JURISDICTION: South Australian Employment Court

Fair Work Act 1994 (SA) - Appeal

JUDGMENT OF: His Honour Deputy President Judge Calligeros

The appellant is the designated employer of members of the respondent association - An industrial dispute arose between the parties as to whether, in relation to the current review and appointment to the position of Head of Unit of the Intensive Care Unit of the Queen Elizabeth Hospital, the pool of candidates should be limited to those medical consultants already substantively employed within the ICU at the QEH, being consistent with prior practice - Following an arbitration hearing the Deputy President ordered that the pool of applicants be so limited - The findings included findings that were critical of the evidence given on behalf of the appellant at the arbitration hearing - The primary findings of fact made were not disputed and the grounds of appeal in relation to the factual findings related to inferences drawn from the primary findings of fact - HELD - 1. The form of the appeal is a "real review" of the evidence received at first instance to determine whether the Deputy President has erred in fact or law - The task of reaching conclusions as to the facts can only be done by a Full Bench by weighing the reasons for decision appealed from - A Full Bench must have regard to any advantage that the trial Deputy President may have had in determining the credibility of witnesses - Where a trial Deputy President's finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown at the trial Judge has failed to use or has palpably misused the advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable - 2. There was sufficient evidence for the findings of fact made by way of inference drawn from the undisputed primary findings of fact - 3. Where there has been an exercise of the managerial prerogative the Tribunal will exercise caution before it makes an order to resolve a dispute that would amount to a substantial interference with the autonomy of management to decide how the business enterprise should be conducted (Re Cram; ex parte N.S.W. Colliery Proprietors' Association Limited [1987] HCA 28; (1987) 163 CLR 117) - 4. - Many industrial disputes may be related, in some way, to an aspect of the exercise of the managerial prerogative and the individual circumstances are relevant to the significance of the managerial prerogative in determining the orders to be made - 5. - The Deputy President appropriately had regard to the powers conferred by s 34(1) of the Health Care Act 2008 and the managerial prerogative - 6. - The conclusory findings of fact made by way of inference drawn from the primary facts were open and no error has been demonstrated - Appeal dismissed.

South Australian Salaried Medical Officer's Association v Chief Executive Officer, Attorney-General's Department, Department for Health and Wellbeing [2024] SAET 47

Chief Executive, Attorney-General's Department (Department of Treasury and Finance) v the South Australian Salaried Medical Officers Association [2025] SAET 16

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348

Crampton v The Queen (2000) 176 ALR 369

Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73

Cabal v the United Mexican States [2001] FCA 427

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588

Biogen Inc. v Medeva Plc [1996] UKHL 18; (1996) 36 IPR 438 (HL)

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Devries v Australian National Railways Commission (1993) 177 CLR 472

Re Cram; ex parte N.S.W. Colliery Proprietors' Association Limited [1987] HCA 28; (1987) 163 CLR 117

Construction, Forestry, Mining and Energy Union v HWE Mining Pty Ltd [2011] FWA 8288; (2011) 214 IR 194

RMIT University v National Tertiary Education Industry Union [2012] FWA 2208

Steenstra v J.J. Richards and Sons Pty Ltd [2015] FWC 798

Chief Executive, Department of Premier and Cabinet (on behalf of the Chief Executive, Department for Health and Aging) v South Australia Salaried Medical Officers Association and El Shafei (No. 2) [2018] SAET 109

Chief Executive, Attorney-General's Department (Department of Treasury and Finance) v South Australia Salaried Medical Officers Association [2025] SAET 16

South Australian Salaried Medical Officers Association and Australian Nursing and Midwifery Federation v Chief Executive, Department for Health and Wellbeing, Chief Executive Attorney General's Department [2025] SAET 58

Appeal from a decision of Lieschke DP in South Australian Salaried Medical Officers Association v Chief Executive Officer, Attorney-General's Department, Department for Health and Wellbeing [2024] SAET 47

Respondent: South Australian Salaried Medical Officers Association

1. The appellant, the Chief Executive of a State Government Department, is the designated employer of members of the respondent association. For convenience the appellant is referred to as the CE and the respondent is referred to as SASMOA. The appeal relates to a decision of a learned Deputy President following an arbitration hearing. The relevant members of SASMOA are senior medical specialists who work in the Intensive Care Unit (ICU) of the Queen Elizabeth Hospital (QEH). A person may be appointed as Head of Unit of the ICU for a period between one and five years before review. An industrial dispute arose between the parties as to whether, in relation to the current review and appointment, the pool of candidates should be limited to those medical consultants already substantively employed within the QEH ICU consistent with prior practice. At the primary hearing the CE sought to enlarge the pool of candidates by inviting applicants from outside of the QEH to apply.
2. After hearing evidence from a number of witnesses and having made a series of important findings of fact, the Deputy President found that the consultants of the QEH ICU had "a well-based lack of faith in a future fair merit selection process"[1] as was proposed by the CE. The Deputy President made the following order:
   1. In the circumstances giving rise to this industrial dispute, the respondent must limit the pool of applicants for the role of Head of Unit of the QEH ICU to Consultants already substantively employed within the ICU at the QEH.

That order is the decision which is the subject of the appeal.[2]

1. Much of the factual background was agreed between the parties. The primary and intermediate findings of fact of the Deputy President were not contested on appeal. The appeal primarily related to some final conclusory findings of fact that the Deputy President had made having regard to his view of the witnesses.

1. The approach of a Full Bench hearing an appeal by way of rehearing pursuant to s 67 of the South Australian Employment Tribunal Act 2014 (the SAET Act), was recently addressed by a Full Bench of this Tribunal in Chief Executive, Attorney-General's Department (Department of Treasury and Finance) v South Australian Salaried Medical Officers Association (CE v SASMOA),[3] where the Full Bench stated:
   1. The appeal to the Full Bench is by way of re-hearing pursuant to s 67 of the South Australian Employment Tribunal Act 2014 which provides:

(1) Subject to this section and to any provision of a relevant Act as to the review of, or appeal against, a decision of the Tribunal, an appeal lies against a decision of the Tribunal, other than a decision of a Full Bench, to a Full Bench of the South Australian Employment Court.

(2) The regulations may exclude or modify the application of subsection (1) insofar as the subsection applies to prescribed classes of decisions under a relevant Act (subject to any provision made by a relevant Act).

(3) An appeal under this section will be by way of rehearing.

(4) The Full Bench conducting the appeal may draw inferences of fact from evidence or other material before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented to it.

(a) affirm the decision appealed against; or

(b) vary the decision appealed against; or

(c) set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Full Bench considers appropriate.

(6) A Full Bench may, on an appeal, make any interim, ancillary or consequential order that the Full Bench considers appropriate (including orders for costs).

1. The Full Bench is required to undertake a real review of the evidence when addressing the grounds of appeal. In Lee v Lee (Lee) the plurality in the High Court observed:

A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence". It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge".

1. In undertaking that review the appellate court will be mindful of the advantage of the trial judge who has heard and seen the witnesses who gave oral evidence. That advantage is particularly strong where the decision is by reference to that advantage and especially where a finding of fact is based directly upon the credibility of a witness. An appellate court will not depart from a primary judge's findings of fact based directly upon findings as to the reliability and credibility of the witnesses unless the trial judge has palpably misused the advantage, those findings are shown to be wrong by reference to incontrovertible facts or uncontested testimony or they are contrary to compelling inferences. However, where a trial judge has drawn inferences from undisputed facts or facts established by the trial judge, an appellate court will respect and give weight to the conclusion of the trial judge but if an appellate court reaches a different conclusion then it should give effect to it and correct error.
2. Courts have also recognised the limitations associated with evaluating demeanour and that the Court must have regard to contemporary materials, objectively established fact and the apparent logic of events.
3. An appellate court, in circumstances of an appeal by way of rehearing, may only exercise powers conferred to set aside the primary decision where the appellant demonstrates that the primary judgment is the result of error.

1. Two of the grounds of appeal relate to whether there was sufficient evidence or a proper basis for the ultimate findings of fact made by the Deputy President.
2. The approach taken in an appeal that proceeds as a review was addressed by the High Court in Warren v Coombes.[4] The Court referred to the duty of the appellate court to decide the facts as well as the law for itself.[5] The Court then stated:[6]

In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.

1. The majority were there referring to an appellate court giving effect to its own conclusion where the decision of the trial judge is wrong and should be corrected. The passage followed a statement that an appellate court having carefully considered the judgment of the trial judge and has decided that he was wrong in drawing inferences from established facts, should not perpetuate that error. The majority observed that otherwise, there would be a complete denial of the purpose of the appellate process.[7] The majority concluded:

However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.[8]

[emphasis added]

1. In Cabal v The United Mexican States,[9] the Full Court of the Federal Court addressed the significance of findings of fact made by a trial judge where a primary judge's review is conducted on the papers. The Full Court referred to the importance of the findings of fact exercise undertaken at trial and stated:[10]

Notwithstanding the fact that the learned primary judge's review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour's views count for nought. If, after giving full weight to his Honour's views, we are persuaded that the conclusions which he reached were erroneous we must set aside his findings of fact. We cannot however simply substitute for his Honour's findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance.

1. Conclusions or findings made at first instance may involve elements of fact, degree, opinion or judgment. The evidence unfolds and the tribunal of fact at first instance has the advantage of hearing the evidence in full and in sequence. A trial judge or member also has the benefit of reflection as the evidence unfolds.[11] In a hearing before this Tribunal, ordinarily a substantial body of documentary evidence is provided, including affidavit evidence to be taken as evidence in chief of lay witnesses before the commencement of the trial. This provides an additional benefit of being appraised of the contents of those documents as oral evidence is adduced in the courtroom. In Biogen Inc. v Medeva Plc,[12] Lord Hoffmann provided a further reason for appellate caution in reversing a trial judge's evaluation of the facts. He referred to specific findings of fact in a judgment as being inherently an incomplete statement of the impression which was made upon the trial judge by the primary evidence. He added:[13]

His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance..., of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.

1. In Abalos v Australian Postal Commission,[14] McHugh J (with whom Mason CJ and Deane, Dawson and Gaudron JJ agreed) addressed circumstances of a trial judge making a finding of fact contrary to the evidence of a witness without reference to that evidence. They held that an appellate court cannot act upon that evidence to reverse the finding unless it is satisfied that any advantage of the trial judge having seen and heard the witnesses is insufficient to explain or justify the trial judge's conclusion.[15]
2. In Devries v Australian National Railways Commission,[16] the High Court addressed circumstances that could give rise to an appellate court making a different finding of fact, where a finding depends substantially on the credibility of the witness, and stated:

If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".[17]

[footnotes omitted]

If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage at first instance may be of little significance or irrelevant.[18]

1. From this analysis we would summarise the principles to be applied in undertaking an appeal in compliance with s 67 of the SAET Act as follows:

(1) The appeal is by way of review where the Full Bench is bound to conduct a "real review" of the evidence received at first instance to determine whether the trial Deputy President has erred in fact or law.

(2) The task of reaching its own conclusions as to the facts can only be done in the light of, and by taking into account and weighing, the reasons for the decision appealed from.

(3) In that process of analysis, the Full Bench will have regard to any advantage that the trial Deputy President may have had in determining the credibility of witnesses. The advantages may be more subtle and imprecise, associated with being engaged in the trial with the unfolding of oral evidence, against the background of affidavit evidence and other documents contained in trial books, and yet still relevant to the assessment of the weight to be accorded to the findings made at first instance.

(4) Where a trial Deputy President's finding depends, to any substantial degree, on the credibility of a witness the finding must stand, unless it can be shown that the trial judge has failed to use or has palpably misused their advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. This includes findings of secondary facts which are based upon a combination of impressions formed and other inferences from primary facts. Thereafter, in general the Full Bench is in as good a position as the trial Deputy President to decide upon the proper inference to be drawn from facts which are undisputed or which have been disputed, are established by the findings of the trial Deputy President. However, the appeal is not a hearing de novo and where different conclusions are reasonably open a Full Bench cannot substitute its own conclusion if it differs from that of the trial Deputy President merely on the basis that it is a conclusion the Full Bench would have reached if it had determined the matter at first instance.

(5) If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage at first instance may be of little significance or irrelevant.

(6) A Full Bench may only exercise powers conferred to set aside the primary decision where the appellant demonstrates that the primary decision is the result of error.

1. The Deputy President recorded the issue in dispute as being whether the CE should be permitted to appoint, as Head of Unit of the QEH ICU, a person who was not currently employed in the ICU.[19] That was his summary of the two questions that were raised as set out in the two paragraphs that follow. The parties provided the Deputy President with a Statement of Agreed Facts. The CE notified the Tribunal of an industrial dispute on 29 April 2023.[20] Two questions were referred for determination under s 22 of the Fair Work Act 1994 (SA) (the FW Act).
2. The first question raised was whether the South Australian Medical Officers Award (the Award) restricted candidates for the allocation of additional managerial responsibilities consistent with the role of the Head of Unit of the ICU, to an existing consultant with the ICU. The Deputy President held that there is no such restriction. That answer was not appealed.
3. The second question raised was whether a fair and reasonable recruitment process in respect of the additional responsibilities of the Head of Unit of the ICU would be unlikely to be achieved unless the candidates were limited to the pool of existing consultants of the QEH ICU.[21]
4. The Deputy President noted that SASMOA had asserted that inappropriate and unreasonable circumstances occurred in August 2020 and in the 2021 and 2022 selection processes which it further asserted had led to the latest process having failed. The Deputy President also noted that SASMOA contended that an external appointment would be "likely to impact adversely on the morale and the working of the consultants within the unit, and disrupt the effective working history of the unit".[22] In its notification of a dispute by email on 11 February 2023, SASMOA raised concern that the irregularity in process proposed by senior management was perceived by the medical staff of the QEH ICU to be designed to ensure that the successful candidate would not be from the existing consultants of the QEH ICU.
5. The areas of factual dispute between the parties at the arbitration hearing, which had to be resolved by findings of the Deputy President, were in the context of the background leading to the dispute which was largely uncontroversial. Some of the background was set out in the Statement of Agreed Facts and some were the subject of findings made by the Deputy President which were not contested upon appeal.
6. Historically, the usual approach to making an appointment to undertake the additional managerial responsibilities associated with a Head of Unit was from a pool of candidates confined to the consultants that were currently engaged within the relevant unit.[23] The Deputy President was satisfied that in the past at that approach had been primarily, if not exclusively, applied.[24] The Deputy President found, however, that there was nothing in the Award which precluded a consultant starting work in the relevant unit one day and being allocated the additional managerial responsibilities the next day, sequentially, or at the same time.[25]
7. In April 2018, Professor Sandra Peake was appointed as the Head of Unit of the QEH ICU for a period of three years. That appointment was extended until December 2021.[26]
8. In July 2021 the CE sought applications for appointment for the Head of Unit of the QEH ICU.[27] Initially the applicants were limited to existing consultants of the QEH ICU, although at the arbitration hearing the CE contended that occurred in error.[28] The only applicant was Professor Peake. At the time the QEH ICU was a high performing unit which exceeded all national benchmarking metrics. In addition, the QEH ICU received a special positive mention at the conclusion of the 2021 accreditation of the Central Adelaide Local Health Network (CALHN), of which the QEH is a part.[29]
9. A selection panel was convened to determine Professor Peake's suitability for appointment. No concern was raised with Professor Peake.[30] Following the interview of her, the selection panel concluded that she was appointable and that there was no reason not to appoint her.[31] However, the selection panel determined to seek a reference from Dr O'Callaghan who, at the time, was the Executive Director of Medical Services and was the most senior of the medical management executives within CALHN. In his subsequent reference, Dr O'Callaghan made some comments which were positive of Professor Peake's performance but also referred to what he described as a complaint by Professor Peake regarding Dr Sarah Flint, which Dr O'Callaghan reported had been found to be without substance, and Dr O'Callaghan expressed concern as to whether Professor Peake appreciated the importance of having a respectful relationship with Dr Flint and, more broadly, across the health service.[32] At no time had the concerns raised by Dr O'Callaghan been the subject of discussion with Professor Peake by the selection panel.[33]
10. In 2020 and 2021 the consultants within the QEH ICU, with Professor Peake as then Head of Unit, made two complaints regarding the conduct of the medical lead to whom Professor Peake reported, Dr Flint.[34] At the time Dr Flint was responsible for medical leadership and clinical governance of units at the QEH, including its ICU.[35] The Deputy President found those complaints to have had a reasonable basis.[36] The selection panel recommended to the Medical Appointments Committee (MAC), being a committee which oversees and provides final recommendation for appointments, that Professor Peake be appointed subject to satisfaction regarding the concerns expressed by Dr O'Callaghan. The MAC subsequently determined that Professor Peake should not be appointed. On 22 December 2021 the CE resolved not to appoint Professor Peake as the Head of Unit of the QEH ICU.[37] Four reasons were given, and they were addressed by the Deputy President: [38]

First, that Professor Peake had not met the "minimum required management capability" for the role. Second, she did not satisfactorily address elements of the role "relating to leadership of the Unit in conjunction and in collaboration with" Dr Flint. Third, she did not "demonstrate a commitment to ensuring sound principles of personnel management". Fourth, she did not "demonstrate a substantive interest in working collaboratively with other related disciplines."

1. The Deputy President immediately noted that Professor Peake was unsure how these views had been formed as they had not been raised with her and the statement with respect to personnel management was inconsistent with what she and Dr O'Callaghan had said.[39] The Deputy President also made findings of an unreasonable and perverse view having been taken by Professor Dwyer, who was at the time Chief Executive Officer of CALHN, as to how Professor Peake had dealt with a difficult locum issue. Professor Dwyer's view was contrary to the evidence of Professor Peake and Dr O'Callaghan.[40]
2. The Deputy President also found that Professor Dwyer, in the capacity of Chief Executive Officer of CALHN, and Mr Fokas in his role as Chief Operating Officer of CALHN, had made a combative judgement against the consultants of the QEH ICU which had slurred all the consultants as a collective and had contributed to a decision to block reappointment of Professor Peake as Head of Unit of the QEH ICU, notwithstanding her having been a successful leader with the full support of her unit colleagues.[41]
3. Another reason given by Professor Dwyer for seeking to appoint someone outside of the ICU, as its head, included the existing consultants causing delays to the progress of a redevelopment. The Deputy President rejected that concern as being without foundation. He found that the consultants were eager to meet with architects and the redevelopment team to agree on a suitable plan.[42] The Deputy President noted that Professor Dwyer's position that a fair merit selection process would be adopted was in circumstances of Professor Dwyer having admitted that the MAC based its decision upon hearsay and matters that were not raised with Professor Peake, either in the selection panel, or at all.[43]
4. In further addressing whether, objectively, it was reasonable in the circumstances of the case to limit the pool of candidates substantively within the QEH ICU, the Deputy President considered whether there was likely to be an unfairness or unreasonableness that would be applied to QEH ICU consultants. He stated that any likely future unreasonableness also needed to be assessed as justifying intervention in an area of traditional managerial prerogative.[44] The Deputy President found that unreasonable adverse views of the consultants forming the QEH ICU were shared at the highest levels of management.[45] There was also a finding that these views were maintained throughout the arbitration hearing and would be likely to continue to be maintained in a broader selection process, amounting to a serious obstacle for the QEH ICU consultants to overcome in comparison to someone who was not considered in the same way.[46]
5. In relation to what was identified as the most significant factor, the Deputy President found that the CE had adopted a strategy to attempt to bring in a person outside of the QEH ICU to the role of Head of Unit, in order to effect a change from what was regarded to be an unhealthy culture.[47] There were other associated significant findings of fact:[48]

I find that is why none of these criticisms were raised with any of the consultants or with the HOU. That is also why the respondent would not appoint any consultant as interim head until pressured to do so six months later by the threatened loss of training accreditation. That was also after Dr Flint incorrectly told the College of Intensive Care Medicine in April 2022 she was then looking to appoint an interim head, despite Dr van Wijk being appointed in February 2022. The respondent preferred to have no one instead of a QEH consultant in an acting role with the role vacant for weeks, Dr Moran was not even interviewed, then an anaesthetist who did not work in the unit was appointed for another few months. This was worse than a farce as described by SASMOA, it was a strategy to unfairly sideline the consultants of an objectively high performing unit. The risk of this strategy continuing remains high, given the apparent lack of commitment at the CEO and MAC level to a fair and transparent merit selection process for this unit.

1. The Deputy President referred to evidence given by Dr Lavender and adopted by the CE that consultants within the QEH ICU had colluded in seeking to have Professor Peake reappointed as Head of Unit of the QEH ICU. The Deputy President found this to have been an unreasonable criticism and considered it significant that it had not been disavowed by the CE at the hearing.[49]
2. Whilst the Deputy President did not consider it necessary to make findings on the disputed evidence about the complaint raised by the consultants about Dr Flint's conduct in 2021,[50] there were significant aspects of her evidence that were not accepted. The Deputy President expressed concerns as to the ability of the CE to undertake a fair and reasonable merit-based selection process whilst Dr Flint and Dr O'Callaghan remained in senior positions within CALHN. Dr Flint had raised criticisms of consultants in the QEH ICU that were not accepted by the Deputy President. Dr Flint had accepted hearsay accusations from Mr Fokas about "heated exchanges" between the consultants where the Deputy President found that there was no basis for the assertion. The Deputy President also noted that Dr Flint appeared to have accepted criticism raised by other individuals about some consultants in the QEH ICU as a basis for collective criticism of all of the consultants.[51] The Deputy President found that, notwithstanding that the criticism levelled against Dr Flint had a reasonable basis, she did not appreciate why the consultants had complained about her conduct and she complained that her own good efforts to consult were not well received by them. The Deputy President found that the text of emails relied upon by Dr Flint did not support her position that her best efforts had not been well received by the consultants. The Deputy President also found that the CE failed to concede any errors on the part of Dr Flint and unrealistically praised her conduct and evidence.[52] The Deputy President then proceeded to find that Dr Flint was in serious error in complaining that the consultants had sent "angry emails" after being surprised by revised plans in 2020. The Deputy President noted that the error was only admitted under cross-examination and without any apology to those that were wrongly accused by her.[53]
3. The Deputy President noted that although a new Chief Executive Officer has replaced Professor Dwyer and that Mr Fokas has also been replaced, their replacements may be similarly briefed and, in that context, noted that Dr Flint and Dr O'Callaghan remain in powerful positions.[54] In relation to Dr O'Callaghan, it was noted that his telling the selection panel that there had been a new complaint about Dr Flint, that had been investigated and found to be without foundation, was relevant because there was, on the finding made, a lack of foundation which constituted an unreasonable aspect of the selection process.[55]
4. As a result of the totality of his findings, the Deputy President concluded the consultants had a well-based lack of faith in a future fair merit selection process and were correct in suspecting an unfair process with unfair criticism used to reject Professor Peake's selection. Further, in the circumstances of the CE's continuing full endorsement of its processes, the consultants were found to have real cause to fear more of the same conduct if the CE were to be given the opportunity to select a consultant from a different hospital.
5. At the end of his reasons, the Deputy President set out the following conclusions: [56]

Accordingly, I find the QEH consultants are unlikely to be treated equally to any external applicant in a broader selection process. I find it would be unreasonable for them to have to compete with RAH or other external consultants because of persistent unacknowledged management bias against them.

The casual adoption and use of professionally damaging vague and untested criticisms of consultants by the respondent's highest levels of management is concerning. The respondent's failure to acknowledge any of this adds to the need for the Tribunal to intervene to avoid the consultants being unreasonably disadvantaged in the HOU selection process.

I have evaluated the likely degree of further reputational and professional damage from the respondent's proposal to be high. The selection processes to date together with the vague undisclosed criticisms have damaged morale in the unit and have damaged the credibility of senior management. The respondent's proposal is likely to affect the high level of performance of this important life-saving unit. In contrast the possible benefits of an outside HOU would at best be marginal.

1. Three main grounds of appeal are raised. Each contains sub-grounds or particulars. Broadly, the first ground relates to the conclusion to intervene to restrict the selection process to those consultants who were already substantively employed in the QEH ICU. The CE raises the industrial principle of managerial prerogative, the application of s 34 of the Health Care Act 2008 (HC Act) and the conclusion of the Deputy President that it was "disingenuous" for the CE to contend that the object of seeking applicants from other hospitals was part of an objective merit selection process.
2. The second ground of appeal is that the Deputy President erred in concluding that the QEH ICU consultants were unlikely to be treated equally to any external applicant in a broader selection process. The CE contends that the finding was contrary to and not reasonably open on the evidence.
3. The third ground was that the Deputy President erred in concluding that a proposed broader pool of applicants would be unreasonable to the QEH ICU consultants and that a fair and reasonable process was unlikely to be achieved unless the candidates were already substantively employed in the QEH ICU. Again, the CE raises whether there was sufficient evidentiary basis for such a finding and asserted that the CE could and would take steps to alleviate or remove any potential unfairness or prejudice that may arise from the involvement of any particular individual in a future merit-based selection process.
4. The CE seeks an order that the appeal be allowed, that the order of the Deputy President made on 24 October 2024 be set aside and that it be substituted with an order that would permit the CE to appoint a person not currently employed in the QEH ICU should that be the outcome of an objective merit selection process.

1. The CE referred to s 34(1) of the HC Act and submitted it confers a discretionary power to employ persons in connection with activities and functions of an incorporated hospital such as the QEH. The CE submitted that under the applicable enterprise agreements she is responsible for making appointments to undertake additional managerial responsibilities associated with the management of a large unit.
2. Reliance was placed upon the managerial prerogative which was submitted to be an employer's right to make decisions on how to manage its business as it sees fit and without external interference. The CE submitted this provided her with the right to conduct a proposed merit-based selection process to determine the preferred candidate for the appointment of the Head of Unit of the QEH ICU.
3. In the circumstances, the CE submitted that the effect of the order of the Deputy President was to fetter the employer's statutory discretions and intervene substantially with the autonomy to manage an incorporated hospital as she saw fit.
4. The CE submitted that, in reaching the conclusion that QEH consultants would be unlikely to be treated equally to any external applicant in a broader selection process and a further conclusion that it would be unreasonable for them to compete with consultants of the Royal Adelaide Hospital (RAH) or other external consultants was because of a finding of a persistent unacknowledged management bias against them. The CE submitted the Deputy President failed to have adequate regard to the common ground that, by the time of hearing, both Mr Fokas and Professor Dwyer had ceased employment within the public sector and had taken up alternative employment interstate. The concerns expressed by the Deputy President by reference to those persons only having been part of the leadership team which shared criticisms, that Dr Flint and Dr O'Callaghan remained in powerful positions, and that the CE may also continue to use the same human resources advisor and supporter of Dr Flint's promotions, was submitted to be tenuous reasoning and contrary to the evidence of Dr Flint and Dr O'Callaghan.
5. These matters were also advanced in support of a submission that the evidence could not reasonably give rise to the findings that QEH ICU consultants are unlikely to be treated equally to any external applicant in a broader selection process and that it would be unreasonable for them to have to compete with RAH or other external consultants because of persistent unacknowledged management bias against them.
6. Further, the CE submitted that even if there was a basis for a reasonable apprehension of bias then absent a cogent basis to do so, it does not follow that any bias would be categorically applied in a future selection process.

1. SASMOA submitted that the powers in s 34 of the HC Act are facilitative and enable the CE to exercise those functions that are normally exercisable by an employer. SASMOA submitted that those powers are subject to the powers of the Tribunal to make awards and orders in order to settle an industrial dispute. SASMOA observed that cl 21 of the Enterprise Agreement provides for disputes between the parties to be resolved, including by the Tribunal.
2. SASMOA addressed, in some detail, what it considered to be the important findings of fact of the Deputy President and the evidence which was contended to be a sound basis for those findings. SASMOA submitted that the findings as to unfair treatment have not been seriously challenged by the CE and that upon appeal, for the first time, the CE has sought to attribute the unfair treatment of the consultants of the QEH ICU only to Mr Fokas and Professor Dwyer, where the Deputy President also made adverse findings with respect to the evidence given by Dr Flint and Dr O'Callaghan and that the adverse views expressed by them were shared with management at the highest levels of the QEH.
3. SASMOA sought to emphasise that before the Deputy President the CE did not accept there had been unfair treatment of the consultants of the QEH ICU, including Professor Peake. It noted that at the hearing the CE maintained the fairness of the selection process and subjected Professor Peake to lengthy cross-examination as to the adequacy of her interview performance and suggested that she did not deserve appointment. SASMOA submitted that before the Deputy President, the CE had presented a false picture that the members of the interview panel regarded Professor Peake as not appointable and maintained that the consultants of the QEH ICU were combative, difficult and engaged in cartel behaviour. SASMOA submitted that unfair labelling was maintained throughout the hearing.
4. SASMOA also addressed the reliance of the CE upon the managerial prerogative. SASMOA noted that the Deputy President had referred to the application of the managerial prerogative and had regard to it. SASMOA submitted that the application of the principle of the managerial prerogative is to be considered in the particular context and in the circumstances of this case, whilst the Deputy President was required to exercise some caution before interfering with the CE's intended action, there was no further fetter on his discretion by reason of the principle of managerial prerogative.

1. There are some circumstances to note before the submissions about the construction and application of s 34 of the HC Act and the managerial prerogative are addressed. There was no dispute between the parties about the relevant primary facts. CALHN is a Local Health Network incorporated under s 29 of the HC Act. It has responsibility for hospitals including the QEH. At all material times, the CE and SASMOA were bound by the South Australian Medical Officers' Award (the Award) and a number of enterprise agreements made under the FW Act.[57] The jurisdiction of the Tribunal was properly invoked by SASMOA by raising an industrial dispute concerning the CE's proposed selection process for the Head of Unit of the QEH ICU.
2. Clause 4.3.2 of the Award concerns managerial allowances. Clause 4.3.2.1 provides:

4.3.2.1 Appointments of Senior Consultants to undertake additional managerial responsibilities attracting a Managerial Allowance will be made for five years, during which time the allowance (as applicable) will be payable and regarded as part of salary for all purpose including leave entitlements. Where a Senior Consultant is not reappointed to undertake such additional managerial responsibilities, the Managerial Allowance will cease to be payable.

1. Clause 4.3.2 then proceeds to address circumstances of a small unit and a large unit, it was common ground that the QEH ICU was a large unit. Clause 4.3.2.3 relates to large units and provides:

(1) A Senior Consultant appointed to undertake the additional responsibilities associated with the management of a large unit will be required to maintain an active clinical role within the Senior Consultant's speciality, and in addition to the criteria identify for a small unit/sub-unit above will be involved in the management of significant numbers and categories of subordinate staff and in some, but not necessarily all, of the following:

(a) management control over a major budget allocation and expenditure

(b) management of extensive research projects

(c) management of associated sub-unit(s)

(d) responsibility for State or International services or research which is required by the employing authority

(2) A Senior Consultant who is appointed to undertake additional managerial responsibilities associates with the management of a large unit will be paid an allowance shown in Part IX(2) of Schedule 1 Salaries and Allowances attached to this Award.

1. The criteria identified for a small unit/sub-unit included cost centre management, line personnel management and policy development at the unit level, responsibility for management of a strategic implementation program, responsibility for the coordination of research, ensuring that teaching commitments are met, contributing to the overall efficiency and effective operation of the health unit as a member of the management team and considerable in-patient and/or out-patient workload activity.
2. Against that background, s 34 of the HC Act provides:

(1) An employing authority may employ persons to perform functions in connection with the operations or activities of an incorporated hospital.

(2) The terms and conditions of employment of a person under subsection (1) will be fixed by the employing authority and approved by the Commissioner for Public Employment.

(3) A person employed under this section will be taken to be employed by or on behalf of the Crown (but will not be employed in the Public Service of the State unless brought into an administrative unit under the Public Sector Management Act 1995).

(4) An employing authority may direct a person employed under this section to perform functions in connection with the operations or activities of another incorporated hospital, or any other public sector agency, specified by the employing authority (and the person must comply with that direction).

(5) An employing authority is, in acting under this section, subject to direction by the Minister.

(6) However, no Ministerial direction may be given by the Minister relating to the appointment, transfer, remuneration, discipline or termination of a particular person.

(7) An employing authority may delegate a power or function under this section.

(a) must be by instrument in writing; and

(b) may be made to a body or person (including a person for the time being holding or acting in a specified office or position); and

(c) may be unconditional or subject to conditions; and

(d) may, if the instrument of delegation so provides, allow for the further delegation of a power or function that has been delegated; and

(e) does not derogate from the power of the employing authority to act personally in any matter; and

(f) may be revoked at any time by the employing authority.

(9) A change in the person who constitutes an employing authority under this Act will not affect the continuity of employment of a person under this section.

(10) An incorporated hospital must, at the direction of the Minister, the Treasurer or an employing authority, make payments with respect to any matter arising in connection with the employment of a person under this section (including, but not limited to, payments with respect to salary or other aspects of remuneration, leave entitlements, superannuation contributions, taxation liabilities, workers compensation payments, termination payments, public liability insurance and vicarious liabilities).

(11) An incorporated hospital does not have the power to employ any person unless specifically authorised by the Minister.

(12) An incorporated hospital may, under an arrangement established by the responsible Minister or, if relevant, approved by a responsible public sector entity, make use of the staff, services or facilities of an administrative unit or another public sector agency.

(13) On the incorporation of a hospital under this Part, any Public Service employees who had, before the date of incorporation, been assigned by the Chief Executive to work in the hospital and have been designated by the Chief Executive as employees to whom this subsection applies will become persons employed by the employing authority under this section on terms and conditions fixed by the Chief Executive (without reduction of salary or status).

(14) In this section -

public sector agency has the same meaning as in the Public Sector Management Act 1995.

1. Subsection 34(1) of the HC Act confers a power to employ persons in connection with activities and functions of an incorporated hospital. Under the applicable industrial instruments, appointments may be made, ultimately by the CE, for the undertaking of additional managerial responsibilities. The text of s 34(1) is not indicative of a legislative intent to restrict the jurisdiction of the Tribunal to settle and resolve industrial disputes as conferred by s 7 of the FW Act, or its jurisdiction to interpret awards and enterprise agreements in accordance with s 8 of the FW Act.[58] The text of s 34 as a whole is consistent with the submission of SASMOA that it is a facilitative provision enabling the CE to exercise certain functions that are normally exercised by an employer.
2. The concept of a managerial prerogative, in the context of an industrial dispute, was addressed in a single judgment of seven justices of the High Court in Re Cram; ex parte N.S.W. Colliery Proprietors' Association Limited.[59] The dispute before the Court concerned manning and recruitment and, particularly, a dispute about the mode of recruitment. The Court rejected a submission that such a dispute is not directly connected with the relationship between an employer and employee and is merely consequential.[60] The Court observed that there has been a growing recognition that management and labour have a mutual interest in many aspects of the operation of a business enterprise and that many management decisions, that were once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and thereby constitute an "industrial matter".[61] The Court held that a dispute about the level of manning is a good example as it has a direct impact upon the work to be done by employees.[62] The jurisdiction was thereby properly invoked and the Court rejected a submission that managerial decisions stand wholly outside the area of industrial disputes and industrial matters.[63]
3. However, the Court also recognised the existence of the managerial prerogative and stated that when exercising its jurisdiction, an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that would amount to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted.[64] Most decisions of management which are the subject of an industrial dispute or concern an industrial matter can be related, in some way, to the management of the business. The references to a substantial interference and the efficient conduct of the business enterprise are important. Some decisions made by reference to an aspect more directly associated with the authority of management, such as decisions based upon financial impact upon the operation of the business, especially where it relates to the operation of a government department, may also be relevant to the approach of an industrial tribunal to a claimed exercise of the managerial prerogative.
4. An employer may restrict the operation of the managerial prerogative. It may do so by agreeing to terms in an Enterprise Agreement to which it agrees to be bound. It may do so by engaging in a course of conduct where it would be unreasonable to then act in a contrary manner. An applicable Award binding upon an employer, may also contain clauses which restrict the operation of the managerial prerogative.
5. In support of her approach, the CE referred to a series of judgments. Two decisions of Lawler VP were referred to. The first was Construction, Forestry, Mining and Energy Union v HWE Mining Pty Ltd (HWE Mining)[65] and the second was RMIT University v National Tertiary Education Industry Union (RMIT).[66] The dispute in HWE Mining arose over the form in which drug screening tests were to be administered at HWE's coal mines. RMIT involves a dispute relating to an agreement between the parties (the Agreement). The Agreement made particular provision for managing workloads and Performance Work plans which were an integral part of the way in which the Agreement regulated employee work loads. The Union contended that the 2012 Performance Work plan, which was required by the university to have been completed by all academics and professional staff online, was contrary to the Agreement. The following principles were identified by Lawler VP:
   1. The law recognises that there is an area of managerial prerogative in which an employer has the right to make decisions on how to manage their business.[67]
   2. Subject to express terms, there is an implied term in a contract of employment that the employee will comply with the lawful and reasonable directions of the employer and that is one of the principal ways in which the employer's managerial prerogative arises and forms the basis on which an employer may be said to have a right to make and vary policies that employees are required to observe.[68]
   3. The evaluation of policies is in the modern era of employers having obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading and the common law duty of care to their employees.[69]
   4. The managerial prerogative to make and vary policies that employees are required to observe may be constrained by statute or the terms of an award. It may also be constrained by the terms of a contract of employment or a statutory agreement that the employer chooses to make.[70]
   5. Where the managerial prerogative operates, the basis for a tribunal, acting as an arbitrator of a dispute, interfering with what would otherwise be a lawful exercise of managerial prerogative is where the employer is seeking from the employees something which is unjust or unreasonable.[71]
   6. An exercise of managerial prerogative will not be unreasonable in that sense if a reasonable person in the position of the employer, could have made the decision in question.[72]
6. The fifth point of principle reflects the test to be applied. The sixth point of principle reflects the approach to the application of the test in the particular circumstances addressed by Lawler VP in HWE Mining. As identified by SASMOA in its submissions, the relevant context was the adoption by the employer of a policy which employees were required to observe, as part of the employer's rights to give, and the employees' reciprocal obligation to comply with, lawful and reasonable directions.
7. The approach taken in HWE Mining was followed by Sams DP in Steenstra v J.J. Richards & Sons Pty Ltd (Steenstra)[73] where the dispute concerned the setting of individual productivity targets by the employer. Sams DP noted it was not disputed by the parties that an employer has a right to conduct and manage its business, as it sees fit, and without external interference.[74] It was also noted that the managerial prerogative right may be open to challenge where an employer proposes to enforce as such a right a requirement that an employee comply with an unlawful or unreasonable direction.[75]
8. Two decisions of this Tribunal were relied upon by the CE. In Chief Executive, Department of Premier and Cabinet (on behalf of the Chief Executive, Department for Health and Ageing) v South Australian Salaried Medical Officers Association and El Shafei (No. 2)[76] the Tribunal was asked to address two questions following orders made to cease and desist from engaging in industrial action and for Dr El Shafei to be returned to duties at his previous place of employment. The questions related to the location of the re-employment, whether limitations or conditions should be placed upon the nature of the duties to be performed and whether any processes or protocols should be implemented in relation to the performance of those duties. Dolphin PJ referred to the application of the managerial prerogative and that the Tribunal should be reluctant to intrude into areas usually the reserve of that prerogative.[77] His Honour observed that those in management would be better placed than His Honour to make necessary micro-level determinations.[78]
9. The second decision relied upon by the CE was Chief Executive, Attorney-General's Department (Department of Treasury and Finance) v South Australian Salaried Medical Officers Association (CE v SASMOA).[79] The Full Bench identified the real question raised by the industrial dispute was whether the appellant, in a particular industrial context, reasonably decided that there was not a continuing need for a remote call roster at the Modbury Hospital following the cessation of emergency general surgery at that hospital and following the transfer of such patients to the Lyell McEwin Hospital. The decision to close the remote call roster of the Modbury Hospital was made for reasons that included the absence of a continuing operational need for a Modbury Hospital remote call roster and that what had been previously undertaken by the roster could be satisfactorily attended to through the relevant unit of the Lyell McEwin Hospital. They were findings made by the Full Bench.[80] Those findings were consistent with the basis of the decision expressed on behalf of the appellant which included the maintenance of the Modbury Hospital remote call roster had become obsolete and the maintenance of such a roster would be a waste of taxpayer's money.[81] It is in those circumstances the Full Bench referred to the application of the managerial prerogative and the decision by reference to its exercise would not be found to be unreasonable if a reasonable person in the position of the employer made the decision.[82] The test formulated in Re Cram remains the test generally to be applied.
10. The nature of the dispute and the facts in this matter are materially different to those addressed by the Full Bench in CE v SASMOA. The dispute in this matter has related to the method of appointment where the additional managerial responsibilities associated with the Head of Unit had historically been made from a pool of candidates confined to the consultants currently engaged within the relevant unit. The evidence proved that this related to the various units of the QEH, that departure from it was rare, and what was contended by the CE as a move to a merit-based selection process was not shown to have been intended for other units other than the QEH ICU. No issue of cost to government finances was raised. It is in this context that the managerial prerogative was raised and acknowledged by the Deputy President. The issue identified by the Deputy President was whether the Tribunal should conclude that the proposed actions of the CE were either unjust or unreasonable. The Deputy President applied the standard of objective reasonableness.[83] The Deputy President also stated that the issue is to be determined by reference to the relevant findings of fact but looking forward noting the potential application of the proposal.[84] There was no error in that approach.
11. The Deputy President noted that in this case the procedure to be followed for the appointment of the Head of Unit of the QEH ICU involved an aspect of the exercise of the managerial prerogative by the CE. Section 34 of the HC Act formed part of the circumstances in which the managerial prerogative operated. Given the way in which the parties presented their cases, upon a finding that the proposal advanced by the CE was unfair or unreasonable then it was open to find that the fair and reasonable process advanced was that of SASMOA to limit the Head of Unit role to consultants already substantively employed in the QEH ICU. There was no error in the approach of the Deputy President in the application of s 34 of the HC Act or the managerial prerogative in this case.
12. The characterisation by the CE of its proposed retention process as "merit-based" and to be contrasted in that manner, to the process previously adopted, is to be analysed by reference to the facts. The Deputy President found that historically and generally in relation to units, the appointment of the Head of Unit was mostly, if not always, made from a pool of candidates confined to the consultants currently engaged within the relevant unit. The QEH ICU was found to have been a high performing unit. There was no dispute that consultants within the QEH ICU had made 2 complaints during 2020 and 2021 concerning the conduct of its then lead medical officer Dr Sarah Flint and the Deputy President found those complaints to be reasonably based. The existing QEH ICU was found to have a collaborative collegiate culture and there was no finding by the Deputy President supporting of the view of the leadership which was critical of the consultants in the QEH ICU. These findings were not only open, they are findings we would also make upon review of the evidence.
13. The primary findings of fact made by the Deputy President were not challenged upon appeal. To the extent that the CE sought to review factual findings, it was confined to some inferences that were drawn from the primary findings of fact. On appeal, the CE acknowledged that it had been maintained throughout the hearing before the Deputy President that Professor Peake and the other QEH ICU consultants were unduly aggressive, angry and combative, and had engaged in a form of collusion, when there was not a proper foundation for those conclusions to be drawn. It was also accepted on appeal by the CE that it was only after Professor Peake applied to be reappointed as Head of Unit of the QEH ICU, that the CE determined that the process should involve external applications as well.
14. One of the witnesses for the CE at trial was Dr Andrew Lavender. He held the position of Medical Lead of Critical Care and Perioperative Service at the RAH. He substituted for Dr Flint on the Head of Unit selection panel. In his evidence, he referred to the group of doctors in the QEH ICU meeting and agreeing to a nomination of an individual to undertake the role of Head of Unit, as amounting to a form of collusion. That was not withdrawn as part of the case in closing submissions. Upon appeal, the CE acknowledged that it was not objectionable for the consultants to have identified who they support. The CE advanced its case upon appeal on the basis that it was not unreasonable for senior management, notwithstanding the views of the consultants of the QEH ICU, to seek applicants from outside of the unit in those circumstances. The inferences drawn by the Deputy President were in circumstances of the new approach by senior management only being expressed after Professor Peake's application was made and rejected, where complaints had been raised by Professor Peake and other consultants relating to Dr Flint, and where the evidence of a broader merit-based approach was not expressed to operate beyond the QEH ICU. The submissions of the CE did not adequately have regard to those circumstances.
15. The Deputy President found that the adverse views of the consultants forming the QEH ICU expressed at the hearing by witnesses called on behalf of the CE, were shared at the highest levels of management.[85] Those views were maintained throughout the hearing to closing submissions.[86]
16. As noted earlier in these reasons, the Deputy President found a scheme had been developed to appoint someone as Head of Unit to the QEH ICU in order to effect change to what it considered to be an unhealthy culture,[87] but which looked at objectively was a cooperative and constructive management culture within the unit.
17. With Dr Flint having been, at the time of the hearing, promoted to the most senior medical management position in CALHN, the CE maintained unjustifiable criticisms of the consultants in the QEH ICU.[88] Notwithstanding the totality of the evidence, in closing submissions made to the Deputy President by the CE, a position of fully supporting the evidence given by Dr Flint and the unjustified criticisms of Professor Peake and other consultants of the QEH ICU was maintained. These factors contributed to finding made that the seeking of candidates outside of the QEH ICU in order to obtain the best candidate was disingenuous,[89] with the real goal of changing an erroneously perceived unhealthy culture. We understand that the reference to "disingenuous" meant that there was a lack of sincerity in using a competitive market theory as justification for considering outside candidates.
18. Having reviewed the evidence, we would confirm these findings of fact. We do not accept the submissions of the CE to the effect that there was an insufficient factual basis for inferences drawn adverse to the CE's position at trial or that the findings that were critical of the approach of the CE at trial and the evidence given by witnesses called on her behalf could reasonably give rise to an inference that the proposal for a broader merit-based approach to the appointment of Head of Unit of the QEH ICU would be unreasonable and that intervention by the Tribunal was necessary.
19. As for necessity, the Deputy President concluded that in the circumstances of the persistent and unacknowledged bias by senior management against the current QEH ICU consultants, it was unlikely that those consultants would be treated equally to any external applicant.[90] It was also open to conclude that it was necessary to restrict applications to current members of the QEH ICU in order for those applicants to be treated fairly in the process. Contrary to the submission of the CE on appeal, the combination of the factors set out below was a sufficient basis for the findings made, including the finding of bias on the part of senior management against the consultants of the QEH ICU in relation to the appointment of the Head of Unit:
    1. The recommendation of the selection panel of a qualified support for the appointment of Professor Peake, and
    2. The unreasonable views of senior management of the actions of consultants in the QEH ICU without proper foundation and the associated failure to put concerns to Professor Peake, and
    3. The complaints of substance raised by the consultants in relation to Dr Flint, and
    4. The casual adoption and use of professionally damaging, vague, and untested criticisms of consultants by the higher levels of management, as noted by the Deputy President, and
    5. The decision to reject Professor Peake's application notwithstanding the recommendation of the selection panel by way of qualified support for her appointment and then seek to introduce a process that would, for the first time, and only established in relation to the appointment to the Head of Unit of the QEH ICU, introduce candidates outside of the existing consultants working there, and
    6. The view expressed by Dr Lavender of collusion between the consultants of the QEH ICU and the maintenance of the unjustified criticisms of the consultants of the QEH ICU whilst Dr Flint maintained a senior position within management, and which was not withdrawn as part of the CE's case at the hearing, and
    7. The ability to have seen and heard the witnesses give their evidence in a hearing setting,
20. Whilst bias is a strong finding to make, and ought not be made lightly, error has not been demonstrated in relation to that finding in this case.
21. On appeal, the CE sought to emphasise that where much of the concern expressed by the Deputy President related to the evidence of Mr Fokas and Professor Dwyer, both of whom have since ceased to be employed in the public sector in this State and have taken up alternate employment interstate. It followed, submitted by the CE, that they could no longer have any role or involvement in any future proposed merit-based selection process.
22. We have already mentioned that Dr Flint has been promoted to a more senior position within CALHN. The Deputy President noted that the criticisms of the consultants of the QEH ICU were shared by the leadership team of CALHN and that Dr Flint and Dr O'Callaghan remain in powerful positions. Mr Fokas has worked interstate since October 2022 and Professor Dwyer ended her appointment as CEO of CALHN on 26 November 2023. The hearing before the Deputy President commenced on 11 December 2023. The CE maintained its position throughout the hearing despite the departure of Mr Fokas and Professor Dwyer before final submissions concluded on 20 December 2023. The evidence of Mr Fokas and Professor Dwyer was not disavowed or qualified. Many of the findings of the Deputy President were not challenged on appeal. It follows that we are not persuaded that the departures of Mr Fokas and Professor Dwyer should alter the result.
23. For the reasons given, none of the three grounds of appeal have been made out and we order that the appeal be dismissed.

[1] South Australian Salaried Medical Officer's Association v Chief Executive Officer, Attorney-General's Department, Department for Health and Wellbeing [2024] SAET 47, [225] (the primary decision).

[2] What may constitute a decision for the purpose of an appeal is defined in s 3 of the SAET Act to include a direction, determination, or order of the Tribunal but, in prescribed circumstances not relevant to this appeal does not include an interlocutory direction, determination, or order.

[3] [2025] SAET 16.

[4] [1979] HCA 9; (1979) 142 CLR 531.

[8] Ibid 553 see also CDJ v VAJ (No 1) (1998) 197 CLR 172 [111]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 74 ALJR 1348, [14]; Crampton v The Queen (2000) 176 ALR 369, [147] and Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 109; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, [23].

[9] [2001] FCA 427.

[11] See State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588, [90] (Kirby J).

[12] [1996] UKHL 18; (1996) 36 IPR 438 (HL).

[14] [1990] HCA 47; (1990) 171 CLR 167.

[16] [1993] HCA 78; (1993) 177 CLR 472

[17] Ibid 479 (Brennan, Gaudron and McHugh JJ); See also State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588.

[19] The primary decision, [2]. Whilst neither the relevant Award or Enterprise Agreement made specific reference to the position of Head of Unit or Director of the ICU, the position existed in practise and additional managerial duties were discharged by that person.

[20] Statement of Agreed Facts [17] (AB 70).

[21] The primary decision, [2], [182]. The two questions were also expressed by counsel for SASMOA in his opening address before the Deputy President and that was not disputed by counsel for the CE.

[26] Statement of Agreed Facts, [6] (AB 69).

[27] Statement of Agreed Facts, [7] (AB 69).

[29] The primary decision, [11], [94], [114].

[31] The primary decision, [60]-[61], [65].

[32] The primary decision, [61]-[65].

[33] The primary decision, [67], [125], [132]-[133], [209].

[34] The primary decision, [36]-[42], [52]-[53].

[36] The primary decision, [210] and [222].

[37] Statement of Agreed Facts, [7]-[8] (AB 69).

[45] The primary decision, [194], [198], [199], [202], [206].

[48] The primary decision, [212]. HOU is used as an abbreviation for Head of Unit.

[56] The primary decision, [227]-[229].

[57] Statement of Agreed Facts, [1] (AB 68).

[58] Pursuant to s 6 of the SAET Act, the Tribunal has the jurisdiction conferred to it by that Act or by any other Act.

[59] [1987] HCA 28; (1987) 163 CLR 117.

[65] [2011] FWA 8288; (2011) 214 IR 194.

[66] [2012] FWA 2208.

[67] HWE Mining, [7]; RMIT, [35].

[68] HWE Mining, [8]; RMIT, [36].

[69] HWE Mining, [9]; RMIT, [37] and reference to Woolworths Ltd (t/as Safeway) v Brown (2005) 145 IR 285.

[70] HWE Mining, [10]; RMIT, [38].

[71] HWE Mining, [11]; RMIT, [39] and reference to Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) [1984] CthArbRp 432; (1984) 295 CAR 188.

[73] [2015] FWC 7918, [188].

[76] [2018] SAET 109.

[79] [2025] SAET 16.

[82] Ibid [56]. See also South Australian Salaried Medical Officers Association and Australian Nursing and Midwifery Federation v Chief Executive, Department for Health and Wellbeing, Chief Executive Attorney General's Department [2025] SAET 58 where the dispute related primarily to a decision to relocate various medical services. The basis of the decision related to cost of leasing in the future where the Chief Executive had identified, in her proposal, a reduction from $104,000 per room annually to approximately $17,994 per room annually. Crawley DPJ referred to CE v SASMOA and identified the test generally to be applied by reference to the judgment of the Full Bench as being the reasonableness of the decision sought to be impugned [51], but also referred to the specific approach of the Full Bench to the facts found.

[88] The primary decision, [215]-[218].

[90] The primary decision, [227]-[228].