Industrial Relations Commission New South Wales Medium Neutral Citation: Bossak v Murrumbidgee Local Health District [2019] NSWIRComm 1054 Hearing dates: 11 March 2019. Written submissions filed 15 April, 6 and 15 May 2019. Further hearing 16 July 2019. Decision date: 29 August 2019 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: Application dismissed Catchwords: VICTIMISATION – applicant claimed benefit of an award – pattern of behaviour dating back to 2005 – applicant made complaints of bullying – agreements entered into by applicant were "mere salvage operations" – performance issues – external investigation – meaning of "victimisation" – proposed adoption of recommendations not victimisation Legislation Cited: Industrial Relations Act 1996 Cases Cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Davis v Amalgamated Television Services Pty Limited [1998] 81 IR 364 Caleta Trpimir v Northern Sydney Area Health Service [1995] NSWIRComm 38 Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 Jones v Dunkel (1959) 101 CLR 298 Paula Lee v Ausgrid (no 6) [2013] NSWIRComm 62 Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076 United Group Resources Pty Ltd v Calabro (No 5) [2011] 198 FCR 514 Category: Principal judgment Parties: Dr Peter Bossak (Applicant) Murrumbidgee Local Health District (Respondent) Representation: Solicitors: Mr C McArdle, McArdle Legal (Applicant) Mr R Hassall, Sparke Helmore Lawyers (Respondent) File Number(s): 2018/00332521 DECISION 1. On 30 October 2018, an Application for Relief from Victimisation was filed in the Office of the Industrial Registrar on behalf of the applicant, Dr Peter Bossak. The application sought the following relief: A. The applicant claims an order: 1. That the Performance Finding in the Report (as those terms are defined in Annexure A) is quashed and the Respondent may not take any steps in reliance on the Performance Finding. 2. that the Respondent is directed not to carry out a threat of victimisation being the institution of formal performance management proceedings against the Applicant. and claims an order for payment of the sum of $1,600,000 being for: 1. Reimbursement of lost earnings being the difference between advertised rates for his former position and the actual rates for his current position. 2. Compensation for pain and suffering. 1. These proposed orders were sought against the Murrumbidgee Local Health District ("the respondent") where the applicant is currently employed in the capacity of Career Medical Officer in the Emergency Department of the Wagga Wagga Base Hospital. The statutory scheme 1. Relevant (to this case) provisions of the Industrial Relations Act 1996 ("the Act") are set out below. 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: …………………….. (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or ………………………….. (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or ………………………….. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: ………………………… (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, ……………………………... (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, …………………………….. (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. Particulars of alleged victimisation 1. The "Particulars of Victimisation" were set out in Annexure A to the application in the following terms: Background 1. The Applicant is a medical practitioner. 2. He is 71. In view of what has occurred, it is necessary to stress that he has had no patient complaints, no notifiable incidents, and no instances of clinical shortcoming. 3. The Applicant has been employed by the Respondent at Wagga Wagga Base Hospital (WWBH) since on or about 8 April 2005 4. Since on or about 5 December 2010, the Applicant was been employed in the capacity of Career Medical Officer pursuant to terms and conditions set out, inter alia, in a letter dated 19 October 2010. 5. Prior to that contract, the Applicant had been employed as follows: a. Director of the Emergency Department at Wagga Wagga Base Hospital; b. Remunerated as a Staff Specialist; c. In anticipation of taking and passing prescribed examinations to become a Fellow of the College of Emergency Medicine ("the College); d. Receiving relief to the extent of a 25% discount of duties, and participation in the Registrar and Training program conducted at Canberra Hospital two days per week; e. Relief from weekend work to one weekend per month. 6. In 2007, and 2009, the Applicant was spuriously penalised in his employment in such a way as to require the intervention of this Commission. He was exonerated on both occasions 7. The second incident entailed the dismissal of the Applicant, on the unfounded grounds that he had not succeeded in his examination, having sat unsuccessfully twice. This was notwithstanding that the records of the College clearly disclose that considerably more than two attempts are permitted, and often taken. 8. The Applicant was then 62. 9. The Applicant was then required to work as a Career Medical Officer, and his remuneration was reduced from that of a Specialist. All facilitation to him to enable him to again sit for the examinations was cut off. 10. At present, depending on the position, the difference between the remuneration of a Career Medical Officer and a Staff Specialist in Emergency Medicine, is about $205,000 per year. That is based on the Award difference, but is also based on amounts proposed in relevant advertisements for positions. 11. The reduced salary has thus prevailed since 2010. 12. In May 2011, the Applicant complained about the behaviour of Dr Shane Curran, then the Director, of the ED: Particulars i. Had threatened the Applicant, by boasting of having removed a "Jewish doctor in Melbourne" (the Applicant has a Jewish surname, and is culturally Jewish). ii. Said that the Applicant had a "target on his back". iii. Occasions of pointed humiliation in the presence of staff of all levels. iv. A declaration that "no candidate from the United States has ever passed" the [Fellowship exams for the College of Emergency Medicine]. v. A declaration that he was going to "do his best" to ensure the Applicant did not pass the exams. vi. Making derogatory remarks behind his back to the nursing and other support staff. vii. Refusing to place him in charge of a shift, viii. Making false claims to the press that training accreditation had been withdrawn from Wagga Wagga Base Hospital because the Applicant had been director of the ED. ix. Excluding the Applicant from authority to admit patients, and refusing to give a reason. x. Manipulation of rosters to force the Applicant to work excessive hours. xi. As supervisor of the applicant, purposely giving the Applicant an erroneous date of renewal so that the medical registration of the Applicant lapsed. When confronted, saying "l can get away with anything in this place. I just say what I want and no one checks". xii. Saying, "It's your fault for believing me. I really enjoy making your life as miserable as I can. If you complain, I'll just deny everything". xiii. Refusing to vouch for the Applicant to be promoted to Senior Career Medical Officer in September 2010, saying "I don't need any evidence." xiv. Rostering the Applicant on evening shifts specifically so as to prevent him attending to flood damage in his house. xv. Refusing to give the Applicant adequate leave when he had to have urological surgery because "problems like this really stuff up my roster". xvi. Asking the Applicant repeatedly, in the meeting at which he requested leave for his surgery, "Why are you old, why are you old?" All of the above contained in written complaint of 3 May 2011. 13. Dr Curran remained as the Director of the ED, until his employment as Director of the ED was terminated in January 2016. His conduct towards the Applicant did not change in substance while he remained as Director. He was permitted by the Respondent to continue with his conduct. 14. The Applicant was declared to be subject to a "performance improvement plan" by Dr. Curran's replacement, Dr. Stephen Wood, in March 2016. The Respondent would not say what deficiencies in the Applicant's performance warranted such a plan, or would not acknowledge facts when the allegation of the number of patients seen was produced. Particular i. Emails from and to the Applicant and the Respondent ii. Correspondence between the Applicant's Association and the Respondent. iii. Verbal exchanges 15. In June 2016, the Applicant was addressed with raised voice by Dr Stephen Wood, Dr Curran's replacement, who accused him, within hearing of all staff, and patients in the waiting area, of "seeing a patient out of order" when he had not. 16. On 19 July 2016, Dr Wood said to the Applicant, inter alia, "You are worthless". 17. Repeatedly said during 2016, and 2017, by Dr Wood, to the Applicant, were words to the effect, "You are getting too old for this." 18. In December 2017, an unsigned letter declared that Dr Wood had informed staff that they were invited to report shortcomings of the Applicant to Dr Wood. Particular i. Unsigned letter ii. Acknowledgement by Dr Wood. 19. In November 2017, the Director of Medical Services, Dr Banga who had never discussed the contents with the Applicant, wrote the Applicant a letter threatening that "continued underperformance" would result in the Applicant's dismissal. The letter referred to unspecified "unproductive and inactive behaviour", "inefficient management of workload", and "poor teamwork". Particular Letter of 1 November 2017 from Dr Banga to the Applicant 20. When confronted, Dr Banga was unable to verify any such shortcomings, which the Applicant was able to rebut. Particular Documents and notes presented to Dr Banga by the Applicant refuting the allegations. 21. On or about 10 February 2018, the Applicant submitted a complaint to the Respondent to the effect that Dr Stephen Wood, Co-Director of the WWBH Emergency Department had bullied the Applicant by various acts including attempts to place the Applicant on a formal performance improvement plan (Complaint). 22. The Complaint was a complaint about a workplace matter that the person considers is not safe or a risk to health. 23. In or about July 2018, Tim Smyth Consulting was appointed by the Respondent to conduct an investigation into the Complaint. 24. On or about 9 October 2018, Tim Smyth issued his report into the Investigation of the Bullying Complaint by Dr Peter Bossak (Report). 25. One of the findings in the Report was that: a. There is an underlying productivity and performance issue with the Applicant (Page 11 of Report) (Performance Finding) but produced no evidence, since none exists. 26. One of the recommendations in the Report was that: a. a formal performance review meeting with Dr Bossak be scheduled for November 2018 with the review undertaken by Dr Fry with Drs Cumberlege and Heaney, in attendance b. The review meeting should focus on Dr Bossak's workflow, "the concerns raised by nursing staff' and the actions expected of senior medical staff in addressing patient flow, wait times, multi-tasking and working as a team during their rostered shifts in ED (Performance Review Recommendation) 27. The Applicant says that he has been or will be victimised contrary to Section 210 (e) and (j) of the Industrial Relations Act, 1996 a. By the terms of reference of the Investigation permitting the investigator to exceed making a decision on whether or not the Applicant's Complaint was or was not substantiated and instead making the Performance Finding which was outside the scope of the investigator's powers b. when the Performance Review Recommendation is acted upon c. Continuation of the treatment he has received as described above d. Continuation of the financial penalty as described above. (Acts of Victimisation) 28. The Acts of Victimisation have been or will be taken in whole or in part because: a. the Applicant claimed a benefit to which the person is entitled under an industrial instrument (being a safe place of work under the Work Health and Safety Act 2011 (NSW) and/or b. because the Applicant made the Complaint. c. The Applicant participated in proceedings relating to an industrial matter. The evidence The applicant 1. The application was supported by an affidavit affirmed by the applicant in the following terms: 1. I am a Medical Practitioner. 2. I am aged 71. 3. I refer to the statements of fact contained in my Application for Relief From Victimisation filed in these proceedings. I confirm the accuracy of each of those statements of fact, according to my knowledge of each matter. 4. I have been employed as an emergency medical doctor by the Respondent and its predecessor since April 2005, when I was 57 5. I have held the positions of Non-Clinical Director, Accident and Emergency (from commencement of my employment until July 2009), acting Staff Specialist (from 2005 to 2010) and Career Medical Officer, from 2010 to the present. 6. I was appointed to the position of Director, Accident and Emergency after having expressed interest in working outside of the USA. I spent 27 years years practicing Emergency Medicine in the United States. 7. I was subsequently contacted by an agent of the Respondent's predecessor, The Greater Southern Area Health Service. 8. In late 2004, The Wagga Wagga Base Hospital (WWBH) Emergency Department had achieved accreditation by the Australasian College for Emergency Medicine to train candidates who were preparing to become Emergency Medical Specialists. One of the recommendations from that process was that a Non Clinical Director of Emergency Medicine should be hired to head the Emergency Department. 9. I was flown to Wagga Wagga NSW, to be interviewed, and was offered the position about 8 weeks after the initial contact from the said agent. 10. At the time of my appointment I held in the United States the position of Medical Director, and Chief of the Emergency Department at Southeast Georgia Medical Center, Southeast Georgia Health System, Brunswick, Georgia. I was Board Certified in Emergency Medicine in The USA (Board Certification Emergency Medicine). The hospital concerned had 300 beds and 38,000 patient visits per year to its Emergency Department. 11. In comparison, WWBH, has 264 beds and 37,000 Emergency Department visits per year. 12. My motivation for seeking this employment was that I admired the Australian health care system. I saw the move to Australia as a new career challenge, and an exciting opportunity and adventure for myself and my son. I had put "feelers" out regarding what opportunities might exist and as referred to above, and was contacted by the recruiting company I have mentioned, representing WWBH. 13. Since moving to Wagga, I have become personally integrated into the community. I met and married my wife after moving to Wagga. I know from my clinical results and my personal networks, that I have now, and will continue to have, much to offer the community of Wagga. I want to stay here and I love the Australian way of life. 14. The arrangement agreed and implemented, was that I would assume and conduct the role of Non-Clinical Director/Clinical Coordinator of Emergency Medicine at Wagga Wagga Base Hospital. Because I was not yet an Emergency Medicine Specialist in Australia, my AHPRA medical registration would be that of a Career Medical Officer. However, WWBH and the Greater Southern Area Health Service enticed me to accept the position by paying me the remuneration of a Staff Specialist based on my qualifications and experience in the USA. 15. The agreement between WWBH and myself was that I would obtain my Australian Fellowship of the College of Emergency Medicine ("FACEM") by preparing for and taking the FACEM examination. Greater Southern Area Health Service and Wagga Base Hospital also agreed to support any secondment arrangements required if additional Australian training was necessary. There was never any discussion during my recruitment or signing of my contract regarding how long this process of attaining my Fellowship would or should take, or how many attempts the agreement would be restricted to. 16. When I began the position of Director/Clinical Coordinator at Wagga Base Hospital, I had no idea that Dr. Shane Curran, FACEM, also wanted the job to which I was appointed Dr. Curran had been a previous Director of the Emergency Department at WWBH. In May 2005, two months after I arrived at WWBH, I had to confront Dr. Curran about his refusal to work weekends like the other staff specialists. He became very angry and told me that "if he has to work weekends I will, but from this moment on you have a target on your back. Your job is just temporary. You don't fit in here and it won't be long before I have my job back." This can be confirmed in my official bullying complaint filed against Dr. Curran on May 3, 2011 with the Murrumbidgee Local Health Network (previously Greater Southern Area Health Service). Dr Curran was then and is now, a Fellow of the College of Emergency Medicine, (FACEM). 17. I was not informed that an aspirant to the job, who would take my appointment badly (which I refer to below), was going to be present after I started. Had I been told, l would have thought differently about the arrangments, and would not have taken the job unless I had been assured that what did happen, was going to be prevented. 18. I commenced employment in April 2005. As stated, a condition of my appointment was that l would commence training for and sit the exams for, Fellowship of the College of Emergency Medicine ("FACEM"). I enrolled in that training, commencing in January 2007. There was no condition as to any restriction of the number of attempts, although, I accepted myself, that the number of attempts had to be "reasonable" - say, up to four. 19. After a planned structured interview with the College of Emergency Medicine it was decided that to fully integrate into my permanent position of Director/Clinical Coordinator and successfully take the FACEM examination, it would be appropriate to undergo a year of advanced training at an Australian hospital that would totally immerse me in the highest level of Australian Emergency Medicine and rapidly expose me to the differences between Australia and USA. Although the basic practice of Emergency Medicine is the same, there are huge differences between the health care systems (fee for service vs government controlled), resources, agencies to which to report, available medications, trauma and mental health systems, Australian diseases, venomous insects, spiders and snakes, patient transfer options and retrieval systems - to name a few. Also, the examination process was very different from the USA. 20. The arrangement of me conducting non-clinical management only, proceeded without controversy until March 2006, when I was required to take up clinical duties due to the departure of Staff Specialists. My administrative duties did not go down, but I had to add face-to-face patient consultations to my workload. Although I enjoy and am stimulated by clinical work, and can point to my record of success in it, the added duties were an unarguable increase in workload. 21. That arrangement proceeded for the next twelve months. 22. Then, without warning, I was stood down on full pay for five months, commencing on 31 March 2007. The Respondent claimed that there were unspecific "clinical and managerial issues". I was never told, beyond generalities, what these "issues" were and was never given a chance to respond before I was stood down. I refer to the correspondence of the time. I was never told who it was that had made the unspecific allegations against me. However, when the accusations were not substantiated and I was reinstated, I asked Dr. Curran if he played a part in my being stood down and he admitted that he did. I do not recall his exact words at the time, but his conduct was confirmed in his response to the accusation in my formal bullying complaint, which I made on May 3, 2011. In that context, the record speaks for itself, which I say shows that Dr. Curran openly admits that he was responsible in 2007, for "issuing concerns" to the Director of Medical Service, Professor Gregory Papworth that resulted with me being stood down. 23. I was told by Prof. Papworth, when I was Director, that he "did not like overseas trained doctors" and particularly Americans because "they took Australian jobs". This was consistent with the mentality that existed at the time at the Administrative level in Wagga Wagga Base Hospital. I refer to an Article in the Sydney Morning Herald April 22, 2008 concerning a matter in which Prof. Greg Papworth was involved: 'Racism rife at hospital says suspended doctor." Dr. Atkin Pitsoe, a South African staff specialist gave testimony over "an unsubstantiated and unwarranted suspension from his job as as a staff Specialist at Wagga Wagga Base Hospital." Dr. Pitsoe was also not given a chance to respond to allegations of "significant concerns" before he was stood down when Professor Papworth received a letter from an unidentified doctor about Dr. Pitsoe and other foreign trained doctors regarding the medical care they were providing. As in my case, none of the "concerns" against Dr. Pitsoe were substantiated. 24. This behaviour towards me was damaging to my health, in that it caused me anxiety (see below) and depression, and had physical repercussions, which I also refer to below. My complaints were all to a large extent made because of the effect the behaviour was having on my health, apart from the other reasons of remuneration and breach of contract and the representations underpinning the contract. 25. There have been no less than twelve Directors of Medical Services (DMS) at WWBH in the past 14 years. In my opinion, Dr. Curran would use this "loss of corporate memory", his credentials as the only FACEM, and his history of being a past Director in the Emergency Department to create suspicion and doubt in each subsequent DMS about certain individuals in order to get what Dr. Curran wanted. In my case, Dr. Curran wanted my job. I believe the undermining of my reputation began with Dr. Greg Papworth and it just perpetuated itself as the players changed. Each acting DMS rarely asked for the evidence to support the alleged accusation. 26. The "solution" offered during my period of being stood down, was contained in a letter of 3 September 2007 from Ms Grey, Chief Executive of the Respondent at the time. It offered as a "solution" that I stop my training to become a FACEM, and forego my Staff Specialist-equivalent remuneration. That summarised the entire theme of the conduct towards me. My remuneration pursuant to the Specialists Award underpinned all the "solutions" offered, until that remuneration disappeared. 27. This was unacceptable. My Association wrote in response on 14 September 2007… 28. Annexure B (correspondence from Greater Southern Area Health Service to the applicant dated 28 October 2007) pointed out my apprehension as to the real purpose of the action in standing me down. This was that persons who did not identify themselves, simply "deemed" that I was earning too much money, and they wanted to breach my contract. They also did not wish me to obtain my specialist qualifications. They were, accordingly, prepared to fabricate a claim of "clinical and managerial issues" without saying what such issues were, as an excuse to remove me. My apprehension was that they did not want me to have the benefit of the Staff Specialists (State) Award. Their proposal certainly would have certainly had that effect. 29. From the commencement of actions against me, the principal theme appeared to me to be that I should not be paid the Staff Specialist remuneration. I would not have taken the appointment if I had known such conduct would manifest itself. 30. Annexure C (correspondence from Greater Southern Area Health Service to the applicant dated 19 October 2010) was then produced by the Respondent. It provided for my removal at such time as the Respondent found a replacement. It also introduced a "deadline" on shift relief and other benefits, that would be given to me so that I could obtain my FACEM. No such deadline had ever been mentioned when they were offering me the job. 31. That proposal put me in a different position to all other aspirants to FACEM that I was then, or am now, aware of. Based on my knowledge, I say that aspirants are given unlimited time and an unlimited number of attempts to pass the FACEM examinations. I know of no person besides me who has had an identical or similar restriction placed on them. The only thing that set me apart, was that I was at that time, receiving the benefit of remuneration pursuant to the Staff Specialists Award, while I studied. 32. I then worked as the Clinical Director of the Emergency Department for all of the remainder of 2007, for all of 2008, and up to June 2009. No shortcoming of any kind was identified to me regarding my work, during this entire period. 33. In early 2009 I saw a letter that was written by Dr. Curran to the Health Service. It was accidently left at a desk site in the Emergency Department at WWBH. The letter laid out all of Dr. Curran's credentials and experience including serving as a past Director. It pointed out that he was the only local FACEM in the Department and deserved to be Director of the Emergency Department. The letter ended by Shane Curran threatening to sue the Health service if he was not appointed to the position of Director. 34. Dr. Curran was appointed to the position of Director of the Emergency Department replacing me, in July 1, 2009. He had continued to work in the Emergency Department since 2005, and was at most relevant times, the only local FACEM on staff. 35. During the period from September 2007 to August 2009, I had proceeded in accordance with Annexure B. In Wagga Wagga I worked on a 75% case load at Wagga as Acting Director of the Emergency Department so that I could go to Canberra (two hours drive away) for two days per week to pursue my FACEM training, part time. This would take me two years to complete. In Canberra, I attended lectures, and worked clinically as an Emergency Medicine trainee (Registrar) seeing patients in the Emergency Department of Canberra Hospital, whilst enrolled in my FACEM training. Additionally, during this time I successfully completed an original, research project in Emergency Medicine and presented this successfully at the Australasian College of Emergency Medicine Scientific Assembly in Wellington New Zealand in 2008. I also successfully completed my year of advanced training (taking 2 years because my training was part time) in Canberra in January 2009. 36. My course work and practical work towards the FACEM progressed well. It was made more difficult, however, because Dr Curran's appointment in 2009, and my need to "hand over" to him, occurred less than one month before my first attempt to pass the written FACEM exam. This was time I should have spent studying (which was a pending commitment known to Dr Curran and other senior staff). It was, instead, spent at their insistence, with "hand overs" and "briefings" for the benefit of Dr Curran. I could not properly prepare, and they would not give me relief, to prepare. 37. I did not pass my first attempt at the FACEM exam 2009. "More than one or two attempts" of taking the FACEM exam was well within expectations. 38. What placed me apart from all other candidates, though, was that I was immediately dismissed from my employment on the grounds that I had not passed the exam. Based on my knowledge of the profession, I say that there has never been another example of this happening to anyone else. 39. After intervention by ASMOF for breach of my contract, I was reinstated. The condition imposed on me was that I would be paid Level 1, Year 5 under the Staff Specialists Award (which was less than I had previously been on). This reflected the theme of all actions against me. They all consistently sought to remove me from the benefit of the Award. 40. The other condition was that I would make a "second and final" attempt to pass the FACEM exam. An attempt "had to be" made by August 2010, just 8 months from the first attempt to pass the exam. 41. On the second attempt to pass the FACEM exam I passed the Multiple Choice section of the exam, the section that tested overall knowledge of Emergency Medicine. The other two sections were technique driven, which I did not pass. From my knowledge I say that the Australasian College of Emergency Medicine (ACEM) had apprehended for years that there was something wrong with the format of the written exam that existed when I sat it in 2009, and 2010. The College recognised that the "pass rate" for Emergency Medicine FACEM candidates was too low. The College decided that the exam was unfairly difficult, and decided to change the format of the exam. Changes to the format of the exam were made with the intention of making it more objective and more fair. The College decided that the exam should focus more on content of knowledge and skills rather than technique. It was that "structured answer technique" that prevented me from passing. The exam was changed by the ACEM in 2015. The ACEM can confirm the reasons for the change of format of the exam. This was after the action had been taken against me for not passing that now-altered format. 42. Because I did not pass this second attempt, I was dismissed. I was then unemployed. This rendered my continued residence in Australia to be doubtful. I had only conditional medical registration, restricting me to working in the public hospital. My visa was an "area of need" visa. I could not go elsewhere to work in Australia to obtain employment, since I was sponsored by WWBH. 43. This caused a personal crisis for me. My wife's mother had recently died, and so she could not leave Wagga because she had to care for her elderly father. If my son and I had been deported, the family would have been broken up. 44. I thus saw no alternative to the "offer'' that was made. That was, that the Respondent would continue my employment, but only if I agreed to a demotion to Career Medical Officer, on about half the pay I had been on since commencement, and only if I agreed to not claim roster relief or other leave for the purposes of study… 45. This meant that I was now on half the pay, and had lost the chance to attempt the FACEM exam. Based on my knowledge, the third attempt was the likely one to succeed at that time, under the "old" format. This exclusion, then, on all bases of "reasonable", was deliberate. I believe that those involved in my dismissal, know this. The Murrumbidgee Local Health Network (Formerly Greater Southern Area Health Service) breached their original agreement with me and eliminated my ability to become an Australian FACEM. This resulted in preventing the advancement of my career and the resultant loss of remuneration as an Australian FACEM staff specialist. It achieved the obvious intended effect, of denying me the benefit of the Staff Specialists Award. 46. I have worked at that lower rate since November 2010. The Difference between the Staff Specialists remuneration and the Career Medical Officers Award is about $205,000 a year, as represented in advertisements for Staff Specialists by Wagga Wagga Base Hospital. Emergency Department. 47. My workplace problems continued. Dr Curran, who continued as the Director in my place until 2016, when he was terminated, engaged in the conduct that is specified in Clause 12 of my Application. 48. I note from Clause 12, that my complaint about this behaviour was made in May 2011. The behaviour described completely traverses the period between Dr Curran's appointment to the Directorship of the Emergency Dept in 2009, my dismissal as Director of the Emergency Department, and my demotion to Career Medical Officer. 49. The documents that reflect this conduct, which was the basis of the complaint, are Annexure D (correspondence from the applicant to Mr Steven Crook, Workforce Manager, MLHN dated 3 May 1011). WWBH ''investigated" this official complaint internally but by all appearance, never took it seriously. At no time was I ever interviewed by any representative of WWBH, or the Health Service. 50. For the rest of the time of Dr Curran's tenure, his demeanour did not change. The following are examples of words and deeds that Dr. Curran said to me: 1. In May 2005, one month after I arrived at WWBH, Dr. Curran made anti­American remarks to me about my American heritage. He said (note: all words quoted in this affidavit, are to the effect of what was said) "Peter, you and the rest of you Americans think you are better than us Australians. You think you know everything. Your big cars, big dogs, big houses. We don't like that in Australia." 2. Dr. Curran knew that I was Jewish and made an anti-semitic statement about my Jewish background when he said "I knew this Jewish Doctor in Melbourne that thought he was better than everyone else. He didn't last very long when I got through with him." 3. On December 7, 2009 Dr. Curran criticised my credentials and training in the USA when he said "Peter, let's face it. You're just not good enough to be a FACEM. No candidate from the USA has ever passed the FACEM exam and I'm going to do my best to make sure you're not the first. The specialist boards you passed (in the USA) aren't even recognised as legitimate in the USA courts. Your training is a joke and you just aren't good enough." 4. After being demoted to a Career Medical Officer I needed Dr. Curran's support to apply for Senior Career Medical Officer. Dr. Curran refused to support my application though there were no clinical issues or other evidence to justify his refusal. A letter from the Acting DMS at the time, Dr. John Gallichio, firmly supported my application for Senior Career Medical Officer. In early December 2010, Dr. Curran said to me "I don't need any evidence to not support you. Look at you. You used to be Director. Now you're a lowly CMO. I've got your computer, your phone and your TESL (monetary education and travel allowance). By the time I'm finished with you you'll be a cleaner. Isn't it time you retired?"… 5. On May 16, 2011 Dr. Curran again criticised my age when I told him I would have to take leave for Urological surgery. Dr. Curran said to me "Why are you old? Why are you old? You need to know that this really stuffs up my roster." He insisted that I return the next day after surgery but I refused. 6 When the accreditation to train Emergency Medicine trainees was lost at WWBH, Dr. Curran blamed my not being a FACEM Director as the cause. This was untrue. He made the statement in the local Wagga Newspaper on July 25, 2009. Wagga residents were upset and they approached me in public to defend my alleged "action". It was embarrassing and Dr. Curran had undermined my reputation. When I confronted Dr. Curran in mid August 2010 why he made the statement even though he knew it was untrue, he said "because I wanted to." The actual loss of accreditation was because the number of FACEM staff specialists fell below the minimum required by the College. 51. I just got on with my job. I never had a credible complaint from a patient. My clinical outcomes were in accordance with all standards and requirements. I participated with full effect in the work of the Department, was a team player, treated patients compassionately, and nursing and hospital staff with respect. 52. After Dr. Shane Curran's dismissal, Dr Steve Wood took over the role of Acting Director the Emergency Department at WWBH in January 2016 when we moved into the new hospital. Dr. Wood is a Non FACEM staff specialist who had worked under my leadership from 2005 to 2009. I have worked with Dr. Wood for the past 14 years. Dr. Wood had a "cooperative" personal relationship with Dr. Curran and would serve as Acting Director, occasionally, when Dr. Curran would be on leave. Dr. Wood was mentored by Dr. Shane Curran and adopted Dr. Curran's controlling style of management, according to my observation. Dr. Wood did not possess the qualifications (FACEM) to maintain the accreditation to train Emergency Medicine trainees so a part time FACEM, Dr. Jeremy Fry, became Co-Director with Dr. Wood at WWBH in order to maintain the Accreditation. 53. The move to the new hospital was chaotic and lacked adequate patient beds and treatment rooms in which to treat patients. Everyone struggled to cope. Dr Steve Wood, though, began his tenure by trying force me to sign an onerous and inappropriate "performance improvement plan", just 2 months after the move. I refused. He never explained to me why he did this. That lack of explanation included that he never specified what I had done wrong to warrant such a course. In response to his contention that I was "too slow", I began to keep a diary of patient identification labels representing the actual patients that I saw on each shift in order to disprove their claims that I was not seeing enough patients. 54. He would not say what it was that I had done wrong other than that I was "not seeing enough patients". 55. In addition to written communications, Dr Wood said to me on March 23, 2016 in his office: "I don't care what kind of help you got from ASMOF with Shane (Dr. Curran), I'm the Director now and I'm drawing a line in the sand with you. You'll do what I tell you or I'll report you to the DMS (Director, Medical Services)." 56. Then, Dr Wood, during a shift in about June 2016, said to me in a raised voice, in the presence of staff and persons waiting in the waiting area, "Hey Peter, what do you think you are doing? You just saw that patient out of order. I am sick of you picking out the easy ones." I said (quietly), "Don't yell in public. I didn't see that person out of order. They were next in line". He said, still loudly, "I don't want any excuses". 57. This was resolved by calming the patients in the waiting room that had witnessed Dr. Wood's outburst and then privately confronting Dr Wood about his behaviour. I told him to never degrade or humiliate me in public again like he had done that morning. 58. About a month later, he said to me, "You are worthless". This was when I had been called to his office just before a 10 hour shift. He would frequently pick these times to, I believe, to distract me from my concentration when it was needed the most. 59. At least three or four times in the years 2016 and 2017, Dr Wood has said to me words to the effect, "You are getting too old for this. When are you going to retire?" I found this insulting and baseless. I continue to meet standards, I attend to all continuing education obligations, I read relevant research papers. I embrace all developments in the discipline that should be expected. 60. If there had been any degree of deficiency on my part, which in some way that prejudiced patient care or safety, or if I had really not been pulling my weight, I would have immediately addressed the deficiency. 61. At the end of 2017, I became aware through an unsigned letter (which I have obtained a copy of) that Dr Wood was "inviting" staff members to "report" on me. I confronted him, and he said, once again, words to the effect, "Yeah, well I think you are getting too old for this, Peter." 62. Dr. Wood also "recruited" a nurse in the Emergency Department to observe my work practices and report her "findings" in a letter to Dr. Wood or co­Director Dr. Fry. This letter contains only her opinions with no facts or evidence. 63. Then, in November 2017, the Director of Medical Services for the hospital, Dr. Pankaj Banga, who I had met once or twice, wrote me a letter which criticised my professional standards without basis. 64. I met Dr Banga and asked him to specify what I had done or not done to lead him to these conclusions about me. He has never specified them. I have kept notes of that exchange. 65. This did not stop either of Dr Banga or Dr Wood. I was told in February 2018, that I was to be put on a "performance improvement plan" despite the fact that no specificity had ever been given to me as to what "performance" needed "improving". 66. By this time, my health was suffering from this constant attacking behaviour. My doctor had recognised that I was becoming anaemic. I had developed epigastric pain (upper abdominal pain) whenever I would go to work. 67. My doctor recommended that I have a Gastroscopy which I had, and which identified an internal bleeding site in my stomach. I was having night sweats, difficulty sleeping, anxiety and symptoms of depression. I dreaded going to work. My GP prescribed something for sleep and offered the anti-depressant Sertraline for my anxiety and depression. I refused the Sertraline because it might be construed by the Hospital as a sign of weakness and I would Jose my job. 68. Because this was affecting my health, I then made a complaint about the conduct… 69. Eventually, in July 2018, Tim Smyth of Tim Smyth Consulting, was retained by the Respondent to investigate my bullying complaint. ASMOF had requested an independent, external investigation 70. This investigation was characterised as follows: a. It took 5 months to begin the investigation after the complaint was filed. b. Tim Smyth chose to interview the alleged bully and the Emergency Department staff before I was interviewed. c. Tim Smyth ignored the terms of reference of the investigation. It was a bullying complaint, but he talked more about my "performance" without any evidence presented. d. Him not considering any documents I provided. e. Him "finding" that I had "productivity issues", but, as with all such allegations, not saying what they were. f. Not accurately recording the remarks of Dr. Tom Heaney who I asked, be interviewed on my behalf. g. Him choosing to remove incriminating evidence of bullying behaviour of Dr. Wood in his final investigation report. He had included this material in his draft report. I have both documents the draft and the final. I do not know who else saw the draft report prior to it being amended. Tim Smyth never explained why he had altered the report. 71. The Smyth report did not say what it was that I had done wrong, or not done right. It referred to "reports by nursing staff' without saying what those "reports" were. Had I ever been shown these "reports", I would have responded to them. 72. The report also referred to my "workflow". In that respect, as well as in its general drafting, it reflected the attacks on me by Dr Wood, and before him, Dr Curran. It did not say what my deficiency in "workflow" was. However, because this is exactly what Dr Wood has accused me of in the past, I have continued to keep a ledger of patients seen. I will produce this ledger to the Commission. Because it contains the names of many people who were or are patients, none of whom have given permission for their names to be published, I will keep it in my possession until the hearing of this matter. 73. My fourteen years at Wagga Wagga Base have taken its toll. The actions of the hospital Directors Shane Curran and Steve Wood have caused irreparable damage to my self esteem and self confidence. To have the hospital stand me down in 2007 for 5 months without allowing me to respond to the allegations severely undermined my reputation as Director and staff specialist at WWBH. One of the most difficult things I've ever had to do was walk back into the Emergency Department to work after I was demoted from a Staff specialist and past Director of the ED to a Career Medical officer. 74. And, of course, the elimination of further attempts to gain my FACEM by the Health Service was most devastating to me and destroyed the advancement of my career. 75. I was always a confident man but to be relentlessly belittled, berated, humiliated, and embarrassed by Dr. Shane Curran and Dr. Steve Wood in front of my workmates and my peers was demoralising. It has permanently affected my health. 76. Dr. Curran and Dr. Wood's constant criticism made me feel like I could not do anything right and I was not worthy of being part of the ED team. I felt alienated and no action or explanation of mine was acceptable to them. I could feel that my every action was being scrutinised by them. I felt like nurses were often watching my actions and, as we know now, they were. Dr. Wood had recruited them to do so. I began to question my decision making and at times was almost paralysed mentally. 77. As far as my personal life, my wife and I, in fourteen years, could never make any plans for the future because we never knew if my job was secure. The hospital had shown me that I could be stood down or dismissed at any time. 78. If I had known that my being given the benefit of the Staff Specialists Award would cause such resentment and result in this behaviour, or if my complaints about the health damaging conduct would add to the behaviour, I would have not taken the job. I had and have much to contribute. Despite that, there has been this campaign to attack and get rid of me. Dr Pankaj Banga 1. The respondent relied upon a witness statement of Director of Medical Services at Wagga Wagga Base Hospital, Dr Pankaj Banga, which contained the following: 1. I understand that Dr Peter Bossak (Dr Bossak) is a US trained medical practitioner who in early 2005, was recruited by Wagga Wagga Base Hospital (WWBH) as Clinical Co-ordinator Emergency Department under an "Area of Need" (AON) pathway. 2. I have seen information relating to his recruitment dated 3 March 2005, namely an email from Jennie Fisher to Dr Bossak's recruiting company in which Ms Fisher noted, in relation to the doctor's recruitment: "The non-recognition of Peter as a specialist by the ACEM has been very important in that his proposed level of remuneration now becomes an over-award arrangement which has to be dealt with at an area level and signed off by the CEO with approval by the NSW department of Health. As previously stated, we have been prepared to accept this situation and work with Peter to have his status recognized even if that means that we need to consider further supervision/training/secondment arrangements."… 3. In Dr Bossak's Industrial Relations Commission Application filed on 30 October 2018 (Application) at paragraph 5 of Annexure A, it is stated that prior to 5 December 2010, Dr Bossak was employed as Director of the Emergency Department at WWBH. 4. This statement appears to conflict with the description contained in his employment agreement. Dr Bossak's letter of appointment dated 24 February 2005 states that the title of his position was 'Clinical Co-ordinator Emergency Department'… 5. I understand that in or around March 2006 Dr Bossak was reviewed as an overseas trained specialist for equivalence with an Australian Fellow by the Australasian College of Emergency Medicine (ACEM). I understand that based on a review of Dr Bossak's CV and a clinical interview, ACEM required Dr Bossak to undertake 12 months of additional training and required him complete the Fellowship Examination which would allow him to be registered in Australia as an Emergency Department Specialist and a Fellow of ACEM (FACEM). 6. Dr Bossak was rostered to work on clinical shifts in March 2006 whilst continuing to perform the duties of the Emergency Department Clinical Co-ordinator - I understand this was in order to maintain his clinical skills and support his eventual FACEM examination. 7. On or around 23 October 2006, WWBH agreed that Dr Bossak would undertake his FACEM training in Canberra… 8. On 1 January 2007 ACEM withdrew the WWBH Emergency Department's specialist accreditation due to insufficient Emergency Department physicians who were FACEMs. At that time, in order to maintain accreditation, the required level was 2.5 full time equivalent (FTE) FACEMs. On 1 January 2007 the WWBH Emergency Department had 1.8 FTE FACEMs. Recruitment of FACEMs was directly linked to WWBH's Emergency Department regaining its specialist accreditation… Events in 2007 9. In his statement dated 25 January 2019 (Statement), at paragraph 22 Dr Bossak states: "without warning, I was stood down on full pay for five months, commencing on 31 March 2007. The Respondent claimed that there were unspecific "clinical and managerial issues". 10. This stand down date does not accord with records I have reviewed. 11. In May 2007, a Clinical Case Review was undertaken by Dr Louis Christie (MBBS FACEM) Medical Director, Emergency Department, Orange Base Hospital, titled "- Ms HS - MRN 7592314 ED Finding" (Clinical Case Review). This Clinical Case Review considered a recent missed diagnosis as well as general issues associated with his treatment of patients. It appears to me that Dr Bossak was placed on special leave at this time - May 2007 - (with pay) while the Clinical Case Review was undertaken. 12. The Clinical Case Review noted, with respect to Dr Bossak: "the major concern relates to the detail and organisation of the medical entries in the clinical notes. The medical entries are lacking in detail and do not show clear evidence of a systematic approach to history taking or examination of trauma patients"… 13. On 23 July 2007, Paul Curtis, Director of Clinical Governance at the Greater Southern Area Health Service (GSAHS - the predecessor to the current respondent, the Murrumbidgee Local Health District (MLHD)), wrote to Dr Bossak in relation to the Clinical Case Review stating: "[t]he review has highlighted a number of areas which require attention, incorporating clinical management, supervision and management issues... This will likely involve modification of your working arrangements in addition to some professional enhancement efforts."… 14. On 17 August 2007, the Australian Salaried Medical Officers' Federation (ASMOF) wrote to GSAHS concerning matters including a negotiated return to work, and stating that the return to work offer made by GSAHS was not acceptable to Dr Bossak as he considered it to be a non­clinical role… 15. Negotiations apparently ensued for several months between ASMOF and GSAHS. 16. On 3 September 2007, Ms Heather Gray, Chief Executive of GSAHS wrote to ASMOF advising that if Dr Bossak would not accept being remunerated under the Career Medical Officer (CMO) Award, but sought to remain on the Staff Specialist Award, he would need to agree to the position description of Clinical Co-ordinator and sign on to a Performance Agreement... 17. On 14 September 2007, Dr Bossak lodged an Application with the NSW IRC seeking a resolution of the ongoing industrial dispute (2007 Application) with GSAHS… 18. On 26 October 2007 GSAHS's Human Resources Manager wrote to Dr Bossak by way of a letter titled "Amended Employment Conditions Advice" offering him a continuing position and allowing his return to WWBH on a temporary basis as the part time Clinical Co-Ordinator for the Emergency Department. Dr Bossak was advised he would hold the position until such time as the GSAHS was able to secure the services of a Director for the Emergency Department. 19. Dr Bossak signed the letter titled "Amended Employment Conditions Advice" on 31 October 2007… 20. The 2007 Application was subsequently discontinued by ASMOF on behalf of Dr Bossak. 21. On 16 November 2007, Dr Joe McGirr, Director of Clinical Operations at GSAHS sent a letter to the NSW Medical Board's AON Coordinator providing a background to the Clinical Case Review referred to above at paragraph 11… 22. I have seen correspondence from the NSW Medical Board dated 20 December 2007 which, ultimately, required a six monthly supervision report relating to his status as an AON Doctor due by no later than 30 April 2008… Events in 2009 23. On 3 June 2009 Dr Shane Curran (Dr Curran) was appointed Director of the Emergency Department at WWBH. 24. In his Statement (at paragraph 34) Dr Bossak said Dr Curran was "replacing" him. This is not consistent with the letter he signed on 31 October 2007 - see my comments in paragraph 19 above in this regard. 25. I am aware that concerns in relation to Dr Bossak's productivity and performance were raised as early as 2009. In this regard I have seen a table which referred to Dr Bossak treating on average 3.5 patients per day during a 2 months period from 17 August 2009 through to 18 October 2009, compared to another ED medical officer who was treating on average 6.2 patients per day… 26. In or around September 2009, Dr Bossak failed his FACEM examination. 27. Consistent with the letter he signed on 31 October 2007, Dr Bossak was thereafter informed by GSAHS that it was unable to offer Dr Bossak continuing employment without his FACEM qualifications. 28. On behalf of Dr Bossak, ASMOF intervened and negotiations in relation to this issue commenced. I have seen correspondence in this regard from ASMOF to GSAHS dated 12 October 2009… 29. As a result of those negotiations Dr Bossak and the GSAHS agreed to further arrangements regarding his ongoing engagement. On 17 and 27 November 2009, Mr Stephen Crook (Mr Crook) wrote to Dr Bossak in relation to this agreement… 30. The letter to Dr Bossak dated 27 November 2009 stated, amongst other things: "If you are unsuccessful in obtaining your FACEM and registration as a specialist", the AHS "will not be able to continue to support you as a staff specialist after 30 September 2010 for the written exam or 30 November 2010 for the clinical exam. The continuation of you being registered as a Career Medical Officer requiring supervision, sign off and being employed as a staff specialist will not be sustainable after the above respective dates. This may also result in your work visa becoming invalid." 31. On 20 December 2009, following discussions with the MLHD, Dr Bossak signed the letter titled "Amendment to Employment Contract" which was contained in a letter from GSAHS dated 27 November 2009. Conditions within the Amendment to Employment Contract letter included that: a) Dr Bossak agreed to work part-time as Clinical Coordinator of the Emergency Department; and b) Dr Bossak would be remunerated as a staff specialist (as opposed to a senior staff specialist) 32. Dr Bossak also signed a performance plan, which required him to consult a minimum of one patient per hour. I have also seen handwritten notes from a performance review carried out by Dr Curran along with Dr Bossak, during which there are discussions about the number of patients that Dr Bossak should be seeing per hour… 33. In his Application, Dr Bossak states at paragraph 6 that he was "spuriously penalised in his employment in such a way as to require intervention of the [IRC]" in 2009 and that he was "exonerated". I am not aware of any decision from the IRC the "exonerates" Dr Bossak. I am aware that as a result of discussions between GSAHS, ASMOF and Dr Bossak, Dr Bossak agreed with and subsequently signed an amendment to his employment contract on 20 December 2009… 2010 Events 34. I have seen a letter sent by Dr Bossak to the AON Coordinator at the NSW Medical Board to WWBH regarding the renewal of his AON position… 35. I have seen a letter sent from the AON Coordinator at the NSW Medical Board to WWBH regarding the extension of Dr Bossak's AON registration… 36. I have seen an excel spreadsheet which sets out the number of patients seen by various patients, including Dr Bossak in May 2010… 37. I have seen a letter from NSW Department of Health to WWBH confirming the extension of Dr Bossak's AON registration from July 2010 to December 2010… 38. In or around August 2010 Dr Bossak failed his second attempt at the FACEM Exam. 39. In or around September 2010, I understand that there were discussions between ASMOF and the GSAHS to for the purpose of engaging in negotiations over Dr Bossak's ongoing employment. 40. On or around 15 September 2010, Mr Crook advised Ms Victoria Hiley (Ms Hiley) that GSAHS would be prepared to meet and discuss the Dr Bossak's potential ongoing employment conditions if they were agreeable to ASMOF and Dr Bossak… 41. In an email on 6 October 2010, Dr Bossak put forward an employment proposal including: a) Dr Bossak to be employed on a full time basis b) Dr Bossak to be renumerated as a Senior CMO with a title "Staff Specialist" c) Dr Bossak to retain remaining training, education and study leave funding d) Dr Bossak to retain mobile telephone, and e) Dr Bossak to be provided with a new computer 42. I have seen the minutes from a meeting that was arranged on 12 October 2010 between GSAHS (Dr Curran, Dr Crook and Ms Hiley) and Dr Bossak in relation to his ongoing employment… 43. On 13 October 2010 guidelines for a personal regrading to Senior CMO were forwarded to Dr Bossak and ASMOF by Dr Crook. In the covering email, Dr Crook commented that in a discussion with Dr Anne Mok (Dr Mok) she had commented that all the criteria within the guidelines must be satisfied for the regrading to Senior CMO… 44. On 19 October 2010 Mr Crook wrote to Dr Bossak in a letter titled "Amendment to Employment Contract". That letter provided for employment commencing 29 November 2010 and included the following conditions; a) Full time CMO Grade 2, 4th Year effective from 29 November 2010 b) Dr Bossak's conditions of employment were to be in accordance with the CMO Award c) There was no guarantee of regrading to Senior CMO. 45. On 18 November 2010 Mr Richard McClelland, Manager, Medical Recruitment, NSW Department of Health wrote to Dr Bossak confirming an offer of employment in line with the discussions referred to above… 46. On 1 December 2010, the amended contract of employment dated 19 October 2010 was signed by Dr Bossak… Events from 2011 onward 47. On 3 May 2011 Dr Bossak made a written complaint against Dr Curran containing allegations of bullying and harassment and discrimination. In his Statement (at paragraph 48), Dr Bossak alleges that the conduct referred to in the complaint made on 3 May 2011 "transverses the period between Dr Curran's appointment to the Directorship of the Emergency Department in 2009, my dismissal as Director of the Emergency Department , and my demotion to Career Medical Officer"… 48. On 29 August 2012 an investigation into Dr Curran's alleged conduct concluded and found the allegations were not substantiated… 49. On 11 April 2013, Dr Stephen Wood (Dr Wood) emailed Dr Curran regarding concerns he had about Dr Bossak's roster and his performance agreement. This email enclosed a table containing Dr Bossak's patient activity over the Easter break. Dr Wood's concerns related to Dr Bossak's work throughput, the level of acuity of patients that Dr Bossak was seeing and the pressure that Dr Bossak's conduct was placing on the remaining medical workforce… 50. On 11 April 2013, Dr Jeremy Fry, Co-Director of Emergency Medical Training at WWBH (Dr Fry) emailed Dr Curran regarding his concerns over Dr Bossak's performance. Dr Fry raised the fact that in comparison to other CMOs, Dr Bossak was seeing one quarter to one third the number of patients… 51. In October 2013 Dr Bossak submitted a request for retrospective payment as Senior CMO for the period 1 December 2010 to 9 October 2013. The NSW Health Department rejected this application as it did not "constitute a regrading application as contemplated by the Award provisions and the Guidelines". Dr Bossak did not, as far as I am aware, subsequently apply for regrading to Senior CMO status. This was confirmed in correspondence dated 10 October 2013, signed by Mr Trevor Craft, Deputy Director Workplace Relations, NSW Health Department… 52. In or around 2014, Dr Bossak passed his Australian Medical Council exams. 53. On 19 February 2014, Dr Fry and Dr Bossak met to discuss Dr Bossak's current patient throughput numbers and issues identified from the supervisor/departmental perspective… 54. On 16 October 2014, Dr Wood sent an email to Dr Bossak raising concerns about Dr Bossak's throughput rates in the Assessment Area at WWBH… 55. On 1 September 2015, Dr Wood sent a letter to Dr Curran regarding concerns he had relating to Dr Bossak's performance. In particular, Dr Wood raised the fact that Dr Bossak's throughput was low and that Dr Bossak actively avoided complex patients… 56. On 1 September 2015, Dr Curran had a meeting with Dr Bossak, during which they had a discussion about, among other things, his performance… 57. In January 2016 Dr Curran resigned as Director of the WWBH Emergency Department and Dr Wood was appointed replacement Director. Performance concerns and external investigation 58. On 21 March 2016, Dr Wood emailed Dr Andrew Cumberlege (Dr Cumberlege) and Dr Curran regarding concerns surrounding Dr Bossak's ongoing performance… 59. In March 2016 Dr Wood advised that Dr Bossak would be subject to a performance improvement plan. This plan was not signed by Dr Bossak. I understand that the requirement for Dr Bossak to enter into a performance management plan was considered reasonable management action and came about as a result of ongoing issues with Dr Bossak's performance which had been discussed with him on a number of occasions. 60. On 10 October 2017, Dr Wood and Dr Fry received an anonymous letter from a Registered Nurse within the Emergency Department at the Wagga Wagga Rural Referral Hospital, raising concerns regarding Dr Bossak's performance… 61. On 20 October 2017, Dr Cumberlege issued a letter to Dr Wood which raised concerns over Dr Bossak's performance, in particular his low throughput and reliability… 62. On 15 November 2017 I forwarded a letter to Dr Bossak regarding his performance. I had been informed by Dr Bossak's managers that he was not meeting the expectations required as a CMO at the level he was being employed to perform… 63. I have seen an undated anonymous letter regarding Dr Bossak and issues in the Emergency Department… 64. I have seen a graphic which illustrates the Emergency Treatment Performance of three doctors over the period of November 2017 to January 2018… 65. On or about 10 February 2018, Dr Bossak submitted a written complaint to me alleging that he had been bullied by Dr Wood. Dr Bossak requested that his written complaint be investigated by an independent external investigator… 66. I have been provided with numerous documents dated between 10 February 2018 and 25 June 2018, which detail concerns raised by various individuals regarding Dr Bossak's performance… 67. In or about July 2018, MLHD appointed investigator Dr Tim Smyth (Dr Smyth) to conduct an investigation into Dr Bossak's bullying complaint regarding Dr Wood. Dr Smyth interviewed Dr Bossak, Dr Wood and eleven medical and nursing staff from the Emergency Department. Dr Smyth issued his report in relation to the Bullying Complaint on 9 October 2018. 68. In the report, Dr Smyth observed that: a) there was an underlying productivity and performance issue with Dr Bossak (Performance Finding); b) doctors, nurses and clinical managers were frustrated over the continued inability of the parties concerned to constructively discuss concerns which stretched back more than five years; c) Dr Wood was frustrated with Dr Bossak, and Dr Bossak genuinely felt that he was being watched and that Dr Wood's interactions with him were designed to unsettle him and get him to retire; d) Dr Bossak had resisted engaging in a constructive discussion with Dr Fry and Dr Cumberlege in relation to his performance; e) WWBH management had not actively managed the issues and therefore contributed to the frustration of the parties; and f) the ASMOF drive to contextualise the issue as clinical management of individual patients with continued requests for specific patient details was misplaced and contributed to the frustration of the parties. 69. The report detailed that Dr Smyth was: a) satisfied that WWBH management did not promptly follow the recommended flow chart in the policy directives; a copy of the Bullying Complaint was not promptly provided to Dr Wood and an independent investigator was not engaged until five months after the Bullying Complaint was received; b) satisfied that there were some occasions where Dr Wood's frustration with Dr Bossak led to interactions that were unprofessional; c) satisfied that Dr Wood, Dr Cumberlege and Dr Fry acting reasonably, had tried to undertake a performance review process with Dr Bossak; d) satisfied that the majority of the instances raised by Dr Bossak in his Bullying Complaint arose from a legitimate concern by Dr Wood over patient flow, patient wait times and concerns raised with Dr Wood by nursing and medical staff over Dr Bossak's slowness; and e) not satisfied that Dr Wood had engaged in repeated and unreasonable behaviour directed by Dr Bossak that a reasonable person, having considered the circumstances, would see as unreasonable, victimising, humiliating or threatening. a. In the Report, Dr Smyth recommended that: a) Dr Wood consider apologising to Dr Bossak for the manner of his interactions and the unintended distress that these interactions may have caused; b) Dr Bossak advise ASMOF that he accepts that there is a need to constructively review his workflow and approach to patient assessment and patient flow and agree to participate in a formal performance review; c) the WWBH Emergency Department agree on a clear set of expectations for all senior medical staff in relation to the minimum number of patients to be seen each shift and the policy on determining which patient wailing is next seen; d) a formal performance review meeting with Dr Bossak be scheduled for November 2018 with the review being undertaken by Dr Fry with Dr Cumberlege and Dr Tom Heaney in attendance and focussing on workflow, concerns of nursing staff, expected patient flow, wait times, multi-tasking and teamwork (Performance Review Recommendation); and e) consideration be given to rostering Dr Bossak in the ambulatory section for the next six months with a performance goal of seeing a minimum of at least ten patients per shift with a weekly review meeting between Dr Bossak, Dr Fry and/or Dr Cumberlege and a designated Nursing Unit Manager. 70. Dr Wood is willing to apologise as recommended… Response to allegations of victimisation due to performance management 71. I am of the opinion that Dr Smyth's Performance Review Recommendation is an extension of WWBH's attempts over approximately three years to highlight to Dr Bossak that there have been performance deficiencies which they should work through. 72. From my review of documents considered for the purposes of preparing this statement, Dr Bossak has not been cooperative in this regard and has refused to accept that there are any performance issues. 73. As the facts and evidence pre dating the Dr Smyth report suggest, there is a legitimate basis for the performance concerns and as a result of previous attempts to enforce performance reviews, there are reasonable and appropriate explanation for enforcing a performance review. 74. The substantial and operative reason for enforcing a performance review related to ongoing concerns MLHD had in relation to Dr Bossak's performance. 75. In response to the allegations contained within Dr Bossak's Application, a request was made to the MLHD Manager of Activity Based Management and Business Intelligence, MLHD Finance and Performance, Mr Thomas Glanville (Mr Glanville) to provide data to evidence performance levels of Dr Bossak compared with other ED Doctors. Two peers were included by Mr Glanville in the data as a comparison that worked similar shifts, were deemed to be at the same level of Dr Bossak over the same time period. 76. The following tables represent the findings of this process: FY17/18 A B C Facility First _Provider ED <=4 Shifts Count of hrs% Per Dr ED Visit WW Health Service Peer Doctor #1 76.88% 107 771 WW Health Service Peer Doctor #2 79.92% 116 731 WW Health Service Dr Bossak 57.96% 174 647 FY16/17 A B C Facility First _Provider ED <=4 Shifts Count of hrs% Per Dr ED Visit WW Health Service Peer Doctor #1 82.10% 155 1056 WW Health Service Peer Doctor #2 83.53% 124 756 77. Column A represents the percentage of patients that Doctors see, sort and discharge within a 4 hour period. MLHD has a standard of performance that is expected across all ED Doctors that on average they are to see, sort and discharge 81% of patients within 4 hours of their arrival into the ED. a) In 2016/17 and 2017/18 Dr Bossak sees, sorts and discharges significantly less patients in the 4 hour KPI than his peers. b) In 2016/17 Dr Bossak achieved a KPI of 63.69% and the following year his performance decreased to 57.96% whilst his peers reported significantly higher performance at 82.10% and 83.53% in 2016/17 and 76.88% and 79.92% in 2017/18 respectively. 78. Column B represents the total number of number of shifts worked by the Doctors. Column C represents the total count of patients seen over the period. a) In 2016/17 Dr Bossak worked 151 shifts and saw a total of 629 patients. This represents an efficiency of seeing on average 4.16 patients per shift over the period. In 2017/18 Dr Bossak worked 174 shifts and saw a total pf 647 patients. This represents an average of 3.72 patients per shift. b) In comparison Peer Doctor #1 saw an average of 6.82 patients in 2016/17 and 7.02 patients in 2017/18. Peer Doctor #2 saw an average of 6.1 patients per shift in 2016/17 and 6.3 patients per shift in 2017/18 c) These figures indicate that Peer Doctors #1 and #2 are significantly more efficient with patient throughput over the period. The data also indicates that Dr Bossak's performance from 2016/17 to 2017/18 has also decreased in terms of patients seen… 1. The applicant also relied upon a reply affidavit in which he took issue with and sought to refute much of the evidence which had been given by Dr Banga. Both the applicant and Dr Banga were cross-examined. Submissions 1. The parties relied upon written submissions which are summarised below. The applicant 1. The applicant relies upon subsections (1)(d), (e), (f), (g) and (j) of section 210 and subsections (2)(b), (c) and (e) of section 213 of the Act to support his claim for the orders set out at [1] above. 2. The applicant submitted that the contravention by the respondent of section 210 was ongoing. The applicant referred to his evidence of the "serial events since his appointment" and the evidence of Dr Banga to the effect that, unless otherwise ordered, the respondent will proceed to implement the recommendations of the report prepared by Dr Tim Smyth ("the Smyth Report") which is referred to at paragraphs 67-71 of Dr Banga's witness statement (see [6] above). 3. It was submitted that the victimisation of the applicant commenced in 2005 and has continued in an "identifiable chain" to the present and will, unless prevented, continue into the future until the applicant was "removed altogether". 4. The applicant relied upon the "reverse burden" in subsection 210(2) of the Act which, according to the submission, had not been discharged by the respondent. Reliance was placed on the "principles of evidence and judicial discretion" set out in the High Court judgement in Board of Bendigo Regional Institute of Technical and Further Education v Barclay ([2012] HCA 32) as adopted by this Commission in Paula Lee v Ausgrid (no 6) ([2013] NSWIRComm 62 at [64]-[65]). 5. The alleged acts of victimisation against the applicant were perpetrated by "decision makers" being Dr Shane Curran, Dr Gregory Papworth, Ms Heather Grey, Mr Stephen Crook, Dr Stephen Wood, Dr Jeremy Fry, Dr Andrew Cumberlege, Dr Joe McGirr and Dr Banga as well as "the Director of the Hospital and the relevant 'HR', as decision makers". 6. The applicant noted that of these "decision makers", only Dr Banga was called to give evidence and be subjected to cross-examination. Relying upon paragraph [64] in the Lee decision, the applicant submitted that the "necessity to consider the direct evidence of" the "decision makers" who were not called as witnesses "will not be discharged". The Commission was invited to draw a Jones v Dunkel inference as a result of the failure of the respondent to call these people as witnesses. In support of this submission, the applicant relied upon the judgement of the Federal Court in United Group Resources Pty Ltd v Calabro (No 5) ([2011] 198 FCR 514 at [70]-[75]). 7. The applicant's submissions continued as follows: Here, we have evidence of a pattern. A chain of treatment arose from a cause. The cause was what the uncontested evidence of Dr Bossak says it was - he was entitled to the benefits of the Staff Specialists (State) Award. That entitlement arose from contract, and its application is embraced and referred to in multiple items of correspondence by the Respondent before the Commission in these proceedings. The authors of the correspondence, and the persons who made decisions about Dr Bossak, we say, were motivated as we say, and they have not come forward to establish that the reasons nominated were "not a substantial and operative cause of the detrimental action". They could have, but they did not. It is to be presumed that they did not appear because they could not give evidence that establishes that negative. If the correspondence in the early stages of his problems are considered (see, for instance, the annexures to his Affidavit) one is compelled to say that the decision makers were quite pre-occupied with the entitlement to the benefit of the Staff Specialists Award then being exercised by Dr Bossak. We are faced with the obligation to trace the last 14 years, from the beginning of Dr Bossak's employment, and to review what happened. It need not at this stage of the submissions be re­stated. We need only look at the affidavit of Dr Bossak, which gives the chronology, and we ask the Commission to re-read it at this stage: a. "target on back", "don't fit in" and you should not have specialist status or remuneration, (Curran, Papworth); b. Stand down for no reason Papworth); c. Solution being "restrict award entitlement" (Crook and Grey); d. Sanction him for having approached this commission through his Association (Wood); e. "reduce you from Specialist entitlements as a matter of priority" (Grey and Crook), f. ''rely on confused and illogical report that refers to the "other driver" being killed in a single vehicle accident" (Christie); g. sack you because you did not rise to a standard not expected of others (ie, pass exams on second go, despite no one else having such a restricted opportunity) (Papworth, Crook) – we note there, that had Dr Bossak been permitted to exercise the same access enjoyed by others (to more attempts to pass), he would have been confirmed under the Award – the prevention of which was a priority; h. invite staff to write poison pen letters (Curran, Wood, Fry, Cumberlege); i. make selective assertions about "performance" without saying what, or how, and without seeking an explanation from Dr Bossak (Smyth); j. going along with that despite the acknowledged absence of complaints to the authorities, complaints by patients, or identifiable professional errors of any kind (Banga); k. accepting and implementing the untested assertions of others (McGirr, Banga, plus the unnamed "Hospital Director", and "HR") l. alleging "throughput" as an issue, by changing the persons being compared to, and declining to compare him to the 10 or so persons on shift (evidence of Dr Banga) who see patients, but by cherry picking and changing the "others" compared to. In each case, the motivation that must be assumed, is that this was done BECAUSE (Cambridge dictionary: "for the reason that") of his accessing this Commission pursuant to one some, or all of (we say, elements of this matter apply to all in varying respects): a. S210(d), exercised functions under this Act, b. S210(e), claimed a benefit by contract to which he was entitled under an industrial instrument, c. 210(f), informed "any person" of (several) alleged breach(es) of industrial relations legislation (this Act and the Work Health and Safety Act), d. 210(g), participated in or proposed to participate in proceedings related to an industrial matter, or e. 210(j), made a complaint about a matter due to the impact on his health. Of course, Mr Crook and Ms Grey, and Dr Papworth, and Dr Wood, (in fact any of the persons who had a role in the decisions about Dr Bossak regarding matters in the workplace, and those recurring before this Commission) could say that the incrementally degenerating status of Dr Bossak was all part of a series of "agreements" freely entered into. They could say that their approach was motivated by balance of fairness ("fair go all round", perhaps). They could put to the test, our assertions that Dr Bossak had the stark choice of acceding to this conduct, or leaving the country, with the significant personal cost that would have been entailed. Our suggestion (vigorously maintained in light of the evidence) that the "agreements", creating as they did, extraordinary disadvantage to Dr Bossak, were not agreements at all, but mere salvage operations conducted (responsibly and professionally) by his Association because the alternative was unemployment and deportation. That is the evidence of Dr Bossak. If any of the above persons had appeared, to have their conduct challenged, we suggest very strongly that they would have failed such a challenge. But "we would say that", of course. "What we say", is for this purpose, not the test. The test is to be found in the paragraphs in United Group Resources Pty Ltd v Calabro, extracted above, and in particular in paragraph 75, which we paraphrase here. a. The failure of the nominated people to appear renders more probable the inferences against them that are open on the evidence and makes 'the inference ... less unsafe than it could otherwise possibly appear' b. The fact that the absent persons have not denied that they were motivated in the way attested to by Dr Bossak, or as capable of being gleaned from the chronology in this matter, or not given evidence in support of such a denial, may more readily enable the Commission to be satisfied that they were motivated as claimed in our Application and evidence. This would be so even if the weight of the evidence in support of the contentions of Dr Bossak is 'not great', and even if only 'slight evidence explanatory of the circumstances might displace the inferences which may be drawn from it'. We can point, of course, to substantial evidence which has not been contradicted. Despite all of the nominated people being available to give evidence, they did not. c. The failure of the nominated persons to deny or explain facts when to do so was in their exclusive power, 'gives a colour to the other evidence against [them]'. It 'allows increased strength or weight to be given to primary facts favourable to Dr Bossak's case, and allows inferences favourable to him, to be more confidently drawn. 1. The applicant's submissions then referred to the Full Bench decision in Davis v Amalgamated Television Services Pty Limited ([1998] 81 IR 364) and continued as follows: The similarity to this case is, sadly, significant: a. There is no evidence that what has happened to Dr Bossak reflects a pattern of behaviour at Wagga concerning medical staff generally. The treatment of Dr Pitsoe referred to at Paragraph 23 of Dr Bossak's affidavit adversely reflects on Dr Papworth, and, perhaps his predilection for the behaviour we accuse him of, but does not show a generality. Dr Bossak has suffered as he has, due to his unique circumstances. b. There is no evidence that any or all of Drs Curran, Papworth, Wood, Fry, McGirr, or Cumberlege have done any or all of: solicited "criticism", anxiously ensured reduction in pay, procured nonsense "reports" such as the Christie report, sacked someone for failing an exam, stood someone down for no reason for about a year (2007) and so on, generally to doctors at Wagga. It would in fact be astonishing, if "other relevant employees" could claim the same treatment. c. The correspondence, the prejudicial treatment, are all proximate and related to the unhappiness with Dr Bossak's remuneration, and his refusal to 'go quietly". Of course, if Dr Bossak: was a bad doctor, or was otherwise a threat to public safety, or was in some other way an unsatisfactory employee, we surely would have been told that in evidence. The only "substance" they produced over the 14 years concerned, is a constantly changing "sample" representing efforts to "get a result'' adverse to Dr Bossak on one issue only – through put. They have not proven, that he fails the "drive through window" approach to medical care. This approach, as unsuitable as it is, could not have been shown in any case, if the entire cohort was compared to Dr Bossak. If there was any sustainable proof it would have, presumably, been produced by now. Instead, there were a number of cherry picked spread sheets, with the contents of the spread sheets determined by a result that was "needed" in advance. The sample was small, and the persons in the sample appear to have changed on each occasion. These altered documents, and the claims they purport to "back up" should be disregarded. Dr Bossak's problems stem not from "slowness", but from the parcel of victimising circumstances that has been strongly shown in these proceedings. Had Dr Bossak not been employed with the benefits of the Staff Specialists Award, he would not have had a "target on his back", would not have been told that he "did not fit in" and that he "took Australian jobs" etc. Had he not claimed that benefit to which he was entitled, the considerable lengths that are reflected in the machinations represented, for example in Annexure B to his affidavit, to "make sure" he was removed from that benefit, would not have taken place, Had he not then taken actions to prevent his treatment in this Commission, such ill founded conduct towards him would not have occurred. The current manifestation, is Dr Smyth's "finding" (if we understand it properly) of unspecific "performance issues". We continuously ask in vain for bona fide specifics (note: constantly changing "how to lie with statistics" selective spreadsheets are not that). This claim is merely part of the on- going harassment and victimisation of Dr Bossak. In fact, had he not complained of treatment that is provided for by Section 210 (1) (j), this latest would not have occurred. Had he not been inconveniently remunerated, we assume that Ms Grey and Mr Crook would not have been so attentive to his remuneration. The anxiety to reduce it, would not have been so manifest. One might say that the attacks on the doctors and administrators, is unfair. "They should have an opportunity to defend themselves", could be the claim. They quite simply have had that opportunity, but did not take it. In fact the legislation provides for the importance of their doing so (210 (2) ). 1. Further reference was made to the Full Bench decision in Davis and the submission continued as follows: There is no dispute that Dr Bossak has incurred injury, hardship, or loss, is badly treated or taken advantage of, or the like. The evidence is before the Commission. He has been made a victim of. If there was a dispute, the employer could have disputed the evidence of the conduct of named persons, all of whom are presumably accessible to it (this was for the most part confirmed in the cross examination of Dr Banga). Victimisation can be an "event" such as dismissal. It is more likely to be, as in this case, a pattern of behaviour taking place over a period, so that injury, hardship or loss is incurred, and the victim is badly treated, taken advantage of, and the like. That is what has happened here. Mr Davis was attacked in his employment when he complained and when he claimed benefits, culminating in dismissal. We anticipate that outcome for Dr Bossak if the Commission does not intervene. The spuriousness of the Smyth Report is but the latest instalment. The pattern will continue. Financial loss But for this conduct, Dr Bossak would have not lost the amount stated. It was not his doing that led to this. It was the pattern of conduct over more than a decade that has been attested to (and we repeat, not rebutted). It is clearly within the power of the Commission to award the amount claimed. The lost earnings referred to have been enjoyed by others in that time. Had Dr Bossak not been obstructed, prevented, and attacked in the way described, he would not have suffered loss. The magnitude merely reflects the seniority of the position he held, and perhaps the motivation to remove him from the benefit he was entitled to. This was then compounded over the years because he used the legislation and the jurisdiction of this Commission to "fight back". The amount claimed represents the award warranted. Conclusion There is no actual evidence that Dr Bossak is "slow" or "slack". His clinical competence is not challenged. In light of the attested hostility to him since 2005, we assume that any error would be exaggerated or portrayed to his disadvantage (we note the attempt at that in the report about the unfortunate 'other driver' in a single vehicle accident). It is not sufficient, nor acceptable, to present changeable "spread sheets", containing changed "comparators" and providing a comparative sample up to 80% smaller than statistically appropriate. We refer to the evidence of Dr Banga to the effect that about 10 doctors per shift see patients. There is no evidence that Dr Bossak is a defective medical practitioner. There is ample evidence that his appointment to a senior position in 2005, with the Award entitlements that went with it, have caused a series of attacks, "agreements", demotions, and disadvantages. The entire strategy had the clear intended outcome that he would not be able to return to the Award entitlements. He was ushered out, and then blocked out. Then, him taking the course of seeking the intervention of this Commission more than once, has had the effect, according to the evidence, of exacerbating the hostility, and enlivening a campaign to "get something on him", by soliciting poison pen letters, and otherwise. Then, he complained about bullying (Section 210(j)). That resulted in an altered report, and a disingenuous "recommendation" that one of the perpetrators "apologise", and that the complainer be punished with some sort of "improvement plan". In support of that, statistically absurd comparisons are relied upon. If the Commission does not intervene, the behaviour will continue We refer to the words in the application, to the affidavit, and to the evidence of the two witnesses. We again extract from the authority quoted above (the matter of United Group Limited): [a] true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details. This has happened over 14 years. It has been relentless. It has happened in breach of the Act. It has not been rebutted. The decision maker called, apart from being not a decision maker at all before 2016, stated that he was not the actual decision maker in the immediate matter, either. Orders sought Dr Bossak should be a. compensated (213) (2) (c), by the amount claimed in the application. b. protected by an order that the Employer "promote or otherwise advance" him in his employment ("take the target off his back" to use the appalling terminology of Dr Curran), (213 (2) (b), c. protected by an order that the ongoing threats against him cease (213(2) (e). The respondent 1. The respondent submitted that the applicant had not satisfied subsection 213(3) of the Act in relation to any of the alleged grounds upon which the application was made in so far as matters arising prior to the Smyth Report. The respondent also submitted that the applicant had not provided sufficient reasons under subsection 213(4) of the Act which would satisfy the Commission that it should accept the application in relation to any of the alleged matters arising prior to the Smyth Report. 2. In any event, according to the respondent's submission, the applicant has not met the threshold for establishing victimisation under subsections 210(1)(d), (e), (f), (g) or (j) of the Act as alleged. 3. In relation to the Smyth Report, the respondent contended that the applicant, in cross-examination, had conceded that four of the five recommendations were matters with which he agreed and Dr Banga provided evidence as to the reason for the fifth recommendation. 4. The respondent referred to the decisions of the Commission in Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance ([2017] NSWIRComm 1036 per Newall C) and Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District ([2017] NSWIRComm 1076 per Seymour C). The submission continued as follows (footnotes omitted): 5. Respondent's submissions Applicant's alleged victimisation from employment till 2010 5.1 The Applicant alleges that the victimisation he has suffered is "ongoing... has had sequential and recurring manifestations, and it is continuous and continuing". The Applicant states that this victimisation commenced in 2005. 5.2 The Applicant commenced employment with the respondent's predecessor, the then Greater Southern Area Health Service (GHAHS), in 2005 on the understanding that he would be remunerated as a staff specialist based on his qualifications in the United States. The Applicant's employment was conditional on him satisfying the requirement for him to be registered in Australia as Emergency Department Specialist. 5.3 When giving evidence the Applicant agreed, after being shown his contract of employment, that his employment was conditional upon registration with a professional or statutory body. The Applicant's remuneration as a senior staff specialist was understandably linked to his capacity to satisfy the inherent requirements of that role (subject to him being given a reasonable opportunity to attain the relevant qualifications): "Q. Do you remember reading your contract of employment when it was provided to you? A. Yes. Q. And did you have an understanding that you needed to obtain some specialist qualifications? A. Yes." 5.4 On 14 September 2007, Dr Bossak lodged an Application with the NSW Industrial Relations Commission seeking a resolution of an ongoing industrial dispute with GSAHS - which was unrelated to issues associated with the Applicant's qualifications. On that occasion, while being represented by the Australian Salaried Medical Officers Federation (ASMOF), the Applicant engaged in negotiations with the GSAHS, agreed to employment conditions and subsequently signed a written agreement which set out the agreed conditions of the Applicant's ongoing employment with GSAHS. 5.5 The Applicant was remunerated as a staff specialist from the commencement of his employment in 2005 up until the time when he failed his Fellow of the Australasian College of Emergency Medicine (FACEM) examinations in 2009. In response to the Applicant's failure to obtain the required qualifications, and consistent with the conditions set out in his employment contract, the Applicant was informed by GSAHS that it was unable to offer him continuing employment without his FACEM qualifications. 5.6 On behalf of the Applicant, ASMOF intervened and negotiations in relation to the Applicant's employment commenced. As a result of these negotiations GSAHS agreed to provide the Applicant ongoing employment until 30 November 2010, to give the Applicant another opportunity to pass the required examinations. During the hearing, the Applicant gave the following evidence in this respect: "Q. And when did you first sit that examination, Dr Bossak? A. In August 2009. Q. And what was the outcome of that examination? A. I did not pass that first attempt. Q. And was there any consequence on your employment at that time? A. Yes. I was terminated. Q. And what did you do about that? A. Sought help from the Industrial Relation – I'm sorry, from the Australian Salaried Medical Officers Federation, ASMOF. Q. So you sought their help and what was the outcome of that? A. That I was reinstated. Q. And did you go to the Industrial Relations Commission to assist in obtaining that reinstatement? A. No. The hospital was told that ASMOF would go to the Industrial Relations Commission if I was not reinstated. Q. So there were some negotiations between ASMOF on your behalf and the Greater Southern Area Health Service? A. That's correct. Q. And an agreement was reached, was it? A. Correct. Q. And what was the outcome of that agreement? A. That I would be given a final attempt at taking my FACEM exam and would be reinstated. Q. So you would be given a final tilt? A. That's correct. Q. That is, one more opportunity to pass those exams? A. That's correct." 5.7 A letter from GSAHS was sent to the Applicant on 27 November 2009, confirming the conditions associated with the Applicant's ongoing employment, which was agreed to and signed by the Applicant on 20 December 2010. The Applicant gave the following evidence after having reviewed this signed letter at the hearing: "Q. So your employer at that time was offering two further opportunities to pass a FACEM exam? A. Yes, according to this." 5.8 Consistent with the agreement between GSAHS and the Applicant, he was remunerated as a staff specialist, rather than a senior staff specialist. Notably, a condition of the written agreement reached with the Applicant was the following: "If you are unsuccessful in obtaining your FACEM and registration as a specialist, Greater Southern Area Health Service will not be able to continue to support you as a staff specialist after 30 September 2010 for the written exam or November 30, 2010 for the clinical exam" 5.9 In or around August 2010, Dr Bossak failed his second attempt at the FACEM Exam. During his oral evidence, the Applicant recalled being informed by his employer, that as a result of his failure to pass the examination, his employment would be terminated. 5.10 In about September or October 2010, there were negotiations in respect of the Applicant's ongoing employment. During these discussions, the Applicant was once again represented by ASMOF and an agreement was reached between the Applicant and the Respondent. The Applicant gave the following relevant evidence during the hearing: "Q. And do you remember meeting with staff of your employer in about October 2010 to discuss an ongoing proposal for you remaining in employment? A. That's correct. Q. Meeting with Dr Curran, Stephen Crook and Noelene Bloom? A. And Victoria Hiley. Q. And Victoria Hiley, yes? A. Who was a member of ASMOF. Q. Yes, and she was there via teleconference, is that right? A. That's correct. Q. Do you remember that meeting? A. Yes. Q. And at that meeting was there a proposal put forward by you in relation to how you could continue your employment, or by Ms Hiley on your behalf? A. Yes. Q. And was there some agreement reached in relation to an outcome? A. Was an agreement reached? Q. Yes? A. Yes." 5.11 Following this negotiation, the parties entered into amended employment terms whereby the Applicant would take on full-time employment as a Career Medical Officer (CMO) (Grade 2, 4th year), his employment terms would be in line with the relevant Award and there was no guarantee regarding moving to Senior Career Medical Officer. The Applicant's acceptance of the terms of his ongoing employment is documented in an amended contract of employment that was signed by the Applicant on 1 December 2010. 5.12 In light of the above, the Respondent submits that any changes to the Applicant's remuneration from Staff Specialist to CMO were as a result of his failure to comply with the terms and conditions of his respective employment agreements. 5.13 At all times, the Applicant's employment conditions had been set out in writing, agreed to and signed by the Applicant. In addition, all negotiations between the Applicant and GSAHS regarding the Applicant's ongoing employment were carried out while the Applicant was represented by ASMOF. The variations in the Applicant's employment conditions were amended by agreement as a result of the Applicant's failure to acquire the requisite Australian qualifications. 5.14 The respondent submits in relation to these matters that: (a) the respondent's actions in the above circumstances do not meet the threshold of engaging in victimisation, as was discussed in HSU, (b) even if they did amount to victimisation, they are not continuing acts, as discussed in Hendrikus, and (c) the applicant has failed to make an application in accordance with section 213(3) of the Act within the time required. Applicant's alleged victimisation from after 2010 till 2013 5.15 On 3 May 2011, the Applicant made a written complaint against Dr Shane Curran (Dr Curran) containing allegations of bullying, harassment and discrimination. A subsequent investigation concluded that the Applicant's allegations were not substantiated. 5.16 That finding was not appealed or contested by the Applicant. 5.17 In October 2013 Dr Bossak submitted a request for retrospective payment as Senior CMO for the period 1 December 2010 to 9 October 2013. The NSW Health Department rejected this application as it did not "constitute a regrading application as contemplated by the Award provisions and the Guidelines". Dr Bossak did not apply for regrading to Senior CMO status. Relevantly, the Applicant stated in the hearing: "Q. But you did move forward with the application via ASMOF on 19 August 2013? A. That's correct. ASMOF moved forward. I was working on getting support from my director at the same time but he refused to give me that support. So the application then became futile. Q. You obtained a letter of support from Dr Gallichio? A. Correct. Q. That's annexed to your statement, on 20 April 2011, so that's two years and four months earlier. You say you met with your employer but you never put a request in writing for any documentation in support of a regrading application, is that right? A. That's right, a formal regrading application." 5.18 That matter was taken n further by the Applicant. 5.19 The respondent submits in relation to these matters that (a) the respondent's actions in the above circumstances do not meet the threshold of engaging in victimisation, as was discussed in HSU, (b) even if they did amount to victimisation, they are not continuing acts, as discussed in Hendrikus, and (c) the applicant has failed to make an application in accordance with section 213(3) of the Act within the time required. Applicant's alleged victimisation after 2013 5.20 In or around 2014, the Applicant passed the Australian Medical Council (AMC) examination and he obtained general medical registration. The Applicant did not complete the Fellowship Examination that would allow him to be registered as an Emergency Department Specialist and did not subsequently apply for any more senior roles. 5.21 Between April 2013 and 2017, the Applicant attracted concerns with respect to his performance from multiple medical practitioners, and in March 2016, despite the Respondent taking what it considered to be reasonable management action, the Applicant rejected a proposal to be placed on a performance improvement plan. 5.22 On 10 October 2017, the Respondent received an anonymous letter from a Registered Nurse also raising concerns with respect to the Applicant's performance, and after further concerns were raised on 20 October 2017, the Respondent's Director of Medical Services sent the Applicant a letter in relation to his underperformance. 5.23 The respondent repeats the submissions made at paragraphs 4.14 and 4.17. Even in circumstances where the Commission considered that the reasonable management of the Respondent constituted victimisation, each of the above events were separate matters and cannot be said to constitute "ongoing" victimisation as alleged by the Applicant. 5.24 Consistent with the principles outlined in Hendrikus, the Applicant's right to approach the Commission in respect of any alleged acts of victimisation committed by the Respondent would have crystallised when the Respondent took those actions. As a result, the Respondent submits that even if the Commission considered the Respondent's actions constitute victimisation, any alleged contraventions that took prior to 9 October 2018 are outside the time period stipulated by the Act and should not be permitted to proceed in circumstances where no adequate explanation has been provided by the applicant for those matters the Commission must have regard to under section 213(4) of the Act. Alleged victimisation arising from the Dr Smyth Report 5.25 The report prepared by Dr Timothy Smyth (Dr Smyth) dated 9 October 2018 (Dr Smyth Report) was commissioned for the purpose of conducting an investigation into a bullying complaint lodged by the Applicant dated 10 February 2018. Dr Smyth is an independent third party. The Dr Smyth Report clearly outlines that its purpose was to make observations and summarise the issues, present findings and suggest next steps. The Applicant gave the following evidence: "Q. And have any of the findings from this investigation, as far as you're aware, been implemented? A. No. Q. Or recommendations from the investigation been implemented? A. Not to my knowledge. Q. So on what basis do you allege that you're being victimised by the production of this report? A. That the recommendations were made. Q. Right. So the fact that some recommendations were made, some of which go to Wagga Wagga Base Hospital medical staff themselves, you think is victimisation? A. Yes." 5.26 The Dr Smyth Report sets out five recommendations. The first recommendation is that Dr Wood consider apologising to the Applicant for the manner of his interactions. Relevantly, the Applicant gave the following evidence at the hearing: "Q. Dr Smyth recommended a number of next steps and one of those was that Dr Wood considered apologising to you for the manner of his interactions. Do you think that's an appropriate recommendation? A. Yes." 5.27 The second recommendation is that the Applicant accept that there is a need to constructively review Dr Bossak's workflow and approach to patient assessment and patient flow and his agreement to participate in a formal performance review. The Applicant staled the following during the hearing: "Q. Would you like a formal performance review each year? A. Yes." 5.28 The third recommendation is that the Emergency Department medical staff agree on a clear set of expectations of all senior medical staff in relation to the minimum number of patients to be seen each shift and the policy on determining which patient waiting is next seen. The Applicant stated the following during the hearing: "Q. One of the recommendations was that the Wagga Wagga Base Hospital emergency department medical staff agree on a clear set of expectations of all senior medical staff in relation to the minimum number of patients to be seen each shift and a policy on determining which patient waiting is next seen. Does that sound like a sensible recommendation to you? A. Yes." 5.29 The fourth recommendation was that the Applicant undergo a formal performance review meeting focusing on workflow, the concerns raised by nursing staff and the actions expected of senior medical staff in addressing patient flow, wait times, multi-tasking and working as a team during their rostered shifts in the Emergency Department. The Applicant gave the following evidence at the hearing: "Q. And Dr Bossak, do you undergo a formal performance review meeting in your role as a CMO? A. No. I haven't had one in approximately three years. Q. And do other staff have a formal performance review, as far as you're aware? A. I don't know. Q. You don't know? A. No. Q. Would you like a formal performance review each year? A. Yes. Q. If there was a policy in place regarding performance reviews and that was applied to you as to any other member of staff, you'd be satisfied with that? A. Satisfied? Q. Yes? A. I would agree to a performance review." 5.30 The final recommendation in the Dr Smyth Report was for consideration to be given to rostering the Applicant in the Ambulatory Section for 6 months. Dr Banga provided evidence as to the reason for this recommendation. 5.31 Despite fact that the Applicant considers it to be victimisation "that recommendations were made", it is apparent from his evidence at the hearing that he largely considers the recommendations set out in the Dr Smyth Report to be reasonable and appropriate. 5.32 Consistent with the principles set out in the HSU case, an individual's preference in relation to one course of action rather than another cannot amount to a detriment. The fact that the Applicant may disagree with findings or the recommendations contained within the Dr Smyth Report does not amount to victimisation. In addition, the statement of facts about an individual's performance cannot be characterised as victimisation. 5.33 Further, the Respondent is yet to implement any of the recommendations contained within the Dr Smyth Report. As a result, it cannot be said that the Applicant has suffered any detriment as a result of the Dr Smyth Report. 5.34 Given the Applicant's evidence as noted above the Respondent submits that, even were it to implement Dr Smyth's recommendations, the Applicant will not suffered victimisation. The Applicant's alleged financial penalty 5.35 The Applicant has claimed compensation for the 'financial penalty' imposed on him as a result of his remuneration decreasing from that of a Staff Specialist to that of a CMO in 2010, and alleges that the difference in remuneration amounts to $1,600,000. In relation to this issue, the Applicant gave the following evidence: "Q. Have you made any complaints, apart from these proceedings, to anyone, in relation to your rate of pay since the end of 2010? A. Only when I could not pursue senior CMO. Q. And who did you make that complaint to? A. To Wagga Base and ASMOF. Q. And when? A. Around the time that the proceeding when we were trying to get support from the Director of the Emergency Department. Q. Which proceedings? A. Just discussions with ASMOF. Q. Can you give me some indication or give the Commission some indication of when you're talking about? A. Just the dates that you have mentioned. Q. Well, I've mentioned lots of dates but none of them involved a complaint by you to anyone? A. It wasn't a complaint. I'm sorry if I misled you. It wasn't a complaint, just a discussion. Q. Right? A. With ASMOF. Q. With ASMOF: Your representatives? A. Correct. Q. And have they ever written to your employer in relation to concerns over the rate of pay you've received? A. Not to my knowledge. Q. And you haven't authorised them to, have you? A. They, ASMOF, have said that they felt that I was entitled to obtain senior CMO status. Q. And did you do anything about that? A. No, I've said that I could not get support from my Director of the Emergency Department, Shane Curran, to enable me to move forward with that application. 5.36 The fact that the Applicant failed to lodge any formal or written complaint about his remuneration and failed to formally apply for a regrading, undermines the argument put forward by the Applicant that he has suffered a 'financial penalty'. 5.37 Paragraphs 4.1 - 4.13 outline the steps engaged in by the parties in relation to the Applicant's terms and conditions of employment. These steps included approaching the Commission in relation to a dispute and seeking advice and assistance from ASMOF in relation to the terms and conditions of his employment. Having engaged in these processes the Applicant entered into written terms and conditions of employment with the Respondent. The Respondent submits that these processes cannot be said to meet the threshold for victimisation. 5.38 Further, the failure of the Applicant to take any steps to lodge a complaint about the conduct of the Respondent or apply for a regrading at the time the conditions of employment were entered into clearly demonstrates that the Applicant consented willingly to those terms and conditions. To turn around now and say, more than eight years after the event, that the Respondent's actions amount to victimisation, in the Respondent's respectful submission, is nonsense. The Respondent was engaged in no more than a negotiation with the Applicant based on his qualifications for the role and remunerating him in accordance with the relevant industrial instrument. 5.39 The Respondent emphasises, as indicated in the transcript extract in paragraph 4.33, in discussions regarding his remuneration and regrading, the Applicant was represented by ASMOF, which further undercuts the Applicant's argument. 5.40 Aside from generalities, the Applicant gave no evidence about the loss suffered as a result of the allegation of victimisation, therefore, consistent with the principles in the HSU case, his claim for compensation should not succeed. The applicant in reply 1. The applicant relied upon the following reply submissions: We refer to the Submissions of the Respondent filed and served on 6 May 2019, and exercise our right of reply as follows, using where appropriate, the subject headings adopted by the Respondent: Relevant Case Law a. HSU v NSW [2017] NSWIRComm 1036: We note the complete distinction between that case and this: i. The paramedic in that case had done something unarguably wrong. The decision makers attested, and were believed, that they had transferred him because of that, and not because of his trade union activities. ii. Despite every opportunity presented to the Respondent in this case to show that Dr Bossak has done something wrong over the years, or has failed to meet expectations compared to others (for instance, it would have been no difficulty at all for the Respondent to show that candidates usually pass FACEM exams at the first or second try, if that was so), no such thing has been (or can be) shown. We refer below to the - to say the least - unreliable selective comparison "spreadsheets" which do not answer Dr Bossak's personal "sticker diary" of his objective patient attendance record which has been presented to the Respondent several times. Since it contains patient names, Dr Bossak has not surrendered it, but we are willing yet again, to present it. We note that two "spreadsheets" are on record. They presumably compare Dr Bossak to different people each time, each time two others in number. Dr Banga, on the other hand, gave evidence that about 10 doctors per shift see patients. iii. In any case, the evidence of Dr Banga – who declares himself to be not a decision maker, and could also not have been one for the occurrences prior to his appointment - is not of wrong doing, but now a newly minted "need" for "performance management" based on this unsubstantiated assertion about "numbers". iv. The other distinction is that the HSU case identified one event, which was alleged to be "victimisation" stemming from a single event – the transfer. This case has described an atmosphere and a pattern over several years. The events, the statements, the conduct, were all set out in clear evidence. It was made clear that all the persons who could have rebutted the evidence of Dr Bossak were available to do so, but were not called, enlivening the clear Jones and Dunkel inference. It is also not possible to claim the "Barclay test" as to what motivated the decision maker, because the decision makers did not give evidence. "Statements made" about the employee's conduct by a "senior officer" were simply absent. The persons who could have made them were not absent from the power of the Respondent (they mostly still work there), but they were not produced to make such statements, and be cross examined. v. Loss: the amount claimed in this matter is utterly quantifiable, and has been a fundamental element of the Application, from its commencement. Dr Bossak was recruited to a role, and claimed the benefit of an industrial instrument, and the history thereafter has been made clear. The connection with the criteria set out by the Act has been specified. That is, BUT FOR this behaviour, Dr Bossak would be better off by the amount claimed. It is the difference between CMO and Staff Specialist, applying over the period at hand. It may have been mitigated had the promotion to Senior CMO not been actively blocked. All of this financial penalty arose because of behaviour that is provided for in Section 210. It is a matter of record, part of the evidence, what the difference is between what Dr Bossak should have earned and what he has been paid. vi. We agree that a "detriment" has to be measured objectively. The history of this matter points to that detriment. No reasonable person would say that the energetic attack on the earnings or standing of Dr Bossak (all but completely not disputed by evidence that could have been called but was not) was anything but a "detriment" (meaning, "harm or damage"). vii. The issue of whether victimisation is an "event" or a state of activity, also arises from the HSU case, and is a major factor put in issue in this matter by the Respondent. Therefore, before proceeding to discussing the next case quoted, we explore that point: Meaning of Victimisation. We say that the term "Victimisation" is to be given its normal grammatical meaning. It should not have qualifications implied onto it. We have addressed that in our submissions in chief. The submission of the Respondent emphasises the time limit for making a complaint, and in so doing does imply that "qualifications" need to be placed on that meaning. We suggest with respect that the provision is not to be qualified in the way proposed. The desired "qualification" is that the provision implies perhaps that the word "contravention" must have added to it "single incident" or "one event only may be considered" or that "contravention" may not be a pattern of conduct, but "must be one single finite event". There is no basis for implying such qualifications. The Respondent has all along stated the view that the Application is largely statute barred because many of the examples raised in evidence occurred more than 21 days prior to 30 October 2018, being the date these proceedings were commenced. It being now formally put, we now answer the contention. 1. The applicant's reply submissions then dealt with the respondent's "out of time" argument and essentially restated the proposition that the victimisation of the applicant did not manifest itself as a single event or series of discrete events but rather as a course or pattern of conduct which has continued up until the present time. The application is, therefore, not "out of time". 2. The reply submissions then continued as follows: We turn to a response to the points made by the Respondent: As to paragraph 5.1 to 5.3: The evidence has been given in this respect. The Applicant tells us the expectation for practitioners taking more than one attempt to pass the examinations. This means that the "condition' was, according to any view of a hypothetical fair minded observer, that a reasonable opportunity was to be given for Dr Bossak to pass. We say in our evidence that he was not given a reasonable opportunity. Evidence could have been called to dispute that contention, but it was not. Note: At this point, we should consider that Dr Bossak was represented in several matters before the Commission, or in several interactions with the Respondent about this series of events. It may be said that "agreement" was reached, and so no complaint can be brought. Our evidence is that the "agreements" were reached in the face of certain alternatives – unemployment, deportation, significant disruption of family circumstances. No rebuttal evidence was advanced in the face of that evidence. The episodes on record, and their outcomes, all form part of the whole. We urge the Commission to "…………consider the matter in the context of all acts and omissions capable of constituting victimisation in the statutory sense…………" As to paragraph 5.4: This event in 2007, where the Applicant was stood down for reasons that were not given (then or now) is "related". We do not know, having never been told, what factor it is that is said to be "unrelated" to these issues, despite the contention in that paragraph. What we do know of, is the "solution". It directly attacked the arrangement whereby he claimed a benefit under an industrial instrument and thus enlivened Section 210 (e). As to 5.5 to 5.10: See above as to the nature of this 'agreement'. None of this would have occurred had it not been for the benefit claimed under the industrial instrument. In fact, the cross examination and the submission carefully specifies that the outcome was reduction in pay. The alternative was as stated – unemployment, deportation. The facts, at the very least, put this "agreement" in to a most worrying context. Not only was he not given reasonable chances to pass, he actually had to "agree" to not try again. No evidence was given as to any other medical practitioner having to agree to "not try" to achieve qualifications. See 5.8. The anxiety to reduce his pay forms the theme. The Respondent breached and then restricted the original agreement by imposing a forced 'agreement" and giving him this "one more chance". Care was taken at this point to ensure that his pay went down from Senior Staff Specialist to simply Staff Specialist. 5.9 – 5.10. Then he was sacked. If he had not been employed as originally agreed, we must assume he would not have been. No evidence was given that medical practitioners are terminated for failing an exam – especially where multiple attempts are permitted. 5.11 – 5.13. This emphasises the treatment. It does not refer to any failure to comply with the original arrangement between the parties. It refers to "respective employment agreements" (5.12). The Respondent intimidated Dr Bossak (he with "the target on his back") into agreeing to the reneging on the original. That is the set of "agreements" Then, after he had failed, as he had been set up to do, he was further victimised: Page 34 of Davis v Amalgamated Television Services Pty Ltd: In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". ................... Reduction in pay by several hundred thousand per year, is indeed, "variations in employment conditions" (5.13). It is "injury hardship or loss". Had he been permitted to follow the original agreement, we assume he would have passed and become a fellow of the College. He was blocked. 5.14: No evidence of motivation, in accordance with the Barclay principle, was called. That is except for the latest episode, and Dr Banga stressed that he was not the first hand reference for that, but simply acted on the information of other persons who were not called. The reverse onus of proof means that the evidence of Dr Bossak must be taken at its highest. It has to be actively contradicted. It was not contradicted by any of the persons who were actors in the matters, because they were not called. No other motivation was given for any of the instalments in the serial other than the most recent, ongoing one (this unsupported "he doesn't do it quickly enough" claim). That evidence about through put was from Doctor Banga, who agreed (page 35, transcript) the Dr Smyth was available but was not called, that he (Dr Banga) was not the sole decision maker ( @ 25 on that page), that he had no direct knowledge of "performance" issues (point 40 on page 43 and page 44, and on to about 10 on page 45). In fact, Dr Banga's cross examination consists for a large proportion of it, of admissions that persons who would have direct knowledge were available, had for the most part, consulted him, still worked there, but were not called. The most recent issue – "through put/ turnover" – is said to be important, and justified, and thus not a detriment. To meet the "HSU" requirement for this contention to be held we would have had to hear from the first hand decision makers, who could have been conveniently called. Hearsay by Dr Banga does not meet the HSU standard. We must assume (Jones and Dunkel) that the HSU criterion would not have been met. A reasonable observer must say that most of Doctor Banga's evidence is hearsay, which is a matter of weight. Since it is sought to be applied to the HSU criteria, we say it should for that purpose be given no weight. The evidence of the actual senior officers and decision makers which may have been capable of attracting more weight, was not offered. The inference is therefore, that it would not have added "weight". As to Hendrikus as referred to in 5.14, we are talking about a 'detriment' every pay day, and episodes – iterations of the same – that recur. This 'turnover' assertion and the declared "performance management plan", are only the latest manifestation. The actual behaviour creating the detriment is current. The detriment is ongoing. The effect on Dr Bossak's health and well being is not the test, and has not figured in the evidence. Loss of money is manifest, on an ongoing basis, and is a contravention. 5.15 and 5.16: It is a reasonable wish that this conduct would cease. It has not. It must not be held against Dr Bossak that he merely attempted to get on with the job, and not take issue with yet one more example. He now takes issue. He should not have been put in the position that he needed to. 5.17 to 5.19: How many other CMOs have been actively blocked for promotion? This positive undermining (all because he arrived in 2005 and claimed the benefit of an industrial instrument) cost him career progression and money. It was part of the detriment, and it made him a victim. That iteration of the behaviour clearly breached Section 210 of the Act. 5.20 to 5.24: 5.20: This is a suggestion that Dr Bossak "did not put up enough of a fight", and was not put in evidence, from our recollection. In view of the facts of what has happened before and after 2014, that is no answer to the case put. If it is a point in mitigation, then the economic benefit is negligible. Unless corrected we must say that this would not have had Dr Bossak restored to the Staff Specialists Award. This is a reference to a choice Dr Bossak was forced to make. That is, in order to maintain registration as a medical practitioner, after being blocked (as referred to elsewhere) from progressing his Specialist Accreditation, he had to sit the AMC examination – and passed at the first attempt. It was not his choice to "not complete'' FACEM examination (referred to here as the "Fellowship''). Plus, it is not factual to say that he "did not subsequently apply for any more senior roles". As was stated in evidence, he was specifically and pointedly blocked from becoming a Senior CMO. 5.21: We ask that the Commission disregard such submissions as "reports from multiple medical practitioners". We know who they are alleged to be. If their evidence would have helped the Respondent and enabled such a submission, we assume they would have been called. Hearsay, for this purpose, is not evidence at all. The only evidence is Dr Bossak's. We look in vain at this stage for the facts of "underperformance' and the need of a "performance improvement plan". Section 210 (2) is there for a reason. 5.22: The evidence is that the anonymous letter was solicited. Its existence assists Dr Bossak's case, not the other way around. Poison pen letters should not be relied on to bolster cases before this Commission. The Director of Medical Services should have been called. Since he was not, we assume he would have not been able to assist the Respondent's case. 5.23: The Commission should follow the guidance of the Full Bench in Davis and ".............consider the matter in the context of all acts and omissions capable of constituting victimisation in the statutory sense…………" 5.24: See above. This is one case, with many examples, episodes, and eruptions. It is not 15 cases (if we have counted the episodes accurately) with but one - the Smyth issue - being the latest. All the parts make up the whole. The act is ongoing, not simply the effects. Smyth Report We have not had the advantage of hearing evidence from Dr Smyth. For example, we will not know who instructed him to change his report. We will not know whether or not anyone suggested the inclusion of his recommendations. 5.25 -5.34: 5.25: This expects Dr Bossak to make a legal judgement. 5.27: We will not be able to hear from Dr Smyth as to what it is that was said to him and by whom, that led him to the view that there is some fault in Dr Bossak's workflow and assessment of patients, which should be "reviewed". There is a difference, with respect, between a "review" as meant by annual consultation, and a "review" as meant by accepting an unwarranted attack on one's skill and professionalism, so that it can be "improved". No useful evidence was put by any person who could have put it, that there is anything that could have properly led Dr Smyth to that view. We assume that Dr Smyth's evidence would not have helped. The hearsay of Dr Banga does not. This warrantless suggestion arrived at in a way not known to us, and the intention of the Respondent to adopt it, is a contravention. 5.28: This is not victimisation, that one of the perpetrators "consider" apologising. It is glossing over the actual impact on the Applicant of the Smyth report, though. They don't give evidence capable of being tested, but demand that he accept that he is seeing not enough people. He does not. 5.29: What concerns by nursing staff? Where are these people to give evidence? What did they say to Dr Smyth? Where are the givers of evidence about workflow and teamwork etc? We repeat our criticism as to 5.27 in connection with the extract from evidence. 5.30: Dr Banga was relying on other people who were not called. He did not have knowledge that could be challenged. At that reference he accepts that he did not get any information from Dr Smyth, and did not consult him (p52, 4 and 5). His evidence is of no value in this respect. No justification has been advanced for putting Dr Bossak into what appears to be the "light duties" area. Unsubstantiated reasons such as "complaints by nursing staff' and complaints by an indefinite number of unidentified "senior doctors" is not "justification". 5.31: We say that the series of actions are victimisation. We take the point that recommendations are not victimisation. It is only victimisation if something is done about 'recommendations'. The intention is to adopt them, so the victimisation has been implemented. The serial will continue. The misconstruction of his complaint as contemplated by Section 210 (j) by turning it into what it became (the Smyth report, with its groundless 'findings'), is victimisation. It is treatment. It is contravention. 5.32: This individual would have "preferred" not to have been the target of this repeated, serial behaviour. It is not for him to assess, though. It is for the Commission. We say that this is clearly victimisation, connected to the Act as pleaded. The Commission, in Davis and Lee, should be followed. 5.33: Dr Banga told us that Dr Bossak will be transferred to the ambulatory section. He told us that the Smyth report was to be implemented. He adopted that report, which was a twisting of Dr Bossak's complaint about bullying, which was an episode of the consistent pattern over multiple years. We need not repeat the detail here. The victimisation is real, and is continued by the Smyth report and by the embracing of it. Financial penalty: 5.35 to 5.40: There is no challenge to the assertion that the difference between the award-based earnings that Dr Bossak claimed the benefit of by agreement in 2005, and the reduced circumstances to which he has been cast, is as claimed. The fact that Dr Bossak made the choice between acquiescing in this treatment, and unemployment and deportation, must not be held against him. The victim is now complaining. The fact that he hoped for it to be different, and so put up with things until that hope was shown to be forlorn, must not be held against him. His previous "giving in" should not be held to his detriment. He should probably have brought this action sooner. BUT the Respondent should not have behaved as it has. The victimisation should not have occurred. Quantum We accept that the amount of money claimed is considerable. That is simply the fact of this matter. BUT FOR all the "………acts and omissions capable of constituting victimisation in the statutory sense…….." (Davis), Dr Bossak would not have suffered this quantifiable financial detriment. One may say that he was represented throughout. He was. His representatives, though, were operating within the context of the matters presented on each occasion. Their priority was to salvage his employment on each occasion. The so-called "agreements" reached were of the nature described by us - that is, "take it or leave it" ultimata, ("ultimatum", meaning, according to the Cambridge Dictionary: a threat in which a person or group of people are warned that if they do not do a particular thing, something unpleasant will happen to them.) Just because Dr Bossak was not deported, it does not mean that he freely accepted his significant reduction in earnings. He did not freely "agree" -unlike any other medical practitioner employed by the Respondent - that he would "never again" attempt to pass his exams. We accept that the Commission has discretion with respect to any quantum awarded, and can take into account the series of outcomes of the various episodes over the years. On the other hand, we invite the Commission to consider the "weight" of any "agreement" reached as it affects this matter, having regard to the circumstances. Conclusion. There is a provision in the Act. This case clearly arises under it. A remedy is called for. The evidence of Dr Bossak should be taken at its highest. That is the impact of Section 210(2). There has been no rebuttal by decision makers, so the principle of "Barclay" does not arise. Dr Banga produced hearsay evidence which is of little value, if any. Jones v Dunkel was enlivened with respect to an entire schedule of persons, all of whom were available and none of whom were called. The matters particularised – the "parts" which constitute the "whole" occurring over a long period, with the same motivation in common – are not barred by the "21 day" specification in the Act. See Davis, among other authorities. There is no justification for any of the behaviour, that has been shown by the Respondent, using evidence of any reasonable standard. The motivation of the Respondent, and any rebuttal of the evidence of Dr Bossak, could not be tested by cross examination, because there was no evidence to cross examine. There was not even any fully laid out justification for this latest "turnover" assertion, where the facts (showing which doctor sees how many patients) are fully available. Dr Bossak gives evidence that those facts would assist him. There is no justification for providing selective changing samples made up of small numbers of compared "peers". There is certainly no evidentiary value in the hearsay way it was done. We refer to all of our evidence and submissions. Further proceedings 1. In response to email correspondence from the applicant's solicitor dated 3 July 2019, the matter was re-listed before me on 16 July 2019. On that occasion it was asserted on behalf of the applicant that he had been rostered to work an "onerous number" of 10 hour evening shifts and three out of four weekends during the month of July 2019. The following was put on behalf of the applicant: …a reasonable person could assume, without explanation from persons, that there's an inference that there's a connection between this matter being before the Commission and the rosters, which is not really the correct way to run things, in my view. Our worry is that it's very important to maintain professional relationships at this level. It's such an important public utility and for this Commission to be called upon to police such matters is really not the way it should be done. So to make progress today, we would like some sort of meeting of the minds that there's going to be a reassurance, we're not after admissions, obviously not, but a reassurance that there's going to be even-handedness of treatment when it comes to such matters. 1. The proposition that there was any connection between these proceedings and any alleged unequal treatment of the applicant in relation to the roster was vehemently refuted by the respondent. 2. Ultimately, the matter was not pressed by the applicant and I do not propose to deal further with it in this decision. Determination Staff Specialists (State) Award 1. Clause 2 Definitions of the Staff Specialists (State) Award contains the following: "Staff Specialist" means a Specialist, Senior Specialist and Post Graduate Fellow (except where specifically excluded) employed on either a full time or a part time basis. "Specialist" means a person appointed to a position of Specialist by the Employer. To be eligible for appointment a specialist must be a person who: - (a) holds a medical qualification that is registrable in New South Wales; and (b) after full registration has spent not less than five years in the practice of medicine in New South Wales in the Health System or in any other institution, whether in New South Wales or elsewhere, deemed by the Employer to be of equivalent standing; and (c) inclusive within the period described in (b) above has spent not less than three years in supervised specialist training and/or experience; and (d) (i) has obtained a Fellowship of a recognised Australasian Specialist College (see Part C Schedule 2 for list of recognised Australasian Specialist Colleges); or (ii) has proof of recognition as a specialist by the Specialists Recognition Advisory Committee; or (iii) has conditional registration with the NSW Medical Board as an overseas-trained specialists (not including conditional registration as a general practitioner; or (iv) does not have a qualification recognised under (i) (ii) or (iii) above, but has obtained an appropriate higher qualification in his/her specialty acceptable to the Employer after consideration by the Medical and Dental Advisory Committee of the Employer. 1. Part C Schedule 2 of the award lists the Australasian College of Emergency Medicine ("ACEM") amongst the list of recognised Australasian Specialist Colleges. It is common ground that the applicant has never held a Fellowship of that college ("FACEM"). The employment of the applicant 1. By letter dated 24 February 2005, the applicant was offered appointment to the position of Clinical Coordinator – Emergency Department at Wagga Wagga Base Hospital which was then part of the Greater Southern Area Health Service ("GSAHS"), the predecessor of the respondent. He was to be employed pursuant to the Staff Specialists (State) Award in the classification of "Staff Specialist – Senior". 2. Correspondence dated 3 March 2005 written on behalf of GSAHS to the applicant's recruiting company contained the passage cited at paragraph 2 of Dr Banga's witness statement (see [6] above). 3. The applicant signed the Acceptance Statement attached to the letter of offer on 5 April 2005. Events of 2007 1. Paragraphs 9-22 of Dr Banga's witness statement deal with the events of 2007, including the Clinical Case Review conducted by Dr Louis Christie during which the applicant was placed on special leave with pay. In his evidence, the applicant asserted that that he was "stood down" as a result of another member of the Emergency Department, Dr Shane Curran, "issuing concerns" to the Director of Medical Services, Professor Gregory Papworth. 2. A dispute notification filed by the Australian Salaried Medical Officers' Federation ("ASMOF") on 14 September 2007 and referred to by Dr Banga at paragraph 17 of his witness statement as an "Application", sought a recommendation from the Commission to the effect that GSAHS comply with the terms and conditions contained in the employment arrangement between it and the applicant and that the applicant be returned to the position of Head of the Emergency Department at Wagga Wagga Base Hospital. This notification followed the Clinical Case Review undertaken by Dr Louise Christie during which the applicant was placed on a period of special leave with pay. 3. Following the notification of this dispute by ASMOF, the parties entered into negotiations in an attempt to resolve the dispute. These negotiations resulted in an offer to the applicant which was set out in a letter to him dated 26 October 2007. 4. The letter to the applicant, which is referred to by Dr Banga at paragraph 18 of his witness statement, was from Stephen Crook, Area Human Resources Manager, GSAHS. It contained the following: Re: Amended Employment Conditions Advice (IRC 1511 of 2007) In accordance with discussions to date in the Industrial Relations Commission (IRC) the Greater Southern Area Health Service (GSAHS) has prepared the attached position description and performance agreement to allow for you to return on a temporary basis as the part time Clinical Co-Ordinator for the Emergency Department At Wagga Base Hospital. This position you will hold until such time as the GSAHS is able to secure the services of a Director for the emergency department. At such time you will be issued with a new position description and performance agreement that removes overall responsibilities for the department. As negotiated this employment agreement includes the following matters: 1. You will return as an interim director/clinical coordinator part time at 75% working three ten hour shifts per week generally Monday, Thursday and Friday, with one day being non clinical. 2. You will hold the position until a new director can be appointed. GSAHS will commence recruitment action as soon as possible. 3. On commencement of the new Director you will step down and continue to work only as a part time senior staff specialist. As you will have no department management responsibilities the management allowance will be withdrawn after one month in accordance with the award. 4. Any balance of TESL that is available from full time employment and prorata will be available to be claimed for the expenses of training in Canberra in accordance with the award and the NSW Health Policy Directive related there to, including taxation requirements. 5. You will assist the new director to settle in as required: 6. You will continue to have your FACEM training in Canberra in the context of secondary employment, generally Tuesday and Wednesdays each week. 7. You will not be required to work evening shifts whilst pursuing the FACEM training. (except as required for on call) 8. You will work one weekend day per month with the following Monday off. 9. You will have access to administrative support for Diary/contact management and for administrative duties within the department (Ward Clerk) 10. You will share the on call roster at part time 75% in line with his reduced appointment. 11. GSAHS will continue to support your attempts to gain your FACEM for a period to the 1 November 2009 with you to supply a plan of study for the completion of FACEM Training within one month of this agreement. 12. GSAHS will continue to support your AON status up to 1 November 2009 wherein it is expected you will have received you FACEM. 13. You will have the opportunity to return to full time permanent employment with GSAHS when you have Australian registration as a specialist and your FACEM. 14. As interim director you will sign off on an agreed Position Description (PD) and Performance Plan PDP. On the hand over to the new director you will have a new PD and PDP that will remove the management responsibilities. 15. GSAHS will allow up to two weeks part-time work (60hrs) for you to catch up on administrative matters. A list of matters and issues for attention are to be prepared by the Cluster Manager. ASMOF will lodge a notice of discontinuance on the IRC Matter 1511 of 2007 on signing of this letter, position description and performance agreement. 1. The letter contained the following notation: I Dr Peter Bossak agree to the amended conditions as outlined in this letter and detailed in the signed Position Description and Performance Agreement attached. 1. This letter and the attached Position Description and Staff Specialist Performance Agreement were each signed by the applicant on 31 October 2007. From this point in time, the applicant worked in accordance with the terms set out in the letter and agreed to by him. 2. Dr Curran was subsequently appointed Director of the Emergency Department. 3. It is unclear from the "Particulars of Victimisation" as pleaded in the application for relief (at [4] above) whether it is alleged that the conduct of GSAHS in connection with these events in 2007 constituted victimisation of the applicant. However, it is claimed that in "2007… the Applicant was spuriously penalised in his employment in such a way as to require the intervention of this Commission". Further, the applicant dealt with these matters in his witness statement and claimed that "they did not want me to have the benefit of the Staff Specialists (State) Award" (paragraphs 22, 26-27 at [5] above). 4. At the very least, it appears that these events in 2007 are said to be "part of the on-going harassment and victimisation of Dr Bossak". If this be a correct characterisation of the applicant's claim then I reject it. 5. Further, for the reasons set out below, I reject the submission put on behalf of the applicant to the effect that the Commission should draw a Jones v Dunkel inference against the respondent as a consequence of its failure to call as witnesses people such as Dr Curran, Professor Papworth, Mr Crook and the then Chief Executive of GSAHS, Ms Heather Grey, to give evidence refuting the applicant's victimisation claim. 6. These matters occurred 12 years ago. It is far too late to now claim that the applicant was victimised because he claimed to be entitled to the benefits of the Staff Specialists (State) Award. In any event, the settlement reached, which was agreed to by the applicant, provided that he would continue to be covered by that award. 7. Even if I accepted (which I do not) that the conduct of GSAHS in 2007 was part of a continuum of behaviour which culminated with the Smyth Report on 9 October 2018, from which time the 21 day time limitation in subsection 213(3) of the Act began to run, this aspect of the applicant's claim must still fail for the following reasons. 8. Firstly, on the evidence before the Commission, nothing that was done to the applicant in 2007 falls under any of the heads of victimisation set out in section 210 of the Act. The documented evidence discloses that the issue initially arose as a result of a Clinical Case Review conducted by Dr Christie in May 2007 due to the applicant's medical entries in clinical notes which were "lacking in detail and do not show clear evidence of a systematic approach to history taking or examination of trauma patients". The applicant was placed on special leave with pay while the Clinical Case Review was undertaken. On 23 July 2007, Paul Curtis, Director of Clinical Governance at GSAHS, wrote to the applicant stating "[t]he review has highlighted a number of areas which require attention, incorporating clinical management, supervision and management issues…" 9. Even if it were the case that a victimisation claim based on these events was technically "within time", it would be entirely unfair and unrealistic to expect the respondent in 2019 to be able to produce evidence to meet the reverse onus in subsection 210(2) of the Act because the applicant has now, 12 years after the event, decided to cry "Victimisation!". 10. Secondly, the dispute notification filed on the applicant's behalf by ASMOF made no reference at all to the notion now being propounded by the applicant to the effect the conduct of GSAHS and the settlement of the dispute, which was eventually agreed to by the applicant and put into effect, constituted victimisation of him for any of the reasons proscribed in subsections 210(d), (e), (f), (g) or (j) of the Act. No allegation of victimisation was made at that time. 11. Thirdly, the dispute was settled on terms set out at [36] above. The applicant, who was represented by ASMOF throughout this process, agreed to those terms. It is not now open to the applicant to recast the events of 2007 as victimisation of him by GSAHS or to retrospectively withdraw his agreement to the settlement of the dispute which was put in place at that time. 12. I refer to the Full Bench decision in Caleta Trpimir v Northern Sydney Area Health Service ([1995] NSWIRComm 38). That matter involved an appeal from a decision of a Conciliation Commissioner dismissing the appellant's unfair dismissal application on the basis that a settlement of the appellant's claim had been negotiated by the appellant's union. In its decision the Full Bench (Peterson J, Schmidt J and Patterson CC) stated: The appellant was seeking reinstatement to his former position with continuity of service for all purposes. The agreement reached between the Union and the respondent was that the appellant would be re-employed on the basis of six months probation and without continuity of service. It was the case of the appellant that the agreement entered into between the Union and the respondent was one which he had not authorised and by which he should not be bound. After reviewing the evidence and submissions of the parties, the Full Bench continued as follows: The appellant was a member of the Union who enlisted its assistance in seeking reinstatement. He was represented by the Union in the negotiations it instituted with the respondent over his reinstatement. He had been a Union member for many years, indeed an elected official, the President of the Macquarie Hospital Branch. He remained a member of the Union at the hearing of the appeal. On the evidence there is no basis for the view which the appellant said he had formed that a deal had been done behind his back by the Union and the respondent. The appellant on his own evidence understood the basis upon which he was offered a job on 7 December. He accepted it. Why he did so may perhaps be explained by his stated love of his work, his absolute conviction that the job was 'his' and that he had done nothing wrong. His evidence was that he had in his mind that his discussions with Mr Burton about the matters of concern to him would be 'fruitful'. That the appellant did not succeed in convincing the respondent to restore his sick leave, long service leave and superannuation entitlements may well have been unexpected and a disappointment, but it is clear on the evidence that he understood that those things were not guaranteed if he returned to work on the basis of the offer made. In those circumstances we take the view that it would not do justice between the parties to permit the appellant to renege on the agreement negotiated on his behalf by his Union and understood and accepted by him. In our view it would be unconscionable to permit the appellant to take the benefit of that agreement and to ignore the conditions which were clearly attached to it. The appeal is dismissed. (emphasis added) 1. The facts in the present matter are not on all fours with those in Trpimir. That case involved an application for reinstatement which was settled by acceptance of an offer of re-employment with certain conditions. In the present matter the employment of the applicant had not been terminated. Nevertheless, a dispute had arisen over the terms of the applicant's employment. 2. A settlement of the dispute was negotiated between GSAHS and ASMOF and the applicant expressly agreed to those terms of settlement. He now seeks to renege on that agreement 12 years after the event and claim that he had been victimised by his employer. 3. Borrowing from the Full Bench, "it would not do justice between the parties" and "it would be unconscionable to permit the [applicant] to take the benefit of that agreement and to ignore the conditions which were clearly attached to it". The applicant's claim that the settlement terms to which he agreed 12 years ago constituted victimisation of him, falls precisely within the type of conduct which the Full Bench in Trpimir refused to allow. Events of 2009 1. According to Dr Banga, as early as 2009 concerns were being raised in relation to the applicant's productivity and performance. 2. In or around September 2009, the applicant failed his FACEM exam and, as was submitted by the respondent to be consistent with the agreed terms of settlement reached in October 2007, the applicant was informed that GSAHS was unable to offer him continuing employment without his FACEM qualifications. 3. Again ASMOF intervened on behalf of the applicant. Negotiations ensued and ultimately a settlement was achieved in terms set out in a letter to the applicant from Mr Crook dated 27 November 2009. This letter contained the following: Re: Amendment to Employment Contract I am writing in regard to the recent discussions with ASMOF as your representative and you not obtaining your Australian Specialist Registration and FACEM by 1 November 2009. As discussed the following are to be enacted and form part of the agreement to allow you to continue in employment to 30 September 2010 and to enable you to pass the written exam, this period will then be extended to the 30 November 2010 for the passing of the clinical exam. This extension is to allow for two further opportunities for you to pass the FACEM written exam and then the clinical exam, and is conditional on passing the written exam for the extension. 1. Payroll have been advised that you are to be paid as a Staff Specialist 5th year from the 23 November 2009 at point seven five (.75) with an annual rate of $172,180. (Level 1, 5th year, inclusive of allowances). 2. The Performance Development Plan is to be signed off with Dr Shane Curran by the 30 November 2009. (No Change) 3. The Professional Development Plan is to be signed off by the 30 November 2009. (No Change) 4. The Greater Southern Area Health Service (GSAHS) accepts your word that you will not be required to have any further supervisory training to be eligible all to be a FACEM on passing the above mentioned exams. Thus if it is found that you are required to be in a training post again this will void your employment with the GSAHS. Points 2 and 3 are now critical to your ongoing employment and must be completed by the 30 November 2009. If you are unsuccessful in obtaining your FACEM and registration as a specialist, Greater Southern Area Health Service (GSAHS) will not be able to continue to support you as a staff specialist after the 30 September 2010 for the written exam or 30 November 2010 for the clinical exam. The continuation of you being registered as a Career Medical Officer requiring supervision, sign off and being employed as a staff specialist will not be sustainable after the above respective dates. This may also result in your work visa becoming invalid. 1. The applicant signed the Amendment to Employment letter of 27 November 2009 on 20 December 2009. He also signed a document entitled "Professional Development Plan Process" which required him to consult a minimum of one patient per hour. 2. Submissions put on behalf of the applicant described the settlement to which the applicant agreed in 2009 as "a forced 'agreement'" and one of a number of "mere salvage operations conducted (responsibly and professionally) by his Association because the alternative was unemployment and deportation". This was, according to the submission, a further act of victimisation of the applicant by his employer. 3. At [40]-[52] above I have set out the reasons why I rejected the applicant's victimisation claim with respect to the events of 2007. For reasons similar to those, I also reject the applicant's victimisation claim in relation to the events of 2009. Events of 2010 1. In or around August 2010, the applicant failed his second attempt at the FACEM exam. According to Dr Banga, in or around September 2010 there were discussions between ASMOF and GSAHS for the purpose of engaging in negotiations over the applicant's ongoing employment. 2. By email dated 6 October 2010 to Mr Crook, the applicant forwarded his proposal regarding his continued employment at the Wagga Wagga Base Hospital. The applicant proposed that he be classified and paid as a Senior Career Medical Officer pursuant to the Public Hospital (Career Medical Officers) (State) Award but retain the title of "Staff Specialist". During the negotiations over this proposal, the applicant was represented by Dr Victoria Hiley of ASMOF. 3. Following those negotiations, on 19 October 2010 Mr Crook again wrote to the applicant in the following terms: RE: Amendment to Employment Contract. I am writing in regard to the recent discussions with ASMOF and yourself and you not obtaining your Australian Specialist Registration and your FACEM by 28 November 2010. As discussed the following are to be enacted and form part of the agreement to allow you to continuing employment with the Greater Southern Area Health Service (GSAHS) from the 29 November 2010. 1. GSAHS will support you to have your Area of Need Status (AoN) removed. You will need to have discussions with the Medical Registration Board to determine the most appropriate method given the current changes and the length of time you have been classified as a Career Medical Officer (CMO). The option and action to address the AoN status needs to be completed by 30 June 2010. 2. You'll be employed as a full-time Career Medical Officer Grade 2, 4 year from the 29 November 2010. 3. You'll be rostered equally as other CMO's employed at the Wagga Base Hospital from time to time. 4. GSAHS will supply documentation required of the Grading Committee for Senior CMO status consideration. This can be signed off by an agreed qualified person. No Guarantee of this status can be given by GSAHS. 5. You will be required to sign off on the respective CMO position descriptions that are required for staff and consideration as a Senior CMO. 6. You can continue to use your entitlements under the Staff Specialist Award until the 29 November 2010. After that date these will all extinguish. 7. On employment from the 29 November as a CMO your conditions will be as per the CMO award. 8. The decision on which working Visa Category you remain on is your decision. If you require GSAHS continue to sponsor you, full documentation must be provided to the area for consideration by the CE one month prior to the expiry date to allow for timely processing. To ensure that all respective documentation is completed I need your confirmation, acceptance and understanding these conditions by 1 November 2010. 1. A formal offer of employment in line with the terms of the letter set out above was made to the applicant by letter dated 18 November 2010 from Richard McClelland, Manager, Medical Recruitment, for and on behalf of the Director-General, NSW Department of Health. 2. On 1 November 2010, the applicant signed the following notation on the letter from Mr Crook of 19 October 2010 (with the date 30 June 2010 in paragraph numbered 1 amended to 30 June 2011); I Peter Bossak accept, understand and agree to the above conditions for my ongoing employment as a Career Medical Officer from the 29 November 2010. 1. For the reasons already articulated, I reject the claim that the applicant now makes that this agreed change to the terms of the applicant's employment constituted victimisation of him by his employer. There is not the slightest shred of evidence to support the proposition that the changes to the applicant's terms of employment were put into effect because of any of the proscribed reasons in section 210 of the Act. The fact is that the applicant had, for the previous five years, been classified and paid as a Staff Specialist, a classification for which he did not hold the required qualifications and had twice failed in attempts to achieve those qualifications. The change in the terms of his employment, to which he agreed at that time, was belated recognition of that fact. Events from 2011 1. On 3 May 2011, the applicant forwarded to Mr Crook a 10 page written complaint against Dr Curran containing allegations of bullying, harassment and discrimination. Whilst these allegations, if substantiated, would have constituted appalling conduct on the part of Dr Curran towards the applicant, they do not, either individually or cumulatively, constitute victimisation of the applicant by his employer as proscribed by section 210 of the Act. 2. In any event, on 29 August 2012, an investigation into Dr Curran's alleged conduct found that the allegations were not substantiated. 3. Throughout the period 2013-2018, members of the staff of the Emergency Department raised concerns about the applicant's patient throughput numbers and his performance generally. Contrary to the submission put on behalf of the applicant, I do not regard the raising of these concerns by colleagues of the applicant as constituting victimisation of him by his employer as proscribed by section 210 of the Act. 4. In January 2016, Dr Stephen Wood replaced Dr Curran as the Director of the Emergency Department. 5. At paragraphs 52-68 of his affidavit (at [5] above) the applicant recounts some of the difficulties which he claims he was experiencing in his relationship with Dr Wood throughout 2016 and 2017, and, subsequently, with Dr Banga from late 2017. Taking this evidence at its highest, there is no basis for a finding that the applicant was being victimised by his employer because of any of the reasons proscribed by section 210 of the Act. There is no suggestion from the applicant that he was being subjected to this unfair treatment during this period because, for example, he was claiming a benefit to which he was entitled under an industrial instrument, namely the Staff Specialists (State) Award (subsection 210(e) of the Act). 6. The applicant had since 29 November 2010, with his agreement, been classified and paid as a Career Medical Officer. There is no evidence that, since that time, the applicant had ever claimed that he should be classified and paid as a Staff Specialist (subsection 210(1)(e) of the Act). He wasn't entitled to make such a claim because he did not hold the required qualifications as prescribed by the award. 7. Similarly, there is no evidence that any of the proscribed reasons in any of the other subsections of section 210 of the Act had any connection to the treatment about which the applicant now complains. 8. On 10 February 2018, the applicant made a formal written complaint of bullying against Dr Wood. Nowhere in this complaint did the applicant assert that the bullying to which he claimed he had been subjected was because of any of the proscribed reasons in section 210 of the Act. The investigation by Dr Smyth 1. In or about July 2018, the respondent appointed Dr Smyth to conduct an investigation into the applicant's bullying complaint against Dr Wood. 2. The Smyth Report was promulgated on 9 October 2018. The report contained the following: Observations and key issues to date Based on the interviews with Dr Wood, Dr Bossak, Dr Banga and the 11 medical and nursing staff, it is clear to the investigator that: 1. There is an underlying productivity and performance issue with Dr Bossak. 2. The doctors, nurses and clinical managers in the WWED are frustrated over the continued inability of the parties concerned to constructively discuss these concerns, now stretching back over more than five years. 3. Dr Wood is frustrated with Dr Bossak. 4. Dr Bossak genuinely feels that he is now being watched and that Dr Wood's interactions with him have been random and designed to unsettle him and get him to retire. 5. Dr Bossak has resisted engaging in a constructive discussion with Dr Fry and with Dr Cumberlege over his performance. 6. The WWBH management have not actively managed the issues, contributing to the frustration of the parties. 7. ASMOF's seeking to contextualise the issue as a clinical management of individual patients, with continued requests for specific patient details, is misplaced and is contributing to the frustration of the parties. Findings Based on the interviews of staff, review of the background documentation and having regard to the definitions of bullying in PD2011_018 and PD2018_016, the investigator is: 1. Satisfied that WWBH management did not promptly follow the recommended flow chart in the policy directives. A copy of the complaint was not promptly provided to Dr Wood and a decision to engage an independent investigator was not made until July 2018, five months after receipt of the complaint from Dr Bossak. 2. Satisfied that there have been some occasions where Dr Wood's frustration with Dr Bossak have led to interactions between Dr Wood and Dr Bossak that were unprofessional. 3. Not satisfied that Dr Wood has been engaged in repeated and unreasonable behaviour directed at Dr Bossak that a reasonable person, having considered the circumstances, would see as unreasonable, victimising, humiliating or threatening. 4. Satisfied that Dr Wood, Dr Fry and Dr Cumberlege, acting reasonably, have tried to undertake a performance review process with Dr Bossak. 5. Satisfied that the majority of the instances raised by Dr Bossak in his February 2018 complaint to Dr Banga, arose from a legitimate concern by Dr Wood as Co-Director of the ED over patient flow, patient wait times and concerns raised with Dr Wood by nursing and medical staff over Dr Bossak's slowness. Next steps The investigator recommends that: 1. Dr Wood consider apologising to Dr Bossak for the manner of his interactions with Dr Bossak and the unintended distress that these interactions may have caused to Dr Bossak. 2. Dr Bossak advises ASMOF that he now accepts that there is a need to constructively review Dr Bossak's workflow and approach to patient assessment and patient flow and his agreement to participate in a formal performance review. 3. The WWBH ED medical staff agree on a clear set of expectations of all senior medical staff in relation to the minimum number of patients to be seen each shift and the policy on determining which patient waiting is next seen. 4. A formal performance review meeting with Dr Bossak be scheduled for November 2018 with the review undertaken by Dr Fry with Drs Cumberlege and Heaney in attendance. The review meeting should focus on Dr Bossak's workflow, the concerns raised by nursing staff and the actions expected of senior medical staff in addressing patient flow, wait times, multi-tasking and working as a team during their rostered shifts in ED. 5. Consideration be given to rostering Dr Bossak in the Ambulatory section for the next 6 months with a performance goal of seeing a minimum of at least 10 patients per shift with a weekly review meeting with Dr Bossak and Dr Fry and/or Dr Cumberlege and a designated NUM. 1. The applicant regards the Smyth Report and its recommendations as a continuation of the victimisation to which he has been subjected since 2005. For example, the second of Dr Smyth's recommendations involved the applicant accepting that there is a need to constructively review his workflow and approach to patient assessment and patient flow and his agreement to participate in a formal performance review. This was described in the submissions put on behalf of the applicant as a "warrantless suggestion arrived at in a way not known to us, and the intention of the Respondent to adopt it, is a contravention". 2. The applicant has also criticised the Smyth Report on the basis that its recommendations concerning issues such as patient flow and the proposed formal performance review meeting with the applicant are outside the terms of reference of the investigation conducted by Dr Smyth which was commissioned to investigate the applicant's bullying complaint against Dr Wood. Whether this is so or not, there is no evidence Dr Smyth's recommendations, or the respondent's intention to adopt them, are in any way connected to any of the proscribed reasons in section 210 of the Act. 3. In any event, I reject the applicant's criticisms of the investigation conducted by Dr Smyth and the findings and recommendations contained in the report prepared by him. During his investigation into the applicant's bullying complaint against Dr Wood, Dr Smyth became aware of genuine concerns held by the applicant's colleagues about his work performance. Dr Smyth was entitled to investigate these concerns and to make findings and recommendations in relation to them. Victimisation 1. The terms "victimisation" and "victimise" are not defined in the Act. 2. In Davis v Amalgamated Television Services Pty Limited ([1998] 81 IR 364) the Full Bench (Cahill VP, Hill and Maidment JJ) stated as follows (at 379-381) (i) "Victimise" There was a substantial concentration by the respondent during the proceedings, and almost sole concentration by his Honour in the judgment, on the question of a victimisation consisting of the dismissal of Mr Davis. The word "victimise" is not defined in the section nor anywhere else in the Act. This is in contradistinction to the precursor provisions of the 1991 Act. The relevant provisions of the 1991 Act were contained in s 481 which relevantly provided: "Victimisation: offence 481(1) An employer, or an organisation, must not victimise a person because: (a) the person does not belong to an organisation of employees; or (b) the person has refused to engage in industrial action; or (c) the person is a member of an organisation of employees or is an officer or delegate of an organisation of employees or is otherwise an elected representative of employees; or (d) the person is a member of a Conciliation Committee; or (e) the person claims a benefit of an award or agreement to which the person is entitled; or (f) the person has informed any person that a breach or a suspected breach of an award or agreement has been committed by the employer; or (g) the person has appeared as a witness or has given evidence in proceedings, relating to an industrial matter; or (h) the person has engaged in, or contemplates engaging in, any public or political activity (not being an activity that interferes with the performance of duties as an employee); or (i) the person, after applying for (and being unreasonably refused) leave without pay for the purpose, is absent from work through being engaged in duties as a member of an organisation of employees in respect of a matter affecting the industry in which the employee is working or in other duties as a member of a Conciliation Committee. (2) An employer victimises a person if the employer: (a) dismisses or threatens to dismiss the person from employment with the employer; or (b) alters or threatens to alter the position of the person in his or her employment with the employer to the person's prejudice; or (c) otherwise injures or threatens to injure the person in his or her employment with the employer; or (d) refuses to employ the person. Victimisation by an organisation (3) An organisation victimises a person if the organisation: (a) advises, encourages or incites an employer to victimise the person; or (b) takes or threatens to take industrial action or any other action against an employer with intent to coerce the employer to victimise the person; or (c) takes or threatens to take action having the effect directly or indirectly of injuring the person in his or her employment. … " We observe in passing that the ambit of the 1940 Act was narrower than that of the 1991 Act. In our opinion, the failure to define "victimise" or "victimisation" in the 1996 Act does not have the result of narrowing the definition in the 1991 Act. Indeed, the omission probably has the effect of extending the former meaning so as to comprehend any act of victimisation within the meaning of that word as ordinarily understood. The words "victim" and "victimise" are defined in the Shorter Oxford English Dictionary (Vol 2) as: "Victim 1. A living creature killed and offered as a sacrifice to some deity or supernatural power. 2. A person who is put to death or subjected to torture by another; one who suffers severely in body or property through cruel or oppressive treatment. b. One who is reduced or destined to suffer under some oppressive or destructive agency. c. One who perishes or suffers in health, etc from some enterprise or pursuit voluntarily undertaken. d. In weaker sense: one who suffers some injury, hardship, or loss, is badly treated or taken advantage of, or the like. Victimise 1. To make a victim of; to cause to suffer discomfort, inconvenience, etc; to cheat, swindle, or defraud. 2. To put to death as, or in the manner of, a sacrificial victim: to slaughter; b. To spoil or destroy (plants) completely." In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". So far as a prospective employee is concerned the word "victimise" must be construed in the context of the word "prospective". In this respect s 213(2)(d) comprehends the remedy of an order requiring the employer to employ the "prospective" employee, so that "victimise" must also encompass, at the lowest, a refusal to employ. Furthermore, s 213(2)(e) comprehends the remedy of an order requiring the employer not to carry out a "threat" to victimise an employee and for that to have any application and effect "victimise" must be taken to comprise conduct involving threats to victimise by the employer. However, it is unnecessary in this case to decide the full ambit of the word "victimise". 1. In Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance ([2017] NSWIRComm 1036) Commissioner Newall stated (at [16]): What is victimisation? 16. As the Commission pointed out in Graham Davis v Amalgamated Television Services Pty Limited [1998] NSWIRComm 289, 'victimisation' itself is not defined in terms in the Act. In my view its meaning is to be inferred from the provisions of subs.201(2) (sic subs.210(2)), which refers to an employee 'suffering any detriment'. The statutory scheme therefore operates by setting out in subs.210(1) a series of bases on which an employer is prohibited from acting toward an employee, and then by providing that where a 'detriment' is suffered by an employee by reason of 'detrimental action' by the employer, there is a rebuttable presumption that the detriment was for one of the prohibited reasons set out in s.210, if the necessary underlying factual situation contemplated in any of the sub-sections of s.210 can be established. Here, for example, that underlying factual situation was that Mr Bruce was and is a union official within the meaning of subs.210(1)(a). 1. I propose to adopt as the meaning of the term "victimise" as it appears in section 210 of the Act: - to badly treat, - to cause to suffer some injury, hardship, or loss, is badly treated or taken advantage of, or the like, - to cause to suffer discomfort, inconvenience etc, or - to cause to suffer any detriment. 1. As stated above, I reject the claim that the "Amended Employment Conditions Advice" letter, which is reproduced at [36] above and which was signed by the applicant on 31 October 2007, the "Amendment to Employment Contract" letter, which is reproduced at [55] above and which was signed by the applicant on 20 December 2009 and the further "Amendment to Employment Contract" letter, which is reproduced at [61] above and which was signed by the applicant on 1 November 2010, either separately or cumulatively, constitute victimisation of the applicant in the sense described immediately above. 2. These variations to the terms of the applicant's employment were negotiated between his employer and ASMOF and agreed to by him. I reject the characterisation that these negotiated outcomes were "forced 'agreements'" or "mere salvage operations". They did not cause the applicant to suffer any detriment. They permitted the applicant to remain in employment even though he did not meet the award definition of "Staff Specialist", the classification into which he was initially employed. 3. With respect to the recommendations in the Smyth Report, and their proposed adoption by the respondent, I also reject the claim that these can be properly characterised as victimisation of the applicant in the sense described at [80] above. Dr Smyth's recommendations were made in response to genuine concerns about the applicant's work performance which came to light during the investigation. These recommendations provide the applicant with an opportunity to constructively address those concerns. 4. In light of the above determination, it is not strictly necessary to consider the reasons for the alleged victimisation of the applicant which are said to be found in subsections 210(1)(d), (e), (f), (g) or (j) of the Act. However, on the basis of the evidence before the Commission, it is clear to me that none of the acts of alleged victimisation are in any way related to any of the proscribed reasons in section 210. For example, it was submitted that the applicant was victimised because he was claiming to be paid at the award rate for a Senior Staff Specialist. However, from 20 December 2009, the applicant agreed that he would be paid as a Staff Specialist, Level 1, 5th year, and from 1 November 2010, he agreed that he would be paid as a Career Medical Officer as a consequence of his repeated failure to pass the FACEM exam, which qualification he needed in order to be classified as a Staff Specialist. 5. There is no evidence before the Commission that, since 2009, the applicant has made any claim to be paid as a Staff Specialist until he instituted the current proceedings. 6. It is my determination that the applicant has not been victimised by the respondent at any stage since his employment at Wagga Wagga Base Hospital commenced in 2005. 7. It follows that the applicant's claim for relief under section 213 of the Act must fail. Orders 1. I make the following order: The Application for Relief from Victimisation by Dr Peter Bossak pursuant to section 213 of the Industrial Relations Act 1996 is dismissed. John Murphy Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2019