Ward round preparation overtime
146 Dr Bolton's evidence, which is confirmed by her roster for this period, was that during her First General Medicine rotation she worked a "rotating roster" meaning that she alternated each week between commencing work at 8 am or 8.30 am. She commenced in week 1 of her rotation with 8 am starts. This evidence is not controversial between the parties. It is the applicants' case that during the First General Medicine rotation, Peninsula Health directed Dr Bolton to undertake ward round preparation prior to her rostered commencement time on weeks 1, 3, 5, 7 and 9 of the "rotating roster" when she was rostered to commence work at 8 am.
147 The applicants contended that ward round preparation involved the task of preparing a patient list which had to be performed by Dr Bolton prior to the commencement of her rostered hours and thus during hours in excess of her rostered hours. It is uncontentious that the patient list had to be available in order to conduct ward rounds and therefore the task of preparing it had to be completed by 8 am when a handover meeting, which preceded the conduct of ward rounds, commenced.
148 Dr Bolton's evidence was that she performed the task prior to 8 am because there was an "expectation" that she attend the 8 am handover meeting with an updated patient list. That task, she deposed, could not be done the day before because patients were admitted overnight and it was therefore "impossible" (by which I think she meant "impractical") to pre-prepare the patient list as the work would need to be redone in the morning anyway.
149 Dr Bolton deposed to the source of the "expectation" which, as I understand the applicants' case, is the source, or at least a source, of the implied direction given by Peninsula Health to Dr Bolton that she perform the task of preparing the patient list outside of her rostered hours. Dr Bolton deposed that she participated in a "shadowing day" conducted by outgoing interns at the end of her orientation week, prior to commencing her rotation in General Medicine on the following Monday. The shadowing day was a rostered day included in the orientation program in which, according to Dr Bolton, the outgoing interns in the General Medicine unit went through the tasks expected of the incoming interns, that is, the tasks formerly performed by the outgoing interns that the incoming interns were to undertake.
150 Dr Bolton's evidence as to the function of a shadowing day was consistent with evidence given by both Dr Nye and Dr Braun. Dr Nye's evidence was that Peninsula Health "in part" delegates to outgoing interns and residents the responsibility of communicating work requirements and expectations to incoming interns and residents. Dr Nye qualified that evidence having regard to the limited nature of a "single day of shadowing". Dr Braun and Dr Nye both agreed that the intern shadowing day was an important part of an intern's orientation and that Peninsula Health recognises that there is an important and valuable role for the incoming intern to shadow the outgoing intern including because, as Dr Braun stated, the "the day-to-day work that the intern does is perhaps best explained by another intern".
151 In further deposing to the source of "the expectation" concerning the preparation of a patient list, Dr Bolton stated that, as part of the handover conducted on the intern shadowing day, the outgoing interns informed her that it was the interns' role to have the patient list "up-to-date" and that the intern was expected to turn up on time to the handover meeting with an "up-to-date list". She indicated that, in relation to that task, she was also told where information was to be found and how to rectify the list if there were any errors, including that patients whose bed cards needed to be altered should not be included so as to ensure an up-to-date and accurate list of patients. Dr Bolton identified Dr Richard Pham and Dr Dana Chemali as two interns who had worked in the General Medicine unit for the previous 12 weeks and who were the main sources of the information conveyed to her on the shadowing day as to what was expected by Peninsula Health in relation to the preparation of a patient list.
152 The evidence given by Dr Bolton as to Peninsula Health's expectation was the subject of an objection but was admitted on the basis that it was evidence of what Dr Bolton was told and an exception to the hearsay rule under s 60 of the Evidence Act 1995 (Cth). It seems to me, however, that the applicants now seek to rely upon it for the wider purpose of establishing the existence of a fact - namely, Peninsula Health's expectation in relation to the preparation of the patient list. That matter is a fact in issue for reasons I will explain. I consider the evidence can be used for that wider purpose. It is evidence of a prior representation made by Peninsula Health adverse to Peninsula Health's interests in the outcome of the proceeding and thus an exception to the hearsay rule by reason of s 81 of the Evidence Act. I consider the prior representation made by the outgoing interns was made by Peninsula Health because, consistently with the evidence of both Dr Braun and Dr Nye, those interns were delegated the function of communicating Peninsula Health's expectation. In any event, no order under s 136 of the Evidence Act limiting the use of the evidence in question was made, and Peninsula Health has taken no objection to the use of the evidence for the purpose the applicants now seek to employ it.
153 Peninsula Health did, however, contend that I should infer by reason of the applicants' failure to call Dr Pham and Dr Chemali, and pursuant to the principles in Jones v Dunkel (1959) 101 CLR 298, that the evidence of Dr Pham and Dr Chemali would not have assisted the applicants. However, it was not necessary for the applicants to corroborate the evidence of Dr Bolton by calling Dr Pham and Dr Chemali and, in any event, there is no warrant for drawing a Jones v Dunkel inference because no basis was given as to why such an inference should be drawn. As Flick and Reeves JJ said in Fair Work Ombudsman v Hu (2019) 289 IR 240 at [54]:
If recourse is had to Jones v Dunkel, it is accepted that the statements in that case "give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence": Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 124 per Wilcox J. Similarly, in Marku v Minister for Justice (2015) 237 FCR 580 at [68] Kenny J observed, in part, that "[w]hile the principle may operate to make evidence or inferences that may be drawn from admissible evidence more probable, the principle does not permit a failure to call a witness … to fill gaps in the evidence or transform conjecture into inference". A failure to call a witness, it is thus accepted, cannot "fill gaps in the evidence, or convert conjecture and suspicion into inference": Legal Practitioner v Council of the Law Society (ACT) [2015] ACTCA 20 at [56] per Murrell CJ, Burns and Perry JJ (Council of the Law Society (ACT)).
154 Peninsula Health relied on evidence given by Dr Nye to dispute Dr Bolton's evidence as to what was required of an intern in relation to the task of preparing the patient list. Dr Nye gave evidence that the only task that an intern, such as Dr Bolton, was required to do prior to the 8 am handover meeting was to physically print the patient list. Dr Nye also deposed that she would have told the incoming interns during the orientation session she conducted during orientation week that they needed to print the patient list for the handover meeting. However, she recalled saying no more about it than that, save that, in the context of speaking against the cutting and pasting of medical notes, she would have spoken against the pre-population of ward round notes in advance of ward rounds. Dr Bolton attended the session conducted by Dr Nye. She agreed that Dr Nye spoke about what an intern did to some degree, but did not recall Dr Nye referring to ward round preparation involving one task only.
155 Dr Nye's evidence confirmed that Peninsula Health had an expectation that the intern who was rostered to commence at 8 am was tasked with preparing a patient list for the handover meeting. Her evidence, however, disputed the evidence given by Dr Bolton and other doctors, including Dr Brickle, Dr van Berkel and Dr Curtin, as to what that task entailed and how much time was required to perform that task. This was a task that Dr Nye had never actually performed herself. She was nevertheless of the view that it would only take a few minutes, although she acknowledged that it could take longer if there was a technical problem with the printer.
156 Dr Bolton's evidence was that the preparation of the list generally involved a number of functions beyond the physical printing of the list, directed to producing an up-to-date and correct list of the patients under the charge of her team. If a patient was missed and not included on the list she produced, she was asked to explain why by her supervisors at the handover meeting. She deposed that, on arrival at the hospital, she would pick up her team's telephone and then attend the junior medical staff office. She would there log into the computer and check the patient list on the electronic medical record called "PowerChart" and would update the list if required. Usually, updating the patient list would require a phone call to the ward in order to arrange for the patient's bed card to be changed so the bed card was listed under the appropriate unit. Her evidence was to the effect that she would check the list to ensure it was accurate and update the list if required. She would then use a separate program, what she called the "online reporting programme" via the Peninsula Health intranet, to auto-generate a list of the patients on that ward. Five copies of the list would then be printed and taken to the handover office which was located about a minute's walk away. She further deposed that, although the tasks she performed were identical each day, the time required to perform them varied based on the number of patients on the ward. Dr Bolton gave evidence that, on average, her team was responsible for between 15 to 25 patients at any one time and the number of overnight admissions could vary from none to around 10. However, she would generally have a good idea the night before how many new admissions were expected the next day. If it was quieter and new admissions were expected, the tasks would usually take longer. Less time would be required if the ward was full and the patients were known to staff, including because Dr Bolton would not have to request bed cards to be changed. On occasions, and only when she had time, she would pre-populate the patient list before ward rounds. Dr Bolton estimated that the longest time it took her to prepare the patient list was half an hour and that the shortest time was around 20 minutes. In answer to a question seemingly directed to the physical printing task alone, she indicated that the time taken to perform the tasks required of her was very significantly affected by equipment failure and lack of ready access to computers which were shared with other interns. Dr Bolton deposed that all of that work was done prior to 8 am when the handover meeting commenced.
157 Dr Bolton also stated that in the five weeks during her rotation when she completed ward round preparation, she saw interns from the other four teams in the General Medicine unit completing the preparation of patient lists at the same time as herself and in the same office. She also saw residents from the speciality medical teams that shared those offices with the interns completing that work prior to 8 am.
158 Dr Brickle, who was an intern in the General Medicine unit at the same time as Dr Bolton, but on a different team, also gave evidence about ward round preparation. She deposed that at the start of her General Medicine rotation, as part of her orientation, she was given what she described as the "intern ROVER handbook". The document in question was tendered and is headed "Peninsula Health - ROVER Rolling Handover Booklet for Interns".
159 "Rovers" is the colloquial name given to rolling handover documents which identify the typical clinical practices and processes of the relevant unit, and how daily work is arranged. Rovers for interns are prepared by interns, given to interns at orientation and updated from time to time, including when an intern leaves a rotation so incoming interns know how the relevant unit operates. Dr van Berkel gave unchallenged evidence that, at the end of her rotation, she was asked by staff in the MWU to update the intern Rover. Rovers are also described in the MWU "Standard Operating Procedure Manual", which contained "the detailed information required by members of the MWU to systematically execute all required tasks and processes", as follows:
14.6 ROVER
The ROVER is a rolling handover document that assists JMO [junior medical officers] orientation informally. It is used throughout rotations for JMO's to communicate useful information and advice.
• At the end of each term the ROVER documents should be reviewed and updated by the interns that have recently completed the rotation. Rover documents can be found at [on the Hospital system, specifically, the M Drive].
160 Under a heading "[a] usual day on Gen Med", the Rover provided to Dr Brickle relevantly said this:
• Meet in Department of Medicine around 0730 - 0745 to organise your list and print copies for the team. Check the list of patients in your home ward as often patients will be put under the wrong bed card!
• Handover meeting at 0800 in Emergency Control Room, learn about your new patients for the day
161 Dr Bolton gave evidence that she received the Rover "some time into my first [General Medicine] rotation" but could not recall exactly when it was first provided and "did not read [it] in its entirety". Nonetheless, Dr Bolton stated that the description in the two dot points above was an accurate description of the beginning of her day in the General Medicine unit. She went on to say that the description of other tasks in the Rover under the heading "[a] usual day on Gen Med" accurately reflected her experience.
162 Dr Brickle also confirmed that the description in the first dot point above accorded with her experience of working in the General Medicine unit. She said that she commenced work each morning between 7.30 am and 7.45 am to organise the list of patients that were assigned to her team. She deposed that, to prepare the patient list, she would come into the office and log onto the computer system and then load the specific program that generates the patient lists. She had to format the list into a particular layout for printing and then would print the list in a particular style. Once the list was printed, she would then need to go through the list making sure that all of the patients were under the correct bed card. If there were patients under an incorrect bed card, she would take action to get that changed by the ward clerk. She said that, more importantly, she would make sure that those patients (with an incorrect bed card) were handed over to the team that was looking after the patient so that they were aware that there was a patient missing from their list. She further stated that the program that generates the patient list is not very user friendly and that there were five General Medicine teams trying to print lists off potentially three computers at the same time and that, consequentially, sitting at the computer checking the list prior to it being printed was not efficient. She deposed that if a patient was on an incorrect bed card and not assigned to her team she would update the patient list by crossing through that patient's name. She would then find the team that was looking after that patient and repeat the patient's name, their identification number, what bed they were in on that ward and then handwrite that on the list. She deposed that generating the patient list and making sure it was correct could take anywhere between five and 20 minutes. This depended on how many corrections were needed, how many people were accessing the computers and the printers at the same time and whether the printers in the office were actually working.
163 Dr Brickle further deposed that when she was carrying out that work in the junior medical staff office, she saw Dr Bolton there. Dr Bolton was already in the office before she arrived and Dr Bolton was generating the patient list. Dr Brickle's team (General Medicine A) typically had between six and 10 patients whereas Dr Bolton's team (General Medicine B team), as noted above, could have anywhere between 15 and 25 patients. Dr Brickle stated that the more patients that a team is responsible for, the longer it would take to prepare the patient list. That is because with more patients there is a greater chance that there would be errors on the patient list that needed to be checked. The functional printing of the list could also become more difficult because it needed to be formatted in a way where the most number of patients as possible could be displayed on one piece of paper.
164 Dr van Berkel was an intern in the General Medicine unit in 2018. When shown the Rover shown to Dr Brickle, Dr van Berkel said that she had been provided with an earlier version of that document, stating that the Rover acted as a rolling handover document which was updated, including by her, in order to ensure that it was as up to date as possible for the incoming interns. She had originally been provided with a Rover by the outgoing interns.
165 Dr van Berkel also gave evidence about the task of preparing a patient list whilst an intern in the General Medicine unit. Her evidence corroborated the evidence given by Dr Bolton and Dr Brickle to the effect that an updated and accurate patient list was required to be prepared by interns for the handover meeting. Dr van Berkel had also been informed during her orientation by the outgoing interns about preparing for ward rounds. The outgoing interns showed her where she could find the patient list that was to be generated prior to ward rounds and prior to the morning handover, how to update the list and where to find the information to update it with. She then described what she did in relation to preparing the patient list, stating that she sat down at the computer available in the office and updated the list for the patients for that day. In doing so, she ensured that all of the patients that were under the care of her team were populated on the list and updated the list with any investigations that had been returned overnight. Her evidence was that she would typically arrive at the hospital between about 7.32 am and 7.45 am each morning. The earliest time she could recall coming in to work to prepare the list was 7.25 am. Her arrival time depended on how many patients were on her team's ward, which she knew the night before based on how many patients had been discharged and how many admissions were expected. These were good indicators of how much work was involved to ensure the patient list was up to date. Once the list was completed, she would share a copy of the patient list with each member of her team and then attend the 8 am handover meeting. All of that occurred on days when she was rostered to start at 8 am.
166 There were typically 15 patients assigned to her team. When she was in the General Medicine office each morning updating the patient list, there were other interns in the office at the same time doing precisely the same thing. In her second General Medicine rotation, it would take her slightly more time to prepare the patient list because she was in a busier unit which had more patients.
167 Dr Curtin was never employed as an intern in the General Medicine unit by Peninsula Health but was, for a short period, a registrar supervising Dr Bolton whilst Dr Bolton was employed as an intern in the unit. Peninsula Health sought to rely on one aspect of the evidence given by Dr Curtin given in the following exchange:
Ms Tiplady: And that task of printing the patient list was the only task that an intern in general medicine had to prepare before the handover meeting at 8 o'clock?
Dr Curtin: Technically, yes.
168 I do not accept, however, that Dr Curtin was here intending to say that all that was required of an intern in the preparation of a patient list was the physical printing of a list. Dr Curtin said that Dr Bolton's responsibilities included preparing the ward round notes for the day's ward round and/or preparing the list for the upcoming ward round. He stated that he wanted the ward round notes to be prepared prior to the ward round starting so that all of the communication between the consultant and the patient could be adequately documented. He confirmed that it was Dr Bolton's responsibility to prepare the patient list and stated that when he received the list from Dr Bolton in the morning it was always up to date. It was clear from the evidence Dr Curtin gave about the occasions where he himself prepared the patient list because an intern had not done so, that the process, as he understood it, consisted of updating the information on the previous day's list by transcribing information onto an updated list and then printing the list. He said that, in an "ideal world", the task was straightforward and could be done in approximately five minutes but that occurrence was very rare.
169 I prefer the evidence given by Dr Bolton, Dr Brickle, Dr van Berkel and Dr Curtin, and the corroboration of their evidence given by the Rover provided to Dr Brickle, over the evidence of Dr Nye in relation to the tasks that an intern needs to perform in order to prepare a patient list. Unlike these other doctors, Dr Nye had no personal involvement in the preparation of a patient list in the General Medicine unit and her evidence did not provide a basis for thinking that she had a close association with, and thus a capacity to properly understand, the detail of a function which was well removed from her primary role. As Dr Braun stated, the day-to-day work of an intern is best explained by an intern.
170 Accordingly, I am satisfied that the expectation of Peninsula Health, as communicated to interns in the General Medicine unit over the relevant period, was that the intern rostered to commence at 8 am would, immediately prior to 8 am and in whatever time it was reasonably necessary to perform the task, prepare an accurate and up-to-date list of the patients under the care of the intern's team and print copies thereof for distribution to other members of the intern's team at, or prior to, the handover meeting scheduled for 8 am that day.
171 Without taking into account the potentially countervailing circumstances I deal with below, I am satisfied that, by reason of the expectation set by Peninsula Health as found above, Peninsula Health conveyed to Dr Bolton its requirement that she perform work in accordance with that expectation on every occasion that she was rostered to commence at 8 am. My provisional satisfaction that such an implicit direction was given by Peninsula Health to Dr Bolton does not depend upon the outgoing interns having authority to give directions to Dr Bolton, and the contentions made by Peninsula Health on that issue need not be considered. The making of the direction is simply implied from the expectation which I have found to have existed. In so far as outgoing interns communicated that expectation, they did so with Peninsula Health's authority as the evidence of Dr Nye and Dr Braun referred to at [150] above demonstrates.
172 It is not in contest that preparing a patient list was part of Dr Bolton's duties and responsibilities. I also accept that it was necessary for Dr Bolton to have completed the tasks required to prepare an up-to-date patient list before 8 am. Whilst those two circumstances were independently relied upon by the applicants, they are each part and parcel of the expectation which was set by Peninsula Health. They do not, independently of that expectation, add very much to the significance which should be given to those circumstances that favour a finding that implied authorisation was given by Peninsula Health.
173 The applicants contended, and I accept, that the fact that Peninsula Health knew that Dr Bolton was performing the work and took no steps to prevent it constitutes a tacit acceptance and is thus confirmatory of the fact that authorisation was impliedly given. For that purpose, both constructive and actual knowledge was relied upon.
174 An instance of "constructive knowledge" as developed in equity is "knowledge of the circumstances which would indicate the facts to an honest and reasonable person": Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [174] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). I accept that both actual as well as constructive knowledge can support an inference of a tacit acceptance. I am satisfied that Peninsula Health had constructive knowledge that Dr Bolton was carrying out all the tasks necessary to produce an up-to-date patient list prior to 8 am on each occasion she did so. Peninsula Health must be taken to know that, by expecting Dr Bolton to produce to her supervisor an up-to-date patient list by 8 am, the work necessary to produce the patient list had to be done before 8 am. Therefore, where Dr Bolton's rostered start time was 8 am and she produced a list to her supervisor by that time, Peninsula Health must be taken to know that Dr Bolton performed the work necessary to produce the patient list outside of her rostered hours or, in other words, in unrostered overtime hours. To exemplify this point, Dr Curtin gave evidence that he knew Dr Bolton had completed ward round preparation because when he received the patient list in the morning at 8 am, "it was always up to date". That Dr Curtin would have only observed Dr Bolton for a three week period does not diminish the probative value of his evidence, notwithstanding Peninsula Health's submission to the contrary. The evidence suffices to establish that Peninsula Health had constructive knowledge that the pattern of work performed by Dr Bolton included the performance of ward round preparation tasks prior to the commencement of any 8 am shift.
175 Dr Bolton's evidence was that no one directed her not to carry out the ward round preparation tasks and, therefore, I am satisfied that Peninsula Health did not prevent Dr Bolton from performing that work. The constructive knowledge of Peninsula Health and its failure to disapprove is, in the absence of countervailing factors, supportive of approval and thus authorisation.
176 I should add that if actual knowledge is required to assist in establishing an implied authorisation, Dr Bolton gave evidence that she was observed by registrars approximately once per week completing ward round preparation prior to 8 am in the junior medical staff office in the General Medicine unit.
177 I turn then to consider any countervailing circumstances. As set out above at [125], Peninsula Health relied upon five matters about what it wanted or expected from junior doctors with respect to overtime, such as that Peninsula Health "wanted junior doctors to maintain a work life balance". Each of the factors seem to be relied upon as a matter of subjective intent, despite senior counsel for Peninsula Health agreeing that the "presumed intent" of Peninsula Health is to be objectively discerned. The proper question is not what Peninsula Health subjectively intended but what a reasonable person would objectively understand to be Peninsula Health's intent. That understanding would not only be based upon Peninsula Health's pronouncements of its intent but also upon Peninsula Health's conduct and the extent to which its conduct is consistent with its pronounced intent. The evidence relied upon tends only to establish either subjective intent or the communication of that intent. It does not fully address the facts and circumstances that would reveal how that intent would have been understood by a reasonable person in light of any conduct of Peninsula Health inconsistent with the pronounced intent.
178 In any event, the five expressions of Peninsula Health's intent were not relied upon to deny the possibility that an authorisation may be implied but, instead, it was contended that what flowed from them was that:
(a) Peninsula Health, at best, has impliedly authorised Dr Bolton to perform her work tasks in the least period of time necessary for the performance of these tasks.
(b) That implied authorisation is only to [that] extent and no further. That is, it does not authorise Dr Bolton to spend whatever time she considers appropriate [or] necessary to perform the task.
(c) Further, it does not authorise Dr Bolton to spend time on tasks that go beyond the minimum required of that function.
179 I readily accept that a time-based limitation upon the extent of an implied authorisation is inherent in the circumstances that I am here addressing. As discussed above, any implied authorisation given in relation to the preparation of a patient list would be limited by the stipulation that the tasks required to be performed by Dr Bolton in overtime hours be performed within the time reasonably necessary to perform those tasks. I also presume that Peninsula Health's formulation of implied authorisation is qualified by reasonableness because, in its submission on quantum (made in the alternative), Peninsula Health says that Dr Bolton should only be paid for the reasonable time necessary for the performance of the tasks. If it is not so qualified, it should be. I otherwise have no difficulty accepting the limitation contended for by Peninsula Health couched in the terms that I have. As the time-based, reasonableness limitation is already encapsulated within the implied authorisation established by the conduct and other circumstances the applicants rely on, these five matters dealing with Peninsula Health's presumed intent do not negate or diminish the inference that I would otherwise draw.
180 I turn then to the overtime policies relied upon by Peninsula Health to defeat any inference that it had authorised Dr Bolton working overtime in the First General Medicine rotation, which had not been authorised in accordance with one or other of the policies.
181 I have already extensively dealt with the Policy and the Guideline and concluded that, in circumstances where the Policy and Guideline were largely unknown and never applied, including in the Department of Medicine, and where overtime was nevertheless worked, Peninsula Health's intent could not have been objectively understood in the Department of Medicine as being that it would only authorise the working of overtime where its authorisation was given in accordance with the Policy or the Guideline. The existence of those policies do not therefore negate or diminish an inference that may be available from other circumstances that Peninsula Health impliedly authorised the ward round preparation overtime that Dr Bolton claims she worked in the Department of Medicine during her First General Medicine rotation.
182 The non-application of the Policy and the Guideline is also confirmed by the fact that the Department of Medicine had its own, department-specific process for authorising unrostered overtime. This process ostensibly applied to Dr Bolton during her First and Second General Medicine rotations and Cardiology rotation. The policy is best encapsulated in a handbook headed "Department of Medicine - Essential Information":
All unrostered overtime MUST be pre-approved by telephone, at the time or as soon as practical afterwards, by the Department of Medicine Clinical Director, contact via switchboard. Unapproved unrostered overtime will not be paid. If there is a claim for unrostered overtime, a separate form will need to be filled in detailing the reasons if your timesheet has already been submitted.
183 This handbook was provided to Dr Bolton (and other interns) at an orientation session where Dr Nye explained the policy.
184 There is no ambiguity as to what the policy conveyed. The policy relevantly required that all unrostered overtime had to be approved by the Department's Clinical Director (whom, at all relevant times, was Dr Braun). The policy clearly conveyed Peninsula Health's intent not to pay for unrostered overtime which had not been approved by Dr Braun. The policy does not expressly say that the only way that Peninsula Health would give its authority for the working of unrostered overtime in the Department of Medicine is when authority is given by the Department's Clinical Director, but that intent is sufficiently implicit from the express terms of the policy.
185 The evidence demonstrated that the Department of Medicine Overtime Policy was well known in that Department. Each of Drs Bolton, van Berkel, Toogood and Curtin were aware of the policy. Dr Nye's evidence confirmed that the policy was explained to Doctors in Training during their orientation. Hence, the policy was clear and known to clinical staff in the Department of Medicine.
186 However, there was a significant amount of evidence regarding the extent to which the policy was not applied, in the sense that unrostered overtime was worked and not approved according to the policy, but nonetheless known to Peninsula Health.
187 Dr Bolton gave evidence that she often worked unrostered overtime during her rotations in the Department of Medicine. The detail of the work performed by her in excess of her rostered hours is set out above in relation to ward round preparation overtime and is later discussed in relation to the other categories of overtime work performed in the Department. Dr Bolton explained that she did not seek authorisation for that overtime pursuant to the policy because she was "personally told during the handover from the outgoing interns that Dr Braun had a reputation for being obstructive during these phone calls and often hard to get hold of". She further deposed that she understood "that that phone call [to obtain approval from Dr Braun] was not a simple phone call to make, in that you would be questioned as to why you needed the overtime, why these tasks were necessary, why couldn't they be handed over, why couldn't they be done in your rostered hours, and why couldn't you just wait to do it the next day" which was both time consuming, sometimes taking even longer than the amount of overtime that was sought to be claimed, and undermined junior doctors' own clinical judgment. She also gave evidence that she felt that calling Dr Braun may have made her look like "a lazy and inefficient doctor".
188 Dr Bolton's evidence, which was based not on her own experience but on what she had been told by other employees, accorded with the experiences of a number of other witnesses.
189 Dr van Berkel and Dr Toogood both made claims, and were paid, for unrostered overtime in the Department of Medicine pursuant to the policy. However, both witness recounted the difficulty of this process and how it deterred them from claiming pursuant to the process again because, in part, Dr Braun and other senior doctors gave the impression that those who claimed overtime were not "efficient".
190 Dr Toogood gave evidence that he sometimes received "pushback" from Dr Braun for claiming overtime for an urgent procedure out of hours and "was a bit taken aback [during these calls] that … my clinical decision making to do an urgent procedure out of hours was being judged". This made him anxious to claim unrostered overtime in the future by calling Dr Braun.
191 Further, Dr Curtin gave evidence that, in or around 2015 or 2016, he had been consistently working until 7 pm when his rostered finish time was 4.30 pm or 5 pm. Although he had not been seeking approval for that overtime by calling Dr Braun, he had been recording his actual working hours on his timesheets. On one occasion, he was told by Ms Debra Hobbs, one of Dr Braun's personal assistants, that the overtime hours he recorded on his timesheet would not be paid and he was ordered to see Dr Braun in his office, which he did. Dr Braun then told Dr Curtin that he needed to seek prospective approval for any unrostered overtime by calling him personally and that the payment of unrostered overtime to junior staff "couldn't go on". Dr Curtin replied to Dr Braun that seeking authorisation by calling him is a process "that's not going to really work" and "[i]t's just going to stop people from putting in the claims because the work happens". Dr Curtin said he then left the meeting and never sought authorisation or payment for any unrostered overtime again.
192 In cross-examination, Dr Braun agreed that he had a conversation with Dr Curtin about overtime but could not recall any specifics and did not confirm or deny any of Dr Curtin's specific recollections of the conversation. However, Dr Braun conceded that, based off this conversation, he knew that Dr Curtin was working unrostered overtime but not claiming for it. Dr Braun acknowledged that he did not follow up with Dr Curtin after this meeting to see if he was still working unrostered overtime because "I wasn't aware that there was a widespread issue or an issue with Justin Curtin that … I needed to follow up with".
193 In short, Dr Toogood, Dr van Berkel and Dr Curtin all gave evidence that they frequently worked unrostered overtime but rarely, if ever, sought authorisation or payment for those hours, including because they were deterred from making a claim after their experiences using the policy. Dr Bolton and Dr van Berkel also gave evidence that they observed other junior doctors in the Department of Medicine performing tasks outside of their rostered hours, such as preparing patient lists and medical records. The applicants submitted, and I would accept, that this evidence demonstrates that Doctors in Training at all levels, including interns, experienced the difficulty of the overtime claims process in the Department of Medicine.
194 The evidence ultimately demonstrates that unrostered overtime was regularly and extensively worked by Doctors in the Department of Medicine without authorisation having been given under the Department of Medicine Overtime Policy. The extent of the working of such unrostered overtime, as well as much of the specific evidence of knowledge to which I have referred, also establishes that Peninsula Health, at least constructively, knew that junior doctors were working such overtime. Whether or not Peninsula Health had actual knowledge, the evidence permits an inference that it was generally understood by medical staff in the Department of Medicine that significant work was being performed by Doctors in excess of their rostered hours and without authority given under the Department's policy, in circumstances where I would infer that it was understood that Peninsula Health must have known that substantial overtime of that kind was regularly worked.
195 This conclusion is reinforced by the general evidence regarding the amount of unpaid, unrostered overtime being worked by junior doctors across Peninsula Health. The evidence establishes that senior management at Peninsula Health knew that it was likely that junior doctors were working high levels of unrostered overtime but were not claiming for these hours. Professor Rait gave evidence that he raised a concern with Ms Topp, the Chief Executive Officer of Peninsula Health, during a meeting in August 2019 that junior doctors were working high levels of unrostered overtime. Ms Topp and Dr Nye were subsequently sent a copy of the "Peninsula Health AMA Victoria Health Check 2019 Report", which recorded that 59% of junior doctor survey respondents reported that they were paid for their unrostered overtime 50% of the time or less. Dr Braun said he may have received the Report but could not recall. The Report also recorded that 44% of survey respondents said a "highly obstructive or difficult claiming process" was one of the reasons they did not claim, and were not paid, for the unrostered overtime they worked and 38% nominated "hospital/workplace cultural expectations".
196 Ms Topp was not called as a witness and no evidence was adduced regarding how Peninsula Health, as an organisation as a whole, responded to the receipt of this information from Professor Rait, including whether it took any steps to follow up with junior doctors about the working of unrostered overtime. Dr Nye's evidence was that she did not take any action in response to the Report because, in part, she said it was a voluntary survey with a small sample size and therefore was a "fairly skewed representation of junior medical staff views".
197 Dr Terrill also gave evidence that unrostered overtime of interns and residents in the Plastics unit had been an issue between 2016 and 2019. This issue was discussed in "Safe Efficient Rostering - Review of current practice for JMS: Plastics", a presentation given by Dr Evans to other senior medical staff in the Plastics unit, which primarily focussed on the problem of the financial cost of unrostered overtime performed by junior doctors (that was evidently claimed and paid).
198 As discussed below, the evidence in relation to the completion of discharge paperwork demonstrated that unrostered overtime performed for that purpose was "a fairly common practice" known to Dr Curtin and appreciated, at least as an occasional occurrence, by Dr Nye and Dr Braun.
199 Further, Mr Watts, Dr Toogood, Dr Curtin and Dr Marshall gave evidence establishing that Peninsula Health had knowledge of junior doctors' reluctance to claim payment for unrostered overtime. For example, there was evidence that Dr William (Bill) Slater, the Deputy Director of the Department of Medicine, and Ms Hobbs, Dr Braun's personal assistant who was responsible for rosters in the Department, had raised concerns about the Department of Medicine Overtime Policy with Dr Nye and Dr Braun (albeit after Dr Bolton's First General Medicine rotation). Dr Slater proposed in an email to Dr Braun and Dr Nye in September 2019 to "scrap" the policy but Dr Braun determined not to take any further action. Further, in an email chain dated 18 August 2020 between Dr Braun, Ms Hobbs and Ms Hynes regarding a particular registrar's request for her overtime to be approved, Ms Hobbs told Dr Braun that "I told [the registrar] she needed to call you for approval but she said she wouldn't bother. The [junior medical staff] are still very reluctant to call you for approval for overtime maybe you could add it into your meetings with them?". Dr Braun replied "[s]ure. There seems to be 2 camps - I frequently get calls from the interns but not from the [registrars]. What time did she speak with you? Lyndal - please add that time to her timesheet as O/T". Ms Hobbs responded to Dr Braun as follows:
I just saw her as I was coming in. it was around 0910 and she told [me] she had been at a MET call and I said to put [it] on her timesheet. She said she could not be bothered calling you as too exhausted and did not want to get Lyndal in trouble for not having it approved. We need to stop doing this. You need to look at this requirement again as I feel it is totally unfair at this time. They are all working longer hours than claiming as they can't be bothered calling you. (Emphasis added.)
200 In cross-examination, Dr Braun said that, partly in response to Ms Hobbs' concerns, he would have raised the issue of overtime in his daily meetings with junior doctors in August and September 2020. However, he did not recall whether he specifically raised the issue of junior doctors' reluctance to claim overtime pursuant to the policy. Dr Braun maintained that, notwithstanding the concerns of Dr Slater and Ms Hobbs, the policy was the "best approach" to manage workloads in the Department.
201 I would infer from the evidence referred to above, as well as the evidence recounted below about unrostered overtime being worked in the Department of Medicine, that unrostered overtime in the Department of Medicine was regularly worked but it was extensively not authorised in accordance with the Department of Medicine Overtime Policy. That fact was generally understood by medical staff in the Department of Medicine who would also have reasonably understood that that fact was known to Peninsula Health. Whether there was an objective understanding in the Department of Medicine that Peninsula Health only gave its authorisation for unrostered overtime in accordance with the policy is to be assessed in that context.
202 I would readily accept that the intent of Peninsula Health conveyed by the policy, as assessed in that context, would have been reasonably understood as being that Peninsula Health would not pay for any unrostered overtime work performed which had not been authorised by Dr Braun. However, the relevant understanding of Peninsula Health's intent is not as to whether or not Peninsula Health intended to pay for the work - it is whether or not it would only request, require or approve the working of unrostered overtime if Dr Braun made or gave such a request, requirement or approval. The context in question is that the Department of Medicine Overtime Policy was understood, and known by Peninsula Health, to be only infrequently applied despite unrostered overtime being regularly worked. In that context, it would not have been understood that the bulk of the unrostered overtime worked without reference to Dr Braun was always worked in the absence of any request, requirement or approval given by Peninsula Health. As such, the context negates an understanding that Peninsula Health's intent was to only give its authorisation for the working of unrostered overtime through junior doctors calling Dr Braun to personally approve their overtime. There is therefore room for an inference to be drawn that, on a particular occasion or occasions, Peninsula Health gave its authorisation by some means other than through Dr Braun, including by an implication conveyed by conduct and other circumstances.
203 In the case of the ward round preparation work performed by Dr Bolton, that was work of a kind commonly being performed in excess of rostered hours and without reference to any authorisation by Dr Braun. There was, as discussed above, an expectation conveyed to Dr Bolton that Peninsula Health expected her to perform the work during hours in excess of her rostered hours. There was also a tacit acceptance of the work being performed outside of her rostered hours in circumstances where Peninsula Health either knew, or would have been understood to have known, that the work was performed. In those circumstances, and given the overall context discussed above in relation to how Peninsula Health's intent was objectively understood, I would conclude that the objectively discerned understanding held by medical staff in the Department of Medicine about Peninsula Health's intent was that Peninsula Health wanted the work performed but was generally reluctant to pay for it. In any event, by reason of the overall context and the particular circumstances just referred to, the existence of the Department of Medicine Overtime Policy does not negate the inference available from the conduct and circumstances relied upon by the applicants that, on each occasion ward round preparation work was performed by Dr Bolton, it was impliedly authorised by Peninsula Health.
204 For the reasons given above and subject to any further issues going to quantum, I consider that the ward round preparation overtime claimed to have been worked by Dr Bolton in her First General Medicine rotation was authorised by Peninsula Health and engaged the payment obligation in cl 36.2(a)(ii) of the 2018 Agreement.