FEDERAL COURT OF AUSTRALIA

Rowland v Alfred Health [2014] FCA 2

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    Mr Michael Rowland is an experienced and highly competent cardiothoracic and transplant surgeon. From August 2001 until August 2011, he worked with the respondent, Alfred Health and its predecessor bodies. After a “spill and fill” restructure exercise undertaken by Alfred Health in 2010/2011, Alfred Health made Mr Rowland’s position redundant.

2    Counsel for Mr Rowland, Mr Millar, contends that the restructure of the Cardiothoracic Unit at the Alfred Hospital (“the Unit”) was directed at Mr Rowland. Mr Millar noted that the restructure (which will be discussed more fully later in these reasons) arose out of the recommendations of an internal panel set up to investigate a complaint which Mr Rowland and another employee (Mr Negri) made against Professor Donald Esmore. Professor Esmore was, at the relevant time, the Director of the Unit. Mr Millar submits to the effect that Mr Rowland and Mr Negri were first chosen by a selection panel to be made redundant because they were the two individuals who had complained against Professor Esmore. Mr Millar observes that but for the “last minute withdrawal” of another candidate for a position in the restructured Unit, Mr Negri would also have been made redundant.

3    Mr Millar submits that the decision to terminate Mr Rowland on the ground of redundancy cannot be severed from the reasons of Alfred Health in deciding to undertake the restructure. In that regard, counsel submits that the restructure was a response to the exercise by Mr Rowland of a workplace right to make complaints in relation to his employment.

Legislative context

4    Section 340(1) of the Fair Work Act 2009 (Cth) (“the Act”) prohibits an employer from taking adverse action against an employee because the employee has exercised a workplace right. Section 341(1) of the Act deals with the meaning of “workplace right”. Pursuant to s 341(1)(c)(ii), a person has a workplace right if the person is able to make a complaint in relation to his or her employment. “Adverse action” is defined in s 342(1) of the Act to include action by an employer against an employee which:

    dismisses the employee;

    injures the employee in his or her employment;

    alters the position of the employee to the employee’s prejudice; or

    discriminates between the employee and other employees of the employer.

5    Under s 361(1) of the Act, an allegation that adverse action was taken because of the exercise of a workplace right is presumed to be made out unless the person accused of taking that adverse action proves otherwise. More precisely, that person must prove that the prohibited reason was not a substantial and operative factor in its decision to take the adverse action; see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 per French CJ & Crennan J at [62]; per Gummow & Hayne JJ at [103] and [127].

The exercise of workplace rights

The complaints

6    The statement of claim sets out six complaints, each of which was alleged to constitute the exercise of a workplace right by Mr Rowland under s 341(1) of the Act. The parties agree that the first to fifth complaints each involved the exercise of workplace rights, being complaints that Mr Rowland was able to make in relation to his employment. The parties are in dispute as to whether Alfred Health, in respect of the first to fifth complaints, took adverse action against Mr Rowland. They are also in dispute about whether, if such adverse action was taken, it was taken because Mr Rowland exercised a workplace right.

7    The parties are in dispute as to whether the sixth complaint involved the exercise of a workplace right (being a complaint that Mr Rowland was “able to make in relation to his employment”). Before examining each complaint in detail, the Court turns to some background information about Mr Rowland’s employment.

Mr Rowland’s employment

8    For about ten years, Alfred Health employed Mr Rowland as a Specialist Cardiothoracic Surgeon working in the Unit. The employment was public sector employment, as Alfred Health is a public sector entity which operates the Alfred Hospital in Prahran in suburban Melbourne. Mr Rowland commenced his employment with Alfred Health (then called Bayside Health) on 20 August 2001 as a full time Specialist Cardiothoracic Surgeon. In November 2006, Mr Rowland became a Visiting Medical Officer (“VMO”) in Cardiothoracic Surgery.

9    Professor Esmore was the Director of the Unit for the majority of Mr Rowland’s period of employment with Alfred Health. From a date in mid-2004, Mr Rowland’s relationship with Professor Esmore started to deteriorate. Counsel for Alfred Health (Mr Rinaldi with Ms Forsythe) acknowledge that Professor Esmore, though a brilliant surgeon, was a poor manager of the Unit who had difficult relationships with several members of it including Mr Rowland.

The first complaint

10    On 17 January 2007, Mr Rowland wrote to Dr Lee Hamley, Alfred Health’s Chief Medical Officer and Executive Director of Medical Services, concerning certain conduct of Professor Esmore which a few days later formed the subject of an official complaint. Mr Rowland lodged a formal complaint against Professor Esmore on 22 January 2007 alleging bullying and harassment. The complaint form referred to Professor Esmore having made accusations about the conduct of Mr Rowland. Mr Rowland believed the allegations to be baseless, harassing and bullying. He sought mediation.

11    Alfred Health investigated the complaint. It found that Professor Esmore’s conduct did not constitute bullying or harassment but it had concerns about the conduct “from a management practice perspective”. Alfred Health proposed mediation to resolve any outstanding matters arising from the complaint and some actions for management arising out of the investigation were noted as being worthy of consideration in the anticipated independent review of the Unit.

12    Management representatives also had individual meetings with Mr Rowland and Professor Esmore arising out of the investigation of this complaint.

13    It is not disputed that this complaint was a complaint for the purposes of s 341(1)(c)(ii) of the Act. In respect of the first to fifth complaints inclusive, Mr Rinaldi accepts that each was, at least in part, about Professor Esmore’s treatment of Mr Rowland and its impact on Mr Rowland’s employment.

14    It does not appear that Mr Rowland relies on the first complaint as a discrete exercise of workplace rights which, by itself, produced a response by Alfred Health which injured him in his employment or altered his position to his prejudice. The first complaint, as with the second, third, fourth and fifth complaints, is essentially relied on as part of the background to the sixth complaint and the resultant restructuring exercise which led to the termination of Mr Rowland’s employment.

The second complaint

15    On 15 March 2007, Mr Rowland wrote to Dr Hamley complaining about the withdrawal by Professor Esmore of Mr Rowland’s clinical privileges in cardiac transplantation. Dr Hamley, by letter dated 13 April 2007, acknowledged that Mr Rowland had concerns about the number of transplant procedures he had carried out. She said she intended to conduct a review of “the criteria against which these privileges are granted generally to members of the Unit”. The 13 April 2007 letter also informed Mr Rowland that there had been no change to his privileges with respect to cardiac transplantation.

16    As with the first complaint, Mr Rowland does not rely on the second complaint as a separate and distinct exercise of workplace rights which, by itself, led to Alfred Health injuring him or altering his position to his prejudice by reason of the complaint.

The third complaint

17    On 10 February 2008, Mr Rowland wrote to Mr Andrew Stripp, the Chief Operating Officer and Deputy Chief Executive Officer of Alfred Health, to express his concerns about his “clinical isolation” particularly by Professor Esmore denying him opportunities to perform cardiac transplantation.

18    On 17 March 2008, Mr Stripp gave a written response to the third complaint. The letter referred to a proposed independent review of the Unit and said that Dr Hamley’s review of Mr Rowland’s privileges as a consequence of the second complaint would be conducted as part of that review. About this time, Mr Stripp also wrote to Professor Esmore “indicating [Mr Rowland’s] willingness to participate in cardiac and lung transplantation and [requesting] that this occur”.

19    Again, there is no suggestion of any “injury” or “alteration” of position in the sense referred to in s 342(1) of the Act occurring to Mr Rowland directly and immediately as a result of the making of the third complaint.

Matters occurring between the third and fourth complaints

20    Between the making of the third and fourth complaints, the following matters had arisen which concerned Mr Rowland and which increased his tension with Professor Esmore:

    Professor Esmore made a clinical complaint about Mr Rowland in April 2008. The complaint concerned two transplant cases. In July 2008, Alfred Health decided that the complaint was not made out;

    Professor Esmore made a second clinical complaint about Mr Rowland in July 2008. This time it concerned his alleged “poorer outcomes” compared to other medical staff in the Unit. In August 2008, after an investigation, Alfred Health rejected Professor Esmore’s second clinical complaint against Mr Rowland, finding no evidence of Mr Rowland’s heart transplant surgery being inferior to others;

    On 1 October 2008, Ms Silvana Marasco was appointed Deputy Director of the Unit. The creation of that position arose out of a recommendation in “the McNeil report” which is referred to below.

The fourth complaint

21    The fourth complaint is contained in a letter dated 14 April 2009, sent to Mr Stripp by Mr Rowland, providing Mr Rowland’s comments on what became known as the McNeil report. The McNeil report (sometimes referred to in the evidence as “the Spratt report”) was prepared by Professor Keith McNeil, Dr Roger Boyd and Mr Phillip Spratt. The report arose out of the independent review of the Unit in June 2008 undertaken by those three individuals. The McNeil report was not made available for circulation until 7 April 2009. In his 14 April letter, Mr Rowland made an undisguised attack on Professor Esmore’s leadership and administration of the Unit. At its conclusion, the letter said:

Until Don Esmore’s role is changed and he no longer carries any authority and influence in its function, there will remain a core of instability and uncertainty within the unit and consequently impair the way it functions.

22    Mr Rowland made the fourth complaint in response to Mr Stripp’s invitation to members of the Unit to provide feedback on the McNeil report. The 14 April 2009 letter canvasses work-related issues affecting Mr Rowland and other members of the Unit, including teaching, education and research.

23    No adverse action was taken against Mr Rowland as a consequence of him providing the feedback contained in the fourth complaint. Mr Millar relies on it only as background to the ultimate decision by Alfred Health to terminate Mr Rowland’s employment in August 2011.

The fifth complaint

24    On 6 May 2009, the tension between Mr Rowland and Professor Esmore became so severe that Professor Esmore excluded Mr Rowland from a meeting held in the Cardiology seminar room at the Alfred hospital. Professor Esmore was conducting a meeting about ventricular assist devices. Mr Rowland attended, believing the meeting was about education but Professor Esmore asked him to leave loudly and inappropriately in the presence of other members of staff.

25    On the same day, 6 May 2009, Mr Rowland wrote to Ms Marasco, attaching a “Formal Complaint Form - Bullying and Harassment” concerning his exclusion from the meeting room earlier in the day. Alfred Health investigated the complaint. On 9 June 2009, Mr Mark Quirk, the Acting Executive Director of Human Resources wrote to Mr Rowland. Mr Quirk said that Professor Esmore had been discourteous and that he would be counselled and be urged to apologise to Mr Rowland. On 19 June 2009, Professor Esmore provided Mr Rowland with a written apology.

26    Again, there is no suggestion that Alfred Health acted adversely to Mr Rowland’s workplace interests in responding to the fifth complaint. Rather, that complaint provides background to the events which followed in 2010 and 2011.

The Royal Australasian College of Surgeons report

27    The key event which occurred between the fifth and sixth complaints was an inspection of the Unit conducted in August 2010 by the Royal Australasian College of Surgeons (“RACS”) given concerns which had arisen about training issues. The urgent inspection resulted in a report dated 12 August 2010. The RACS report included the following statement in its summary provisions:

Currently…the unit is quite dysfunctional with regard to its organisation and relationships within the staff. This has translated into a disengagement of senior staff and thus a lack of commitment to teaching and to the unit in general. The educational components of training, ward rounds, outpatients and teaching sessions, are not supported by the consultants and have become a chore and disappointment for trainees.

28    At that time, Mr Rowland was the Unit’s Supervisor of Training.

The sixth complaint

29    On 14 September 2010, each of Mr Rowland and Mr Negri (who has been referred to at [2] above) wrote to Ms Marasco concerning Professor Esmore. Mr Rowland’s letter said in part:

I write to express my serious concern about Professor Esmore, and in particular his judgment, which I believe is impaired and causing serious morbidity and mortality.

The letter also referred to Professor Esmore’s “deteriorating clinical judgment and his disorganised administrative ability”.

30    Mr Millar submits that the sixth complaint, constituted by Mr Rowland’s letter of 14 September 2010 is a complaint in relation to Mr Rowland’s employment and thus an exercise of workplace rights under s 341(1)(c)(ii) of the Act. To support that proposition, Mr Millar points to a reference in the 14 September 2010 letter to a patient who had been referred to Mr Rowland and to Mr Rowland’s evidence that the patient was “inappropriately managed and taken from [him]”.

31    The sixth complaint led to the appointment of Associate Professor William Johnson to chair an internal Alfred Health panel to investigate the complaints of Mr Rowland and Mr Negri.

32    Associate Professor Johnson was, at all material times, Alfred Health’s Clinical Program Director of Surgery, Anaesthesia, Perioperative Medicine and Ambulatory Care. The other members of the internal panel were Dr Hamley, Professor Paul Myles (from the Department of Anaesthesia and Perioperative Medicine), Professor Carlos Scheinkestel (Director of Intensive Care and Hyperbaric Medicine), Professor Anthony Dart (Clinical Program Director, Cardiorespiratory/Intensive Care), Dr Peter Bergin (Medical Director of the Heart Failure and Heart Transplant Program), Ms Marasco and Mr Adrian Pick (a Specialist Cardiothoracic Surgeon in the Unit).

33    The internal panel produced a report on 24 November 2010. It concluded that there was no evidence of clinical incompetence on the part of Professor Esmore. However, it expressed concern about Professor Esmore’s communication skills. The report made the following recommendation which was of great significance for developments which are discussed later in these reasons for judgment:

It is the opinion of the committee that Alfred Health should urgently restructure and reorganise the Unit. In addition, the committee’s view is that Alfred Health should seriously consider whether all consultant positions in the Unit should be declared vacant and that positions be advertised.

34    On 9 December 2010, Mr Stripp wrote to Mr Rowland concerning the sixth complaint and advised him of the recommendations of the panel. Mr Stripp informed Mr Rowland that he was considering a range of options which he intended to discuss with staff in the Unit in the near future. This, in turn, led to a discussion paper issued by Mr Stripp on 24 January 2011 which outlined four options for future staffing of the Unit. The options were:

1.    no change;

2.    create a new position of Professor and Director;

3.    change the mix of clinical staff to increase the number of full time staff to four;

4.    a combination of options two and three.

35    Unit staff gave their feedback on the discussion paper in early February 2011. On 29 March 2011, Mr Stripp wrote to the staff in the Unit and advised that option four was the favoured option. The Unit was ultimately restructured, as discussed later in these reasons, and a selection panel was organised to interview applicants for positions under the new structure.

36    Alfred Health does not accept that the sixth complaint was a complaint in relation to Mr Rowland’s employment for the purposes of s 341(1)(c)(ii) of the Act. Mr Rinaldi submits that the complaint did not concern Professor Esmore’s treatment of Mr Rowland or any aspect of his employment but rather concerned Professor Esmore’s clinical competence. As noted at [30] above, Mr Millar contends to the contrary and emphasises that the complaint includes a reference to Professor Esmore taking a patient away from Mr Rowland.

37    The answer to the question whether the complaint is one of the sort contemplated by s 341(1)(c)(ii) is found partly in the text of the 14 September 2010 letter. The letter refers to four particular patients, in respect of which Mr Rowland requested a thorough review by the hospital. It is also found partly in the letter to Associate Professor Johnson sent by Mr Rowland on 29 September 2010 in response to Associate Professor Johnson’s request for further details about the four cases referred to by Mr Rowland in the sixth complaint. Mr Millar alleges that there was a relationship between “Professor Esmore’s deteriorating clinical judgment and disorganised administrative ability” and Mr Rowland’s employment. However, the Court accepts the submission of counsel for Alfred Health that no such relationship is apparent. The 14 September 2010 letter is essentially a complaint about Professor Esmore and not a complaint about how Professor Esmore related to Mr Rowland in his employment.

38    In his evidence-in-chief, Mr Rowland referred to a patient who was “referred to me and was inappropriately managed and taken from me”. The sixth complaint placed no emphasis on the patient having been “taken” from Mr Rowland, but rather used it as an example of problems with Professor Esmore’s clinical judgment. In his letter of 29 September 2010 to Associate Professor Johnson, Mr Rowland, in discussing the particular patient the subject of the evidence-in-chief just referred to, said that “the patient had been brought to the attention of Professor Esmore through unclear channels of communication”. There is no allegation that Professor Esmore deliberately took the patient from Mr Rowland and excluded Mr Rowland from caring for that patient. The Court accepts the submission of Alfred Health that the sixth complaint is not a complaint of the sort contemplated by s 341(1)(c)(ii) of the Act.

Restructure to termination

Introduction

39    Three key issues between the parties remain in dispute and require adjudication. They are:

    was the decision to restructure the Unit adverse action under s 342(1) of the Act?

    was the non-selection of Mr Rowland under the restructure adverse action under s 342(1) of the Act? and

    was adverse action taken against Mr Rowland because he exercised a workplace right?

40    These issues are those identified in a document given to the Court by the parties during final submissions which outlined four critical issues remaining in dispute. The other issue concerned whether the sixth complaint fell within s 341(1)(c)(ii) of the Act. That question has already been answered in the negative.

The restructure

41    On 30 June 2011, Mr Stripp informed Unit staff that Alfred Health had decided to restructure the Unit based on “option four” outlined in the discussion paper. There was to be an increase in full time positions from one to two and a decrease in VMO positions from four to two. Expressions of interest for positions in the restructured Unit were invited. Ms Marasco as Deputy Director and Professor Esmore as Director (although not then acting in that role) were not to be subject to the “spill and fill” of positions in the restructure. On 1 July 2011, Professor Esmore stepped aside from his role as Director and Ms Marasco became Acting Director pending the appointment of a new Professor Director. Professor Esmore was given a two year fixed term contract which included surgical but no managerial responsibilities.

42    Mr Rowland applied for appointment to either a full time or VMO position. Five other applicants applied. There were therefore six applicants for four positions (two full time and two VMO).

The selection panel

43    Interviews were arranged for 3 August 2011. A selection panel was established to interview the applicants and to recommend to Alfred Health who should fill the positions in the restructured Unit.

44     Mr Stripp acted as Chairman of the panel but took no part in its deliberations. The other members of the panel included six people who had been on the internal panel which investigated the sixth complaint. They were Professor Dart, Dr Hamley, Ms Marasco, Dr Bergin, Associate Professor Johnson and Professor Myles. The other members were:

    Ms Janet Weir–Phyland – Executive Director of Nursing Services and Chief Nursing Officer.

    Professor Trevor Williams – Clinical Director, Department of Allergy, Immunology and Respiratory Medicine.

    Dr Keith McNeil, Chief Executive, Cambridge University Hospitals (UK).

45    Apart from Mr Rowland, the other applicants were Mr Pick, Mr Gooi, Mr Negri, Mr Zimmet and Mr Merry. After conducting the interviews, the selection panel recommended that Mr Pick, Mr Gooi, Mr Zimmet and Mr Merry be appointed. Subsequently, Mr Merry withdrew his application and Mr Negri was appointed. Mr Rowland, in the end, was the only person not to be recommended to Alfred Health for a position in the restructured Unit.

46    On 19 August 2011, the Chief Executive Officer of Alfred Health, Mr Andrew Way, adopted the recommendation of the selection panel. On 23 August 2011, Mr Stripp told Mr Rowland that he was not successful in his application. On 25 August 2011, Alfred Health, by letter dated that day, informed Mr Rowland that his employment was terminated on the ground of redundancy. Mr Rowland continued to work until 30 August 2011.

Did the decision to restructure the Unit constitute adverse action?

47    Mr Rinaldi submits that the decision of Alfred Health to restructure the Unit did not constitute adverse action with respect to Mr Rowland. He contends that the decision to restructure the Unit involved non-discriminatory action in which all six employees subject to the restructure were in the same position, having to apply for a position in the Unit, with the potential of adverse action. The Court does not accept that submission. Adverse action includes, in s 342(1) of the Act, an alteration of an employee’s position to his or her prejudice. In accordance with Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4], subjecting an employee to a situation where he or she is compelled to re-apply for his or her position, with the threat of redundancy looming is an “…adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The decision to restructure the Unit constituted adverse action against all employees employed in the Unit whose continued employment was put at risk by the “spill and fill” process. The position of all existing employees in the Unit was made less secure by having to re-apply for their jobs. Mr Rowland was one such employee.

Did the non-selection of Mr Rowland for a position in the restructured Unit constitute adverse action?

48    Counsel for Alfred Health submits that the non-selection of Mr Rowland for a position in the Unit was not adverse action but rather “inaction” in that there was a failure to appoint him. The Court rejects the submission that inaction cannot constitute adverse action. For example, an employee may be denied a promotion notwithstanding that he or she satisfied established criteria while others (who do not) are promoted. The non-selection of Mr Rowland was adverse action, but this issue is not one of consequence. That is because the parties agree and the Court accepts that the termination of Mr Rowland’s employment constituted adverse action. The decision of Mr Way to accept the selection panel’s recommendation and not select Mr Rowland for a position in the Unit had the logical flow-on effect that he was made redundant.

Remaining critical issues in dispute

Did Alfred Hospital restructure the Unit for the substantial and operative reason (amongst others) that Mr Rowland exercised his workplace rights by making the first to fifth complaints?

49    Mr Millar submits that the restructure took place for reasons including the reason that Mr Rowland made the sixth complaint which led to the report of a panel headed by Associate Professor Johnson which recommended the restructure. Mr Millar asserts that the “spill and fill” idea arose as a means of “breaking the impasse between Mr Rowland and Professor Esmore”. In that context, Mr Millar relies on the first to fifth complaints but overwhelmingly on the sixth complaint. The Court has already determined that the sixth complaint did not involve the exercise of a workplace right.

50    The overwhelming tenor of the evidence of witnesses called by Alfred Health who addressed this issue was that the restructure was designed to address problems hindering the efficient working of the Unit.

51    The idea to restructure the Unit came from Associate Professor Johnson’s report. However, that recommendation did not specify what form the restructure should take apart from the possibility of declaring all consultant positions vacant and advertising for the positions. Associate Professor Johnson gave evidence that the restructure was intended to address the dysfunctionality within the Unit.

52    Mr Millar submits that Alfred Health has not displaced the statutory presumption in s 361 of the Act that it decided to restructure the Unit because of the complaints made by Mr Rowland. The force of that submission is considerably weakened given that the Court has found that the sixth complaint did not involve the exercise of a workplace right. However, Mr Millar contends that all of the complaints, including those numbered one to five, motivated Alfred Health to find a mechanism to get rid of Mr Rowland.

53    The Court rejects the submission referred to in the above paragraph. In the evidence of various witnesses called by Alfred Health, reference was made to dysfunctionality in the Unit as actuating the need for a restructure.

54    The “dysfunctionality” issue had been identified by the RACS report in August 2010. Under the heading “Overview”, the RACS report said:

After completing the interviews a picture of a unit in turmoil had been established. The reasons for this were multifactorial…

Further, the report said:

It is also clear that there exists major conflict between the consultant staff. There was the feeling that the autocratic nature of the unit’s leadership has led to a generalised disenchantment of the more senior staff, particularly the VMO’s, who have become disengaged with the unit in general. This translates into the staff not wanting to spend any more time than is required in the unit. Cases are done quickly, with little time for teaching, and there is no participation in ward rounds, outpatients or teaching sessions. This clearly impacts on the trainee. It was generally agreed that the unit totally lacked a spirit of collegiality with there being no goodwill shown between colleagues. Departmental meetings are poorly attended and are clearly not a forum for open debate and discussion.

Opinion was divided as to what the crux of this problem was. Some tended to suggest that the situation could be improved by having more full time staff. Non-medical staff however made the point that the Cardiothoracic Unit was unique at The Alfred in having VMO’s that didn’t engage suggesting that the issue was more complex than merely changing the mix of the staff.

55    Faced with the RACS report, it would have been negligent for Associate Professor Johnson’s panel (whether or not the issue fell strictly within its terms of reference) to ignore the problems in the Unit and the issues highlighted in the RACS report.

56    Mr Julian Gooi (a Specialist Cardiothoracic Surgeon working in the Unit) gave evidence of problems in the Unit that “made it extremely difficult” for him to work. He canvassed interpersonal problems which were not confined to the strained relationship between Mr Rowland and Professor Esmore. He spoke of complaints from within the Unit and other units of hospital about the way the Unit was functioning and commented that there were concerns about lack of surgeon presence in the Unit.

57    Under cross-examination, Associate Professor Johnson elaborated on what he meant by “dysfunctionality” within the Unit at the time the internal panel was convened. He said “…the Unit as a whole was dysfunctional and was perceived to be dysfunctional. This was not a Michael Rowland issue…The Unit was dysfunctional, not because of Michael Rowland…” Associate Professor Johnson went on to refer to the poor management skills of Professor Esmore and the decision of Alfred Health to create a new Professor Director position. Ms Marasco referred to interpersonal problems between Mr Adrian Pick (a full time Cardiothoracic Surgeon) and Mr Rowland and also said that Mr Negri felt disengaged.

58    The evidence also raised issues about problems with the supervision of trainees which had earlier been canvassed in the RACS report. Professor Williams gave evidence about issues concerning supervision of advanced trainees and consultants’ teaching of junior medical staff. Dr Bergin gave evidence of a lack of harmony in the Unit.

59    The Court is satisfied that Alfred Health has discharged its onus of proving that, in deciding to restructure the Unit, the substantial and operative reasons for that restructure did not include the fact that Mr Rowland made any of the complaints numbered one to five. The first complaint related to an isolated issue with Professor Esmore going back to the beginning of 2007. The second complaint arose out of a similar issue between Professor Esmore and Mr Rowland in March 2007. The third complaint is of a like type to the first two, and stretches back to February 2008. The fourth was a response to the McNeil report in early 2009. The fifth concerned a personality clash in May 2009. All five complaints preceded the RACS report’s highlighting of dysfunction in the Unit with respect to training and related issues in 2010.

60    Out of an abundance of caution, in case the Court is in error as to its characterisation of the sixth complaint, for the reasons expressed above, that complaint was also not a substantial and operative factor in the reasoning process of Alfred Health when it decided to restructure the Unit.

Did Alfred Health make Mr Rowland redundant for the substantial and operative reason, amongst others, that he exercised his workplace rights by making complaints 1 to 5?

61    For the reasons set out below, the answer to the above question is no. Also for the reasons set out above, the Court finds that the decision to make Mr Rowland redundant was based on the recommendation of the selection panel. The selection panel approached its task in good faith to select the best mix of staff for the Unit, being those it considered would work together to promote a more harmoniously functioning Unit in the years ahead. Each member of the selection panel who participated in the recommendation to Alfred Health management approached his or her task dispassionately. The fact that Mr Rowland was not selected was not substantially or operatively influenced by his differences with Professor Esmore as reflected in complaints one to five. The Court now turns to aspects of the evidence of panel members which support the view expressed above.

62    Ms Janet Weir-Phyland (Executive Director of Nursing Services and Chief Nursing Officer at Alfred Health) gave evidence to the effect that Mr Rowland interviewed poorly. She referred to his negativity and absence of attention to how the performance of the Unit could improve. She was concerned about answers given by Mr Rowland to questions about on-call procedure, training of residents and the location of treatment of outpatients.

63    Ms Marasco also gave evidence to the effect that Mr Rowland did not perform well in his interview. Her main concerns about Mr Rowland were his lack of contribution to recent research and lack of support for teaching within the hospital to the degree expected by hospital management. Ms Marasco referred to staff members apart from Professor Esmore with whom Mr Rowland had experienced some difficulties including Mr Gooi and Mr Zimmet.

64    Dr Hamley said that Mr Rowland did “not interview well”. She said he appeared “angry” and “defensive” and tended to “externalise blame” for problems with the Unit.

65    Professor Myles expressed concerns about Mr Rowland’s attitude to the future of the Unit, especially in relation to training and teaching, stating “the sense I got from him…was that he seemed to be very self-focused…and was attributing all, or at least near all of the problems that had occurred onto one particular surgeon, in this case Don Esmore”.

66    Professor Dart considered that Mr Rowland failed to give constructive responses to questions during his interview, especially in the areas of teaching, training and the location of seeing outpatients.

67    Dr Bergin was very critical of Mr Rowland’s performance in his interview saying, “…it’s the worst interview I’ve ever been involved in”. He said that Mr Rowland did not take up opportunities to discuss how things could be done better within the Unit. Dr Bergin gave evidence that:

I thought his answers were very peremptory. I thought he failed to expand on any of the possible options, leadership roles, direction. It was clear that Mr Esmore was going or had gone… So there was plenty of opportunity and my recollection is that Mr Rowland really failed to take advantage of any of these opportunities.

68    Professor Williams expressed concern about Mr Rowland’s attitude to his on-call duties (not excluding other professional commitments) and his accessibility in relation to trainees when Mr Rowland treated outpatients outside the hospital. Professor Williams said that Mr Rowland appeared to him to be “disengaged” during his interview. He observed that Mr Rowland lacked enthusiasm and did not appear prepared for the interview.

69    Dr McNeil said that Mr Rowland came across as defensive and his answers to questions put to him by the panel were quite rigid.

70    Associate Professor Johnson gave evidence that Mr Rowland’s “skill set” did not match that of three other applicant surgeons – Mr Pick, Mr Negri and Mr Gooi – based on matters such as “clinical skills, teaching skills [and] research skills”.

71    Mr Rowland gave evidence to the effect that the selection process involved getting the right mix of candidates, although he added that he should have been included in the mix. Mr Rowland also gave evidence that he considered that the outcome of the selection process was a “foregone conclusion”. After the interview he said he “felt as though [he had] lost his job”. It appears that Mr Rowland considered that his “run ins” with Professor Esmore had sealed his fate and that the process was a mere formality. This attitude, while perhaps understandable, did not allow him to present himself in his best light in the interview.

72    Each witness called by Alfred Health denied that any of the six complaints actuated them in coming to their agreed position that Mr Rowland ranked lowest out of all of the candidates in the selection process. Each of complaints one to five (being ones where Mr Rowland exercised a workplace right) were investigated. No issue remained in respect of any of them other than residual personality issues between Mr Rowland and Professor Esmore.

73    The Court accepts the evidence of each of the nine members of the selection panel that Mr Rowland’s complaint-making activity played no role in the decision of any of them to rank Mr Rowland last in the interview process. The evidence disclosed that Mr Rowland was not the only person who had trouble interacting with Professor Esmore. Professor Myles gave evidence that complaints against or about Professor Esmore were not unusual. Rather, Professor Myles said:

…there were literally hundreds and hundreds [of complaints] from not just Michael Rowland in fact from a number of other surgeons and...a number of my staff and other staff including intensive care doctors and other doctors.

74    The evidence of numerous witnesses established that Alfred Health “encouraged” complaint-making in general as part of its efforts to continuously improve on issues such as patient safety.

75    The evidence of the members of the panel is cogent and credible. The effect of it is that Mr Rowland was rated as the least preferred candidate for a position in the Unit because:

    he interviewed poorly;

    he lacked enthusiasm for research or training;

    he was not pro-active or engaged in thinking about the future of the Unit;

    his attitude to where he saw outpatients and his perception of on-call responsibilities raised concerns;

    his ability to work effectively in a team environment was questionable;

    his skill set was not as strong as that of most other candidates.

76    In support of the submission that Alfred Health did not discharge the onus placed on it by s 361 of the Act, Mr Millar submits that there was no satisfactory reason for Mr Rowland not being chosen. The Court finds that submission unpersuasive. The selection panel was in a better position to decide that issue than Mr Rowland or the Court.

77    Mr Millar also submitted that the selection panel members, with the exception of Ms Weir-Phyland were compromised by prior involvement with or knowledge of Mr Rowland’s complaints. Mr Rowland raised no issue about the constitution of the selection panel before the interview but rather acquiesced in it being constituted as it was. If Mr Rowland felt genuinely concerned about the composition of the panel, he should have raised it at the time he was informed about it. In any event, each of the panel members had great experience in the health industry and had the interests of the Unit foremost in their minds.

78    The totality of the evidence supports the view that:

    the Unit was dysfunctional;

    the Unit required re-organisation; and

    the selection panel was concerned to pick the best mix of staff which would suit the needs of the Unit in the future.

79    The reality that Mr Rowland was not selected or ultimately made redundant did not occur as a consequence of complaints made by Mr Rowland about Professor Esmore between early 2007 and 2009. By August 2011, matters had moved on and Professor Esmore had been effectively sidelined. Mr Rowland sowed the seeds of his own redundancy by perceiving that the selection process was targeted at him. That that outcome eventuated does not prove that Alfred Health conspired against him to achieve it.

80    The Court is not satisfied that each of complaints one to five played any part in the decision of the selection panel not to choose Mr Rowland for a position in the restructured Unit which led to his redundancy. Out of an abundance of caution, the Court is also of the view that the sixth complaint falls into the same category, having played no role in the selection panel’s decision.

81    The outcome of this proceeding is an unfortunate one. Mr Rowland appears, on the evidence, to be an experienced and extremely competent cardiothoracic surgeon. It may be that Alfred Health could, in the future, consider the possibility of using his undoubted talents. However, for the foregoing reasons, the Court is satisfied that Alfred Health has discharged its onus of proving that the fact that Mr Rowland made any of the complaints was not a substantial and operative factor in its decision to terminate his employment.

Disposition

82    The application must be dismissed.

Associate:

Dated:    15 January 2014