CHS responses to the Deegan Review
53 Meanwhile, however, further issues had arisen within CHS concerning Dr Avard. In late January of 2022 CHS commissioned Ms Barbara Deegan, a former Commissioner of the Fair Work Commission, to review the workplace culture of the ICU (the Deegan Review). This, according to Ms Gilmore's memorandum to staff announcing the appointment, was in response to results of a staff survey which suggested the existence of a "toxic workplace culture" and a range of unacceptable forms of behaviour.
54 The memorandum noted that, "[if] needed, Barbara will be undertaking a Preliminary Assessment too". This was apparently a reference to the 2022 Agreement, and conveyed an intention that any findings Ms Deegan made in relation to misconduct would serve as a "preliminary assessment" for the purposes of cl 117 of the 2022 Agreement.
55 Dr Avard was interviewed by Ms Deegan on 4 March 2022. Ms Deegan's report was furnished in April 2022 (the Deegan Report).
56 On 17 June 2022, Ms O'Neill sent Dr Avard and her solicitors another letter outlining the outcome of a "preliminary assessment" which had arisen as part of Ms Deegan's review (the 17 June letter).
57 Again, "preliminary allegations" were set out in an appendix to the letter. These were as follows.
Allegation 1: Over the course of your tenure as Medical Director of the [ICU], you have repeatedly acted in an unreasonable manner towards staff, creating an unsafe environment for [CHS] employees, and patients.
…
Allegation 2: In your capacity as the Unit Director of the [ICU], you have repeatedly undermined the relationship between ICU and other units, namely DonateLife ACT and Medical Emergency Team (MET).
58 The particulars set out under Allegation 1 summarise at a fairly high level what the author drew from the Deegan Report. These were as follows.
Ms Deegan's assessment contains particulars, and examples of these behaviours which demonstrate a pattern of:
• Rude and belittling behaviour directed at staff
• Behaving in an aggressive and unreasonable manner
• Unreasonably criticising staff, including in front of other employees
• Acting in a dismissive manner towards Nursing staff
• Undermining peers and colleagues
59 The letter said that an investigator was to be appointed to undertake an independent investigation into these allegations in accordance with Section N of the 2022 Agreement. An "external investigator with tight timeframes" had been contracted in an attempt to ensure expedition. The commencement of this investigation (referred to in the pleadings as the Deegan Report Investigation) is the fourth adverse action relied on by Dr Avard. (It is the fifth adverse action alleged in Dr Avard's Further Amended Statement of Claim, but the fourth (which arose from the van Haren complaint) is no longer pressed. The late withdrawal of this part of the case is the subject of a foreshadowed application for a costs order pursuant to s 570 of the FW Act by the respondents.)
60 The 17 June letter also informed Dr Avard that Ms O'Neill had decided to suspend her from duty with pay pursuant to cl 122.4 of the 2022 Agreement. The suspension decision was said to have been made in the light of the seriousness of the allegations (which related to the safety of CHS employees and patients) and the need to protect the integrity of the investigative process. However, Dr Avard was invited to provide a written response within seven days as to why she should not continue to be suspended.
61 This, however, appears to have been a false start. Mr Peffer advised Dr Avard by a letter to her solicitors on 13 July 2022 that, in light of her complaints against Ms O'Neill, he had appointed a new delegate, Ms Zagari, to "review the Deegan report and assess whether it gives rise to allegations of misconduct which ought to be investigated".
62 Ms Zagari worked quickly. She also wrote to Dr Avard through her solicitors on 13 July (the 13 July letter). She said that the Deegan Report made a number of observations in relation to Dr Avard's conduct which, although not adequately particularised, "suggest you have repeatedly acted in an unreasonable manner towards staff and that you have undermined the relationship between ICU and other units". A summary of "the allegations from the Deegan report" was attached. Although the summary is lengthy, it is useful to set it out in order to give an indication of the kinds of conduct Dr Avard was alleged to have engaged in.
DR BRONWYN AVARD
A member of the nursing staff described an incident where the Medical Director berated, then ostracised him because he had mentioned an incident that had occurred between two of the ICU specialists to a member of the Executive. He stated that this had been inadvertent as he believed the Executive Director was already aware of the incident but that the Medical Director had accused him of disloyalty.
Dr Chan noted that one of his first jobs as State Medical Director for DonateLife was to escalate concern about low engagement with donation nurses in the ICU and the referral rates of donations falling. He talked to the consultants and said that there was a potential for negative attention. He said he had talked to the Medical Director who had said to him quite openly that she didn't believe in organ donation as it cost too much for a limited gain. In his conversation with the consultants he had mentioned that she was not always supportive of organ donation. He said this had been a strategic mistake as a colleague informed her of his remark and he was told she 'flew into a rage'. She tried to lodge a formal complaint about him and when he asked another colleague to mediate she refused to speak to him. Eventually they had a meeting where she told him that she didn't trust him, that he 'seemed angry' and asked him 'why do you still bother coming into work, what do you think you can possibly achieve?' When he brought up their earlier conversation she had responded that he had 'read too much into it' and that she 'didn't believe in the Authority not the donation'. She also told him he was being too emotional.
Three years previously, as the ACT had 'dreadful referral rates' in terms of being invited in for end of life conversations, she had invited a couple of experts from Victoria to visit. She had deliberately chosen a day when the ICU Intensivists had a meeting. She had flagged the visit for months and asked the Medical Director if she could invite the experts to address the meeting (away from her and from Dr van Haren, the State Director at the time). She sent emails and reminders. On the day the Medical Director did not attend the meeting. Dr van Haren had told the Agency Head that the Medical Director 'votes with her feet' in relation to organ donation matters. After an hour the Medical Director opened the door and said 'are you done yet?'.
The Commonwealth Head of Department and the invited guest speakers, came back to spend the afternoon with DonateLife and said 'We've heard murmurings for years that the relationship is poor but what we experienced now was unbelievable'. The Agency Head considered the Medical Director's behaviour as unprofessional, embarrassing and uncalled for' [sic] but questioned who would 'pull her up?'.
A CCC wanted to go home but new [sic] a patient was coming. She could see Dr Oliver and Dr Avard in conversation, handing over. She knew it was not a good time to interrupt but thought 'I am nurse in charge, it is my job to make sure the bed is ready'. She said 'sorry, I know you are handing over but…' and got 'her head bitten off'. Another doctor, Dr Walsh said 'are you okay, I can't believe they spoke to you that way'. The nurse was surprised as she had hardly noticed as she was either used to it or expecting it.
When the Senior MET Nurse attended operations meetings, there were very few where she was not either verbally abused or belittled by someone. Dr Avard, as the chair of the meeting would not call it out and may do the same thing. At the end of the meeting there would be discussion of something that people 'were proud of'. On one occasion the MET CNC said that she would like to acknowledge work the MET nurses had done managing a difficult patient. Dr Avard said this is not the forum for that to be raised. The CNC had considered that she was part of the ICU team but it got to the point where she became anxious going to those meetings.
One nurse in the MET reported attending an education session and being told by Dr Avard that 'this is not for you' and 'you need to leave, this is for medical only'. New nurses went to teaching sessions and Dr Avard would not engage with them or look at them. One nurse introduced herself to Dr Avard and talked to her for a while until the nurse said she was from the MET and then Dr Avard would not talk to her.
Dr Avard was reported to have treated at least two of the other current consultants, Doctors Mitchell and Chan, poorly:
• Dr Avard actively excluded Dr Mitchell from the larger group of consultants, including by excluding her from consultant meetings and removing her from a Microsoft Teams chat with the other consultants.
• Dr Avard 'gaslit' Dr Mitchell. For instance, after Dr Mitchell returned to the ICU after being the COVID Director, Dr Avard told her not to attend any consultant meetings until she talked to her and said that the consultants were angry that Dr Mitchell deserted them in their hour of need. Dr Mitchell attended the meeting to explain herself and one of the consultants asked "why are you telling us this" (because they did not consider it necessary for her to do so). There did not appear to be any feeling among the consultants that Dr Mitchell deserted them.
• Dr Avard said she did not exclude Dr Mitchell. While Dr Mitchell was the COVID Director in ACT Health, Dr Avard removed her from a Microsoft Teams chat and did not include her in the chat until being asked directly to do so. Dr Avard said that this was a mistake. Dr Mitchell did not attend a lot of consultant meetings while she was the COVID Director, and she put communications in the chat of a meeting that Dr Mitchell was not in. Another consultant pointed this out and Dr Avard says she corrected it. Dr Avard said she did not actively remove or exclude Dr Mitchell.
• On one occasion, Dr Chan was an acting deputy director in ICU and applied for the substantive role. Dr Avard called him into her office and said "I don't know why you want this, you don't agree with my leadership style and don't trust me." Dr Chan 'I thought I was doing and [sic] alright job and supporting everyone.' Dr Chan then withdrew his application.
• A CCC described an incident around May or June 2021 where she was on the floor when a MET call occurred while Dr Avard was the outreach doctor. The MET call said that a patient needed a bed in the ICU. The only bed available at the time was in Dr Chan's wing. Dr Avard told the CCC words to the effect "I am not handing over to Sean, I to [sic] go to Liam" and that she would only hand over to Liam. As a consequence, the CCC had to move patients around and re-arrange staff in order to have the patient brought into the ICU.
• One nurse described an incident where she was on the phone and Dr Avard dragged a patient pink chair in her [sic] office, with the brakes on leaving marks on the corridor and 'dumped' it in front of the nurse and walked off. The char [sic] had been in the organ donation room and the nurse was perplexed as to why Dr Avard objected to this as it was an overflow room to sit in and no clinical work was done in the room.
63 It is not clear who was being referred to as "she" in the fourth paragraph of this passage (which seems to consist of paragraphs taken verbatim from the Deegan Report). However, no issue was taken about this. I infer that the reference would have been clear to persons acquainted with the background.
64 Ms Zagari expressed the view that, if substantiated, this conduct would constitute a serious risk to the safety of CHS staff and patients. She therefore considered that it warranted further investigation (the second investigation). Effectively, this was a re-commencement of the (aborted) Deegan Report investigation. It is not separately pleaded in the FASOC as an adverse action.
65 Additionally, Ms Zagari returned to the Riskman reports. She said that she had considered "an allegation that on 3 November 2021 you made improper and inaccurate Riskman reports". In doing so she had had regard to Dr Kar's report. She considered that this issue was sufficiently serious to warrant further investigation, as "it resulted in [CHS] incurring unnecessary expense in obtaining independent medical assessment, and paying for a period of leave whilst the assessment was undertaken".
66 Ms Zagari said that these allegations had been referred for independent investigation by KPMG and that it would particularise the allegations, assemble the relevant material and invite Dr Avard to an interview. (It appears from later correspondence that the matter was actually referred to the ACT Public Sector Standards Commissioner (the Commissioner), who arranged for KPMG to undertake the investigation on his behalf.)
67 As in the earlier letters, Dr Avard was directed not to discuss the matter with any other employee or former employee other than her support person or representative.
68 Ms Zagari also said that she had decided to suspend Dr Avard from duty under cl 122 of the 2022 Agreement, but invited a written response within seven days as to why the suspension should not continue. She said:
In taking this action, I have considered the serious nature of the allegations, including that you have repeatedly acted in an unreasonable manner towards staff and that you have undermined the relationship between ICU and other units including DonateLife ACT and the Medical Emergency Team in a manner which poses a risk to the safety of other [CHS] employees and patients. Further, I considered the integrity of the investigative process, and the potential for undue pressure to be applied to witnesses and potential witnesses and the reasonable fear of some employees that this may happen if you remain in the workplace during the investigation.
69 The fifth adverse action pleaded by Dr Avard comprises the decision to investigate the Riskman reports (the Riskman investigation) "and/or" the proposal to suspend her (the second suspension decision).
70 Dr Avard commenced these proceedings on 13 July 2022, the day she received Ms Zagari's letter. The commencement of proceedings is the third exercise of a workplace right on which Dr Avard relies.
71 On 14 July Dr Avard resigned as Clinical Director and therefore reverted to the position of Senior Staff Specialist in the ICU.
72 On 15 July 2022, after the filing of an interlocutory application and discussions between legal representatives, the ACT Government Solicitor wrote to Dr Avard's solicitors advising them that CHS had "revoked" the decision to suspend Dr Avard pending the hearing of an application for interlocutory relief.
73 Dr Avard was due to return from leave on 1 August 2022. She contacted colleagues in the ICU during July 2022 and learned that she was not rostered on to perform any work in the ICU until at least the following February. Her solicitors took this up with the ACT Government Solicitor.
74 On 25 July 2022 Ms Zagari again wrote to Dr Avard through her solicitors. She informed Dr Avard that consideration was being given to transferring her to other duties, under cl 121.2.1 of the 2022 Agreement, upon her return to work. She expressed concern that, in the light of the matters that were being investigated, Dr Avard's return to the ICU might "pose a risk to the safety of other CHS employees".
75 Ms Zagari continued:
CHS is of the view that by returning to the ICU, the integrity of the investigation process may be comprised [sic] as you interact with those persons who have made allegations against you and who are or may be concerned that you may apply pressure upon them as witnesses or potential witnesses in the investigation. In that regard, we have been advised by some of your colleagues that you have already contacted them to set up meetings and they have expressed concern as to any such proposed meetings in the context of the current investigation.
76 CHS therefore proposed to transfer Dr Avard to the position of Clinical Advisor, Clinical System Governance (in the Office of the Chief Medical Officer and Office of the Chief Psychiatrist) until the finalisation of the investigation. Dr Avard was invited to provide a written response to this proposal by midday on 29 July 2022.
77 Ms Zagari was not the only officer in CHS who was concerned about Dr Avard returning to the ICU while allegations against her were being investigated. On 26 July 2022 Ms Kalena Smitham, Executive Group Manager of People and Culture in CHS, sent an email (the staff email) to Dr Manoj Singh (the acting director of the ICU) and two other senior staff members in the ICU (Rosalie Alderson and Tina Xu). It was then forwarded by Ms Alderson and Ms Xu to other staff in the ICU. The email said:
Hi team,
I write to advise you of an update regarding Dr Avard's return to work. The team may be aware Dr Avard was scheduled to return to ICU, in a senior staff specialist capacity, from long service leave on 1 August 2022.
All possible steps are being taken for Dr Avard to not return to the ICU pending the outcome of the investigation.
Staff do not have to accept meetings with Dr Avard if they do not wish and if the request to meet relates to matters connected to work and if they are unsure how to proceed advise them to please contact their Acting Clinical Director for advice.
78 The staff email was forwarded to other staff in the ICU (including Dr Avard herself) on the same day. The staff email is the sixth adverse action of which Dr Avard complains.
79 Dr Avard's solicitors wrote three letters to Ms Zagari on 26 July 2022.
(a) The first, apparently sent during the morning, made various complaints about the decision to refer the issues arising from the Deegan Report for investigation, responded to the proposed transfer of Dr Avard, and asked (in view of Dr Avard's concern about her reputation) that any communications with ICU about the matter be agreed with her. It sought a response by 4.00 pm.
(b) The second was sent in the light of Ms Smitham's email (which, as noted above, had been forwarded to Dr Avard). It contended that the investigation was prejudiced (by the email having been sent to potential witnesses) and that CHS had prejudged the outcome. It alleged that Ms Zagari's decision in relation to transferring Dr Avard was affected by bias. It advised that the "outrageous" email from Ms Smitham might be relied on in the proceedings which were under way.
(c) The third letter was a "concerns notice", alleging that Dr Avard had been defamed and demanding apologies from everyone who had distributed Ms Smitham's email.
80 Responding to the first of these letters, on 27 July 2022, Ms Zagari wrote to Dr Avard's solicitors. While adhering to the view that the role of Clinical Advisor, Clinical System Governance was a suitable one for Dr Avard, she indicated a willingness to consider other positions. She did not regard any of three other positions proposed in the solicitors' letter as suitable. However, she said that CHS was prepared to transfer Dr Avard to a position of Career Medical Officer in the Emergency Department at Calvary Hospital, Bruce (Calvary), with her salary maintained. CHS was also amenable to Dr Avard splitting her time between the two positions it had identified for her. Dr Avard's solicitors responded on the same day rejecting these roles and proposing two others.
81 On 28 July 2022 Ms Zagari wrote to Dr Avard through her solicitors, advising her of the decision to transfer her to a position as Career Medical Officer at Calvary from Monday 8 August 2022. This decision (the transfer decision) is the seventh adverse action of which Dr Avard complains.
82 Further heated correspondence followed, along with an interlocutory application in these proceedings which prompted further negotiations. On 19 August 2022 Ms Zagari wrote to Dr Avard's solicitors revoking the transfer decision and transferring her instead to the position of Advanced Trainee, Palliative Care at Calvary from Monday 22 August 2022.