dr Wojtulewicz has also recorded in his affidavit in reply that his: "...personality style has softened and that I am more insightful, less reactive to criticism and more flexible in my willingness to consider my contribution to situations..." In his cross-examination of Dr Wojtulewicz, Mr Einfeld referred, in particular, to the meeting Dr Wojtulewicz had with Dr Gillis in the middle of 1999, viz: Mr Einfeld: ...Dr Gillis reports having met with you to discuss complaints that have come second hand... The complaints related to reports that you were having altercations with co-consultants throughout the hospital... And that was discussed at the meeting with you... Dr Wojtulewicz: Yes. Mr Einfeld: And it's correct, isn't it, that Dr Gillis had a long talk with you about your attitudes to co-operative management with other consultants and with the nursing staff. Dr Woljulewicz: Dr Gillis did. Mr Einfeld: And Dr Gillis pointed out to you that ultimately it was patient care that was affected by the running of the team, do you agree? Dr Wojtulewicz: Yes. Mr Einfeld: You wouldn't dispute that, would you? Dr Wojtulewicz: Not at all. Mr Einfeld: And you wouldn't dispute that when team relationships are disruptive, then patient care would ultimately deteriorate? Dr Wojtulewicz: Yes. Mr Einfeld: You assured (Dr Gillis) that you would attempt to build bridges between yourself and co-consultants and the nursing staff? Dr Wojtulewicz: Yes. Mr Einfeld: Well, the bridges were never built, were they? Or at least if they did, they continued to collapse, as long as you were present performing your duties in the Grace Unit, didn't they? Dr Wojtulewicz: I disagree with that. Mr Einfeld: Well, you don't suggest, do you, that at the time of your suspension there was a happy, cohesive working environment between you and, for example, the nursing staff at the Grace Unit?... Dr Wojtulewicz: Between me and some of the nursing staff there were issues and problems. I accept. Between me and the majority of the nursing staff of Grace, we had a collaborative working relationship. Mr Einfeld: And with other consultants and staff, the same? Dr Wojtulewicz: Some of them are providing affidavits in this matter on my behalf and I have no reason to think that I burned any bridges in the intervening period. So I think they've been built since 1999. But, as Mr Einfeld's cross-examination of Dr Wojtulewicz suggested, the bulk of the neonatologists and nursing staff with whom Dr Wojtulewicz has worked directly and who were called to give evidence in this hearing are critical of aspects of his performance and behaviour. 118 Of course, friction in any workplace is certainly undesirable, particularly in medical institutions where it may reach the level that it affects patient care - and especially in an environment as sensitive as the GCNC. But work is not a popularity contest and it is not essential that co-workers actually like one another - only that they can work effectively together. I would expect any professional worker to be able to do that, irrespective of their personal feelings towards one another. 119 It has also been suggested in the evidence that since nursing is now a profession, with significant training, it warranted a greater role in patient care than may hitherto have been the case and that the views of nursing staff are, and should be, respected by the medical staff. The evidence of Ms Elliott, who was called as a witness by Mr Einfeld, expanded on that issue, viz: Mr Taylor: Historically, going back 20 or 30 years, the relationship between doctors and nurses was one that was perhaps at that time a bit more hierarchical - that doctors make all the decisions and the nurses just did the work. Do you agree with that?... Over the last 25 years the nursing profession has been recognised as a professional occupation, has it not? Ms Elliott: Yes. Mr Taylor: And the old image that some doctors might have had of the nurses as handmaidens who merely assisted and changed the bedpans, that's in your view, if it was ever true, is certainly not true today? Ms Elliott: That is correct. Mr Taylor: But is this the position: that...you come across from time to time doctors who seem to think they're still living in the time of 30 years ago when their word was law and nurses were just there to do their bidding? Ms Elliott: Yes. Mr Taylor: And that is a view that you think is an inappropriate view? Ms Elliott: For the time, yes. For the now times, yes. Commissioner: Was it ever the case. I mean, in the sense, I question the way it's been highlighted in the fact the nurses always, even in the early days, seem to have had considerable control of the environment of the hospital...I imagine that there would have still been friction... It's probably exacerbated by the professional type element to which Mr Taylor is referring but his premise is based on the assumption that the doctors were God once and you people just followed their directions. Was that ever the case? Ms Elliott: I don't really think so. I think they thought it was... Mr Taylor: But some doctors thought that was the position? Ms Elliott: Yes. Mr Taylor: And where you had a doctor, whether it was a junior registrar or someone more senior, who in your view was not having any regard to the clinical input of a nurse, reflecting perhaps that more old fashioned view, you saw it as your role to try and correct that issue? Ms Elliott: Yes, it doesn't lead to harmony in the nursery... 120 It is therefore suggested that work in the GCNC should now be more of a "collegiate" affair and not the "one man band" that seems to have been the experience with Dr Wojtulewicz. The nursing staff and more junior medical staff believe that they should be consulted more in clinical issues which arise in the GCNC. Dr Wojtulewicz apparently refuses to do so, adopting an imperious attitude with respect to any comments made by more junior staff. If so, it was a fault - a personal trait - which he should correct in his own interests as much as the interests of the people with whom he has a working relationship. 121 But I expect that medical practitioners, as professional employees, may often have disagreements over the treatment of patients: it is no doubt healthy and constructive that they do so - provided those disagreements can be addressed amicably, of course. Dr Hawker indicated in his affidavit: "....Management of complex medical problems inevitably involves shades of opinion. Dr Wojtulewicz has always discussed these matters in a forthright but not inflexible manner. During weeks when Dr Wojtulewicz and I have been simultaneously on our respective clinical services, major changes in a baby's condition and treatment that may develop have always been discussed between Dr Wojtulewicz and myself or between our respective junior medical staff. At no time in the last 16 years has a member of the junior medical staff of the Children's Hospital at Westmead approached me about Dr Wojtulewicz's behaviour. At no time during Dr Wojtulewicz's employment at the Royal Alexandra Hospital for Children did a member of the nursing staff of the Children's Hospital at Westmead approach me about Dr Wojtulewic'z behaviour..." 122 Ultimately, Dr Wojtulewicz, as the senior medical staff member, must have the final say in any disputes over treatment, I would think. Where there is a difference of opinion on the medical treatment of a patient, a group decision will simply not work. Ultimately, the responsibility must fall on the most senior medical officer on hand at the time to make the final decision on such matters - and stand by those decisions where they are subsequently challenged in any way. Alleged Bullying of Registrars 123 It has also been alleged that Dr Wojtulewicz had bullied registrars, particularly male registrars - an allegation which he denies. He claimed in his affidavit in reply: "....My method of teaching included something along the lines of the Socratic Method by which I asked registrars questions and corrected them if they were wrong and explained why. I did not intend to upset the registrars but to teach them. This was an approach particular to me. Registrars have often indicated to me that they find it helpful to work with someone who would challenge and confront them in order to hone their skills and help them think on their feet..." But not all registrars apparently. Some registrars obviously resented what they saw as badgering them, often in front of the parents of the children in care and nursing staff, which caused some embarrassment to them. 124 Dr Halliday recorded in his affidavit: "....Almost as soon as I became the head of the GCNC, I started to receive verbal complaints from the GCNC staff about Dr Wojtulewicz's behaviour. I did not generally witness this behaviour personally, so I did not have first-hand knowledge of the kind of behaviour exhibited by Dr Wojtulewicz. However, there was always a constant stream of people who would knock on my office door and then complain to me about something that Dr Wojtulewicz had said or done. These people included senior medical and senior nursing staff in the GCNC, individuals from the NETS, visiting consultants from other hospitals and a number of referring paediatricians. The complaints were generally about Dr Wojtulewicz's personal interactions and communication style. Many people regarded him as being obstructive, argumentative and difficult, to the point that they avoided dealing with him. For example, if a neonatologist from another hospital telephoned Dr Wojtulewicz to admit a patient into the GCNC, Dr Wojtulewicz would reportedly argue against it and be very difficult. As a result, those neonatologists (particularly from the Nepean Hospital) would tell me that they would look up a roster to see which neonatologist was on-call in the GCNC before they telephoned. If they saw Dr Wojtulewicz was on-call, they would not refer their patient to the GCNC. The complaints were generally only made during the time that Dr Wojtulewicz was on-call in the GCNC which was, on average, once every four weeks. Sometimes I would receive two complaints in one week and other times I would receive one a month. The volume of complaints waxed and waned over different periods. However, during the entire time I was head of the GCNC I received complaints about Dr Wojtulewicz on a regular basis. After listening to such complaints, depending on the seriousness and nature of the complaint, I often invited the complainant to pursue it further through official channels. However, most declined to take any further steps. Most of the time, the complainant would not want me to do anything or they might just want me to speak with Dr Wojtulewicz. This limited my ability to deal with the situation effectively..." 125 Dr Halliday did speak from time to time with Dr Wojtulewicz concerning the complaints that had been made to him about Dr Wojtulewicz's conduct and he claimed that Dr Wojtulewicz tended to dismiss the arguments he had as no more that "...robust clinical discussion..." motivated by his desire to do the best thing for the patient. But it was Dr Halliday's impression that the registrars would "manage" around him to avoid confrontation. 126 Dr Loughran-Fowlds was called as a witness in the hearing by Mr Einfeld. She indicated in her affidavit that: "....as a registrar, I noticed that Dr Wojtulewicz could be quite stern with the male registrars, although I cannot recall any specific incidents now. During ward rounds, he would come down quite hard on them and belittle them if they said something he did not like or when an incorrect answer was given. This was quite different from the other consultant neonatologists who were more constructive and supportive of the registrars... I observed Dr Wojtulewiwicz's behaviour to be often unprofessional. During my time working as a fellow and then a staff specialist, I received a number of informal complaints about Dr Wojtulewicz... Although I cannot recall the exact incidents, a number of consultants from other hospitals had complained to me prior to his suspension about Dr Wojtulewicz's rude and belligerent behaviour when refusing admissions... Certainly, there were neonatogists from other hospitals, whose names I cannot recall, who informed me that they avoided ringing the GCNC when possible, when Dr Wojtulewicz was on-call at night..." 127 And Dr Carmo recorded in her affidavit that: "....I observed that Dr Wojtulewicz could be quite hard on some of the male registrars during ward rounds, particularly those of Asian descent. On different occasions, one of the male registrars might afterwards complain to me about Dr Wojtulewicz's treatment of them during the ward round, but I cannot now recall the words they used or the names of all the registrars... However, I did not observe such instances first-hand..." 128 Dr Badawi recalled that in 2002 she had a conversation with a female registrar (not a witness in this hearing) who told her: "Dr Wojtulewicz has been picking on me and making me feel uncomfortable." And she provided Dr Badawi with a lengthy report of her concerns. 129 That evidence of Dr Halliday, Dr Loughran-Fowlds, Dr Carmo and Dr Badawi is too vague and generalised to be of much value in this hearing, in my opinion. They do not recall specific incidents and/or they appear essentially to be issues which they did not themselves observe but what they were told about. Secondhand information of that nature is not particularly helpful to me. 130 Ms Selmeci also spoke in fairly general terms in her affidavit, viz: "...Dr Wojtulewicz also had a tendency to fixate on particular registrars during their rotation in the GCNC and he would belittle them during the ward rounds, which was a time for education and discussing patient care. Those particular registrars were generally male... It was not that Dr Wojtulewicz picked the registrars up on a wrong answer. It was the tone and manner in which he dismissed their answer, which was often humiliating for the registrar. It seemed to me that Dr Wojtulewicz was trying to 'big note' himself in front of everyone. Often I would see the registrar after the ward round visibly upset... I also witnessed Dr Wojtulewiwicz on the telephone to teams from other hospitals or medical services and I could see he was being rude to them. On occasions, I also heard him raise his voice. There was a general uneasiness amongst the nurses and registrars when they knew Dr Wojtulewicz was coming on duty. In the few years prior to his suspension, I had reached the point where I would think to myself prior to Dr Wojtulewicz coming on duty: 'Oh, not another week with Julian.' I felt this because I knew that he would be abrasive and make inappropriate comments, that there would be issues with patient care because of his inability to confer with other health care teams in an appropriate manner, and that there would be conflict between Dr Wojtulewicz and other teams. Dr Wojtulewicz's unpredictability was a factor that made people apprehensive about working with him. Sometimes he would be affable and friendly and other times he would have a rude and abrasive manner. Not knowing how he would be from one minute to the next made people hesitant to work with him because they did not know how he would react. People felt that they had to constantly be on guard around Dr Wojtulewicz. This made the working environment in the GCNC exceedingly stressful..." 131 Ms Selmeci recalled conversations on ward rounds when Dr Wojtulewicz would ask registrars: "How would you treat this baby?" And when the registrar gave his response, Dr Wojtulewicz would say: "That's rubbish. Have you done your reading?" Or: "I don't agree with that." That type of conversation, conducted in the presence of other staff and the parents of the children in care, may no doubt have been embarrassing to the registrars to whom the comments were addressed. Ms Holmes indicated in her evidence that: "....it's not normal practice to be tough on the round and cause...a registrar to lose their confidence. We try to build our registrars up... " 132 But we are supposedly speaking about mature professional people here. In my opinion, a too sensitive approach to teaching new medical practitioners would not necessarily result in the proper learning experience for that medical practitioner which, after all, the ward rounds were designed in part to accommodate. Furthermore, it may contribute to a deterioration in proper medical standards. A balance must be struck in that respect, I would think. 133 Ms Bronwyn Parkinson, a clinical nurse specialist in the GCNC, called to give evidence in the hearing by Mr Einfeld, recorded in her affidavit that her general impression of Dr Wojtulewicz was that: "....he was competent and intelligent but could be headstrong. He would on occasion, have 'sparring' matches both with those present on the round or with a visiting consultant. He gave the impression that he was in control and that he was always right. This appeared to be to Dr Wojtulewiwz's detriment as this resulted in getting people offside and at times upset (as I observed by their tone of voice and body language). I believe that this behaviour at times affected the team cohesion..." Nevertheless, she added in her affidavit: "...Over the years, I got on reasonably well with Dr Wojtulewicz on both a professional and personal level. I felt comfortable expressing my opinion to him and we would often have a chat about things when we saw each other in the ward. However, I would not consider him to be a 'friend' as I did not see him socially outside of work. Rather, I considered Dr Wojtulewicz to be a 'colleague'..." 134 Ms Kristen James, another CNS at the GCNC who was called to give evidence in the hearing by Mr Einfeld, claimed in her affidavat: "....In the few months before Dr Wojtulewiwicz's suspension, it was very difficult to predict what kind of mood he would be in. Sometimes he was overly happy and other times he was more solemn and he would be sweating profusely and was quite pale. When Dr Wojtulewicz was suspended, some of the staff made comments to the effect that they were relieved..." No doubt those views of Ms James may have related to the times that Dr Wojtulewicz was under treatment for his depression and anxiety. Ms Victoria Carmichael is also a CNS attached to the GCNC. She was called as a witness in the hearing by Mr Einfeld and she gave evidence of similar difficulties she and other nurses had in working with Dr Wojtulewicz. Alleged Offensive Comments and Jokes and Inappropriate Conduct 135 It has also been indicated in Dr Badawi's evidence that Dr Wojtulewicz has expressed racist views from time to time. He has allegedly addressed some staff in racist terms, for instance, describing some staff as part of the "...cardiology Jewish mafia..." and other employees as "...terrorist bomber types...". He denies that allegation and claims in his affidavit in reply that: "....I...deny that I ever engaged in an endless, or any, barrage of derogatory remarks at all and certainly not referable to religion, class and/or nationality... I reject any suggestion that I am a racist. I was born in Zimbabwe and my family left Zimbabwe in part for conscientious reasons. I have a surname which has attracted a degree of derogatory remarks whilst attending my schooling in Australia. I am extremely conscious of and sensitive to any racist remarks..." 136 As I indicated earlier in the decision, it was Ms Carmo belief that Dr Wojtulewicz was particularly hard on registrars of Asian descent. That claim is refuted by Ms Yeung, whose evidence in her affidavit on that point I have also outline earlier in this decision. But for present purposes she claimed that she had herself found Dr Wojtulewicz to always be "...approachable and courteous..." to her and that she "...never had any doubt that Dr Wojtulewicz treated (her) with respect and as his equal, irrespective of my Chinese ethnicity...". And again as I outline earlier in this decision, Ms Yeung indicated in her affidavit that she had: "....also observed Dr Wojtulewicz engaged in discussions with a neonatology registrar, a young Indian lady, in a manner consistent with that of the two colleagues of equal standing on more than one occasion. I have never seen, nor heard, nor experienced Dr Wojtulewicz behaving as a...racist..." Dr Wojtulewicz admits in his evidence that he has described another medical practitioner at the hospital as a "Jewish princess" but always in her presence and never in a derogatory way. 137 But the principal complaint against Dr Wojtulewicz appears to centre around his relationship with other staff members in the GCNC, which has been perceived as often being offensive - his propensity to tell crude and sexual jokes, ogle female staff and make improper suggestions and comments to them and about them. Some of the complaints against Dr Wojtulewicz I will refer to specifically later in this decision since they appear to have been highlighted in the evidence, but for present purposes I will outline concerns raised by nursing and medical staff of a more general nature. 138 Dr Halliday indicated in the affidavit which formed the basis of his evidence in this hearing that he and Dr Wojtulewicz had commenced their training together at the same time [1985] and: "....my interactions with Dr Wojtulewicz were limited. Notwithstanding, I found Dr Wojtulewicz to be a very personable individual and we got along well. We did not have any personal problems. However, even at this early stage, I was aware that Dr Wojtulewicz had a reputation for being a bit 'crude', with a tendency towards 'crude' humour..." Dr Wojtulewicz has inherited an unfortunate nickname in the GCNC - "Watch-Your-Cleavage" - a play on words on the correct pronunciation of his name because he allegedly ogles and leers at attractive female staff and the female parents of patients in care. Such name calling cuts both ways, of course. Employees who complain about name calling by Dr Wojtulewicz should refrain from using offensive nicknames themselves. If Dr Wojtulewicz is to be criticised for his allegedly racist and offensive comments, it is equally improper for him to bear that offensive nickname. 139 Dr Badawi indicated in her affidavit: "....Dr Wojtulewicz would often make crude and completely inappropriate sexual remarks in a way that interfered with team functioning and caused discomfort and distress to the team members he worked with. It was not uncommon to hear general chit-chat among the staff about the latest inappropriate and lewd comments which Dr Wojtulewicz had made..." She also gave evidence of a conversation she had over the telephone with a young female medical student from Holland in 1999. According to Dr Badawi, the medical student was crying at the time and she said: "You won't believe what just happened to me. Julian came up to me and asked me out to dinner with him and I asked him who would be going. He said that it was going to be just him and me. I told him that I didn't think it was appropriate and he then said that Robert Halliday...and you always take me out. I tried to explain that you take me out with your families and that my dinner with him would just be with him alone but he insisted that we would just go for dinner. I told him that I didn't want to go for dinner because I wouldn't get back to my Blacktown home in time and then he suggested that I could sleep in his apartment. He also made it clear that he has only one bedroom. I told him that wasn't appropriate but he's really made me upset. When he could sense that I wasn't happy about his proposal, he said to me: 'What are you accusing me of? Don't tell me. I suppose you're going to run to Auntie Nadia.' I'm really upset and just had to let you know. He also has a habit of grabbing me by my hips from behind and that makes me feel really uncomfortable." Dr Badawi raised the matter with Dr Halliday and another senior neonatologist in the GCNC at the time. I understand that there are two bedrooms in Dr Wojtulewicz's residence. 140 Ms Selmeci recalled one incident several years ago when Dr Wojtulewicz came onto the ward inappropriately dressed, according to her, to see a sick baby. Ms Selmeci recorded in her affidavit that: "....in about 2002 and 2003 when Dr Wojtulewicz came into the ward to see a sick baby straight after he had been out jogging. Attendance at the ward was not urgent, but nonetheless, Dr Wojtulewicz came in his jogging outfit. He was wearing very small and revealing shorts and a tight t-shirt and he was very sweaty..." Ms Selmeci believed that Dr Wojtulewicz's appearance at the time was "gross", telling a colleague that was her view. 141 Dr Wojtulewicz claimed that he had been playing tennis at the time. No doubt, it would have been preferable that Dr Wojtulewicz put on a hospital gown at the time but this is an issue with respect to which I am not particularly concerned in this hearing. It does not seem to me to mean anything, except perhaps illustrating Dr Wojtulewicz's dedication to attend the GCNC when he was not otherwise scheduled to do so and there may have been no real need for him to actually attend - something at odds with other evidence of his alleged failure to attend ward duties regularly. 142 Dr Carmo recorded in her affidavit that: "....When I was a registrar in the GCNC, I observed Dr Wojtulewicz talk about attractive mothers in the GCNC on several occasions. I heard him say words to the following effect: 'She's a yummy mummy.' And I observed that he would also spend more time talking to the attractive mothers about their baby's problems during ward rounds. Conversely, completely ignoring other families..." Dr Carmo also claimed in her affidavit: "...I...heard that Dr Wojtulewicz would behave inappropriately towards particular staff members. I was of the view from my discussions with other staff and observations that Dr Wojtulewicz had a habit of 'insulting' women and then using his 'apology' as an excuse to contact them again..." And she recalled a conversation with a female registrar (not identified) who told her: "When I was in the first few days as a neurology registrar, Julian said something to me that I found really insulting and then kept ringing me about five or six times to apologise. I felt that he was apologising just as an excuse to contact me. I asked him to stop calling me and told him that it was bordering on harassment and I would report him if he continued." 143 Ms Carmichael also recalled an incident where she believed Dr Wojtulewicz had made odd comments (undisclosed) of a sexual nature with another male registrar (not identified) concerning a mother whilst she was breastfeeding a baby in the GCNC. It has also been alleged that Dr Wojtulewicz stared fixedly at any attractive breastfeeding mothers. He denies that allegation and claims in his affidavit in reply: "....There is a room in the ward where mothers express breast milk and I have from time to time spoken to mothers whilst they were doing so in that room but only with their consent. I have become aware during the course of these proceedings for the first time of the suggestion made by Dr Badawi and other senior medical and nursing staff that they seek to shield breastfeeding mothers from my gaze. If a mother was breastfeeding in the nursery I always conducted myself with discretion. I never noticed any attempt to shield mothers from me..." 144 Ms McKenna recorded in her affidavit: "...The more I got to know Dr Wojtulewicz the more candid he was with me when he engaged me in conversation during rounds or just generally in the GCNC. Dr Wojtulewicz often made sexually suggestive and lewd jokes and what would start as an innocent conversation about day-to-day matters, would inevitably degenerate into something more lewd and inappropriate. Whenever Dr Wojtulewicz engaged me in such conversation, I would feel uncomfortable and be left wondering how the conversation had taken the turn that it had. Notwithstanding, I did not consider Dr Wojtulewicz to be a 'friend', but only a colleague..." 145 Ms Holmes added in her affidavit: "...I felt uncomfortable with the way that Dr Wojtulewicz looked at some of the younger nurses. When I was on ward rounds or just generally in the GCNC ward, I noticed on a number of occasions that Dr Wojtulewicz would stand very close to some of the younger nurses and I observed him looking at them in an inappropriate way. He would also be overly friendly to them, and try to make jokes with them. In particular, Dr Wojtulewicz seemed to pay attention to the young, pretty, slim, often blonde females and it became known within the GCNC that these girls were his 'type'. When I became a co-ordinator in 1996, I felt more responsibility to protect the younger nurses from Dr Wojtulewicz's inappropriate behaviour. From about the late 1990's, I began to advise some of the nurses that they should either speak to one of the co-ordinators or Ms Elliott if they had any concerns or felt intimidated for any reason. I made this as a general statement with Dr Wojtulewicz in mind. And I would speak to Dr Wojtulewicz when I considered his actions or words to be inappropriate. I recall saying to him on a number of occasions words to the effect: 'Julian, that was inappropriate' and 'Stop staring at her like that.' Dr Wojtulewicz would usually just go quiet in response and walk away from me..." 146 Ms Parkinson recalled an occasion in the middle of 2002 when another nurse (not called as a witness in the hearing) had informed her that Dr Wojtulewicz had asked her if her underwear matched her pink socks. Dr Wojtulewicz's recollection of that incident is that he had not spoken of underwear but had said something to the following effect to the nurse: "If you've got anything else that matches those socks, I'll be needing sunglasses on my ward rounds." Dr Wojtulewicz had intended for the comment to be humorous but again Dr Wojtulewicz's humour seems to have got a nurse upset and, in those circumstances, he regrets the comment he made. 147 Ms Brown claimed that she had worked quite close to Dr Wojtulewicz since as far back as 1987. Her evidence, confirmed in her affidavit, was over her concerns on behalf of young nurses working in the GCNC, viz: "....From even those early years in the mid 1980's, it became apparent that Dr Wojtulewicz sought out attractive females. He was always very aware of any attractive people being in his vicinity. Whenever Dr Wojtulewicz found a person to be attractive, I observed that he would inquire after them or seek acknowledgement from others that the person was attractive... As time progressed, I observed that Dr Wojtulewicz became more forward about his interest in particular females. I observed this by his demeanour, including the way he would look at them and approach to speak to them. For example, I have observed Dr Wojtulewicz during a ward round where an attractive young female passed by and he would turn around quite obviously to look. I also recall seeing Dr Wojtulewicz approaching attractive young females in the ward and engaging them in conversation, even if he had no reason to speak to them... Over the years, Dr Wojtulewicz continued to seek out attractive young females in the GCNC in the time that he worked there as a consultant neonatologist. He would spend an inordinate amount of time talking to the young women...and I was concerned that he would be inappropriate to them. As a result, I became very protective. If I observed Dr Wojtulewicz talking to one of the young females and she looked uncomfortable, I would go and stand close by or actually put myself into their conversation. I wanted to make sure that the young female did not feel isolated. However, if it looked like the attention was reciprocated, then I did not interfere. Although I cannot recall any specific occasions, I have said to young nurses or medical staff who were commencing work in the GCNC and were receiving more than the usual attention from Dr Wojtulewicz, words to the following effect: 'Be careful of Julian.' or 'If you have any concerns about Dr Wojtulewicz, you should tell me.' I have spoken to Dr Wojtulewicz many times about his behaviour over a long period of time... Dr Wojtulewicz often made inappropriate sexual comments to the staff in the GCNC. He did not say them directly to me but I overheard him making such comments time and time again. I cannot recall any specific examples but I do recall that a person might be talking to Dr Wojtulewicz about something innocuous and somehow he would steer the conversation into something that had a sexual element..." 148 Under cross-examination Ms Brown explained: Mr Taylor: ...Do you agree with me that while in your affidavit you've set out some concerns, you don't recall any specific incident that you observed where Dr Wojtulewicz's behaviour was something you considered inappropriate? Ms Brown: As I said in my statement, I haven't addressed a specific one, no. Mr Taylor: So do you agree with me that while you've set out in your affidavit some concerns about his conduct, you haven't recorded any specific incident that you observed where he acted in a manner that you considered inappropriate? Ms Brown: That is correct... Mr Taylor: While you haven't been able to recall any specific instances, you have given some evidence in your affidavit of some concern that...Dr Wojtulewicz was becoming more forward about his interest with particular females. Do you remember saying that in your affidavit? Ms Brown: ...Yes. Mr Taylor: First, can I ask you this question? The fact that he was forward in his interest with some females, did you see that as inappropriate. Ms Brown: Did I see that as inappropriate? Yes I did. Mr Taylor: And considering it inappropriate, did you take up your observation by relaying your concern to anyone more senior than you? Ms Brown: Not in a written form, not as a written complaint. Mr Taylor: And what about a verbal complaint? Did you make a verbal complaint to anyone more senior than you about this matter? Ms Brown: I cannot recall the specifics of making a complaint but I would - I think that I did... I've raised concerns with Jenny Elliott and I've raised concerns with Nadia Badawi and raised concerns with the other co-ordinators. Mr Taylor: What about Dr Halliday when he was head of the unit? Ms Brown: I can't recall whether I raised them with Dr Halliday. Mr Taylor: Now if this conduct was conduct that you thought was inappropriate, I presume you followed up after you'd raised it with someone, you then followed up to find out what steps they'd taken to deal with it, did you? Ms Brown: No, this happened all the time. No. So it would be the form of a conversation. Mr Taylor: So when you say it was in the form of a conversation, do you mean that you - and tell me if I'm wrong - that what you are saying is that you would raise a particular event with someone, but not ask them to take it as a complaint? Ms Brown: That is correct. Therefore, much of the alleged misconduct of Dr Wojtulewicz appears never to have reached a stage where even informal action was taken against him or any official record kept of the incident to the extent that the hospital administration could have acted on it. The GCNC staff seem to have left the matter to be addressed among themselves. 149 Ms Selmeci spoke of one incidence in early 2006 when a new nurse from Germany arrived in the GCNC. The nurse was tall, blonde and attractive - Dr Wojtulewicz's "type", according to Ms Holmes. Ms Selmeci recalled a conversation with Dr Wojtulewicz at that time. Dr Wojtulewicz said: "She's a very good nurse, isn't she?" And Ms Selmeci replied: "Yes she is, but we've got a lot of good nurses here." Dr Wojtulewicz insisted: "But she's really good, isn't she?" Ms Selmeci said: "She's coming on well. But she's still learning the ropes. Like a lot of the other new nurses." Dr Wojtulewicz continued: "But she's really good, Carol." 150 Ms Selmeci recorded in her affidavit: "...From Dr Wojtulewicz's tone and body language, I could tell that he was implying that he found the nurse to be very attractive. I also formed the view that he wanted me to ask him why he thought she was such a good nurse but I avoided doing so because he had a tendency to turn such conversations into something more personal and unprofessional..." If the conversation may have led to something "...personal and unprofessional..." - and as Ms McKenna suggested in her evidence such conversations with Dr Wojtulewicz sometimes ended up there - it never got to that stage and what had already been said by Dr Wojtulewicz appears to me to be fairly innocuous. 151 Ms Elliott recorded in her affidavit: "....Over the years, I received many informal complaints about Dr Wojtulewicz. I cannot recall specifically what they were about but some of the nurses would simply mention that Dr Wojtulewicz was acting inappropriately, for example, by being 'sleazy' towards the women or bullying the registrars. It was well known that Dr Wojtulewicz was referred to as 'Dr Watch-Your-Cleavage'... I personally have also witnessed Dr Wojtulewicz 'ogling' young attractive women." And she recalled an incident when Dr Wojtulewicz was sitting across from a young and attractive nurse and, Ms Elliott believed, making that nurse feel uncomfortable. Ms Elliott gave Dr Wojtulewicz a light smack on the shoulders and said: "Julian, stop it!" Dr Wojtulewicz asked: "What am I doing?" And Ms Elliott replied: "You know what you're doing. Just stop it." According to Ms Elliott, Dr Wojtulewicz did not say anything more. He just smiled and continued to stare at the nurse. That particular nurse was not a witness in this hearing. Therefore, whether Dr Wojtulewicz's alleged staring at her concerned her is not known. And whilst I can appreciate Ms Elliott remonstrating with Dr Wojtulewicz if she thought he was doing something wrong, I do not believe that she should smack him, even lightly. I assume that her smack was not meant aggressively to Dr Wojtulewicz but that it was a light-hearted exchange between Ms Elliott and Dr Wojtulewicz. If that was the case, it would hardly have impressed Dr Wojtulewicz that his conduct was in any way wrong at the time. 152 In his affidavit in reply, Dr Wojtulewicz admitted that: "....I...have had a rather immature and bawdy sense of humour from time to time. In most cases, people in my presence at the time that I made a joke laughed at my jokes, which left me with the impression they were amused. Whilst I accept that there may have been occasions where I made jokes that were somewhat bawdy and/or may have struck some as inappropriate, I did not make such remarks on a regular basis and certainly never with the intent to offend. Within the GCNC from time to time (although not commonly) nurses or junior medical staff...said to me whilst smiling words to the following effect: 'You like to push the boundaries'. From time to time I was conscious that some members of staff rolled their eyes at one of my jokes which I took as meaning a degree of disapproval. However, if anyone ever said to me that they were upset (which as I recall was rare) then I would usually immediately speak to them and apologise..." 153 He also records in his affidavit in reply: "....It is...extremely distressing to me to now know that some individuals who have worked with me over the years, some of whom I considered to be my friends as well as professional colleagues, were upset or offended by their perceptions of my intent and manner. I would wish to unreservedly apologise to each of them. With the benefit of this knowledge, I will endeavour to ensure that I do not create the circumstances in which such perceptions may arise in future..." But, as Mr Einfeld suggested in his submissions in this hearing, no apology has been forthcoming to those persons concerned - just Dr Wojtulewicz's comment to that effect in this hearing, made in the light of his foreshadowed dismissal. 154 The problem with Dr Wojtulewicz's jokes and teasing in the GCNC is that he occupied a position of authority over nurses and, more particularly, the junior medical staff in the GCNC whom he was assessing and training. They may not have felt particularly comfortable with Dr Wojtulewicz's manner and off-colour jokes but they may not have felt able to confront him where they were genuinely offended by his conduct or otherwise respond negatively to his conduct. That is always a difficulty when the contact is between a senior authority figure and a person falling under his control or influence. Dr Wojtulewicz occupied such a position in the GCNC. Flipping a Pony Tail 155 Although Ms Spence had not witnessed one incident, she gave evidence of a conversation she had with another nurse (in 2004 or 2005) about an incident that occurred in 1994 or 1995. The nurse (who was not a witness in this hearing) approached her after the incident and said to her words to the following effect: "During the round today, Dr Wojtulewicz flipped my pony tail. I thought it was very inappropriate and he was invading my personal space. I do not want to be on the round with him in the future. He is too familiar." 156 The following day the nurse approached Ms Spence again, saying: "I went home last night and told my fiancé about Dr Wojtulewicz's behaviour. He wants to come in and have it out with him." The nurse had also apparently spoken to other GCNC staff about the incident. It appears to me to be a fairly innocuous matter which occurred over fifteen years ago. I see no reason that it should be dredged up now. The Transport Difficulties for Baby Barney 157 In the middle of 1996 medical staff of the Nepean Hospital experienced difficulties in the transfer of a premature neonate (referred to as Baby Barney) from the hospital to the GCNC. The baby at the hospital became unwell with increasing apnoeas (irregular breathing) and bradycardias (with a slow hearbeat) and with right sided broncho-pnemonia. The baby developed an acute cerebral abscess and required urgent transfer but contact with Dr Wojtulewicz to arrange that for the baby to be admitted in the GCNC proved unsuccessful. The baby was finally transferred to the Prince of Wales Hospital. 158 Dr Wojtulewicz initially informed the staff over the telephone that he thought that there were no beds available but he would telephone again and to let them know the position. He did so, claiming that the GCNC had two broken ventilators and a pending cardiac baby being transferred from another hospital. The medical staff at the Nepean Hospital asserted that Dr Wojtulewicz's attitude was both arrogant and unhelpful and that he showed no desire to even try to help resolve the bed problem. 159 A letter of complaint was forwarded over the incident on behalf of the neonatologists at the Nepean Hospital to Professor David Henderson-Smart, the Co-ordinator of the Perinatal Services Network, who ultimately wrote to Dr Halliday over it. Professor Henderson-Smart spoke in his letter of "...concern about the flippant and uncaring attitude that they perceived in the consultant..." with whom they had spoken at the time, ie Dr Wojtulewicz. 160 There appears to be no dispute that Dr Wojtulewicz was correct in his assertion about a lack of a bed in the GCNC at that time, however. Whilst Dr Wojtulewicz may have handled the matter with considerably more diplomacy and tact than he did, his allegedly unhelpful attitude appears to me to have been no more that his outlining accurately the fact that there was no bed available in the GCNC at that time. Moreover, this incident occurred 13 years ago and was addressed by the CHW at the time. I see no relevance for it to be raised again in this hearing. The Incident Involving Dr Loughran-Fowlds 161 In her affidavit Dr Loughran-Fowlds recalled an incident that occurred at the end of her first term in 1999, shortly before she temporarily left the GCNC. She alleges that Dr Wojtulewicz approached her and said words to the following effect: "Alison, I'd like to say goodbye to you properly. Could you come and speak to me in private?" 162 Dr Loughran-Fowlds claimed that, whilst she had some suspicions concerning Dr Wojtulewicz's motives, she gave him the benefit of the doubt and followed him into the back corridor of the GCNC which apparently is not often used. It is her assertion that she exchanged a few words with Dr Wojtulewicz about leaving the GCNC and Dr Wojtulewicz responded: "I've been wanting to do this for a long time." And he leaned over attempting to kiss her on the mouth. She turned her head away from him so that the kiss ended up on her cheek instead and then walked away from him. 163 Dr Loughran-Fowlds indicated in her affidavit that: "...Prior to this incident, I had not given Dr Wojtulewicz and reason to think that I was interested in him other than on a professional level. I had not encouraged his advances in any way. In the circumstances, I found Dr Wojtulewicz's conduct to be extremely inappropriate..." As it was. But Dr Wojtulewicz denied that allegation. He claimed that he had never led Dr Loughran-Fowlds to the back corridor, attempt to kiss her or make any advances to her of a sexual nature. 164 Dr Loughran-Fowlds never appears to have ever raised this matter formally with hospital management. She indicated in her evidence that: "....there's no real training in the hospital about what to do in those situations, like, I'd never been taught about...if something bad happens, you should go and see X person, but it wasn't really till I became a consultant actually that I realised what the channels were to sort of report these things back..." In her cross-examination is the further following explanation for her position: Mr Taylor: If you had been seriously offended or upset at the time, you could have made a complaint to management, could you not? Dr Loughran-Fowlds: ...I really didn't know where to take it and my preferred strategy was to try and forget about it and, you know, ignore that it had happened, because I didn't want to get into conflict with Julian. Mr Taylor: If you'd been seriously offended or upset about it, you wouldn't have gone to a dinner that he was hosting to mark the end of rotation? Dr Loughran-Fowlds : ...I don't remember when the dinner was in relation to the incident. Mr Taylor: In 2007 you were interviewed by the independent reviewers. You recall that? Dr Loughran-Fowlds: Yes. Mr Taylor: And is this correct, you didn't mention this incident in 1999 when you were interviewed by them, did you? Dr Loughran-Fowlds: No I've been asked to take the incident out of my original letter by Dr McCaskill. Mr Taylor: Yes. Putting the letter aside, you didn't in that interview tell them about this incident, did you? Dr Loughran-Fowlds: No, because I was told I wasn't allowed to bring it up. Commissioner: Were you told why you weren't allowed to bring it up? Dr Loughran-Fowlds: Yes, because they said that they were concentrating on the clinical management things and not the behavioural sort of stuff that, you know, we thought was important but that's what they wanted to concentrate on. 165 I regard that evidence as most unsatisfactory, particularly in the light of Dr Wojtulewicz's assertion that the event never occurred - and the fact that it allegedly took place over ten years ago without being brought forward at the time as a complaint or subsequently raised with the IR's. If Dr Loughran-Fowlds' "...preferred strategy was to try and forget about it and...ignore that it had happened..." it has nevertheless now come to light at this late stage. 166 Clearly, the IR's did deal with other than clinical matters and, if it had occurred, there would have been no reason that it should not have been brought forward. Indeed, if Dr Woztulewicz had the reputation that he allegedly had at that time with female staff in the GCNC, it is very odd that Dr Loughran-Fowlds would have been prepared to follow him into the back corridor in the first place or subsequently attend a dinner party with him. The Cartoon of the Baby 167 In late 2002 Dr Wojtulewicz attended a symposium on paediatric neorology. He sat next to a female registrar. There appears to have been some friction in the working relationship between Dr Wojtulewicz and that registrar who has had cause to complain in the past concerning Dr Wojtulewicz's conduct with her. Whilst she was not a witness in the hearing, it is open to me to conclude that she did not like Dr Wojtulewicz and was concerned over his conduct with her. She has apparently claimed that Dr Wojtulewicz had acted inappropriately to her, eg making inappropriate comments concerning the break up of her marriage, suggesting that she was depraved and immoral, tickling her, placing his hands on her and pulling the ends of a stethoscope to pretend he was choking her. 168 In the absence of that registrar as a witness in this hearing, such allegations - serious enough, in my opinion - cannot be taken very far. However, there was one complaint from that registrar with respect to which there is evidence in the form of program notes for a symposium attended by Dr Wojtulewicz and the other registrar. The complaint is Dr Wojtulewicz had "defaced" the program notes. In those program notes there is a cartoon of a baby with an EEG being performed on it. (An electroencephalogram is a devise used to measure brain activity via electrodes.) Dr Wojtulewicz had scribbled the words "neonatal registrar" with a line pointing to the cartoon of the baby and the words "EEG is isoelectric", meaning that the registrar was brain dead. He had shown it the colleague who reported the incident and reported it to the hospital authorities, presumably provided the hospital with a copy of the offending scribble. Not particularly humorous, I would think and certainly the registrar to whom the sick joke was addressed did not see it as funny at all - sufficient, in any event, to raise it with the hospital authorities. 169 That issue was raised in the proceedings by Mr Einfeld in his cross-examination of Dr Wojtulewicz and some other witnesses and the program notes for the symposium with Dr Wojtulewicz's scribbled words on it was admitted into evidence. But, after all, this is no more than a complaint against Dr Wojtulewicz on this issue, made seven years ago. It is not something which the hospital administration may have taken very far - and, in the circumstances, nothing on which I may effectively rely on in evidence - except to illustrate somewhat dark, and possibly inappropriate, humour on Dr Wojtulewicz's part. He would be wise to temper such jokes with other people as they are bound to cause offence - as, indeed, they clearly have on occasions. The Complaints of Dr Badawi 170 There are a series of incidents involving Dr Badawi which she has dealt with in her evidence. Firstly, she recalled in her affidavit an incident in late 1998 or early in 1999 when Dr Wojtulewicz entered her office, closing the door behind him. He stood behind her and placed his hands on her shoulders, bending down and kissing her on the top of her head. She told him not to do that. She indicated in her affidavit: "....I felt uncomfortable and vulnerable as Dr Wojtulewicz had come up behind and closed my office door, without my permission. I recall having the feeling of being trapped, as I was sitting down at my desk and Dr Wojtulewicz was standing above me. It was completely inappropriate for a member of staff to behave towards a colleague in that way. When speaking to him, I spoke in a forceful tone and no similar incident occurred again in the future. I did not report the incident to anyone, but I went home that day very upset and told my husband about the incident..." Dr Wojtulewicz denies that he kissed Dr Badawi on the top of her head. 171 Also during 1999 Dr Badawi and Dr Barr had been involved in a conversation. Dr Badawi was pregnant and she informed a meeting of neonatologists of that fact. Dr Barr responded that his wife was also having a baby. According to Dr Badawi, Dr Wojtulewicz looked very cross, pushing his chair back abruptly and leaving the meeting. After the meeting Dr Badawi had a discussion with Dr Wojtulewicz and she claimed he described the other medical personnel in the GCNC in the following offensive terms: "You are all married with children and fucking like rabbits." Dr Wojtulewicz claimed that he had instead said "...bonking like bunnies...": it is pretty much the same thing, to my mind. In his affidavit in reply Dr Wojtulewicz put those comments in some context, viz: "...There has been an ongoing issue for me within the GCNC that I felt somewhat marginalised, in part because the other three neonatologists at this time - Dr Badawi, Dr Barr and Dr Halliday - were all parents and, as much as I respected their right to take leave and other absences from work that were family related, I felt that from time to time my needs were not given the same priority. In this particular year, namely 1999, I was also aware that my health was deteriorating and I needed a heart operation. I believe the conversation...was in this context... Whatever I may have said I do not recall Dr Badawi expressing any offence..." That does not excuse the comment, in my opinion. It remains an inappropriate comment. 172 Also in 1999 Dr Badawi observed that a screen saver showing the tennis player, Ms Anna Kournikova, on Dr Wojtulewicz's personal computer which she regarded as offensive. According to Dr Badawi, the photograph of the tennis player had been taken from a low perspective, looking up her dress. Dr Wojtulewicz claimed that the screen saver had been sent to him by e-mail and that he had kept it for some little time before he deleted it. Dr Badawi had been passing Dr Wojtulewicz's office and had looked in to see the allegedly offensive screen saver. 173 Dr Badawi also alleges that Dr Wojtulewicz had informed her in 2000 that he had in his possession a copy of a pornographic DVD showing a celebrity [Ms Mimi McPherson] having sex and that in 2002 he had shown her a photograph of a nude woman on his computer. Both of those allegations are denied by Dr Wojtulewicz. And, for my part, it seems extremely odd to me that, with the perception that Dr Wojtulewicz had obviously formed by that time that Dr Badawi was one of the persons in the GCNC who was part of a vendetta against him, he would chose to communicate with her in that manner. None of those allegations appear to have been raised with CHW management at the time that they occurred and they are all somewhat stale now, in my opinion. 174 Dr Badawi recalled a conversation with another neonatologist (not a witness in the hearing) - in 1999 she thinks - to the following effect: "I was in my office speaking to a medical student and she was asking questions about one of the babies in the unit. As we were discussing the baby, Julian put his head inside the door and said to me: 'I'll need to tell your wife that you're chatting up pretty young things.' Then he turned to face the medical student and said: 'He's married. Why don't you talk to me?' I could not believe what he was saying and I am absolutely furious. How can he make everything seem sleazy? No one is listening." More hearsay evidence. 175 Dr Badawi also recalled a conversation she was having with another registrar, whose name she cannot now recall. The registrar was wearing a pink dress. The conversation concerned difficulties that the GCNC was experiencing in arranging for the MRI (magnetic resonance imaging) as there was a backlog causing delays in obtaining the necessary scan to assess the patient. Dr Badawi recalled Dr Wojtulewicz addressing the other female registrar: "Why don't you go down and strut your stuff or show your wares and you'll get the MRI straight away." The other registrar was not impressed by that comment, apparently. Dr Badawi recalled her response in a raised voice, viz: "How dare you speak to me like that?" Dr Wojtulewicz does not recall this incident. The Complaints of Dr Carmo 176 Dr Carmo also recalls several incidents involving Dr Wojtulewicz which primarily involved other medical practitioners and which came to her attention, one way or another. They concerned her particularly. Some of her evidence in that respect is based on hearsay, however, and is therefore fairly unreliable to that extent. 177 The first such incident occurred in 1998 when she was walking behind Dr Tracey O'Brien, another surgeon in the GCNC (who was not a witness in the proceedings), when she claimed she overheard Dr Wojtulewicz say: "Geez, Tracey, I can almost see your muut in that skirt!" Dr O'Brien responded in very earthy terms, viz: "Fuck off, Julian." Dr Carmo had never heard the word "muut" used in that context. She subsequently asked Dr O'Brien the meaning of the word and was told by her: "It's a crude term for a vagina." 178 Dr Wojtulewicz does not recall this incident and he denies ever using the word "muut", claiming in his affidavit in reply that he did not even know the offensive meaning of that word prior to reading Dr Carmo's affidavit and looking the word up in the dictionary (and, I note, spelling it incorrectly - "moot" - in his affidavit in reply, which goes to support the view that he did not know of the word). The word "muut" is a very offensive term for a vagina - but like Dr Wojtulewicz, prior to this hearing, I have never heard it used. It is certainly not the type of language I would expect from any professional employee - especially a senior staff officer speaking to a more junior member of staff. 179 But three things flow from that particular exchange between Dr Wojtulewicz and Dr O'Brien. Firstly, the exchange took place over 11 years ago. Secondly, Dr O'Brien did not make any complaint concerning it at the time that it allegedly occurred. Thirdly, although Dr O'Brien was not a witness in this hearing, her clear and unequivocal response to Dr Wojtulewicz's comment does not suggest to me that she was unduly upset by what he said to her, responding in kind to Dr Wojtulewicz. It was to her that the offensive comment was made and it was her attitude to it, not that of Dr Carmo, who simply overheard it, which raises the matter to a level on which I would be prepared to accept as a legitimate complaint against Dr Wojtulewicz. 180 Dr Carmo recorded other incidents involving Dr Wojtulewicz in her evidence, however. In the middle of 2002 Dr Carmo heard from Dr Rod Hunt, the Deputy Director of the Newborn Intensive Care Unit at the Royal Children's Hospital in Melbourne, that he had overheard Dr Wojtulewicz make a comment concerning Dr Bronwyn Milne during her examination in Melbourne. Dr Milne was wearing suit pants at the time. Dr Hunt said: "I heard from Julian that Bronwyn's belly button was exposed during her exam." Later Dr Carmo had a conversation with Dr Chris Sanderson, a paediatrician from Geelong (who was also not a witness in the hearing). Dr Carmo said: "Julian has been telling people about Bronwyn's belly button showing during the exam. It was obviously unintentional as it was completely out of character." Dr Sanderson is alleged to have replied: "Unfortunately, it didn't go in Bronwyn's favour. Julian couldn't concentrate during the exam and actually marked her down - I had to fight to pass her." Subsequent discussions between Dr Carmo and Dr Milne confirmed to Dr Carmo's satisfaction that Dr Milne had been very embarrassed and distressed to have her belly button discussed in this way. But she did not raise the issue as a formal complaint against Dr Wojtulewicz either. 181 Dr Carmo also records in her affidavit another conversation she had with Dr Samantha Lade whom Dr Wojtulewicz had followed onto general wards. By that time Dr Carmo had become the President of the Resident Medical Officers' Association and her role in that capacity was mentoring and social support for more junior medical staff. Dr Carmo's evidence was that Dr Lade approached her in the RMOA common room, saying: "During the RMOA morning tea this morning Julian approached me for a chat and he asked me: 'Are you the type of girl who needs dinner first or do you like to fuck before dinner?'" Dr Lade indicated to Dr Carmo that she did not wish to make any formal statement of complaint against Dr Wojtulewicz concerning the issue. She just told him to "...bugger off and ignored him..." and the matter was apparently left at that level - just general gossip. 182 On the same day, Dr Rebecca Concannon, another resident, approached Dr Carmo in the RMOA common room. According to Dr Carmo, Dr Concannon looked very pale and shocked and claimed that Dr Wojtulewicz had just asked her: "How is your dead brother?" That was a very strange thing to say. Dr Concannon's brother had died at the hospital from leukaemia ten years earlier. Dr Carmo claimed that Dr Concannon was particularly sensitive about this and was conscious of working in an institution where people knew that her brother had died. She reported the incident to Dr Meg Phelps, a senior staff specialist at the hospital. Neither Dr Lade, Dr Concannon nor Dr Phelps wished to take the matter further, although they were invited to do so by Dr Carmo. They were not called as witnesses in this hearing. 183 At that time, Dr Carmo approached several young female staff members at the CHW and then a number of senior registrars, enquiring whether they were prepared to formalise complaints against Dr Wojtulewicz in writing. She recorded in her affidavit: "....Although I approached several of the young female staff at the hospital, they did not want to make any complaints out of fear that it would jeopardise their careers. It was very frustrating..." In that connection, she approached "...anyone who had previously reported an episode with Dr Wojtulewicz that (she) thought...might be willing to document, even if anonymously...". Of course, anonymous complaints would not take the CHW and the Department of Health very far in bringing the matter to any conclusion. 184 Nevertheless, Dr Carmo did receive 35 written complaints from registrars which she delivered to the Chief Resident's Office. She is unsure what happened to those 35 complaints as she commenced maternity leave shortly thereafter. She did not keep copies of those complaints. She recorded in her affidavit: "....I did not keep copies of the complaints as I did not believe I had ownership of the problem any longer and I had delivered my evidence to the CHW administration. Out of the 35 complaints, Dr Debbie Lewis, the Director of Clinical Training, informed me that only one of them was taken seriously as it involved current behaviour... Dr Lewis informed me personally that Mr Kim Oates, the former Chief Executive Officer, reported that as the other complainants were not currently being directly affected, there would be no recourse for Dr Wojtulewicz other than being requested not to attend the RMOA morning teas (which were generally attended by the senior medical staff). I was flabbergasted that the hospital had failed to take any real action..." The Incident Involving Dr Carmo 185 But in the middle of 2004 there is another incident which Dr Carmo is able to give direct evidence, albeit that it is contradicted by Dr Wojtulewicz. Dr Carmo was at that time an advanced trainee neonatal registrar returning from 9 months of maternity leave. She was contacted by Dr Halliday who asked her to fill in a weekend roster in the GCNC. She was anxious to refresh her skills and liked working in the GCNC but she was less content to work there when she discovered that it was Dr Wojtulewicz who was on call that weekend. She indicated in her affidavit that: "....I had reservations about working with Dr Wojtulewicz as I had previously had bad experiences working with him. However, as this was the only weekend available for me before commencing with NETS and I wanted to help out Dr Halliday, I later informed him that I would take up the weekend. I rationalised that Dr Wojtulewicz would only be there briefly for the rounds and he had little interest in me otherwise. At the time, I was still breastfeeding my baby. My weight had returned to my pre-pregnancy weight. However, my breasts were naturally larger than normal as I was still breastfeeding. On Sunday, 29 August, 2004 when I came into the GCNC and went on the ward round, Dr Wojtulewicz would not stop looking at me and I felt his eyes all over me. It made me feel very uncomfortable and made it difficult to concentrate during the round. I recall that the night registrar had to keep repeating himself to Dr Wojtulewicz because Dr Wojtulewicz was distracted and kept looking at me lewdly..." 186 Dr Carmo explained in her evidence that her "reservations" against working with Dr Wojtulewicz at that time were purely clinical. To my mind, that is a surprising comment in view of the history of other sexual indiscretions to which she claims Dr Wojtulewicz had made to Dr O'Brien and Dr Lade and her comments in her affidavit concerning her physical appearance at the time and her discomfort with Dr Wojtulewicz looking at her. In any event, Dr Wojtulewicz denied looking at her in the manner she has claimed in her evidence. 187 Dr Wojtulewicz attempted to insert an arterial line in one of the babies - not successfully, according to Dr Carmo. He informed Dr Carmo that: "I have just come back from the United States. I need to do some lines too." Which Dr Carmo thought was not only unnecessary but, since he was a senior consultant, abnormal. Dr Carmo performed one arterial line and Dr Wojtulewicz was doing a second one but, according to Dr Carmo, experiencing difficulties and possibly ruining the site. As Dr Wojtulewicz was leaning over the baby, his cigarette packet fell out of his top pocket onto the baby. Dr Carmo picked up the cigarette packet and put them away, saying: "That's enough. You can go home now. I'll call you when I get the gas." Dr Carmo asserted that Dr Wojtulewicz then laughed. For a time he remained at the hospital and then he went home. 188 Later Dr Wojtulewicz telephoned Dr Carmo. She could hear opera playing in the background, which Dr Wojtulewicz believes to have been the case but he denies the rest of Dr Carmo's evidence on that telephone conversation. Dr Carmo claimed that Dr Wojtulewicz said words to the following effect: "I've just come home, gotten undressed and poured myself a glass of wine and I can't stop thinking about how fantastic you look. I hope you don't think this is inappropriate. You just look great." That conversation was, according to Dr Carmo, accompanied by groaning. She had formed the impression that Dr Wojtulewicz "...was enjoying himself in some way (perhaps masturbating)..." whilst speaking to her on the telephone. She informed him that the conversation was inappropriate and replied: "It is inappropriate. I said I'd call you when I have the gas and I will." Dr Carmo hung up the telephone. The next day she recorded the conversation. 189 Dr Wojtulewicz indicated in his evidence that he may well have made comments concerning Dr Carmo's appearance - something along the lines of: "It's good to see you. You are looking great." All perfectly innocent, but that was not Dr Carmo's perception. Dr Wotulewicz claimed that in the telephone conversation, all that he said to Dr Carmo was: "I am just about to do some chores. I am curious to get the arterial blood gas results." He claimed that he may have indicated to Dr Carmo that he had changed out of his clothes. Dr Wojtulewicz claimed he did not groan at any time in the telephone conversation. To my mind, it was essentially the groan which puts a considerably more sinister slant on his conduct. Otherwise, the telephone conversation would represent no more than an attempt (unwelcome, apparently) on Dr Wojtulewicz's part to be friendly to Dr Carmo. 190 The allegation against Dr Wojtulewicz is a serious matter. Nevertheless, whilst Dr Carmo wrote the incident down and discussed it with her husband, she did not bother to make a complaint to the hospital administration about it. She wrote in her affidavit: "...I did not bother to make a complaint about this because no action had been taken the previous year when I delivered 35 complaints to the hospital administration. I had lost faith in the hospital's ability to deal with these issues. I did sit and write the incident down, however, and discussed it with my husband..." I note that Dr Carmo's evidence that she felt that to raise her concerns formally in the hospital administration was, in a sense, a waste of time. Nevertheless, bearing in mind the fact that Dr Carmo has in the past been so active in pursuing complaints by other medical practitioners against Dr Wojtulewicz, I regard it as very odd indeed that she would not pursue a matter directly affecting her with equal vigour. To my mind, that influences me to accept Dr Wojtulewicz's version of the incident over that of Dr Carmo. The Incident Involving Ms Carmichael 191 Ms Carmichael has spoken in her evidence of an incident involving Dr Wojtulewicz which she claimed occurred in the middle of 2003. At that time she was administering Panadol to a baby in care in the GCNC rectally, ie by way of a suppository. Dr Wojtulewicz walked past at that time and said words to the following effect: "Poor baby. I hope you don't hurt him." Ms Carmichael claims that shortly after that a former nurse in the GCNC (who was not called as a witness in this hearing) approached her and told her that Dr Wojtulewicz had just said to her "...something about you and anal sex...". It is Dr Wojtulewicz's recollection that he had simply been enquiring whether nurses had been administering paracetamol to the babies in care orally or rectally. However, the former nurse had told Ms Carmichael that she had informed Dr Wojtulewicz that he was being "disgusting" and he stopped talking to her. 192 Dr Wojtulewicz denies that former nurse's account but he did notice that later Ms Carmichael was cool with him and he asked: "Aren't you talking to me, Victoria?" Ms Carmichael replied: "No! And I think you know why. I would appreciate it if you didn't talk to me or to others about me." According to Ms Carmichael, Dr Wojtulewicz then said: "Obviously, it was very banal ." Whilst the spelling of the words "anal" and "banal" are similar, the pronunciation of the words differs, of course - "anal" (pronounced "ay-nal") and "banal" (pronounced "ban-arl") and Ms Carmichael indicated that Dr Wojtulewicz pronounced the word "banal" in that manner. 193 When Ms Carmichael asked him what he meant, she claimed that he responded with words to the following effect: " Banal without the B." When Ms Carmichael returned home at the end of her shift, she looked up the word "banal" in the dictionary and discovered its meaning - effectively uninteresting, mundane or uneventful. She recorded in her affidavit: "When I thought about his remark - '...without the B...' - it confirmed that he had the conversation with (the former nurse) about anal sex. Prior to this, I had nothing to support that the conversation had, in fact, occurred. I assume that Dr Wojtulewicz's question arose out of my previous communication with him (concerning the administering of the Panadol in the rectum of a baby)..." In his affidavit in reply, Dr Wojtulewicz denied that he had spoken in those terms. In his evidence he claimed that he had, in fact, said something to the following effect: "Banal with a B." 194 There remains much confusion over the time that the two conversations actually took place - the conversation alleged between Dr Wojtulewicz and the other nurse and the conversation between Dr Wojtulewicz and Ms Carmichael. It was suggested by Mr Taylor that in the middle of 2003 when Ms Carmichael claimed the conversations occurred the other nurse was, in fact, overseas and in Mr Taylor's cross-examination of her, Ms Carmichael appeared to be less sure of the time of the incident - either before or after the date she initially gave - more likely before, in my opinion. The transcript of that cross-examination records the following exchange: Mr Taylor: My question, I think, is that...assuming for the purpose of this question that (the other nurse) was not in the unit in 2003, if that be the case, then these events must have occurred prior to 2003. Ms Carmichael: Prior or after. Mr Taylor: I thought we'd established in an earlier answer that if it was after 2003 you were either on maternity leave or you were back for four months in early 2005 and I thought you agreed that certainly the conversation didn't occur then, did you not? Ms Carmichael: I'm sorry, can you repeat the question. Mr Taylor: Yes. I asked you whether, if one assumes that (the other nurse) was not in the unit in 2003, that if you make that assumption for the purposes of the question, that you accept that therefore the conversation or conversations...must have occurred prior to 2003. So certainly they wouldn't then have occurred at a later time. That was my question and I think your answer was prior or later. Ms Carmichael: That was my answer. 195 This type of evidence is of dubious value, in my opinion, in any event. And it raises more questions than it answers. Why did the word "banal" - with or without the "B" - have come up in the conversations at all? It seems to me to be totally out of place in the conversation. Was it no more than a play on words? If that was the position, it would not be a particularly funny joke at Ms Carmichael's expense. But that other nurse was not a witness in these proceedings and what she informed Ms Carmichael is hardly evidence that I may accept as truth of the allegation made against him. Ms Carmichael has drawn certain conclusions concerning this incident which the customary rules of evidence does not permit me to share. The Incident Involving Baby Corey 196 Early in 2006, a baby, referred to in this hearing as Baby Corey, was admitted into the GCNC by the NETS (at approximately 6.30pm). The baby was on continuous positive airway pressure, which is a type of ventilation. When the NETS team arrived they had informed Ms Holmes, the nursing clinical co-ordinator on duty at the time, that the baby had stopped breathing at one stage during the retrieval and had required intervention. The baby was breathing upon his arrival in the GCNC but, upon transferring him from the NETS equipment to the GCNC equipment it became apparent to Ms Holmes that the baby was unstable and had become apnoeic and bradycardic. Hand ventilation stabilised the infant for the present time but it became evident to Ms Holmes that the baby needed to be intubated and ventilated. She requested the registrar on duty to call Dr Wojtulewicz. 197 Ms Holmes claimed that the registrar spoke to Dr Wojtulewicz who instructed her that the baby should be allowed to rest for one or two hours and then be intubated if he remained apnoeic. However, the baby's condition deteriorated and Ms Holmes requested the registrar to telephone Dr Wojtulewicz again. The registrar was reluctant to telephone Dr Wojtulewicz again and Ms Holmes volunteered to do so on her behalf. Dr Wojtulewicz requested that she commence synchronised intermittent mandatory ventilation using a nasal pharyngeal tube. Ms Holmes responded: "Julian, it won't work. I don't think the baby will be able to withstand the lower pressure and rate. He needs to be intubated." 198 Dr Wojtulewicz told her to try it anyway and, in accordance with Dr Wojtulewicz's instructions, the nursing team commenced SIMV via the NPT. The baby's condition remained unstable. She removed the NPT, reverted to bag and mask ventilation and prepared to intubate him. She telephoned Dr Wojtulewicz again, saying: "The baby became apnoeic, bradycardic and desaturated. The ventilation did not work. We have had to hand ventilate him again. Can we intubate him?" According to Ms Holmes, there was a long pause on the telephone and Dr Wojtulewicz then responded: "Just keep trying with the ventilation." 199 When Ms Holmes repeated that ventilation of the baby would not work, she claimed there was another long pause on the telephone and, ultimately, Dr Wojtulewicz said: "Okay, you can intubate him." Ms Holmes claimed in her affidavit that: "...I felt that Dr Wojtulewicz did not comprehend the seriousness of the situation, despite the fact that I had given him a full description of the baby's condition. However, I could not override his decision not to intubate the baby. As I was concerned that Dr Wojtulewicz's conduct could have seriously compromised the baby's care and I was worried about Dr Wojtulewicz's clinical judgment, I felt obliged to report the incident to Dr Badawi..." 200 Dr Badawi, who was interstate at a conference at that time, spoke to Ms Holmes on the telephone, viz: "Thank you for telling me about this. I will discuss it with you when I return. If you have any problems in the meantime, just ring Dr Barr." Ms Holmes subsequently spoke to Dr Badawi and Dr Barr and they directed her to speak to Dr Graham Smith, the co-chair of the peri-operative critical care program. She later met with Dr Smith, accompanied by Ms Selmeci. She was later asked to prepare a report of the incident by Dr Badawi and Ms Elliott, which she did. 201 Dr Wojtulewicz had also approached her and asked to speak to her in private. Ms Holmes indicated that she was prepared to do so if she was accompanied by Ms Selmeci. Dr Wojtulewicz said in the subsequent conversation: "Sandra, you did not make yourself clear that the baby was not responding and that it needed ventilation." 202 Ms Holmes rejected that assertion of Dr Wojtulewicz. Then, after Ms Selmeci had left the room briefly, Dr Wojtulewicz asked: "Sandra, why did you go to Ms Elliott and Dr Badawi? Why didn't you just come to me first? In future, I would appreciate if you would approach me first if you have any problems with me, rather than going to Ms Elliott or Dr Badawi." This incident is essentially concerning a clinical matter - something which would be (and was) addressed internally in the hospital and beyond the scope of this hearing, as I see it. I se nothing objectionable in Dr Wojtulewicz simply asking Ms Holmes to raise any concerns she has with him first before she raised the issue elsewhere. The Incident Involving Ms Selmeci and Ms McKenna 203 In the middle of 2006 - Friday, 9 June, 2006 - Ms Selmeci was the NUM in charge, Dr Wojtulewicz was the neonatologist on duty and Ms McKenna was present to assess a student nurse who was on her lunch break. A particular baby in the GCNC was recovering from surgery and was being heavily ventilated. The nurses who remained in the nursery were relatively inexperienced. During his rounds, Dr Wojtulewicz had indicated that he wanted the baby to be extubated as soon as possible. Ms Selmeci requested that Dr Wojtulewicz defer changing the respiratory support until there were more nurses available in the GCNC. Ms McKenna observed from Dr Wojtulewicz's body language some frustration on his part that the extubation was not being carried out immediately. 204 Shortly after, Ms Selmeci was required to attend the mortuary with a baby that had died that day. She instructed one of the junior nurses in the GCNC to get all the equipment necessary to extubate the baby that afternoon and that nurse undertook to do so after her lunch. A conversation then took place between Dr Wojtulewicz and Ms McKenna. Dr Wojtulewicz asked Ms McKenna if the nurses were ready to extubate the baby and Ms McKenna replied: "No. There's nobody here. We're not ready and Carol had negotiated that it be done after 2.00pm with the next shift." Dr Wojtulewicz looked up at the monitor. The ventilator alarm sounded and Dr Wojtulewicz silenced the alarm. Ms McKenna was not able to read the warning displayed on the monitor. Dr Wojtulewicz said: "The baby's endotracheal tube is blocked and we need to extubate the baby." 205 Ms McKenna responded: "No. It's not blocked. What did the ventilator alarm say? Everything else is fine." Dr Wojtulewicz did not respond, but he reached into the baby's crib and pulled the ETT out of the baby. Ms McKenna was furious. She was the only nurse present and, according to her, there was no equipment ready, including resuscitation equipment and, in her opinion, it was not necessary to extubate the baby at that time. She claimed that the ETT was not blocked and the infant was clinically stable at the time. 206 Ms Selmeci returned to the ward at that time. Ms McKenna told her that Dr Wojtulewicz had extubated the baby. Dr Wojtulewicz asked Ms McKenna: "Have you got the CPAC ready?" The CPAC equipment provides continuous positive airway pressure. Ms McKenna responded: "No, I haven't. I told you we were not ready to extubate this baby. This baby didn't need to be extubated now." Ms McKenna then said: "The tube wasn't blocked. It's not blocked." And she requested that Ms Selmeci take over from her, viz: "Can you take over here please? I can't do this right now." Ms Selmeci claimed that she saw the ETT on top of the baby's incubator and that it was not blocked. Ms McKenna also claimed in her evidence that the ETT was not blocked. 207 Ms Selmeci asked Dr Wojtulewicz why he had extubated the baby. Dr Wojtulewicz claimed that the ETT was blocked but Ms Selmeci replied: "I've looked at the tube and it does not look blocked. There are no secretions in it at all." She then helped Ms McKenna and placed the CPAC prongs into the baby's nose and commenced the CPAC procedure. 208 Ms Selmeci recorded in her affidavit: "...Normally, if a baby has blocked its tube, you would call as many of the staff as you could for assistance. You would then suction the tube and increase the ventilation, possibly using bag and mask for ventilation. That is to say, there are measures that are normally taken before extubation occurs. However, I assume that Dr Wojtulewicz did not take any of these steps because there was no one around except him and the mother of the baby. Ms McKenna had just walked into the nursery. I was extremely concerned that Dr Wojtulewicz had not followed the proper procedures and had performed the extubation without the necessary support. Potentially, he could have put the baby's health in danger..." Ms McKenna shared Ms Selmeci's concern. She indicated in her affidavit that: "...I felt that Dr Wojtulewicz had compromised the baby's care, as not only were we not ready to extubate the baby (in that we did not have resuscitation equipment ready) but he disregarded my clinical opinion that the ETT was not blocked. Dr Wojtulewicz did not allow me to follow an accepted protocol to investigate further whether the tube was blocked. He then proceeded to extubate the baby in a manner that I considered to be unsafe. The whole situation caused me a lot of stress, as I was concerned about the baby's condition. After Dr Wojtulewicz left the nursery, I pulled the tube out of the rubbish bag. There was no blockage in the tube. Although conceivably the blockage could have fallen out, I considered this to be unlikely..." 209 Ms McKenna reported the incident to Ms Elliott and Ms Elliott subsequently approached Ms Selmeci asking her to make a formal statement, viz: "Carol, Kate told me about what happened with Julian. I would like you to make a formal statement because we have some concerns about Julian's clinical care at the moment. Could you prepare a document that sets out the sequence of events?" Ms Selmeci agreed to do so and she did. Again this is an issue going to the clinical aspects of Dr Wojtulewicz's work and beyond the scope of these proceedings. The Incident Involving Ms James 210 Ms McKenna and Ms James refer in their evidence to an incident which also took place on or about Wednesday, 7 June, 2006. At that time Ms James was undertaking her clinical competency assessment as part of her graduate certificate in neonatal intensive care nursing. She was being assessed by Ms McKenna. Ms James was providing care to a particular baby in the GCNC with Ms McKenna standing by. Dr Wojtulewicz approached. According to Ms McKenna, Dr Wojtulewicz had no reason to be present at the time at all. 211 Dr Wojtulewicz claimed that he had previously taken a telephone call from a medical practitioner in Noumea, conducted in both French and English, requesting acceptance of a young patient with a cancerous tumour of the genitals (a perineal teratoma). Ms McKenna had been standing nearby and, although she cannot recall it, Dr Wojtulewicz claimed she asked, in a light-hearted manner: "Practicing your Franglais again, Dr Wojtulewicz?" 212 Dr Wojtulewicz responded in the affirmative and walked over to join Ms McKenna and Ms James. A conversation - light-hearted banter, according to Dr Wojtulewicz - then ensued. Dr Wojtulewicz claimed that he had known Ms McKenna for a long time and he felt that he had a strong and robust working relationship with her. He claimed in his affidavit in reply that he had in the past received more teasing from her that she had from him. Ms McKenna did not see it that way, apparently. Her evidence in her affidavit makes that clear. 213 As I indicated earlier in this decision, Ms McKenna's affidavit records that, in her view sometimes quite innocent conversations he had with Dr Wojtulewicz degenerated into lewd and inappropriate comments and sexually suggestive jokes which made her uncomfortable and left her "...wondering how the conversation had taken the turn that it had...". This incident appears to have been one such incident. 214 It is Dr Wojtulewicz's evidence that the conversation he had with Ms McKenna had commenced with Ms McKenna saying words to the following effect: "Goodness, we get a lot of cases of that nature from Noumea. I wonder if the nuclear fallout from the testing in that part of the world might be in any way responsible." To which Dr Wojtulewicz replied: "Kate, I think you might be onto something. That's brilliant. You are going to end up with a condition named after you - Elder's Sydrome." And Ms McKenna responded, naturally enough, that she would not want a perineal tumour named after her. If Dr Wojtulewicz was simply teasing her, Ms McKenna was not in the mood for it. 215 According to Ms McKenna, the conversation she had with Dr Wojtulewicz at that time commenced with his saying: "Did you hear we're getting a baby with a Kate McKenna?" Ms McKenna, obviously in some frustration, did not see the joke. She was concerned that a genital tumour was being named after her and, having regard to the fact that she was assessing Ms James at the time, retorted: "Can you not do this to-day? I am here in an assessor capacity." And Dr Wojtulewicz replied: "Come on, you've said worse things in the past." 216 Ms McKenna informed Dr Wojtulewicz that she and Ms James were busy and that she just wanted to get back to what she and Ms James were doing. Dr Wojtulewicz was not to be dissuaded and he commented that: "Anyway you have Elder's syndrome as it is. Each of us have individual characteristics that make us recognisable as individuals." He then turned to Ms James and said: "We are all dysmorphic , Kristen." That is a medical term, ordinarily referring to differences in body structure, suggestive of a congenital disorder or birth defect. But in the context in which Dr Wojtulewicz allegedly used the term, it appears to me to simply highlight individual differences between all persons. Ms James believed, incorrectly in my view, that Dr Wojtulewicz was making a joke at her expense that she had abnormal features and she saw no humour in his comments, especially since she was being assessed by Ms McKenna at the time. Possibly the subtlety in Dr Wojtulewicz's comment would have not been understood by Ms James. His use of such language may be regarded as offensive, whether he actually meant to imply abnormality of Ms James or not. 217 Ms James was performing an endotracheal tube (catheter) and an orophraryngeal suction (ie insertion by mouth). Dr Wojtulewicz continued to observe the procedure and, directing his comments to Ms James, said words to the following effect: "What are you waiting for, it to come out of his bottom? If you go any deeper, it will come out of the baby's bum." And Dr Wojtulewicz then leant down and whispered into the baby's ear, but loudly enough for anybody to hear, words to the following effect: "Don't worry baby. Tomorrow we'll get a better nurse." 218 Dr Wojtulewicz claimed in his evidence in this hearing that he had been directing his comments at Ms McKenna, with whom he was looking at the time, as part of the light-hearted banter in which he had previously been engaged with her. He also claimed that he had used the word "proper" and not "better". But in my view, there is no significant difference in the words "proper" and "better" in that context: they both mean essentially the same - that Ms James was not performing her work properly (under assessment). It does not matter whether Dr Wojtulewicz was looking at Ms McKenna or Ms James at the time. His comments were clearly directed at Ms James, who was the nurse actually performing the task which was being assessed at the time. She heard the comment and, in my opinion, was meant to hear them. She was visibly upset by them. 219 Ms McKenna subsequently approached her and said: "I'm sorry about Dr Wojtulewicz's comments. They were not helpful or necessary." And later, upon discovering that Ms James had been crying and claiming that she and Dr Wojtulewicz had been joking about her during her assessment, she spoke to Ms James again to ask her if she was okay. The fact that Ms James had thought that Ms McKenna had been joking with Dr Wojtulewicz suggests to me that his version of the incident is correct and that prior to the exchange there had been light-hearted banter between Dr Wojtulewicz and Ms McKenna. 220 Later Ms McKenna had spoken to Dr Wojtulewicz and told him that his comments were not funny, viz: "Your comments were not funny. Kristen was clearly not comfortable engaging in a conversation of that nature. You cannot talk to me like that in front of other junior staff. It is not professional." On becoming aware that Ms James was under assessment at the time of the conversation, Dr Wojtulewicz went and saw her. He did not actually apologise to her but he did say: "I just found out you were doing your competency assessment. I think things went okay today." That was clearly an attempt on Dr Wojtulewicz's part to relax Ms James, if she had been upset. Ms James later received flowers anonymously. She believed that they came from Dr Wojtulewicz but there is nothing to support such a claim and Dr Wojtulewicz denies it. The Disagreement at a Monthly Meeting 221 Dr Loughran-Fowlds referred in her affidavit to another incident that occurred in the middle of 2006 at a regular monthly staff meeting, viz: "....In or about June, 2006 I attended the regular monthly combined audit meeting with perinatal staff at Westmead Hospital. The meeting was between staff of the CGNC and consultants from Westmead Hospital. Dr Badawi and Dr Halliday had attended but they left the meeting early. Dr Wojtulewicz, Ms Elliott, (another GCNC nurse) and I were then the only representatives of the GCNC in the meeting. During the meeting Professor Brian Trudinger, an obstetrician and department head of obstetrics at the Westmead Hospital requested that copies of the GCNC discharge summaries be provided to the obstetrics department of Westmead Hospital. This was not particularly onerous for the GCNC. Although I cannot recall exactly what Dr Wojtulewicz said in the meeting, it was to the effect that it would be a waste of time or unnecessary. He expressed his view in a very frustrated and over-the-top manner for an extended period of time which was inappropriate, particularly having regard to the meeting's attendees. Ms Elliott also made a comment possibly to the effect that although it is probably not necessary, we could probably comply with Professor Trudinger's request. I was appalled at how embarrassing and obstructive Dr Wojtulewicz's behaviour was, and was especially annoyed as he knew from our previous departmental meetings that we were trying to develop better relations and communication with the perinatal staff at Westmead Hospital..." 222 Dr Loughran-Fowlds claimed that she then spoke to Professor Trudinger with words to the following effect: "It might take us a while to get into the routine of doing it, but we'll try and do it." And Professor Trudinger responded: "That would be great. Thanks." Dr Loughran-Fowlds claimed that Dr Wojtulewicz approached her after the meeting, wagging his finger at her and saying: "This will be on your head." 223 As Dr Loughran-Fowlds concedes in her evidence, she has not recalled in any detail Dr Wojtulewicz's comments but clearly the general impression was that Dr Wojtulewicz was being unnecessarily aggressive to Professor Trudinger. But Professor Trudinger was not a witness in this hearing and I have to say that, looked at in isolation, this is not a particularly impressive allegation against Dr Wojtulewicz. It is the type of exchange which from time to time may arise in any employment situation. As I understand Mr Einfeld's submissions, he accepts that incidents of this nature are trivial but that they go to make up overall an unacceptable pattern of behaviour on the part of Dr Wojtulewicz. Alleged Rude Conduct Over an Attempted Admission 224 Dr Daniel Lin is a paediatrician at Westmead Hospital who from time to time sought the admission of patients into the GCNC. Some time in the middle of 2006 Dr Lin sought to have a jaundiced baby admitted into the GCNC for phototherapy. He spoke to Dr Wojtulewicz but his request for the admission of the baby was refused. I understand that there is a policy to decline "back door" or "trivial" admissions so that bed space is available for critically unwell infants. Dr Wojtulewicz understands that Ms Brown had informed Dr Lin that there was a bed available for the baby he had sought to be admitted - something which Dr Wojtulewicz regarded as inappropriate. 225 Dr Lin apparently accepted the policy. He did not accept what he regarded as Dr Wojtulewicz's dismissive and rude manner and he complained about it. Dr Wojtulewicz had dismissed the condition of the baby as "medically trivial" - which it may have been. The parents of the baby were listening to the telephone conversation Dr Lin had with Dr Wojtulewicz. The fact that the parents could hear the conversation was not known by Dr Wojtulewic, however. It would have been better that such telephone contact was made without the parents being in a position to hear it. 226 Mr Einfeld relied on this incident not because of its medical significance but as another indication of Dr Wojtulewiwicz discourteous manner with fellow medical practitioners. Mr Einfeld recorded in his written submissions: "....This occasion is relevant, not for its medical significance, but as another demonstration of the applicant's incapacity to deal with medical colleagues at all times in a civil manner... Dr Wojtulewicz does not provide a satisfactory answer to the issue of lack of courtesy and respect he had for and towards his fellow practitioner, whose interest and concern was obviously only ever the welfare of his patient. Even if he was unaware the parents were listening, that provides no answer..." The Hair Clip Incident 227 In the middle of 2006 Dr Megan Sherwood, a staff specialist in cardiology working in the GCNC was directed by Dr Badawi to outline an incident that had occurred several months before. Dr Sherwood prepared a report dated Friday, 23 June, 2006 concerning that incident. (At the time of Dr Badawi's request to Dr Sherwood, Dr Wojtulewicz had just been stood down and, whilst Dr Sherwood did not know the reason for Dr Badawi's request to her, it clearly was produced to provide supporting material for Dr Wojtulewicz's suspension. 228 Dr Sherwood's report records: "....While performing an echocardiogram on a patient...Julian approached the bed space and we talked. He then partially removed my hair clip in a joking/almost playful manner. My response prompted him to suggest that he should not do that again. I did not interpret his behaviour as a personal approach to me and I felt comfortable demonstrating that I was not impressed. It did, however, strike me that junior medical staff, students, nursing staff or other female staff may find his behaviour an unwarranted invasion of personal space or worse, and not necessarily feel in a position to contain such a situation. His conversation had also impressed me that he seemed unhappy..." Dr Wojtulewicz denied touching that staff specialist's hair or that he removed the hair clip or had sought to remove it. As I understand his evidence, he claimed that he simply motioned to do so and Dr Sherwood indicated in fairly clear terms that she did not want him to do so, viz: "I'll kill you if you take my hair clip out." 229 Those comments were not, of course, meant to be taken seriously. But Dr Sherwood, who was called to give evidence in the hearing by Mr Einfeld, denied that she had used that expression. Her recollection is that Dr Wojutulewicz had partially removed her hair clip and that when he did so she had used words to the following effect: "I don't think that's a good idea." And she subsequently had to refix her hair in place. Dr Sherwood also claimed that she had formed the impression from the conversation she had with Dr Wojtulewicz at the time that he had been depressed over something. 230 It appears to me that this was a particularly innocent incident, that Dr Wojtulewicz was simply teasing the other staff specialist and that other staff specialist involved was not actually offended by Dr Wojtulewicz's conduct (although she believed that other female employees may have been). The Code of Conduct 231 The Health Department has a comprehensive policy - the "New South Wales Health Code of Conduct" - which outlines conditions of employment in the State public hospitals and what is expected of staff in health services in general. In particular, it directs that employees will undertake to carry out their duties, among other things, with "...courtesy and respect for everyone..." [para.1.1]. In particular, the policy provides [para.7.1] that: "...workplace bullying and/or harassment means behaviour that will generally meet the following four criteria: * It is repeated. * It is unwelcome and unsolicited. * The recipient considers the behaviour to be offensive, intimidating, humiliating or threatening. * A reasonable person would consider the behaviour to be offensive, intimidating, humiliating or threatening. It is unlawful to discriminate on the basis of people's sex, race, ethnic or ethno-religious background, marital status, pregnancy, disability, age, homosexuality, transgender or carers' responsibilities. Incidents of bullying, harassment or discrimination may constitute a breach of New South Wales Health policy, New South Wales Anti-Discrimination and/or occupational health and safety legislation. Should unacceptable behaviour occur, staff have a right to make a complaint using their Health Service procedures. Health Service will not tolerate the victimisation of, or reprisal against, any staff member involved in a complaint. Staff must not make vexatious and/or malicious complaints. Managers must ensure, to the extent of their authority, that the workplace is free from all forms of bullying, harassment and unlawful discrimination. Managers must ensure that grievances and complaints of bullying and harassment are dealt with in a fair, timely and impartial way..." And the policy goes on to say [para.11.1]: "...Staff must abide by the standards outlined in this Code of Conduct and the legislation and policies and procedures it reflects. Breaches of this Code of Conduct may lead to disciplinary action. Staff must also be aware that breaches of certain sections of this Code of Conduct, where the conditions reflect the requirements of legislation, may be punishable under law. If staff become aware of a breach of this Code of Conduct, by either themselves or by other staff members, they should report the matter immediately to their supervisor..." 232 That code follows current general industrial practice. All employees have the right to the quiet enjoyment of their work without being bullied or harassed by supervisors and/or fellow employees. And all employers have a duty of care to provide a safe system of work for employees and, in that connection, to guard them against risk not only of physical injury but the mental or psychological injury which would flow from bullying and harassment as well. 233 That duty of care on all employers in this State is complemented by S.8(1) of the 2000 Occupational Health and Safety Act, viz: "Every employer shall ensure the health, safety and welfare at work of all his employees." And it is the welfare of the staff of the GCNC to which the actions of the Department of Health is essentially directed in removing Dr Wojtulewicz from the GCNC. I note in that respect the comments made by Sams DP in his unreported decision of Tuesday, 25 July, 2000 in Ueckert v. Australian Water Technologies Pty Limited [Matter No.IRC 5553 of 1999 at p.58], viz: "...It is trite for the Commission to observe that there is absolutely no place, or reason for, the harassment of one employee by another employee, be it sexual or otherwise, in or outside the workplace. Indeed, such behaviour is unlawful. When proven, it will, in my view, be a sound basis for disciplinary action and, if the behaviour continues, or is of a serious nature, it may constitute grounds for summary dismissal..." 234 I also note in that respect the unreported judgment of the Court of Appeal of the State Supreme Court (Spigelman CJ, Mason P and Meagher JA) on Friday, 20 May, 2000 in State of New South Wales v. Seedsman [Matter No. CA 40918 of 1998] and, in particular, the judgment of Spigelman CJ (with whom Mason P and Meagher JA agreed). His Honour commented (at p.7) that the trial judge had: "…identified a duty of employers to provide a safe system of work, which included a duty to take reasonable precautions against the risk of mental or psychiatric injury, as well as against that of bodily injury. He propounded a test expressed in terms of whether or not the (employer) had, or ought to have had, knowledge of the risk and the means of reducing or avoiding it…" And the allegations against Dr Wojtulewicz go beyond bullying behaviour on his part into allegations of sexual harassment. 235 Various kinds of behaviour may fall under the general heading of sexual harassment: holding out promotion or other benefits for sexual favours, kissing, touching, pinching, tickling, sexual propositions and gender-based insults or taunts. A person is harassed if he or she is subjected to unsolicited and unwelcome sexual conduct, eg unwanted physical conduct, verbal comments or abuse or offensive gestures. At one extreme is criminal sexual conduct and coerced sexual intercourse by a person in authority over another person in the workplace. But sexual harassment may also be persistent staring, leering or confronting a person with pornographic literature or e-mails. It is sexual harassment for an employee to joke and snigger about sexual matters in the workplace in an attempt to humiliate or embarrass another person. 236 As the Full Bench of the Commission (Wright J - President, Harrison DP and Boland J) in Attorney-General's Department v. Miller (2007) 160 IR 185 observed (at p.209): "...the test is an objective one that requires the finder of fact to ask whether a reasonable person would consider that the conduct in question would be likely to offend, humiliate or intimidate..." The Full Bench adopted the following principle (at p.209): "...Where a person has made known that the conduct is unwelcome, it can be generally concluded that the conduct is such that a reasonable person would have anticipated that the other person would be offended..." 237 Also in the exercise of my functions in any proceedings S.169(1) directs me to have regard to the principles of the 1977 Anti-Discrimination Act which in S.22A relevantly describes sexual harassment in the following terms: "For the purpose of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated." 238 It is, of course, sexual harassment if a supervisor requests sexual favours from a junior employee in return for promotion or other benefit or threatens the sack for non-co-operation in that respect. It is sexual harassment for a person occupying a supervisory position to make intrusive inquiries into the private life of any employee or persistently request unwelcome social contract with that employee. 239 In O'Callaghan v. Loder (1984) 5 IR 320 Matthews DCJ of the State Equal Opportunity Tribunal gave the words "sexual harassment" the widest possible meaning, based on her reading of the relevant literature and case law at that time, essentially from the United States of America and Canada, stating (at p.321) that: "…I adopt as a starting point that a person is sexually harassed if he or she is subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power to him or her..." And later (at pp.331 and 332): "...It follows...that if a complainant has been subject to unwanted and unsolicited sexual conduct by his or her employer in such circumstances that the employer knew or ought to have known that the conduct was unwelcome, then that will amount to a contravention of the Anti-Discrimination Act in the following circumstances: firstly, if the conduct was such as to create an unwelcome feature of the employment...or to be a detriment...or secondly, if the employer secured compliance with his sexual demands by threatening adverse employment consequences...or thirdly, if rejection of the employer's sexual demands led to retaliation in the form of loss of access to employment opportunities...or fourthly, if rejection of the employer's sexual demands led to retaliation in the form of dismissal or some other loss of tangible employment benefits..." 240 O'Callaghan v. Loder was thereby addressing a fairly narrow field - the alleged discrimination of a female employee by a person occupying a position of authority and influence over her and the misconduct was such as to create a perception in the alleged victim that either a benefit would only flow to her if she complied with an improper approach made or an adverse consequences would occur to her unless there was compliance with that improper approach. Dr Wojtulewicz occupied such a position. Because he was in a position where he was assessing the performance and skills of junior medical staff in training, he did occupy a position of authority to them and influence with them. And, consequently, it may have been difficult for such junior medical staff to make complaints concerning him without, they believed, jeopardising their careers. It is therefore an area where Dr Wojtulewicz should have exercised greater caution in his dealings with staff in the GCNC. 241 That may well explain why many of the individual medical staff members may not have themselves been prepared to formalise their complaints as anything more than staff gossip and why, in this hearing, I am chiefly relying on more senior medical and nursing staff acting on their behalf. But that means that I am relying principally on second-hand evidence and, as I outline in more detail later in this decision, that must make such evidence highly suspect. Alleged Loss of Trust in Dr Wojtulewicz 242 Mr Einfeld argues in his submissions that there has been a loss of trust between Dr Wojtulewicz and the Health Department. That may give rise to the conclusion that restoration of an employer/employee relationship is impracticable. It certainly is, in my opinion, in the GCNC - and Dr Wojtulewicz recognises that fact. As was stated by the Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at p.191: "...trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause... The implication is not confined to employers; it extends to employees: see for example Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 at pp.81 and 82 and North v. Television Corporation Limited (1976) 11 ALR 599 at p.609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based..." 243 But, as Mr Einfeld conceded in his written submissions, that alleged loss of trust must not be merely capricious or arbitrary. There must be conduct by the employee that underpins the breakdown of such trust and confidence. That loss of trust and confidence on the part of an employer must have as its basis proper grounds. It must be reasonable and fair, in all the circumstances, or else any employer who unfairly dismisses any employee would, as a matter of course, automatically deny that employee his primary right of reinstatement in employment. For instance, Cahill J - Vice President of the former State Industrial Commission, commented in New South Wales Public Service Professional Officers Association of New South Wales v. Forestry Commission of New South Wales at p.50: "...In this regard, industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be '...practical uselessness...' in attempting to re-establish the previous employment relationship..." 244 And the Full Bench of the Commission (Walton J - Vice President, Hungerford J and Bishop C) in Burge v. BHP Steel Pty Limited commented (at pp.345 and 346) that: "…in considering the practicability of reinstatement, we are very much mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v. Grace Worldwide (Australia) Pty Limited (at pp.191 and 192) where their Honours observed that '…each case must be decided on its merits…' but that '…in most cases, the employment relationship is capable of withstanding some friction and doubts…'. As their Honours observed further, '…what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive…' and '…if the employer is of even average fair-mindedness, (the problems) are likely to be short-lived…'. Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 at pp.341 and 342, CCH Australia Limited v. Bowen (1998) 79 IR 206 at pp.217 and 218 and Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67 and 68. We affirm the approach as appropriate in the present case…" 245 Mr Taylor pointed out in his written submissions that the power to hire (and presumably to fire) an employee of the Health Department is delegated by the Director General pursuant to S.21 of the 1982 Health Administration Act but the discretions available to be exercised in that respect should, using the words of Kitto J of the High Court in R v. Anderson; ex parte Ipec-Air Pty Limited (1965) 113 CLR 117 at p.189: "....be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself..." Unsubstantiated Evidence 246 That having been said, there are different versions of many of the incidents described to me in this hearing by the witnesses. The differences in the evidence is most disturbing to me. Some of those discrepancies in the evidence may be, as Mr Taylor was at pains to describe them, no more than innocent but faulty recollections. But some of the discrepancies in the evidence, given under oath and by way of affidavit, are not simply capable of being categorized as a misunderstanding between those witnesses: it must simply mean that one of the witnesses - either Dr Wojtulewicz or some of the numerous GCNC medical and nursing staff who have made the allegations against him - is not being truthful in this hearing. That is a matter of some concern to me. 247 On the one hand, if the allegations against Dr Wojtulewicz are established, it provides clear evidence that he has consistently been engaged in conduct worthy of censure. What has emerged in the evidence led by the medical and nursing staff of the GCNC whom Mr Einfeld called as witnesses in this hearing is a litany of misconduct on Dr Wojtulewicz's part, stretching over many years, which is totally unacceptable in any work environment, and especially a hospital ward with a preponderance of more junior female employees. On the other hand, if the allegations ultimately do not stand up under close scrutiny, then it is an indication of a very vindictive vendetta by some, if not all, of the medical and nursing staff against him. That, in essence, is Dr Wojtulewicz's claim. 248 Some of the allegations against Dr Wojtulewicz - that he was not a "team player"; that his ward rounds were protracted affairs; that he was the author of fewer medical publications, for instance - are in my opinion matters which may warrant further discussions with his colleagues, and possibly some counselling. But they fall far short of proper grounds for any disciplinary action against him, let alone his dismissal, in my opinion. It is also true that Dr Wojtulewicz's work attitude - a somewhat authoritarian approach, a readiness to adopt an aggressive tone with fellow employees, a dismissive approach to the views of other employees - is something on which he should take steps to remedy in his own interests as much as the employees with whom he works. In his evidence he has indicated that he accepts that is the position and that he is prepared to work to improve his behaviour at work. 249 But also it seems to me that Dr Wojtulewicz has been subjected to a level of scrutiny in all parts of his work - clinical, non-clinical and personal - and his relationship with his colleagues - junior and senior medical staff and nursing staff - far out of all proportion to any alleged misconduct on his part. To my mind, what has occurred is that some GCNC employees have now simply trawled through the lengthy period of Dr Wojtulewicz's employment in the GCNC to find any issues to justify their determination never to work with him again, whether the particular issue had actually been resolved or not in the meantime or whether at the time of the alleged incident it was really a matter of any concern to the person to whom Dr Wojtulewicz had allegedly directed his comments or conduct. I doubt that any senior employee would survive such a challenge intact without somebody finding fault with him over something. 250 In Mr Einfeld's cross-examination of Dr Wojtulewicz, there is the following exchange: Mr Einfeld: You know very well now, if you didn't before, that over many years, many of your colleagues in the unit made complaints about your conduct and behaviour, valid or invalid as they might be, put that to one side for now. But that's correct, isn't it? Dr Wojtulewicz: Yes, I know that now. Commissioner: You say you know that now?... When did you become aware of it?... Allowing for the fact that working relationships of any kind, you have some friction in the workplace. When did you become aware that there was a view current in the place you worked that your conduct was not acceptable? Dr Wojtulewicz: As of the affidavits (prepared for this hearing on Friday, 1 May, 2009). There's always that sense that some degree of conflict may or may not be accompanied by resolution and if there is a resolution to the issue or even that's occurred, that has become part of the past and one moves on. The impression I got reading some of the affidavits...from my colleagues was that events would - well, there were certain things that they wrote that suggested that resolution, if you will, was not something that had been an event for them. Mr Einfeld: In any event, the short answer to the Commissioner's question is it is your evidence that you became aware of the matters the Commissioner asked you when you read their affidavits in May of this year, is that right... Dr Wojtulewicz: ...There can be complaints, there can be issues that arise in the workplace and they can be resolved. Mr Einfeld: No, I didn't ask you about you resolving anything. Dr Wojtulewicz: Okay. Mr Einfeld: I asked you whether I had heard correctly your answer to the Commissioner's question that you first became aware of the matters you were asked about, that is, dissatisfaction with your conduct in the workplace, in May of this year when you read the other side's affidavits? Dr Wojtulewicz: Unresolved issues, yes. 251 I believe that Dr Wojtulewicz has, in fact, been subjected to an extraordinary amount of unhelpful gossip in the workplace which, for one reason or another, never reached a stage that the hospital administration or the Health Department would have been - or should have been - able to do anything constructive with it. Or, for that matter, were even made aware of much of it. Such a level of gossip cannot be regarded as healthy in any work environment - particularly among senior and professional staff. 252 What am I to draw from the indication that Dr Carmo had, in effect, prepared a dossier, collating complaints against Dr Wojtulewic? Or that Ms Elliott had warned nurses commencing work in the GCNC about Dr Wojtulewicz and instructed them to tell her of any indiscretion that may allegedly have occurred on Dr Wojtulewicz's part? Or that Dr Wojtulewicz could be quite stern with some registrars? Or that Dr Wojtulewicz had a screen saver on his personal computer showing an attractive female tennis player? Or that Dr Wojtulewicz had arrived at work at the GCNC one day in tennis shorts and allegedly sweaty? Or that Dr Wojtulewicz spoke to mothers who happened to also be attractive? Or that Dr Wojtulewicz believed that a particularly attractive nurse was a good nurse and told Ms Selmeci so? Not much, I would think. 253 The following comments by Macken J of the former Commission in Australasian Transport Officers Association v. Department of Motor Transport (1988) 25 IR 235 at p.244 have some relevance in the current proceedings, in my opinion: "....Without going through the various complaints over many years, as to (the dismissed employee's abrupt manner with subordinate staff, it is sufficient to say that they are complaints of a basically trivial character for the most part. In any case all were condoned, either by having been dealt with in one form or another or by having been satisfactorily explained and no action taken..." I will deal later with the doctrine of condonation, to which Mr Taylor has referred in his submissions, but for present purposes, I indicate that I am persuaded to dismiss many of the allegations against Dr Wojtulewicz on the same ground, ie that they were trivial. 254 Furthermore, some of the allegations made against Dr Wojtulewicz are in such general terms as to be, for the purposes of proper investigation by the hospital administration and the Department of Health and, ultimately, for my purposes in this hearing, meaningless. They are perceptions by nursing and medical staff in the GCNC and are recollections by them of particular incidents which may, or may not, be faulty. In much of the evidence, reference is made to allegedly offensive comments made to other particular medical or nursing staff who have not been identified at all for this hearing. Dr Wojtulewicz cannot recall the incidents referred to. They represent very poor evidence of anything against Dr Wojtulewicz. 255 Some of the allegedly offensive comments made by Dr Wojtulewicz were raised by Mr Einfeld with Ms Ditton and Ms Yeung (hypothetically) in his cross-examination of them and they were asked whether they would be offended by such comments. Their replies were similar. For instance, Ms Ditton's evidence with respect to a particularly offensive phrase - "...fucking/bonking like rabbits/bunnies..." - was as follows: Ms Ditton: Look, I don't like anyone using that sort of language, right. But I...look at the context of what a person is doing and why they are doing it. And if the person was doing it in front of a whole lot of people in public, I would find it offensive. Mr Einfeld: What about saying that to a female doctor in the unit. Ms Ditton: If they said it. Mr Einfeld: Yes, if they said it. Do you think it might be offensive? Ms Ditton: Could be offensive, yes. Mr Einfeld: Might affect the respect in which you held a doctor at the Grace Unit? Ms Ditton: It might. It might... And when confronted with similar offensive comments in cross-examination, Ms Yeung also commented: "Depending on the context." 256 By those comments, Ms Ditton and Ms Yeung have identified the nub of the problem before me. I have all these allegedly offensive statements but not a great deal to indicate the context in which they were actually made - whether, for instance, there had been banter flowing from Dr Wojtulwicz and the other person to whom he addressed the allegedly offensive remark at the time. Nor, on many occasions, are the persons to whom the allegedly offensive comments were made, available to explain as witnesses in this hearing their attitude to those allegedly offensive comments. Often those comments were simply overheard by a third person whose evidence can only be their feelings with respect to those allegedly offensive comments. 257 Ms Ditton's evidence continued: Mr Einfeld: ...Make the assumption please for the purposes of your evidence that the doctor had engaged in unsolicited kissing of female staff, touching female staff on the hips, making rude jokes in female company, describing people as 'Jewish mafia' or female doctors as Jewish princesses. Might you perhaps stop to pause about the respect with which you regard such a doctor? Ms Ditton: I get back to my original point. This is all 'ifs', isn't it? Mr Einfeld: It is. Ms Ditton: And the bottom line is that I always make it my business whenever I'm told a story about any person, any human being, to try and find out what the other side of it is, what actually did happen, because people make all sorts of assertions about each other, particularly nowadays... Now, if those things were correct, of course, I would stop and think, but again, as I said to you, if I know a person - when I know a person and I think I know a person fairly well, I don't just jump to the conclusion that everything that is said about them is true. Mr Einfeld: No, of course you don't. But, as you said, it would cause you to stop and think? Ms Ditton: I would, I would think, yes. 258 And since many of the more serious allegations against Dr Wojtulewicz are denied by him, the onus to prove any wrongdoing on his part with respect to those allegations falls on Mr Einfeld in this hearing. That much is clear from the following often cited comments of Hungerford J of the former Commission in Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 at pp.83 and 84): "…It is undoubted, in my view, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union… However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as a justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense, to establish that fact, shifts from the union to the employer…" 259 The standard of proof is not the criminal standard - beyond reasonable doubt - but the civil standard - the balance of probabilities [Coles Myer Limited v. Shop Distributive and Allied Employees' Association (1989) 27 IR 299, M v. M (1988) 63 ALJR 108 and Four Sons Pty Limited v. Limsiripothong (2000) 98 IR 1 at pp.6 and 7]. That position was confirmed by the Full Bench (Cahill J - Vice President, Hill J and French C) in Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464, viz: "…The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v. M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v. Briginshaw (1936) 60 CLR 336..." 260 And in Sewell v. New South Wales Police Force (2008) 174 IR 247 Haylen J confirmed that approach when he reinstated a police officer who had been removed from his position, commenting (at p.275) that the approach in Briginshaw v. Briginshaw: "....has since been taken up in S.140 of the 1995 Evidence Act which provides that, in civil proceedings, the court must find the case of a party proved if it is satisfied that the case has been proved to the balance of probabilities and without limiting the matters that the court may take into account in deciding whether it was so satisfied, the court was to take into account the nature of the cause or action or defence; the nature of the subject matter of the proceedings; and, the gravity of the matters alleged..." 261 Mr Einfeld has suggested that since Dr Wojtulewicz's conduct does not raise the prospect of the type of criminal activity referred to in Wang v. Crestell Industries Pty Limited (at p.463), a lesser standard than that proposed from Briginshaw v. Briginshaw would be acceptable in this hearing. I do not agree. The implications to Dr Wojtulewicz - his standing and career prospects - are serious enough to justify a high standard for the evidence, in my opinion. I note particularly in that respect that in Attorney-General's Department v. Miller the Full Bench had commented (at p.209): The onus, of course, was on the Department to show that, having regard to all the circumstances, a reasonable person would have anticipated that (the alleged victim) would be offended, humiliated or intimidated by the questioning relating to pregnancy. Given that the dismissal of (the offending employee) was summary in its nature, the onus was at the level laid down in Briginshaw v. Briginshaw ..." I believe that it is the seriousness of the implications of dismissal, not whether the alleged conduct is criminal, is the proper test to apply. An adverse conclusion from this hearing for Dr Wojtulewicz must act to preclude him entirely from employment in a profession which, as I understand the position, is a fairly limited field and with respect to which he has devoted his entire working life. I should therefore review and evaluate the evidence before me in this hearing very carefully in everybody's interests. 262 And I regard much of that evidence before me as far from satisfying the standards that I should adopt in that respect. Nevertheless, some of the allegations against Dr Wojtulewicz are conceded by him. Some of the allegations he now admits were inappropriate conduct on his part and for which he believes an apology is called for to the staff member concerned (although, as I indicated earlier in this decision, he has not to date done so). Condonation 263 Mr Taylor has, in fact, suggested in his submissions that with respect to many of the complaints made against Dr Wojtulewicz the fact that the hospital administration and the Health Department has not acted on them it has condoned that conduct. An employee may, with full knowledge of an employee's misconduct, choose to waive his right of summary dismissal [Federal Supply and Cold Storage Company of South Africa v. Angehrn (1910) 103 LT 152]. In such circumstances, he will be deemed to have condoned that conduct and may not subsequently rely on it as grounds for summary dismissal [In Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 at. p.25]. That is the doctrine of condonation and it operates to make any conduct of the employee with respect to which an employer has waived his right of summary dismissal neither relevant nor admissible in any subsequent legal proceedings over the dismissal of that employee. 264 In Australasian Transport Officers' Association v. Department of Motor Transport (at p.245) Macken J stated that: "…not only would the doctrine of condonation exclude the material upon which (the employer) based his decision to terminate (the employee) summarily for misconduct but such material would also be excluded as irrelevant to the alleged misconduct which it was called upon to support. It is trite law that evidence of an accused's bad character which is not relevant to a charge brought against him, and which is not admissible against him by some rule of law, must be excluded from a consideration of guilt of the charge…" The doctrine of condonation was adopted in Burge v. BHP Steel Pty Limited when (at p.31) the Full Bench commented: "....In any event, we are satisfied the conduct of the appellant (dismissed employee) referred to has been condoned by the respondent (employer) or that it has waived any right it may have had to dismiss him for serious and wilful misconduct..." 265 Strictly speaking, the doctrine of condonation does not extend beyond cases of summary dismissal. In Clarke's Case, Cook J took the view (at p.25) that it had no application where an employee's services were lawfully terminated in accordance with his contract of employment. And that view was confirmed in Attorney-General's Department v. Miller (at p.209) to which I referred earlier in this decision. As Mr Einfeld indicated in his written submissions, Dr Wojtulewicz has not been summarily dismissed (as yet). Mr Einfeld commented in those written submissions: "....The respondents do propose to terminate Dr Wojtulewicz's employment, but it is important to recognise...that the respondents do not assert a right to terminate that employment summarily, without notice... Many of the authorities cited by the applicant in his submissions concern a summary dismissal which had already occurred. The present is not such a case. Rather, the present is a case of a proposed dismissal, with notice..." 266 But because a certain stigma would still attach to future employment prospects for Dr Wojtulewicz if it becomes known that he was dismissed for misconduct, it would still be a serious matter for him, even if that dismissal was not a summary dismissal. Moreover, condonation is clearly a factor which goes to the question of establishing the fairness or unfairness of any subsequent dismissal. It would not be fair for an employer to turn a blind eye on certain misconduct only to later rely on it as grounds for dismissal. 267 Of course, it does not necessarily follow that an employer who is made aware of particular misconduct of an employee but who chooses to give that employee another chance is deprived by the doctrine of condonation of the opportunity of subsequently dismissing that employee for a repetition of such misconduct. An employer has not necessarily condoned an employee's misconduct merely because he did not exercise his right to dismiss him at the time a particular complaint was made. The doctrine of condonation applies only where the employer has actually accepted or tolerated the misconduct and chosen not to act upon it at all. 268 Mr Einfeld referred in that respect to the comments made by Sheppard J in John Lysaght (Australia) Limited v. Federated Iron Workers Association: re York (1972) AILR 517, viz: "....It is no doubt possible...to waive particular acts of misconduct that would otherwise have justified dismissal without notice. These particular acts could not subsequently be used for this purpose once the decision was made not to rely on them. The act of misconduct, however, does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to...as a relevant factor to be weighed in the balance... This will be all the more so where, as here, the dismissal is upon notice... " The emphasis is by Mr Einfeld . The concept is commonly adopted in the Commission. An employee's past conduct - good or bad - is a factor to consider in determining whether a particular dismissal is unfair. Even a minor issue may give rise to a dismissal if it is part of an unsatisfactory employment history - the "...straw that breaks the camel's back, as Mr Einfeld indicated in his submissions. 269 But if at no time the hospital actually condoned the conduct of Dr Wojtulewicz it certainly does not appear to have really done anything to effectively address many of the complaints made concerning his conduct. Of course, any criticism of the hospital administration in that respect is not justified where the misconduct in question was not even brought to the attention of the management in the first place - and that seems to have been the position with many of the issues now raised in this hearing against Dr Wojtulewicz. It is one thing for employees to argue that they have longstanding complaints against a colleague. It is another thing to bring those complaints forward internally through the mechanism provided within the Health Department so they can be addressed properly. Substantiated Evidence 270 In any event, as I indicated earlier in this decision, I regard many of the incidents raised as complaints against Dr Wojtulewicz in this hearing as trivial. Much of it is stale: some of it occurred over ten years ago. Some of the allegations occurred at a time when he was suffering a psychiatric illness from which the evidence before me suggests he is now fully recovered. Certain allegations, denied by Dr Wojtulewicz or, at least, substantially modified by his evidence in this hearing to a point where I do not regard them as sufficient grounds for terminating his services, have been made against him by medical and nursing staff who were not called to give evidence in this hearing and who therefore cannot be the subject of cross-examination by Mr Taylor. Not only does that raise certain inferences in favour of Dr Wojtulewicz's evidence in this hearing [Jones v. Dunkel (1959) 101 CLR 298], it provides no evidence on which I may comfortably rely to challenge the version of the incidents advanced by him in this hearing. 271 Many of those alleged complainants were apparently not prepared to come forward and state their concerns openly, but to rely on certain employees who were prepared to do so but who really have nothing in the way of satisfactory evidence on which I may rely. Therefore, all that I have for some of those alleged complaints is hearsay evidence - what certain medical and nursing staff informed witnesses in this hearing had actually taken place. I do not believe that I may rely on such evidence with any confidence. 272 In fact, Mr Taylor argued at the outset that the material should not be admitted at all and he referred in that respect to comments made by Walton J - Vice-President of the Commission in Van Huisstede v. Commissioner of Police (2000) 98 IR 57 at p.96, viz: "....The applicant correctly pointed out that, although the Commission is not bound by the rules of evidence, this does not mean that the admission of evidence is unrestrained. Commonsense dictates that the Commission receive only evidence which is relevant to an issue which requires determination in order to decide the case: see PDS Rural Products Limited v. Corthorn (1987) 19 IR 153 at p.155. The requirement that the Commission '...inform itself on any matter in any way that it considers to be just...' [S.163(1)(b)] and exercise its functions according to '...equity, good conscience and the substantial merits of the case...' [S.163(1)(c)] demand that it consider any unfairness or prejudice which would be suffered by a party as a result of the admission of certain evidence. The admission of hearsay material containing evidence which is prejudicial to a party, but cannot be tested through cross-examination, has obvious potential to cause serious disadvantage to that party..." 273 Mr Einfeld indicated in the hearing that he intended to rely on such evidence to the extent that it formed a part of the record of Dr Wojtulewicz's employment in the GCNC, ie that a series of complaints had been made concerning him. As Mr Einfeld argued in his submissions, I am entitled to rely on such evidence to the extent that complaints were actually made - but not necessarily the accuracy of what is said in those numerous complaints [Subramaniam v. Public Prosecutor (1956) 1 WLR 965 at p.969]. Mr Einfeld also argued in his written submissions that: "....though not bound by strict rules of evidence, the Commission would not ignore S.69 of the Evidence Act, 1995 by reason of which business records will stand as evidence of the facts asserted in them. 'Business' is defined in Part 2, clause 1 of the Act's Dictionary to include '...an activity engaged in or carried on by the Crown in any of its capacities...', ie the respondent's documents were obviously brought into existence for the purpose of the hospital's business [S.69(1)(b)]. As such, the hearsay rule does not apply to them. In this case, the documents forming part of the hospital's records over time (such as the annexure to the affidavits of Dr Badawi and Dr Haliday and the exhibits to the affidavit of Dr Dorney) are properly evidence in the case to which regard might, and should, be had. Of course, the degree of weight to be attached to them will vary according to their terms and other evidence. The underlying rationale of the statutory provisions (as explained in the report of the Australian Law Reform Commission [ALRC 26, Vol 1 paras 702-5] is that, while errors may and do occur in records kept by an ongoing business, they are the exception rather than the rule, and it is for the party challenging the accuracy of the documents to demonstrate their unreliability. Here, correspondence and documents from staff observing the applicant's conduct, as well as internal hospital correspondence and memoranda relating thereto, all form part of contemporaneous documentation of the day. There is no reason to suppose, unless specifically demonstrated by the applicant, that they are not authentic and their contents genuinely expressed by their authors. They tell the story as it occurred, rebutting evidence to the contrary given by the applicant..." In my opinion, much of the evidence adduced against Dr Wojtulewicz does not qualify as business records. It is correspondence or memorandums (some of which are anonymous) by Dr Wojtulewicz's fellow employees. And clearly hearsay. Nevertheless, whilst I have some reservations about such evidence, I was prepared to admit evidence concerning those complaints over the objections of Mr Taylor . To my mind, their value as evidence in these proceedings is very dubious, however. 274 Also most of the more serious individual incidents with respect to which allegations have been made against Dr Wojtulewicz go largely uncorroborated. They are unrelated allegations made by an individual employee against Dr Wojtulewicz which are often emphatically denied by him. There may be no corroboration of either the version advanced by the individual employee, on the one hand, or Dr Wojtulewicz, on the other hand. It is, in fact, often the nature of allegations of sexual harassment that they involve one-on-one relationships - an alleged victim alone and one person allegedly guilty of misconduct with respect to that victim. Therefore corroboration of individual incidents is not likely. 275 That having been said, there are nevertheless a series of unrelated incidents with different employees before me in this hearing involving Dr Wojtulewicz which have such a common element to them that it suggests misconduct by Dr Wojtulewicz. Can those unrelated incidents be considered together to form an unsatisfactory picture of Dr Wojtulewicz's conduct at work in the GCNC - a pattern of misconduct on his part? In certain circumstances, I believe that it would be possible to consider the various unrelated matters together as a form of corroboration. 276 As a general rule and strictly following customary procedure in litigation, evidence of similar facts or acts in the past are usually not admitted into evidence. The evidence that a person has done similar acts in the past is irrelevant to show that the person did a particular act at a later time. Having regard to the seriousness of the allegations made against Dr Wojtulewicz - and the implications to his professional standing in the medical community if I accept those allegations as substantiated - I believe that I am entitled to rely on the best available evidence. If claims of some specific incident before me in this hearing, where such incidents are so emphatically denied and challenged by Dr Wojtulewicz, and they are not corroborated by proper evidence on which I am entitled to rely according to standard practice in any litigation, it is not improved by simply joining them all up together with other unrelated incidents which are also denied and similarly uncorroborated: nil plus nil still equals nil. 277 But as I understand the position, there are instances where past conduct may be received into evidence as corroboration of particular incidents [Makin v. Attorney General for New South Wales (1894) AC 57, R v. Smith (1915) All ER Rep.262]. In Martin v. Osborne (1936) 55 CLR 367 the High Court (Latham CJ, Starke, Dixon, Evatt and McTiernan JJ) considered this issue and Dixon J had this to say (at p.376): "....But it is at least true, I think, that the acts of a party are admissible against him whenever they form a component in a combination of circumstances which is unlikely to occur without the fact in issue also occurring. The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved..." In Hales v. Kerr (1908) 2 KB 601 Channell J explained the situation thus: "…It is not legitimate to charge a man with an act of negligence on a day in October and to ask a jury to infer that he was negligent on every day in September… But when the issue is that the defendant pursues a course of conduct which is dangerous to his neighbours, it is legitimate to show that his conduct has been a source of danger on other occasions, and it is a legitimate inference that, having caused injury on those occasions, it has caused injury in the plaintiff's case also..." 278 The various uncorroborated incidents described in this hearing have about them sufficient similarity to represent some form of corroboration, in my opinion. So many complaints have been made concerning Dr Wojtulewicz's conduct that, in my opinion, there must be at least some truth or substance in them: there has been so much smoke in the evidence in this hearing, that it goes without saying that there must be a fire somewhere. The other alternative, that all of the medical and nursing staff in the GCNC has simply embarked on a vendetta against Dr Wojtulewicz must be regarded as fanciful, in view of the number of persons who appear ostensibly to be in on such an alleged conspiracy, some of whom Dr Wojtulewicz regarded as friendly to him prior to these proceedings. Mr Einfeld has described Dr Wojtulewicz's claims in that respect as a myth - a continuing failure on his part to accept that his conduct was unacceptable. Moreover, Dr Wojtulewicz has admitted some of the misconduct and, to that extent, his own evidence provides at least some level of corroboration of the incidents. But it cannot be doubted that some members of the GCNC staff have simply developed an intense dislike of him which has coloured their attitude to his every act. 279 I am prepared to accept that from time to time Dr Wojtulewicz has conducted himself in a manner which is inappropriate in the GCNC and that his misconduct has warranted some of the criticism levelled against him by his colleagues. But it seems to me that some of the GCNC staff have simply joined those many unrelated, and mostly trivial, matters together to establish, at least to their satisfaction (if not to mine), an unacceptable pattern of behaviour over many years by Dr Wojtulewicz. However, it emerges from the evidence before me that Dr Wojtulewicz has often behaved inappropriately in the workplace, made comments which were not appreciated by fellow employees and has from time to time lost his temper and adopted a somewhat intolerant attitude to the views of his colleagues - whether he was always justified in doing so or not remains unclear. Conclusion 280 But does such conduct warrant Dr Wojtulewicz's dismissal - the ultimate sanction for disciplining an employee? I do not believe so. I would not have thought that there was such an oversupply of competent medical practitioners in the State health system, particularly as far as serious medical conditions with children are concerned, that it would permit the Department of Health to throw away a competent medical practitioner quite so readily. Whilst Dr Badawi alone does not appear to share the view that Dr Wojtulewicz was a competent medical practitioner, it is the perception of many witnesses (including those who clearly do not like him) in uncontested evidence before me in this hearing that Dr Wojtulewicz was, in fact, a competent medical practitioner. Instead, at considerable unnecessary cost to the community the Health Department has apparently departed from the procedural requirements for disciplining staff and stood down Dr Wojtulewicz on pay while he was always ready and willing to work and, in fact, anxious to do so. 281 Customarily, allegations of harassment, sexual or otherwise, against employees involve, in the first instance at least, some form of counselling (which appears to have taken place from time to time as far as Dr Wojtulewicz is concerned, albeit on what I regard as a fairly informal basis) and clear warnings given to him that such further conduct may lead to further disciplinary action, including his dismissal (which appears never to have really occurred). Instead the concerns and complaints of the nursing and more junior medical staff in the GCNC who were prepared to bring the matters of concern over Dr Wojtulewicz's conduct forward passed from Dr Halliday, Dr Gillis, Professor Procopis, Dr McCaskill and, finally, Dr Dorney, before any decision was made - and that decision was to suspend Dr Wojtulewicz from employment. 282 Subsequently, the Department of Health decision was to dismiss him - contrary to the views expressed by the IR's report and what was being advanced in the conciliation proceedings before Grayson DP. Some intermediary, and less drastic, step to dismissal would have been appropriate, in my view. The dismissal of any employee should be regarded as the last step for an employer to take in disciplining an employee. That is especially the case for a senior employee in a specialised field of work. 283 And it remains unclear to me who now has actually stepped in to abort the conciliation of the matter before Grayson DP which, to my mind, would have brought this sorry saga to a more effective conclusion than the lengthy arbitration that has eventuated before me. Mr Taylor makes reference to the failure of the Health Department to call the actual decision maker on this matter as a witness in the hearing in written submissions, viz: "....The respondent elected to call no decision maker: not Dr McCaskill who had recommended the original suspension; nor Mr Clout, who had decided not to proceed with the secondment; nor Dr Penna, the chief executive, who had decided to dismiss Dr Wojtulewicz; and not Mr Horn, the IR manager who had provided advice throughout and who had signed the dismissal letter on behalf of the Chief Executive. The Commission was given no evidence as to why the dismissal was considered necessary, and certainly no evidence that anyone had concluded that Dr Wojtulewicz had committed acts of misconduct justifying his immediate and summary dismissal. It is unfair to attempt to seek to justify a dismissal without any attempt to explain what the decision maker took into account or relied upon..." 284 Mr Einfeld has recognised that many of the allegations against Dr Wojtulewicz are stale. He has emphasised only recent incidents in his submissions - the Baby Corey incident, the incident involving Ms James, the disagreement with Professor Trudinger, the incident involving Dr Lin, the hair clip incident. Looked at in isolation, those incidents are not particularly impressive, but Mr Einfeld suggests, quite correctly, that they must be considered in the context of Dr Wojtulewicz's overall employment record. Nevertheless, Mr Taylor emphasised in his submissions that those more recent incidents do not necessarily represent the type of issues which originally were brought forward as complaints against Dr Wojtulewicz. 285 I note the following comments by Macken J in Australasian Transport Officers Association v. Department of Motor Transport (at p.243) that seem to me to be particularly relevant in the current hearing: "....There can be no doubt that to be dismissed summarily from one's employment for misconduct, in circumstances of some disgrace, after 31 years of continuous service with the Department of Motor Transport, and thereby to lose a supervisory position of some seniority and, simultaneously, to forfeit the sum of $54,000.00 - being the total of (the dismissed employee's) entitlement to superannuation - is a penalty the severity of which only has to be stated to be understood. Employees of shorter service, dismissed in the same circumstances, would not lose their superannuation entitlements because of statutory amendments. It was unhesitating acknowledged by the Department of Motor Transport that the incidents on the afternoon in question, even if made out would not of themselves warrant such an inordinate penalty being imposed upon an employee. This would seem to be particularly so as it is understood that the sexual harassment provisions would seem to entitle (the dismissed employee) to be merely 'counselled' in ordinary circumstances. However, (the person), who made the decision to dismiss (him) justified the severity of his decision by taking into account a number of past complaints against (him) which dealt with his manner of speaking to subordinate staff. The matters he took into account included complaints against (him) which were not substantiated at all..." 286 Furthermore, one of the factors a member of the Commission may take into account when assessing the fairness or unfairness of a dismissal, contained in S.88(c), is: "…whether a warning of unsatisfactory performance was given before the dismissal or threat of dismissal…" It is customary for such a warning to be in writing and for the employee to indicate on the written notice that he has read the contents of the document and understands them. Nothing of that nature has occurred in the case of Dr Wojtulewicz. In my unreported decision of Wednesday, 9 March, 1994 in Watters v. Zig Zag Railway [Matter No.IRC 3126 of 1993] I had this to say (at p.7) over warnings: "...An employee is entitled to be warned in clear terms, preferably in writing, if his work performance is unsatisfactory to the extent that he may be dismissed over it. That is unquestionably an important factor in any assessment of whether or not a dismissal was unfair..." 287 Mr Taylor has, in fact, linked the concept of condonation to the need for an employer to provide adequate warnings. In his written submissions, he comments: "....An absence of warnings is linked to the principle of condonation: where an employer is aware that an employee has committed an act which the employer considers misconduct and the employer fails to bring that to the attention of the employee and give the employee a warning, the employer will be said to have 'condoned' the conduct (or waived ability to rely on it). The employer cannot rely upon it later to justify dismissal because it removes the capacity of the employee to respond at the time, it prevents the employee understanding that such conduct is inappropriate and, thirdly, it prevents the employee being given an opportunity to improve..." 288 Mr Einfeld has submitted that procedural issues, and in particular the question of warnings, are less relevant in this hearing since at this time Dr Wojtulewicz has not actually been dismissed and that this hearing, in a sense, has become part of the procedure in which the Department of Health is engaged with Dr Wojtulewicz. Nevertheless, it is unarguably the position that the Department of Health intends to terminate the services of Dr Wojtulewicz: that has been its position from the outset and it continues to be its position. It is much too late to suggest that procedural matters, and particularly warnings, may be considered in the context of this hearing, in those circumstances. The warnings were not effectively given to Dr Wojtulewicz and the Department of Health is not in a position to give them now. They would make no difference to its professed intention to bring his employment to an end. 289 Some offences by an employee, of course, must go beyond the need for a warning. It is absurd to suggest that an employee must be warned not to steal from his employer, not to falsify his time and wage records or not to fight other employees in the workplace, for instance. In its decision in Electricity Commission of New South Wales v. Nieass (1995) 81 IR 46 the Full Bench (Fisher J - President, Bauer J and Patterson CC) commented (at p.68) as follows: "…We reject as industrially inappropriate any notion that adult, responsible and senior employees are entitled to a warning that they might be dismissed if they continue to misconduct themselves within employment dishonestly. No employee of ordinary understanding and certainly not employees of mature age, substantial classification and seniority, need to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told that they should be careful in crossing the street…" But allegations centring on bullying and sexual harassment of employees are still matters which I believe that employers would be expected to communicate to offending employees in sufficient detail to permit those employees, even employees in very senior positions, to correct their conduct. 290 I also note the decision of the Full Bench of the Commission (Boland and Blackman JJ and Macdonald C) in Maitland v. Royal Blind Society of New South Wales (2004) 138 IR 75 where the dismissal of an employee accused of sexually harassing a fellow employee was considered to be harsh, unreasonable or unjust for the purposes of S.84(1) because there remained some doubts concerning the evidence and, among other things, the Full Bench believed that the personal and economic consequences for the dismissed employee was disproportionate to the seriousness of his conduct. 291 Because of the specialised skills possessed by the dismissed employee in Maitland v. Royal Blind Society of New South Wales, monetary compensation under S.89(5) was not considered by the Full Bench as an appropriate remedy for the employee and he was reinstated in employment. The offer which the Department of Health has made to Dr Wojtulewicz of a similar nature during the conciliation of this matter, and which Mr Einfeld indicated is still available but is equally inappropriate to him for the same reason as discussed in Maitland v. Royal Blind Society of New South Wales. The Full Bench had this to say (at p.92): "...The appellant was engaged in a specialist occupation. His dismissal left him unemployed and because of the nature of his specialist skills, employment would have been hard to find, especially when he carried the stigma of being dismissed for what was in reality a belief on the part of the employer that (the appellant) was guilty of sexual harassment.... The Commissioner found that the dismissal of (the appellant) was not harsh, unreasonable or unjust....(but) it is not evident that the Commissioner considered the personal and economic consequences for the appellant of the dismissal. Where an employee who has been dismissed from his or her employment, and particularly where the employee pleads harshness as to the consequences of the dismissal for his or her personal and economic situation, as was the case here, it is important that due regard is given and is seen to be given to those matters. We consider the Commissioner erred in this respect to the extent that dismissal from employment was wholly disproportionate to the seriousness of the appellant's conduct..." I believe that those comments are equally relevant for Dr Wojtulewicz, having regard to the standard of the evidence against him in this hearing. 292 I do not consider that in Maitland v. Royal Blind Society of New South Wales the Full Bench is in anyway contemplating that, where an employee is guilty of serious sexual misconduct in the workplace, the fact that he is a professional employee working in a career with limited scope for employment in that field elsewhere, or the difficulties he may experience in obtaining alternate employment, should prevent the employer from fairly exercising its right to terminate his employment. It is simply providing guidelines to ensure that the evidence against employees like Dr Wojtulewicz is examined with care. It is also highlighting the need to take such matters into consideration. I do not believe that the Health Department has really done so in choosing to terminate his services. 293 Mr Taylor commenced his written submissions by summarising the position, accurately in my opinion, stating: "....Dr Wojtulewicz was suspended on pay over three years ago because of concerns his health might affect his clinical capacity. Two independent reviewers recommended over two years ago that he be allowed to return to work as there was no question as to his medical capacity. Yet the respondent, faced with staff who did not want Dr Wojtulewicz to return, chose instead to dismiss him and at a hearing to rely on old complaints as to his behaviour that it had taken no action to address during his employment. The case evidences an approach to industrial relations which falls substantially below what is expected of any employer, not least a large public sector employer..." 294 In the circumstances, I do not consider that there are grounds for the dismissal of Dr Wojtulewicz. I note in that respect the final report of the IR's in the middle of 2007, to which I referred earlier in this decision, suggested that: "....the IR's cannot recommend that Dr Wojtulewicz be re-instated to his position in the GCNC because we consider it impossible for Dr Wojtulewicz to resume working there. There has been a mutual disintegration in trust, respect and confidence between Dr Wojtulewicz and other senior staff of the GCNC that appears to be permanent and irrepairable. The staff in the GCNC have informed the IR's during the course of the review that they will not and cannot work with Dr Wojtulewicz should he be reinstated. Indeed, the team in the GCNC has moved on without him and the IR's are of the opinion that it is too late to change direction and reinstate him in his previous role in the GCNC..." But it went on to propose that: "...an alternative position for Dr Wojtulewicz at the CHW should be considered by senior management of the CHW... Dr Wojtulewicz will require guidance and behavioural counselling to improve his insight into the impact his behaviour may have on colleagues and others who are in a position of less authority. Dr Wojtulewicz will require close clinical supervision. Dr Wojtulewicz will require close performance management. A performance management plan should be signed and agreed by both Dr Wojtulewicz and senior management at the CHW. This should include performance measures and a suitable time frame for achievement..." That is a course which was ultimately not followed by the Health Department. Notwithstanding Dr Wojtulewicz's objections to the IR's report, it seems to me that the course charted in that report would have been considerably more sensible than the ultimate decision to terminate Dr Wojtulewicz's services. Outcome 295 For those reasons, I see no justification for the termination of Dr Wojtulewicz's services and the order I make under S.89(7) is therefore to restrain the Department of Health from terminating his services. Having regard to Mr Einfeld's submission concerning my jurisdiction under S.89(7), I make no direction in these proceedings of an ancillary nature under either S.89(8) or S.130 at this time. I prefer instead to recommend that the ASMOF and the Department of Health hold further discussions on the issue with a view to arranging for placement for him in a children's hospital (but not, for obvious reasons, in the GCNC) at his present level of senior staff specialist. 296 I would anticipate that those discussions between the ASMOF and the Department of Health would be along the lines that were originally advanced in the conciliation of this matter, ie to provide a period of re-skilling to assist him to obtain his preferred work in sleep medicine, and subject to a level of counselling concerning his conduct and a performance management plan. I have formed the impression from Dr Wojtulewicz's evidence in this hearing, his willingness and capacity for such counselling now. 297 It is open to me to ultimately reconvene these proceedings or the related S.130 proceedings, if the parties are not able to reach a suitable position in their discussions. I reserve the rights of the ASMOF or the Department of Health in that respect. And as I indicated earlier in this decision, I propose to reconvene the S.130 proceedings again on Thursday, 11 February, 2010. P J CONNOR Commissioner LIST OF WITNESSES Badawi, Nadia (Dr) medical director Berry, Andrew (Dr) medical director for newborn and paediatric emergency transport Brown, Catherine nursing clinical co-ordinator Carmichael, Victoria clinical nurse specialist Carmo, Kathryn (Dr) staff specialist Consadine, Annette* mother of child in care Ditton, Jill social worker Dorney, Stuart (Dr) director (clinical governance) Elkington, Richard (Dr)* paediatric cardiologist Elliott, Jennifer nurse manager Halliday, Robert (Dr) senior staff specialist Hawker, Richard (Dr)* paediatric cardiologist Holmes, Lucy (Sandra) nursing clinical co-ordinator James, Kristen clinical nurse specialist McKenna, Katie nurse educator Minter, Cathy (Ms)* mother of child in care Parkinson, Bronwyn clinical nurse specialist Selmeci, Carol nursing clinical co-ordinator Seton, Christopher (Dr) staff specialist (paediatrics) Sherwin, Megan (Dr) staff specialist Spence, Kathryn (Kaye) clinical nurse consultant Wojtulewicz, Julian (Dr) applicant Yeung, Melinda pharmacist *Evidence admitted without the witness being required for cross examination GLOSSARY OF ABBREVIATIONS ASMOF Australian Salaried Medical Officers Federation CHW Westmead Children's Hospital CNS clinical nurse specialist CPAC continuous positive airway pressure EEG electroencephalogram ETT endotracheal tube GCNC Grace Centre for Newborn Care at the Westmead Childrens' Hospital IR's Independent Reviewers IRP Impaired Registrants Panel MAC Medical Advisory Committee MOPS Maintenance of Professional Standards program MRI Magnetic Resonance Imaging NPT nasal pharyngeal tube NETS Newborn and Paediatric Emergency Transport Service NIDCAP Newborn Individualized Development Care and Assessment Program NUM Nurse Unit Manager RACP Royal Australian College of Physicians RMOA Resident Medical Officers' Association SESIAHS South Eastern Sydney and Illawarra Area Health Service SIMV synchronised intermittent mandatory ventilation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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