Hans Peter Dietz v Secretary, Ministry of Health in respect of Nepean Blue Mountains Local Health District

Industrial Relations Commission (NSW)|2020-12-22

decision

On 1 July 2020 Professor Hans Peter Dietz (the applicant) filed an application with the Office of the Industrial Registrar in respect of his threatened dismissal from his position as a Clinical Academic by the Secretary of Health (the respondent) in respect of his work at the Nepean Blue Mountains Local Health District (NBMLHD), pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (the Act).
The applicant is jointly employed by the NBMLHD and the University of Sydney and works at Nepean Hospital and the University of Sydney Nepean Clinical School, respectively. He is a member and board member of the Australian Salaried Medical Officers' Federation (ASMOF), which represents him. In relation to the NBMLHD specifically, he is employed under the terms of the NSW Health Policy Directive PD2019_055: Clinical Academics in the NSW Health Service and is covered by the Staff Specialists' (State) Award.
The applicant is a specialist in the field of Urogynaecology and is co-founder of the Australasian Birth Trauma Association. He has an international reputation in the field, and patients with complex Urogynaecology conditions are frequently referred to him for treatment.
The applicant seeks an order from the Commission under s 89(7) of the Act that the respondent is not permitted to dismiss him from his employment.
The respondent submits that the Commission should dismiss the application and make the following recommendations: 1. The applicant continue to comply with the disciplinary processes whilst suspended on pay, including by observing duties of confidence; and 2. The applicant does not have sufficient grounds to challenge any actual dismissal if the Respondent decides to proceed with dismissal for the reasons notified to the Applicant and as considered in these proceedings.
For the reasons set out in this decision, I have decided to make an order restraining the applicant from terminating the applicant on the basis of specific conduct relied upon by the respondent in the threat of dismissal. I have also decided to make a recommendation the parties engage in mediation with a view of attempting to restore their relationship.

The threat of dismissal

It is convenient to set out the threat of dismissal now to contextualise the decision.
A letter dated 17 June 2020 was sent by Ms Jacqueline Clark, Director People and Culture of the NBMLHD to the applicant, advising that a recommendation was proposed to be made to terminate his employment (the show cause letter).
The respondent informed the applicant of the reasons he was being placed on notice of his dismissal in the show cause letter stating that based on the substantiated allegations, it has found that the applicant's conduct and behaviour has breached the NSW Health CORE Values and the NSW Health Code of Conduct, PD2015_049, in particular the requirements to Act with Respect and Acting Professionally and Ethically.
The show cause letter attached a summary of an investigation report produced by the external investigator engaged by the respondent, Workdynamic Australia and implicitly adopts the findings (summary investigation report). The summary investigation report is difficult to follow and does not provide a clear narrative of the investigator's findings or the basis for these.
The allegations found to be substantiated by the respondent can broadly be categorised as: 1. The treatment of a patient (who is referred to as Patient A in this decision) in respect of three consultations with the applicant, including one occasion in the applicant's private rooms (Allegations 1-3) (Patient A complaint allegation). 2. The applicant's conduct in a seminar, 'Natural birth: What women need to know' in Newcastle run by a law firm, Catherine Henry Lawyers in November 2017 (Conference conduct allegation).
The investigation summary report also confirmed that two allegations were not sustained. These allegations related to the applicant's conduct when participating in another medical conference in Melbourne in 2018 and the inclusion of a letter to the editor of a local news publication in the Blue Mountains he co-authored with Susanne Langer, a Research Midwife (also the applicant's wife).

Patient A complaint allegation

The respondent found substantiated inappropriate conduct by the applicant in respect of three consultations with Patient A, on 29 November 2018, 22 July 2019 and October 2019. From the summary investigation report, I have attempted to describe the events and allegations underpinning the investigators summary report below.

29 November 2018 consultation (Allegation 1) 1. It was alleged Patient A, a patient who suffered a prolapse, consulted with the applicant at his private rooms at the Penrith Urodynamics Centre on 29 November 2018. During the consultation, the applicant said Patient A had snapped a pelvic floor muscle and it was one of the "worst he had ever seen". Patient A then said words to the effect that she wanted the standard operation as soon as possible and could not wait a few more years (as had been suggested by the applicant). 2. While the applicant was performing an ultrasound upon Patient A, he said words to the effect of: "Oh my god, this is the most amazing thing I've ever seen. Oh my god! I've never seen anything like it!" The applicant was speaking very loudly, almost yelling, and continued speaking in this manner for a couple of minutes. This was in circumstances where the applicant was lying down naked from the waist down. The investigation found that this conduct was disrespectful and inappropriate.

22 July 2019 consultation (Allegation 2) 1. The applicant recommended to Patient A that she undergo a particular operation to treat her condition which was part of a trial. The applicant started to cry and refused to participate in the trial, stating "I'm not doing it. I'm not waiting that long, I need to get this done now." The applicant then stood up and 'stormed out' of the room without saying anything, leaving another Doctor in the room with Patient A alone. The investigation found that this conduct was disrespectful and inappropriate.

October 2019 consultation (Allegation 3)

The summary investigation report stated it was substantiated "that an incident to the effect" summarised below took place: 1. At approximately 9 am on the relevant day, Patient A attended a consultation with the applicant at the Clinical School across the road from Nepean Hospital accompanied by her mother (hereafter referred to as Ms Smith, a pseudonym). 2. When Patient A and Ms Smith were called in to see the applicant, he was signing a book and 'looked agitated'. 3. The applicant then introduced Patient A and Ms Smith to a young male trainee doctor who was present (the trainee). The applicant said it was the trainee's first day. 4. The applicant then 'let loose' and said with a raised voice words to the effect of: "I'm sorry, I had a call from one of my colleagues at 7:00 am this morning telling me that he's been sued by some woman saying that he put poison into her body. I gave my colleague advice on what to do for the operation. She's the kind of woman who would glue herself to the sidewalk and protest something. She's the reason us doctors lose our jobs. She's disgusting. We work our hearts out to make people's lives better and people like that try to destroy us. We won't even have doctors left soon because of people like her." 1. The applicant was so angry that he was talking 'all over the place' and spoke in this way for approximately five minutes. It is alleged that this was inappropriate and irrelevant to Patient A. 2. The applicant then started talking about breast implants in the 1990s. The applicant said something about the poison they put into people's breasts, that people should have done their research before getting the breast implants and that people were suing. It is alleged that this was inappropriate and irrelevant to Patient A. 3. The applicant then instructed the trainee and ran through Patient A's medical history with him. An exchange to the following effect then took place in which the applicant is alleged to have behaved in an inappropriate and disrespectful manner towards Patient A: 1. The applicant said to the trainee, "We were going to do this operation on her. If she was a candidate we would have done this." The applicant was making reference to the 'normal operation.' 2. Patient A said, "What do you mean 'if I was a candidate?' You told me I was getting this operation." 3. The applicant then said, "No, I told you the first time I saw you that I 'might'." 4. Patient A said, "No, I'm booked in at the hospital for this operation." 5. The applicant then said in a raised voice, almost yelling, "You are the sort of person that would sue me!" 6. Patient A said, "How dare you speak to me like that?" 7. The applicant said, "You're the kind of person that would ruin me and sue me. You're the reason doctors like me lose our jobs." 8. At some point during this exchange, the applicant said, "See, you're angry. You're going to sue me. You're going to sue me. She's angry. She's been angry since she was a teenager." 9. Ms Smith said to the applicant, "You don't know my daughter. She's very stressed and you told her you were going to operate on her. It's been going on for two years." 10. The applicant appeared very angry and said to Patient A in a raised voice, "l'm done. I'm not operating on you. You need to find someone else". 11. Patient A stood up, started walking out of the room and said, "Fuck you, you arsehole. You're a pig. You're a scumbag. How dare you?" Patient A left the room crying and screaming and at some stage, a staff member came out of her room to console her. 1. Ms Smith remained in the room with the applicant and the trainee. An exchange to the following effect then took place in which the applicant is alleged to have behaved in an inappropriate and disrespectful manner: 1. Ms Smith said to the applicant, "This isn't right." The applicant said, "No, she's going to sue." 2. Patient A then came past the room again trying to find the exit and she was crying and said words to the effect of, "I can't fucking believe this." 3. Ms Smith said to the trainee, "I'm sorry you had to hear that but this is wrong. This is just wrong." Ms Smith then said to the applicant, "I've never heard anything in all my life like that. That was the most unprofessional thing I've ever heard." 4. The applicant then handed Ms Smith a list of other doctors to try. Ms Smith then left the room.
With respect to the Patient A complaint allegation, the respondent stated in the show cause letter that although the incident on 29 November 2018 occurred in the applicant's private rooms, it corroborates and is consistent with the other allegations relating to Patient A, concluding: "Given your role as a Clinical Academic and as a senior member of staff, it is necessary that NBMLHD has the utmost trust and confidence in your ability to provide excellent patient care and that you conduct yourself in a manner that is courteous, respectful, compassionate and honest. Your conduct with respect to the patient the subject of allegations 1, 2 and 3 was abhorrent and has fallen far below these expected standards."

Conference conduct allegation

The summary of investigation findings adopted by the respondent found that on 8 November 2017: 1. The applicant attended a seminar titled 'Natural Birth: What women need to know' at Charlestown Bowling Club in Newcastle, which was run by a Newcastle law firm, Catherine Henry Lawyers (CHL). The applicant attended the seminar as a speaker. 2. After a lawyer from CHL made the introductions, the applicant began a PowerPoint presentation, during which he discussed research about perineal trauma, issues with pelvic floor and incontinence, and issues around pregnancy and childbirth. The applicant made comments to the effect that there were terrible risks associated with vaginal birth that put women at increased risk of incontinence and perineal trauma. He also made comments to the effect that women should have to give consent to give birth vaginally. The applicant also spoke about the risks and benefits of different modes of birth, being vaginal, forceps, ventouse (vacuum) and caesarean. 3. The applicant had the following exchange with Ms Oceane Campbell, midwife, during which it is alleged he was disrespectful and aggressive towards her: 1. The applicant put up graphs and said that with vaginal births, women have a "massive" increase in risk of pelvic floor issues, like incontinence. The applicant then said in a sarcastic tone words to the effect of: "My friend Hannah Dahlen would try and tell you that every woman should have a vaginal birth but she won't tell you about all the risks." 1. Hannah Dahlen is a well-known midwife in Australia who promotes the NSW Government's policy, 'Towards Normal Birth'. 2. Ms Campbell was standing approximately 10 rows away from the applicant at the back of the room breastfeeding. Ms Campbell raised her hand and said words to the effect of, "You might have been sarcastic about Hannah Dahlen, but I can actually refer to her as a friend. My understanding of the research is that the weight of the pregnancy on the pelvic floor increases the risk of incontinence after a certain number of pregnancies and this is the case whether you have a caesarean or vaginal birth." 1. The applicant then went red in the face and shouted at Ms Campbell, saying words to the effect of: "Yes, you're obviously a midwife. You're clearly ignorant. You don't know what you're talking about. You have no idea how to interpret research if you think that's what the research suggests. You midwives are all the same. You just want vaginal births. You don't care about what the research actually says!" The applicant was so angry that spit started to come out of his mouth and he was pointing and jabbing his finger towards Ms Campbell. 1. The applicant then discussed the 'Towards Natural Birth' policy and how harmful it was. He also said that midwives were "hell bent" on vaginal births at the expense of women. He was shouting about this topic for approximately seven or eight minutes. 2. Ms Campbell did not say anything to the applicant after he started shouting at her and lecturing as she continued to breastfeed her baby.
With respect to the Conference conduct allegation, the respondent stated in the show case letter: "You have obligations to promote the interests and enhance the reputation of both NBMLHD and the University of Sydney as your employers. You regularly attend conferences and seminars as a speaker and an attendee. While I note that you tend to appear and attend public speaking engagements and conferences in your capacity as a Professor employed by the University of Sydney, as you are employed by conjoint employers and because of the nature of your role as a clinical academic, you still have obligations to comply with NSW Health Policy as a NSW Health employee."
The show cause letter then refers to section 7 of the NSW Health Public Communications Procedures, PD2017_012, before continuing: "Your public comments have a direct impact on the reputational interests of NSW Health including through media articles that have made direct reference to you working at Nepean Hospital and NBMLHD. These articles refer to a number of public comments made by you and there is potential for there to be inferences drawn that your views are those of NSW Health or representative of NSW Health's position on medical matters. Your presentation at the seminar 'Natural Birth: What women need to know' at Charlestown Bowling Club in Newcastle on 8 November 2017 was the subject of Allegation 4 of the investigation. It has been found that during this seminar, in addition to your inappropriate and disrespectful comments and exchange with a NSW Health midwife, you were openly critical and denigrating of NSW Health Policy 'Maternity- Towards Normal Birth in NSW'. This is contrary to your obligations as a NSW Health employee to protect and promote the interests of NSW Health and NBMLHD and to comply with applicable NSW Health policies and procedures. We want our community to have confidence in their local health service so as your employer, we would expect you, as a senior employee, to consult and advise us on matters that have the potential to adversely affect NBMLHD's reputation. This would enable NBMLHD to take precautionary measures to manage such matters. To my knowledge, you have failed to take any steps to consult or inform NBMLHD of any such matters."
The reference to media articles in the show cause letter is curious, as not all of the matter referred to in the articles were the subject of sustained findings against the applicant.
The show cause letter also refers to the applicant's previous disciplinary history stating that: "In addition to the findings of the investigation and the ongoing concerns, I have also taken into consideration your previous disciplinary history and note that there have been a number of previous complaints and investigations in relation to your unacceptable interactions with staff and breaches of the Code of Conduct. Not only have you been counselled three previous times regarding your behaviour and conduct but you have also been the subject of two formal warnings in relation to your aggressive and intimidating behaviours toward staff on 1 April 2016 and most recently, 26 August 2019. Your previous disciplinary history indicates that you have unreasonably refused to accept identified interpersonal shortcomings but you have demonstrated an alarming lack of insight into how your inappropriate, aggressive and intimidating conduct and behaviour is perceived by other members of staff. You have taken no steps to follow through on remedial actions or other self-improvement to address your conduct and behaviour. Such conduct when coupled with the substantiated patient complaint leaves me with serious and reasonable concerns about your lack of capacity to engage in harmonious working relationships with NSW Health staff and patients or to respect and abide by the Code of Conduct."
Finally, the show cause letter states that the proposed action is that the author (Ms Clark) make a recommendation to the decision maker, Ms Kay Hyman, Chief Executive, that the applicant's employment is terminated, providing him with an opportunity to make a submission to Ms Hyman, and a response to the issues raised through the investigation.
Ms Hyman gave evidence that she would be inclined to accept the recommendation that the applicant's employment be terminated, stating at [33]-[35] of her affidavit: "33. I have been provided with a copy of the investigation report prepared by Anicia Clarke from Workdynamic Australia. I believe the investigation was thorough and the findings to be appropriate. 34. A recommendation to terminate Professor Dietz's employment has been made to me. Having considered the investigation report in conjunction with Professor Dietz's disciplinary history and reviewing Professor Dietz's evidence in these proceedings, I am minded to endorse this recommendation. 35. My decision is informed by the investigation report in addition to Professor Dietz's previous disciplinary history, with concern about the reputation of NBMLHD and in his responses to those matters in these proceedings. I am concerned patients and staff will continue to experience similar interactions with Professor Dietz to those that have been subject of complaints since at least 2011."
Ms Hyman further deposes at [43]-[44] of her affidavit: "43. The employment relationship with Professor Dietz has been damaged to the point that it cannot be restored. I do not have the necessary trust and confidence in Professor Dietz and this is informed by Professor Dietz's failure to accept his behaviour contributes to the complaints which are made about him and his unwillingness to complete the required training. 44. Regardless of Professor Dietz's skill as a Urogynecologist, patients have the right to have confidence that they can raise their concerns and staff must have confidence that they can raise issues or raise patient concerns and that these will be appropriately considered and responded to by Professor Dietz. That confidence comes from Professor Dietz's behaviour in addition to his technical skill. Regrettably Professor Dietz does not consistently demonstrate the required behaviour and has not taken any action to assist in modifying his current behaviour."
The Commission is asked by the applicant to restrain the respondent from proceeding to terminate him on the basis of the threat of dismissal.

Background to the threatened dismissal

On 25 November 2019 the applicant received a letter (dated 19 November 2019) from Ms Clark on behalf of the respondent, stating that there were allegations of misconduct against him which would be formally investigated. These concerned:

comments allegedly made by the applicant that were derogatory towards women which formed the subject of various media articles;
a formal complaint from a patient of the applicant, submitted on 14 November 2019; and
an alleged statement that raises issues of appropriate informed consent.

Subsequently, a letter was sent by Ms Clark to the applicant dated 26 November 2019, noting that Ms Clark had been made aware that the applicant may have been discussing the investigation and/or suspension of his appointment with unauthorised persons and advising that any further breaches of confidentiality may result in disciplinary action. On behalf of the applicant, ASMOF sent a letter in reply dated 28 November 2019 asserting that out of professional necessity the applicant had advised theatre staff that his list was to be cancelled the following day, and that clinics and future lists were to be cancelled until future notice, which could not be seen to breach confidentiality.
The applicant was stood down at the time he was provided with the letter of allegations following a risk assessment by the respondent. On 2 December 2019 ASMOF notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Act on behalf of the applicant. This dispute related to the respondent's decision to stand down the applicant. This matter was discontinued on 29 June 2020, two days before the filing of the application the subject of the present matter.
The details of the allegations against the applicant were provided to him by Ms Anicia Clarke from Workdynamic Australia on 24 January 2020. These were highly detailed and specific allegations relating to conduct taking place between November 2017 and November 2019.
The applicant provided a response dated 29 January 2020 to the allegations, refuting these. Upon being requested to clarify certain matters discussed in his response, the applicant provided a further response on 25 February 2020, to which Ms Clarke responded on 31 March 2020 with further allegations and setting out additional evidence which she asserted she may consider when making findings on the formal allegations. It was subsequently confirmed that no further allegations would be made.
Ms Clark sent a further letter to the applicant dated 20 April 2019 advising that the applicant's actions in contacting NBMLHD staff whilst suspended to discuss the possibility of using telehealth for his clinic may have breached the direction not to provide services while suspended and may constitute a serious conflict of interest and breach of the Code of Conduct.
As set out above, on 17 June 2021, the respondent wrote to the applicant advising that having completed her investigation into the alleged misconduct, Ms Clarke had found that the Patient A complaint allegations and Conference conduct allegation had been substantiated. This was found to constitute a breach of the NSW Health CORE Values and the NSW Health Code of Conduct. The respondent replied to the show cause letter by letter dated 20 June 2020 and through these proceedings.
The applicant has remained stood down with pay during the currency of these proceedings.

The Law

Part 6 of the Act provides for Unfair Dismissal applications. Section 83 of the Act provides, inter alia: "83 Application of Part (1) This Part applies to the dismissal of - (a) any public sector employee, or … (5) In this Part - dismissal includes - (a) the threat of dismissal, and …"
In was not in contest that the applicant is the subject of a threat of dismissal such that he has standing to bring his application pursuant to Part 6 of the Act for Unfair Dismissal.
Section 84 of the Act allows for applications to be made to the Commission by employees who claim that their threat of dismissal is "harsh, unreasonable or unjust".
Section 88 of the Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account - (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
To be entitled to any remedy under the Act, the onus is on the applicant to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
However, importantly in this matter, where the dismissal of an employee is justified on the basis of an allegation of misconduct, it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at p 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at pp 83-84.
The misconduct must be established on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336. This requires the respondent to make out its case "in a convincing way": NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29].
Section 89(7) of the Act specifically empowers the Commission to make an order with respect of a threatened dismissal: (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.
Neither party directed the Commission to any caselaw relating to the Commission's discretion to make an order pursuant to s 89(7) of the Act. I consider the jurisprudence of the Commission as it relates to applications of dismissals to be directly applicable to applications relating to threatened dismissals. Given the Commission is required to consider whether the threat of dismissal is harsh, unreasonable or unjust, it will be important is such matters to first establish that there has been a threat of dismissal. If a threat of dismissal has been identified, it will be necessary to examine the reasons provided by the employer for the threat, whether those reasons have a basis in fact and whether a fair process has been adopted prior to the threat of dismissal being made: s 88. Matters of proportionality and harshness will also be relevant to consideration of threatened dismissal proceedings, as it is in any Unfair Dismissal matters where the employment has been terminated.

The applicant's case

The applicant filed the following written statements in respect of the proceedings: 1. Statement of Dr Caudwell-Hall filed 25 September 2020 (Ex A1). Dr Caudwell-Hall is a Doctor also working at Nepean Hospital. She has been a Staff Specialist since 2017 and did most of her Fellow of Australian and New Zealand College of Gynaecologists (FRANZCOG) training at Nepean Hospital, working with the applicant's work unit since 2013, both as a Registrar, and then later as a PhD Fellow and a Urogynaecology Fellow working under the applicant and Acting Professor Clara Shek. 2. Statement of Dr Natalie Weeg filed 25 September 2020 (Ex A2). Dr Weeg completed her Medical Training in England before undertaking Specialist Training in Obstetrics and Gynaecology in Israel. Shortly after arriving in Australia, Dr Weeg commenced her subspeciality training with the applicant on 4 November 2019, just three weeks prior to his suspension. 3. Statements of the applicant filed 21 August 2020 (Ex A4) and 25 September 2020 (Ex A5),
Each of the applicant's witnesses was cross-examined by the respondent.
In addition to the written statements, the applicant tendered into evidence an email of Dr Weeg to Ms Jennifer Borg, Clerical Coordinator, Nepean Clinical School - Outpatients dated 18 December 2020 (Ex A3).
The respondent objected to a number of aspects of the applicant's documentary evidence. With the consent of the parties, the evidence was tendered without rulings with respect to each of those objections with the Commission indicating that the objections will be considered in the context of the appropriate weight to give to the evidence.
The applicant relied upon written submissions dated 21 August 2020 (referred to as AS), 23 September 2020 (referred to as ASR) and 12 March 2021 (the applicant's closing submissions). The applicant also delivered oral submissions before the Commission at the hearing.
The applicant's submissions can be summarised as follows in relation to the specified matters: 1. In relation to the Patient A complaint (at pp 6-7 of AS and [11]-[16] of ASR): The investigator gave only superficial consideration to the facts of the patient complaint, noting that the investigator is a lay person and not a medical peer as recommended by Policy Directive 2018_032. Further, the complaint was solicited by the respondent. 2. In relation to the public comments and appearances (at p 7): The applicant made the public comments and appearance in his capacity as Professor of Obstetrics and Gynaecology at the University of Sydney. 3. In relation to the previous disciplinary history (at pp 7-8 of AS and [17]-[20] of ASR): The matters that allegedly comprised the applicant's previous disciplinary history were misrepresented and exaggerated. The majority of those matters were not substantiated and they had, at best, tenuous or no relevance to the current investigation. 4. In relation to unreasonable delay (at pp 2-3 of AS): The respondent unreasonably refused to provide its analysis of the risks to patients which resulted in his immediate suspension and there was unreasonable delay in allowing the applicant to defend the allegations against him, in circumstances where the respondent had been aware of the subject matter of the allegations for approximately two months. 5. In relation to the suspension of the applicant and the public interest in his retention (at pp 3-5; 8 of AS; [1]-[1]-[10] of ASR): The respondent failed to consider the risks that the proposed dismissal would impact upon service delivery to patients; provision of education to doctors in training, post-graduate students and fellows, and international visiting scholars; and ongoing research projects conducted and supervised by the applicant. 6. In relation to the impact of the threatened termination upon the applicant (at p 5 of AS): The suspension (and termination) will have grave implications for his professional reputation. The entry on the Service Check Register impugns the applicant's professional reputation and makes alternative employment in the NSW public health system virtually impossible. 7. In relation to the assertion that the employment relationship is beyond restoration (at [21]-[24] of ASR): The assertion by the respondent's witness Ms Kay Hyman, Chief Executive of the NBMLHD that the employment relationship has been damaged beyond restoration was made solely based on one patient complaint. There is no evidence that the applicant does not appropriately consider and respond to patients' issues and concerns, and no evidence on which it can be concluded that the working relationship cannot be restored.
The applicant's closing submissions largely re-iterate his previous submissions and addressed specific matters raised by the respondent in their closing submissions.

The respondent's case

The respondent relied upon the following witness statements in the proceedings: 1. Affidavit of Ms Jacqueline Ann Clark, Director, People and Culture, NBMLHD (Ex R4); 2. Affidavit of Ms Kay Hyman, Chief Executive, NBMLHD (Ex R6); 3. Statement of Dr Peter Thomas, Director of Medical Services, Northern Beaches Hospital (Ex R7);
The exhibits to the statement of Ms Clark were separately marked as Exhibit R5.
In her affidavit Ms Clark sets out the history of the investigation, including the risk assessment leading to the applicant's suspension, noting at [23] that a decision was made for the matter to be investigated externally given that the applicant is a senior medical professional and that an independent, impartial investigation was required. She outlines the reasons upon which she decided to recommend to Ms Hyman that the applicant's employment be terminated (at [82]). Ms Hyman deposes that she is inclined to accept the recommendation to terminate the applicant's employment as set out above at [22]-[23].
The respondent relied upon written submissions dated 10 September 2020 (the respondent's outline of submissions) and delivered oral submissions before the Commission. In addition, the respondent filed closing submissions on 1 March 2021 (the respondent's closing submissions).
The respondent submits that there are insufficient grounds to intervene in the threatened dismissal, for the following reasons (at [17]-[20]): "17. In this case, the Applicant has, for reasons personal to him, simply refused to accept reasonable management investigated and assessed concerns about a serious and genuine patient complaint and his inherent incapacity to contribute to the good reputation of, and to promote harmonious working relations with its staff and patients in its care. 18. It is submitted that the decision made to place the Applicant on notice of dismissal has been made properly and in accordance with the Respondent's policy and procedures as well as in discharge of its paramount duty of care to its patients; and the interests of staff and community interests. 19. The Applicant's claims, at their highest, merely express his personal dissatisfaction and self‑perception of unfairness to him because he simply does not agree with the action taken. 20. The Applicant's opinion is not supported by objective evidence, nor is it corroborated by any independent witness of fact."
It is further submitted at [21]-[26] that the applicant's statement, filed with the Commission on 21 August 2020, fails to address matters such as his previous warnings and failures to comply with remedial action prescribed by the respondent, the full nature of the restrictions imposed by the University of Sydney and the real reason for his inability to travel overseas or host overseas visitors (which, since March 2020 was due to the COVID-10 pandemic). The respondent submits that the applicant has not been entirely candid about the nature of his public comments, which are particularly concerning in light of his seniority and role as an ASMOF board member, and he has failed to accept responsibility for his conduct.
In its outline of submissions the respondent refers to the applicant's responsibilities as part of his employment, stating (at [28]-[29]) that as a senior employee in the government sector the applicant is subject to special duties to uphold and comply with the core values and policy directives of the respondent and to act in accordance with its interests. It is submitted (at [37]) that due to the applicant's senior position he is expected to conduct himself in an exemplary manner.
The respondent's outline of submissions further state at [41]: "41. The Respondent fully funds the conjoint appointment of the Applicant at the University of Sydney. His role as a Clinical Academic at the Respondent and his academic position at the University of Sydney are intertwined and do not exist separately. It is therefore unreasonable for the Applicant to assert as he does that what he does and says as an academic at the University of Sydney is not relevantly connected to his government employment role as a Clinical Academic at the Respondent. His reputation in both capacities affects the reputational interests of the Respondent and the interests of its staff and patients. Indeed, it is the very prominence that the Applicant accepts is his standing locally and internationally that more acutely affects the reputational interests of the Respondent."
In its outline of submissions the respondent canvasses the prior disciplinary history of the applicant (at [58]-[67]), ranging from 2012 to the present. These included allegations of bullying and harassment in contacting a staff member on her personal mobile phone outside office hours in November 2011; alleged breaches of policy, inadequate supervision of unregistered Clinical Observers who may have been undertaking clinical examinations, and irregularities in leave and clinic billing, investigated in November 2013; alleged misconduct involving speaking with a staff member in an aggressive and unprofessional manner in May 2015; and allegations of misconduct in being aggressive and intimidating to various staff members in August and November 2015 and in May and June 2019.
At [68]-[69] it is submitted: "68. It is in this context of historic and more recent staff interactions, that the Respondent has lost confidence in the Applicant's capacity to engage in harmonious working relationships or to respect the Respondent's Code of Conduct, and directives. Unfortunately, these concerns of potential risk materialised, by the Applicant breaching confidentiality, including on matters relating to his suspension to colleagues and even people overseas. 69. Despite the Applicant's familiarity with the Respondent's investigation processes and the need to maintain confidentiality, it was necessary for the Respondent to issue a letter to him on 26 November 2019 reminding him of the need to keep the matters most recently being investigated confidential while he was suspended."
In relation to the applicant's complaints about procedural fairness, the respondent sought to distinguish the process of making a decision to suspend the applicant on the basis of a risk assessment as opposed to through a disciplinary process (at [82]-[97]):
The respondent further argued that there has been no denial of procedural fairness to the applicant in the investigation process as he was competently represented by his Union, was given sufficient particulars of the allegations which were not "vague" and provided with opportunities to participate in interviews with the investigator: see [125]-[142].
At [142], the respondent submitted that there is no basis to intervene in the respondent's decision to consider dismissal of the Applicant because: "142.1 reasons for dismissal have been given to the Applicant and, after considering the Applicant's submissions and reasons, the Respondent is reasonably minded that dismissal is appropriate and proportionate to the gravity of misconduct; 142.2 the reasons for dismissal have a basis in fact, independently investigated, and the Applicant has been given a fair opportunity to make out a defence and to give full explanations for his behaviour; 142.3 the Respondent is not convinced by the Applicant's responses and further submissions, made with the assistance of his union, that it can continue his employment in all the circumstances; 142.4 the Respondent's conclusions reached, especially considering the senior nature of the Applicant's employment and his past and recent history of investigated misconduct, are reasonable and not harsh or unjust."
At [143] of its outline of written submissions, the respondent submitted that the employment relationship between the applicant and respondent has been "irreparably destroyed", for reasons which can be summarised as follows: 1. The applicant's service record with respondent is below the standard expected of a senior government employee and the applicant now lacks the trust and confidence of the Chief Executive of the respondent. 2. The applicant's views, which have been widely reported, are fundamentally incompatible with NSW Health's policies and render any continued employment untenable. 3. The applicant has demonstrated previous and continuing disregard for the core values of the respondent, notwithstanding the respondent's efforts to support the applicant in improving his treatment of staff and patients. 4. The applicant has unreasonably refused to accept responsibility for his actions and demonstrates a lack of insight, remorse or contrition.
In relation to the applicant's argument that the threatened dismissal would not be in the public interest, the respondent submits in its closing submissions at [28]-[29]: "28. The Applicant has persistently attempted to argue that this matter is a public interest matter when, in fact, the matters only concern his personal behaviour and conduct. His claim is an awkward attempt to distract attention away from consideration of his own unacceptable conduct. Indeed, it was a standard technique adopted by the Applicant to reject valid concerns of others when counselled and warned, and to then attack the competence, judgment or worse, gender or disabilities, of others in a condescending and derisory way. 29. It is the Respondent's duty to ensure the quality and continuity of service. The Respondent's evidence, including from its Chief Executive at NBMLHD, is that appropriate steps have been taken to ensure that public patient services continue to be provided and that what the Applicant claims (from his vantage point of someone who had been suspended now since late 2019) is that patients are being looked after. Indeed, the Applicant's claims should be treated with extreme caution, as the Commission will recall that the Respondent had reason to caution the Applicant about breach of confidentiality, when he took steps to inform others of his suspension but to also continue have them funnel referrals to the business in which he has a private interest."
The respondent further submits at [49]-[50] of its closing submissions that the applicant demonstrates a lack of insight into his actions and the impact of his conduct on others, and argues at [51]: "51. The Applicant demonstrated on many occasions his rejection and failure to comply with lawful and reasonable directions given by his employer, and by way of policy and in other ways, including during the investigation process and his breaches of the confidentiality of that process."
The respondent submits at [59]-[61] of its closing submissions that it is relevant that throughout this time the applicant has been suspended with pay and has continued to accrue leave.
I have considered the evidence and submissions of both parties below.

Consideration

Applying s 88 of the Act to the current matter, it is appropriate to consider the reasons for the threatened dismissal given to the applicant, the nature of those allegations and whether they have a basis in fact.
The respondent has indicated its intention to terminate the applicant's employment. The reasons for this intention are set out above at [9]-[23]. In summary, the reasons for the threatened dismissal provided by the respondent are: 1. The Patient A complaint allegation; 2. The Conference conduct allegation; 3. The applicant's previous disciplinary history, including the unreasonable refusal of the applicant to accept identified interpersonal shortcomings and complete remedial actions; 4. Concern about the reputation of the NBMHLD, the applicant's response to these matters in the proceedings and that patients and staff will continue to experience similar interactions with the applicant that have occurred previously; and 5. The loss of trust and confidence in the applicant and the irreparable damage to the employment relationship caused by the applicant not being willing to accept his behaviours contribute to complaints about him and his unwillingness to complete the required training.

Do the Patient A conduct and Conference conduct allegations have a basis in fact?

It is necessary for the Commission to determine whether the alleged conduct the subject of the investigation is made out on the evidence.
The respondent tendered no direct evidence to support its findings relating to the substantiated allegations. Though referred to in the evidence of Ms Hyman as supporting the basis of her view that the applicant's employment should be terminated, the investigation report itself was not in evidence. The external investigator did not give evidence and there was no direct evidence from any of the fourteen (14) witnesses referred to by Ms Clark as having been interviewed in the investigation process.
Although Ms Clark's evidence included a number of documents relevant to the reporting of Patient A's complaint, there was no opportunity for the applicant to test this evidence: see Ex R5 at JC5.
The only direct evidence before the Commission with respect to the relevant events was that of the applicant. The applicant annexed to his statement in these proceedings, his responses to the allegations, including those that were substantiated: HPD 5 and HPD 9. With respect to the Patient A complaint allegation relating to 29 November 2018, the applicant consistently maintained that the consultation occurred in his private rooms and therefore was not relevant. However, the applicant also stated (at p 81 of Ex A4): "I would like to say though that during the consultation on 29.11.2018 [Patient A] behaved inappropriately and aggressively towards clerical and medical staff at my rooms. I invited her twice to leave, suggesting that she see someone else, and reassured her that she would not be charged. She elected to proceed with the test. I recall her being advised and calmed by her mother who seemed to be familiar with her daughter's behaviour patterns."
With respect to the allegation that the applicant behaved inappropriately by storming out of the room on 22 July 2019, the applicant responded to the investigation as follows (Ex A5 at p 83): "By this point [Patient A] again became very aggressive, as had occurred at my private rooms. I considered [Patient A] demand of surgery 'now' highly inappropriate and disrespectful and decided to remove myself from the interaction. No patient has ever demanded surgery 'now' from me. This was an unprecedented situation, and I felt threatened. For this reason I asked Dr Gillor to continue the consultation."
The applicant responded to the October 2019 allegations as follows (Ex A4 at pp 83-87): "On 25.10.19 [Patient A] visited our clinic again to discuss surgical treatment. She was accompanied by her mother, as previously at my private rooms in November 2018. My recollections are based on a protocol (appendix 1) I produced the same morning since [Patient A] had stated 'You're going to hear from me', which I interpreted as meaning that she would lodge a complaint. For the same reason I asked both our secretary Catherine King as well as the registrar, Dr Simona Marra, to write down their recollections (appendix 2 and 3). … [Patient A's] encounter with me followed an altercation she had with Catherine King, clerical staff at the front desk of our clinic (Appendix 2). Ms King states that '[Patient A] came in very confrontational when I asked for a referral. Patient got aggressive ... Her mother than (sic) came over to calm her down.' [Patient A] was agitated and angry when she entered the room to see me."
The applicant refers to a contemporaneous note he took of the consultation annexed to his response, before stating: "She [Patient A] agreed to a student sitting in during the consultation. Our interaction lasted from 9.10 am to 9.25 am. She came to be booked for surgery, and for discussion of trial participation. She had refused to see our continence advisor as had been suggested by me. I confirmed this with her which made her angry and defensive. I stated that there was no problem with her not attending because all we were doing was offering services, and it was up to her to decide whether anything was for her or not. That did calm her down. I then asked her whether I could explain the clinical problem to the student. She agreed. I recapitulated her symptoms and then explained that this was a difficult prolapse to fix."
In response to the allegation that the applicant 'let loose' and said with a raised voice words to the effect of, "I'm sorry, I had a call from one of my colleagues at 7:00 am this morning telling me that he's been sued by some woman saying that he put poison into her body. I gave my colleague advice on what to do for the operation", the applicant stated: "According to my notes I said that some colleagues did not do this surgery anymore because of the public attention surrounding mesh and slings in the media and with law firms, and that I had just been contacted by a colleague who felt like retiring because he was being sued for following my advice in treating someone in 2016. [Patient A's] recollection is incorrect in that I did not give this colleague advice on an operation. The operation had already occurred, and the colleague was distraught because, after 40 years of clinical practice in the field, and 20 years of doing a certain operation, a patient accused him of having poisoned her and thousands of others."
The applicant denied he used the words "the reason us doctors lose our jobs", "She's disgusting" or "people like that try to destroy us" during the consultation. He stated in response to the allegation that he spoke about breast implants in the 1990's during the consultation with Patient A: "I most certainly did not use the words 'something about the poison they put into people's breasts'. This makes no sense and is a mis- understanding. Silicone breast implants are not 'poison'. I used the opportunity to explain several issues to the student: the increasing likelihood of litigation in medicine generally, especially in urogynaecology, the recent Senate Inquiry on mesh use, the influence of social media on medical practice, and the role of evidence. I think I can explain how [Patient A] came to mis- interpret the 'poison in breasts' issue: In the early 90s researchers suspected a link between silicone breast implants and certain autoimmune conditions such as rheumatoid arthritis. This was sensationalised in the media and led to thousands of unnecessary explantations and class action lawsuits which almost bankrupted Dow Chemical, the leading manufacturer. Now, 25 years later, it is clear that such a link does not in fact exist. I used this case to explain to the student the difference between association and causation, and drew parallels with recent actions regarding slings, our standard anti incontinence operation for the last 20 years. I refuse to accept that teaching a medical student (to whose presence [Patient A] had expressly agreed) in this way was 'inappropriate' for a clinical academic."
In response to the allegation that the applicant behaved in an inappropriate and disrespectful manner towards Patient A by engaging with the trainee, informing him that the applicant did not intend to do a particular operation on Patient A, the applicant stated: "This is a mis-understanding. I had mentioned that [Patient A] was a near perfect candidate for vaginal mesh surgery which may have doubled the success rate in her case, but that this surgery was no longer available. I explained in detail why this was the case, and patients suing doctors and hospitals for serious surgical complications certainly featured in this explanation. [Patient A] mis- understood this explanation as implying that she would sue. I never stated that she might or would sue. [Patient A] was visibly annoyed by this explanation. I said that there were limits to what we could offer in a case such as hers due to the state of her pelvic floor and recent changes due to the mesh crisis. The high risk of the hospital getting sued meant that we had to make sure she understood all the pros and cons. I said that one option mentioned in December, ie., reconnecting the torn pelvic floor muscle, was no longer appropriate on the basis of findings obtained in our clinic on 22.7.19 due to the size of the pelvic floor muscle opening (the 'hiatus') which was much too large for that approach. She then became rather angry with me and doubted these findings. I did not get the opportunity to explain what was left in terms of options."
The applicant denied that he accused Patient A of being someone who would sue him, stating: "All references to [Patient A] 'suing me' are clearly due to faulty recollection. I cannot be sued by a public patient as in such a situation the clinician acts as an agent of the public hospital. If I referred to anyone suing anyone it would have been a patient suing the public hospital which is the only defendant in cases involving public patients. I should know as I frequently act as medicolegal expert witness. I said that she was clearly angry with me, and that was not a good personal relationship for a surgeon to have with a patient before surgery. In the current climate I'd rather not operate on her. I then provided her with three names of other doctors she could see for this problem: Drs Pardey, Boshell and King. I handed those names to her mother because by that time [Patient A] had left the office, slammed a door, and called me a 'disgusting fucking prick' and a 'disgusting man', and a few other epithets I don't recall clearly. I subsequently dictated a letter to her to provide contact details for those 3 colleagues (letter dated 28.10.2019). … I tried to assuage [Patient A's] anger by saying: "We are now only allowed to use conventional surgery which in your case is over 70% likely to fail. You're angry now, and you're likely to be angry with me and the hospital after a failed operation. I would suggest that you see another doctor for this problem, and I can give you several addresses. During this altercation Ms Smith repeatedly attempted to assuage her daughter's anger, as she had done during [Patient A's] appointment in November 2018 and in our waiting area just before. After [Patient A] had left Ms Smith explained that her daughter had had a problem with controlling her anger since she was a teenager.…It was Ms Smith who has knowledge of Patient A's behaviour since her teen years, and she shared this knowledge with me in an attempt to explain the extraordinary outbursts of her daughter."
The applicant claimed that Patient A, "was completely beside herself with anger, to the degree that the registrar Dr Simona Marra came out of her room to ask me whether she needed to call security." Although the applicant stated that he recalled Patient A used the words "disgusting fucking prick", he also suggested that she may have called him a "disgusting prick of a man", but that Patient A's account is "sufficient evidence of her state of mind."
The applicant summarised the interaction as follows: "Let me summarise: Her extraordinary outburst was triggered by me advising [Patient A] that I did not want to perform elective surgery on her for a benign, minimally progressive condition that carried a high risk of failure because I felt that she was very likely to be unhappy with the outcome. This was particularly true in the currently highly charged atmosphere of social media comment and active soliciting of urogynaecological patients by compensation lawyers. I declined to operate on her to protect her from a potentially difficult operation with significant complication risks with a very low chance of success, and to protect my service and the NSW taxpayer from substantial medicolegal risk. I provided her with the names of three other highly qualified colleagues who she could approach for treatment."
Finally, the applicant denied that he had an interaction with Ms Smith where she stated to him after Patient A left the rooms, "This isn't right" with him responding, "No, she's going to sue." The applicant claimed that he did not "remember Ms Smith criticising me. On the contrary, I remember her as being very apologetic regarding the behaviour of her daughter, to the extent of being distraught and tearful": see Ex A5 at p 87.
The applicant attached to his response a contemporaneous note of the incident which was consistent with his account as set out above: Ex A5 at pp 81-87. The applicant also attached notes of Ms Catherine King who was a receptionist at the clinic and Registrar, Dr Simona Morra whom the applicant claimed came out of her rooms and asked the applicant if she needed to call security.
During sometimes hostile cross-examination of the applicant, he maintained his version of events with respect to the October 2019 consultation with Patient A.
Although the applicant was at times an uncooperative witness, the Commission is not able to make a finding of misconduct on the part of the applicant based on the evidence adduced in respect of the consultations with Patient A. Although the Commission had the benefit of the original complaints made by Patient A and Ms Smith in evidence, in circumstances where the applicant's account of those events significantly deviates from what has been alleged by those individuals, it would be a denial of natural justice to accept those accounts without the applicant having an opportunity to test that evidence before the Commission. It was incumbent upon the respondent to call witnesses to substantiate the Patient A conduct allegations.
However, based on the applicant's own account of events, the consultation with Patient A in October 2019 was unfortunate. It is clear from the applicant's evidence that the risk of litigation featured in the reasons he gave to the patient why he was not able or willing to perform the surgery she wanted. While I accept it is appropriate for the applicant to speak to those under his tutorage about a range of matters including the potential legal liability associated with procedures, it is understandable that Patient A would be confused and upset by being informed that the risk of litigation impacted upon her medical options.
The applicant consistently painted a picture of Patient A being difficult and aggressive. It is clearly an essential skill for Doctors such as the applicant to be able to interact with patients in a manner that de-escalates aggressive situations effectively and quickly. On this front and based on his own account of what happened, I believe that it is reasonable for the respondent to expect a more empathetic approach from the applicant in consulting with difficult patients. However, although the evidence discloses treatment of a patient that might be improved, I am unable to find on the evidence before the Commission, this reached a threshold of misconduct or that it would warrant the termination of the applicant, even considering his disciplinary history.
The allegations relating to the Conference conduct allegation were put to the applicant in a letter from the investigator dated 31 March 2020 and the applicant provided his response in a letter dated 18 April 2020. The applicant noted that the conference "revolved around medicolegal issues in maternal birth trauma, for which I am the foremost medicolegal expert in Australia and New Zealand." In his response to the show cause letter he also put forward that he was not speaking on behalf of NSW Health or any NSW Health organisation stating: "I was speaking in my capacity as a Professor Obstetrics and Gynecology employed by the University of Sydney, as clearly evidenced by the slides I showed at this event and exercising the freedom of academic speech enjoyed in that capacity to discuss the subject matter of the seminar within my sphere of professional capacity frankly and respectfully."
The applicant responded that his "core argument was that pregnant women should be treated as adults and need to be informed of material risks arising in labour and delivery." He stated that: "I provided a presentation regarding perineal and pelvic floor trauma and its consequences of anal incontinence and pelvic organ prolapse, which was what I had been invited for. I gave my professional opinion regarding the risk and benefits of different modes of birth, an opinion that is informed by 35 years of clinical research and practice which have resulted in over 300 published scientific papers. … d) Oceane Campbell alleges that I was disrespectful and aggressive towards her. I deny these accusations. On the contrary- Ms Campbell made several statements I considered disrespectful and demeaning towards women in the audience suffering from birth trauma. Her comments implied that a) such trauma was all in the head, b) probably the fault of the women themselves or the treating doctors, and that c) such women should keep quiet about their troubles in order to not frighten others and not compromise the role of midwives as the guardians of the birth process."
In respect of the specifics of the exchange the applicant was alleged to have had with Ms Campbell the accusations as they were put to the applicant and his responses are set out below: (i) Professor Dietz put up graphs and said that with vaginal births, women have a "massive" increase in risk of pelvic floor issues, like incontinence. Professor Dietz then said in a sarcastic tone words to the effect of, "My friend Hannah Dahlen would try and tell you that every woman should have a vaginal birth but she won't tell you about all the risks." Hannah Dahlen is a well-known midwife in Australia who promotes the NSW Government's policy titled 'Towards Normal Birth'. Applicant's response: No comment except to say that I do not use the word 'massive', I use numbers and odds ratios. I deny that I spoke "in a sarcastic tone"." (ii) Ms Campbell was standing approximately 10 rows away from Professor Dietz at the back of the room breastfeeding her eight-week-old baby. Ms Campbell raised her hand and said words to the effect of, "You might have been sarcastic about Hannah Dahlen, but I can actually refer to her as a friend. My understanding of the research is that the weight of the pregnancy on the pelvic floor increases the risk of incontinence after a certain number of pregnancies and this is the case whether you have a caesarean or vaginal birth." Applicant's response: No comment except to say that Ms Campbell is quite mistaken. If necessary I can provide data from an ongoing systematic review of the literature to support my view. (iii) Professor Dietz then went red in the face and shouted at Ms Campbell, saying words to the effect of, "Yes, you're obviously a midwife. You're clearly ignorant. You don't know what you're talking about. You have no idea how to interpret research if you think that's what the research suggests. You midwives are all the same. You just want vaginal births. You don't care about what the research actually says!" Professor Dietz was so angry that spit started to come out of his mouth and he was pointing and jabbing his finger towards Ms Campbell. Applicant's response: I would ask you to obtain testimony from the organiser, Catherine Henry, regarding these defamatory allegations. (iv) Professor Dietz then discussed the NSW Government's 'Towards Natural Birth' policy and how harmful it was. He also said that midwives were "hell bent" on vaginal births at the expense of women. He was shouting about this topic for approximately seven or eight minutes. Applicant's response: see (iii) (v) Ms Campbell did not say anything to Professor Dietz after he started shouting at her and lecturing. She was still breastfeeding her baby at this time. Applicant's response: No comment. The relevance of this point is unclear.
Again, given the nature of the allegations brought by the respondent, it bears the onus in these proceeding to establish on the balance of probabilities, the alleged conduct relied upon to terminate the applicant occurred. In respect of the applicant's alleged conduct at the conference, the only direct account of what happened came from the applicant. There was no evidence before the Commission to substantiate the allegation that the applicant's conduct at the conference was inappropriate.
During cross-examination, the applicant admitted that he had been critical of the respondent's policy, Towards Normal Birth at the conference and that this had been reported in an article published by The Guardian: Tcpt 22 December 2020, at pp 15-16. The applicant did not clearly admit this during the course of the investigation. The Commission does not have any detailed evidence, even within the allegations of the nature of that criticism. The applicant disagreed that he needed to obtain permission from the respondent prior to expressing a view about their policies: Tcpt 22 December 2020 at p 28 (14).
The applicant gave evidence in the proceedings that the Towards Normal Birth policy was at the time of the conference under review. The applicant explained that he had taken his views about the policy to a meeting with the Minister for Health, along with other Doctors about two years prior.
The applicant is a person who is qualified to have an opinion about the respondent's policy on natural birth and the matters discussed at the conference, even if his ideas are unconventional or controversial to others. This is particularly so given his role as an academic within the University of Sydney. There is a public interest in appropriately qualified Doctors and academics being able to express views about public health matters. In my view it would be unreasonable for the respondent to restrain the applicant from engaging in public discourse about such matters, however it is also reasonable for the applicant to advise the respondent of his intention to publicly criticise their policies. This did not occur here and as a result, the respondent learned of the applicant's comments through the media.
While I am satisfied that the applicant acted contrary to the respondent's policies at the conference when he criticised the Towards Normal Birth policy, this is the type of issue that the respondent ought to be able to address with the applicant though dialogue with him about their policy requirements and expectations. It would not be a sufficient basis to terminate the applicant's employment.
I am however concerned from the applicant's evidence that he is not willing or able to accept the respondent's policies on such matters. In particular, I am not satisfied that the applicant accepts that he has any obligations to the respondent with respect to public statements critical of their practices or policies. This leaves open the very real issue the viability of the relationship between the parties moving forward. This is a matter to which I will return.

Was the applicant un-cooperative during the investigation including by breaching confidentiality and unreasonably failing to inform the respondent of HCCC and Medical Council investigations against him? Do these matters support the reasons given by the respondent for his threatened dismissal?

Through the proceedings, the respondent made allegations against the applicant that went beyond those matters sustained through its investigation and referred to in the show cause letter.
This included that the applicant breached confidentiality in the investigation process and that he did not inform his employer of complaints that had been received by the Health Care Complaints Commission (HCCC) and the Medical Council of NSW in respect of the applicant's conduct.
There was also evidence before the Commission of the applicant being un-co-operative with the respondent during the investigation process. The applicant would not meet with Dr Thomas when he was initially stood down following the conduct of a risk assessment by the respondent. The applicant's explanation for this was that he had received advise from ASMOF not to meet as he was not provided with information about the purpose of the meeting. Despite not having this information to hand, I am of the view that it was unreasonable for the applicant to refuse to meet with Dr Thomas.
Furthermore, the applicant refused to meet with the investigator when asked to do so and although he responded quickly to the allegations when they were put to him, some of his responses were "non-responsive". An example of this was his response to the allegation that he had been critical of the respondent's Towards Normal Birth policy as discussed above at [93].
The suspicions of the respondent that the applicant had breached confidentiality with respect to his suspension are well founded. In evidence was more than 30 references from various people within the applicant's network supporting him and his work: HPD 18. The people providing the references included visiting scholar's, former patients, and peers. Many of the references address the question of whether the applicant was in their experience misogynistic and/or sexist. Some referenced allegations against the applicant made through the media. These references demonstrated that these individuals were aware of the applicant having been stood down and had some insight into why that had occurred. Although the applicant denied having told any of them of the reasons for his suspension, it is unlikely that he was not involved either directly or indirectly in precuring the letters and giving some relevant context to why they were being sought.
It is reasonable for the respondent to expect that the applicant would inform it, as his employer, of the complaints received against him by the HCCC and the Medical Council of NSW, at the time he is informed of those complaints. The respondent has a reasonable and legitimate interest in this information so that it is able to make appropriate assessments with respect to the safety of their patients and to protect their own reputation, irrespective of whether the complaints originate from the respondent's workplace or elsewhere.
In December 2019, the applicant had a complaint dismissed by the HCCC after it was alleged by an individual that he had been, "advocating for making women sign a consent form for vaginal birth". The complaint was resolved in the applicant's favour on the basis there was no evidence to substantiate the allegations and the reasons he had provided in his response were assessed as reasonable: HPD 22.
In addition, the HCCC received a complaint in respect of the applicant's conduct in sending a particular email to colleagues within the ASMOF Branch Council of which the applicant is a member (the ASMOF email). The ASMOF email was in response to a member of the Council circulating an article not in evidence published in the Sydney Morning Herald titled, "Junior Doctors Deliver Fail Grades to Sydney Hospitals" to other members of the Council. In response to this email, the applicant stated: "As a union we ought to use this narrative to push our lines on overtime needing to be paid, and the importance of safe working hours. However, this matter has the potential to seriously impact on clinical care and productivity in a way that's not immediately apparent. A subspeciality department at one Sydney hospital that shall remain nameless is an example: getting rid of a bully has left them understaffed and unable to cope with the workload. It's public patients that suffer as a result. Our workplace is increasingly vulnerable- because it's increasingly female and not exactly prepared for adversity because school and Uni are 'safe spaces'. Suicides are one result. Inability to cope with everyday nastiness is another. I'm not debating that there are problems- I've seen them firsthand. However, I've made the point before that 'concept creep' and the attractiveness of victim status has the potential to divert resources into activities that will make it harder to do what we're paid to do: provide clinical care to our patients. We are supposed to defend public health. Seeing public health facilities targeted like that makes me uneasy. Peter Hans Peter Dietz Professor in Obstetrics and Gynaecology Sydney Medical School Nepean Nepean Hospital, Penrith NSW 2750"
The applicant's views as contained in the ASMOF email was rebuked by at least two people in the communication chain and was evidently leaked and reported upon an article in The Guardian published on 8 November 2019 and elsewhere: Ex JC5 and JC22. The applicant's comments were publicly renounced by ASMOF and Royal Australian and New Zealand College of Obstetricians and Gynaecologists: see Ex R2 and JC22. During the proceeding, the applicant referred to this effect as a "social media shitstorm."
It was sufficiently clear that the publication of the media articles along with the Patient A conduct complaint as initially reported by the trainee Doctor that precipitated the applicant's suspension with the respondent's investigation to follow.
In December 2019, the HCCC informed the applicant of its decision to refer the complaint about the ASMOF email to the Medical Council of NSW as there "were concerns regarding your professional conduct and the Council is considered to be the most appropriate body to manage these concerns": HPD 24.
On 29 January 2020, the Medical Council of NSW wrote to the applicant confirming that it had decided to conclude the complaint by providing the applicant with written comments and advice. The Council stated: "The Committee would like to remind you that as a medical practitioner your views will be reflected on your peers. Your communication via email was inappropriate and unprofessional and potentially discriminatory. Council do not agree that sending an email from our NSW health email address is private an such actions undermine the public's trust in the profession. The Committee advise that as a leader in the profession there is one thing having a view on a matter and a quite different thing expressing these views. You are advised to work closely with your medical indemnity insurer for further advice around this issue. There will no further action taken by the Council on this occasion however any further complaints of a similar nature may warrant stronger action by the Council; the Committee has noted your past complaint history in coming to his decision. It is expected that you will apply the advice to your future practice. Please clink on this link to access a copy of 'Good Medical Practice: A Code of Conduct for Doctors in Australia March 2014', which describes what is expect of you as a registered medical practitioner."
In his response to the HCCC investigation and during the course of giving his evidence before the Commission, the applicant did not resile from his views expressed in the ASMOF email or show any insight into how they could have been expressed differently or more effectively: HPD 23; Tcp 21 December 2020 at pp 72-75; Tcp 22 December 2020 pp 4-9. The applicant's views as expressed in the ASMOF email and as evidence before the Commission were not nuanced, despite the applicant claiming some depth of knowledge in workforce planning. For example, the applicant's observations stopped at how he perceived higher female participation in the medical profession increased the vulnerability of the profession, rather than reflecting upon how the profession has been improved by greater diversity and how any of the challenges he identified might be appropriately addressed. The way the applicant expressed his views was offensive and he demonstrated limited insight into why he had been subject to such strong criticism for them.
It was evident during the proceedings that the applicant did not accept the feedback of the Medical Council of NSW. His primary contention was that he had sent the ASMOF email from his private email account and the letter was premised on its finding that he had sent it from his NSW Health email address: Tcp 22 December 2020 at p 7. The applicant gave evidence that he therefore believed the findings of the Medical Council to be "obsolete" and premised on an "incorrect or sloppy reading of that particular email" and that he had chosen not to raise the issue with them because he had been informed that there were two "activists" on the Council who had wanted to make a much stronger statement: Tcp 22 December 2020 at pp 7; 34-35.
The applicant did not inform the respondent of the investigation into his conduct with regards to the email he sent to his ASMOF colleagues, with Ms Clark giving evidence that the respondent became aware of both complaints when these were disclosed by the applicant during a conference convened by the Commission: Ex R4 at [78].
The respondent is entitled to be aggrieved by the applicant not informing it of the complaints being considered by the HCCC and Medical Council of NSW when they were brought to his attention. With respect to the comments within the ASMOF email, it is evident that the applicant intended his audience to be confined to those within the email group, but it was "leaked" without his permission. Although sent within his capacity of an ASMOF State Councillor from his private email, the views as expressed clearly had a connection with his work within the medical profession and had the effect of reflecting poorly not only upon the applicant, but also the respondent by association. It is concerning that the applicant did not show any insight into this or any acceptance of a need to curtail the way he expressed his opinions into the future given the seniority of his role within the profession.
I find that the applicant's lack of insight in this regard and commitment to modify his behaviour demonstrate an evidentiary basis for the respondent's concern that he is unable or unwilling to accept identified interpersonal shortcomings and complete remedial actions. This clearly has the capacity to impact upon the reputation of the NBMLHD (see above at [69] (3) and (4)). It is also supportive of the respondent's evaluation of the loss and trust and confidence in the applicant as an employee of the respondent: see 69 above.

The applicant's employment history, his insight into his conduct and willingness to engage in remedial action

The applicant has been the subject of numerous disciplinary investigations during the course of his employment. These have resulted in two formal warnings in respect of sustained allegations of misconduct for behaving in an aggressive and intimidating manner as follows: 1. On 1 April 2016 the applicant was issued with a formal warning after allegations were sustained that he engaged in misconduct by behaving in an aggressive and intimidating manner during a phone conversation with two work colleagues on 12 November 2015 (the First Formal Warning). 2. On 26 August 2019, the applicant was issued with a second formal warning after an investigation where the respondent sustained allegations that on 8 May 2019 he behaved in an aggressive and intimidating manner towards a Nurse Unit Manager and that on 12 June 2019 and during a Gynaecologist consultant meeting (the Second Formal Warning).
In respect of the Second Formal Warning, the Applicant was directed to undertake a program of formal training, such as the Cognitive Institute, or similar for one on one intensive training for improved communication and performance, to address his communication and behaviour in the workplace. The Applicant was required to arrange and complete this training within 6 months of the warning letter. The applicant argued that he had sought and had not been provided with guidance as regards to the nature of the training he should undertake: see [44] of Ex A5. As at the date of the hearing, the applicant had still not undertaken a course of study.
Whether the applicant was given sufficient guidance of the course he was expected to attend or not, it was clear from the evidence of the applicant did not accept the seriousness of these matters having been raised with him. In his submissions to the Commission, he stated that these issues were trivial and exaggerated. Furthermore, and by way of example, the applicant responded as follows to the findings leading to the Second Formal Warning: "I consider it grotesque that it now appears impossible at NBMLHD for a senior doctor to tell a nurse that she has made a serious mistake. This is an absurd and counterproductive interpretation of the CORE values. Please inform me of how to appeal this decision. In the meantime, I do not accept the outcome of your investigation, nor the recommendations of the panel."
The applicant gave evidence in the proceedings that suggested beyond rejecting the findings, he believed that he was being bullied by having these interactions with staff raised by the respondent with him: Tcp 21 December 2020 at p 72 (4). In addition to the two formal warnings received by the applicant he had been previously counselled by the respondent with respect to his interactions with others including with a receptionist whom he believed to be 'incompetent'. The applicant did not accept feedback with respect to those interactions remarking that the receptionist should be considered for instant dismissal and under cross-examination, that he had formed the view that "… in my opinion [she] was suffering from early Alzheimer[s]": Tcp 21 December 2020 at p 68 (23).
I find that the applicant's evidence with respect to the formal warnings and the counselling he had received in the past relevant to these proceedings in that they demonstrate a pattern of behaviour of the applicant not accepting feedback and co-operating with the respondent. This evidence supports the account of Ms Hyman that the respondent no longer has the necessary trust and confidence in the applicant to behave appropriately and consistent with the respondent's Values and Code of Conduct: see 69-(5) above.

Has the applicant been denied procedural fairness in the process leading to the threatened termination?

The applicant complained that he was denied procedural fairness in the process of the disciplinary proceedings. The applicant's complained that he was denied procedural fairness because Patient A was approached about the incidents the subject of investigation, and he did not have his matters investigated by a clinician. These arguments are without substance. The respondent is entitled to encourage a patient to make a complaint if they relay an adverse interaction with a Doctor while in their care. Moreover, the issues the subject of the investigation were about the applicant's conduct, not his clinical performance and it was appropriate for a lay person to evaluate these matters.
However, there were aspects of the way the disciplinary process evolved which could have been improved. The applicant was confronted with being stood down from his position on 26 November 2019 with very little detail of the allegations against him. I accept the respondent's position that the process of deciding to stand down an employee in a position such as the applicant's is based on an analysis of risk. However, in the context of the proceeding before the Commission, the fact that the applicant was stood down pending the outcome of the investigation is relevant to evaluating the fairness of the disciplinary process.
The formal allegations were not put to the applicant until 24 January 2020, with further allegations particularised on 31 March 2020. The applicant remained stood down at least until 8 April 2020 for reasons that included allegations that were not put the applicant or sustained through the investigation process: HPD 26. For example, the risk assessments expressly referenced news articles where the applicant's conduct in sending the ASMOF email was reported. The respondent did not put any formal allegations to the applicant with respect to the ASMOF email and only sought to rely upon it in the context of alleging the applicant had not informed it of the complaints made to the HCCC and Medical Council relating to it. The article also referred to his conduct at a conference in Melbourne, which was found not to be inappropriate through the investigation. In my view, this generated some confusion in the disciplinary process which leaked in these proceedings, especially as significant aspect of the evidence relied upon by the applicant was directed at the risk assessments resulting in is suspension, rather than the threatened dismissal.
Despite this, I am of the view, that the applicant was aware of the case put against him through the investigation process and these proceedings and was given a fair opportunity to respond to the matters set out above at [69]. In particular, the evidence of Ms Hyman was clear with respect to the reasons why she intended to accept the recommendation to terminate the applicant's employment. The applicant has not pointed to any denial of procedural fairness which has had a material impact upon his capacity to understand and respond to the respondent's concerns.

Is there a public interest in the applicant's employment being maintained?

The applicant states in his application for threatened unfair dismissal at [7]-[8]: "7. Termination of my employment will have a disproportionately harsh effect on me, and have unintended disadvantageous consequences for my patients, trainees, students and colleagues. 8. Termination of my employment with NBMLHD will automatically lead to a termination of my academic position as full professor (Level E academic) with the University of Sydney, and termination of one of the three most productive urogynaecological academic research programmes in the world for the last ten years running, resulting in the premature cessation of several ongoing trials of global importance, affecting about ten international research collaborations and dozens of academic colleagues nationally and internationally."
In addition to this evidence, the applicant informed the Commission that his removal has resulted in wait times increasing for the procedures he oversees and particular services being unavailable to individuals accesses the public hospital system. Dr Weeg and Dr Caudwell-Hall also gave evidence with respect the impact the applicant's suspension has had on the work on the clinic and on their capacity to learn from his expertise and complete their subspecialty training: see above at [44].
The applicant is highly accomplished in his subspecialty and the expertise he brings to the public hospital system and patients who might not otherwise be able to access those services privately is a significant loss to the community of New South Wales. I accept the evidence of Dr Weeg and Dr Caudwell-Hall that it is to their professional detriment that the applicant is not currently working in the Urogynaecology area. Accordingly, there is a compounding effect of the applicant's absence in that he is not able to train others in the subspeciality.
However, ultimately this matter is about allegations about the applicant's conduct and the sustainability of his relationship with his employer. The Commission is not in a position to second guess the priorities of the New South Wales Public Health System and the manner in which the necessary services are delivered. Ultimately, this is a matter for the respondent to assess. However, given the importance of the applicant's expertise, there is in my view a public interest in the parties taking all necessary steps to try to effectively restore the employment relationship.

What impact will any termination of employment have upon the applicant?

It was evident in the proceedings that the applicant's self-identity is extrinsically linked to his work as a Urogynecologist. It is important to acknowledge that the applicant, who is not financially dependent on his work with the respondent, directed a considerable amount of his own monies towards the work of the unit he led. He takes great pride in mentoring others. This is not his work, but his vocation. He has made a very significant contribution to the field of his study and continues to do so. The applicant will be significantly personally impacted by the loss of his role at the respondent.
I also accept that the applicant's reputation will be negatively impacted by the termination of his employment and the considerable difficulty he will encounter obtaining employment in the public health system by virtue of his name being placed on the Service Check Register.

What orders and or recommendations should be made in view of the Commission's finding in these proceedings?

The applicant's interactions with Patient A and his conduct at the conference in Newcastle alone are not a sufficient basis to terminate his employment fairly. The respondent did not discharge its onus to establish that the conduct alleged occurred. The conduct admitted by the applicant is not sufficiently grave to warrant the termination of his employment on either basis, even when accumulated. Accordingly, I have decided it is appropriate to restrain the respondent from terminating the applicant based on that alleged misconduct.
I have considered the evidence of Ms Hyman and the reasons she gave as to why she would be inclined to accept the recommendation to terminate the applicant's employment: see [22]-[23] above. It should be noted that these were not only informed by the investigation report, but also the applicant's previous disciplinary history, concerns about the reputation of the NBMLHD and the applicant's responses in these proceedings. I am of the view that these concerns are well founded and have been established as reasonable concerns supported by the evidence in these proceedings. However, I note that it is clear that Ms Hyman's view about the applicant's relationship with the respondent was at least in part formed by the matters found to be substantiated in the investigation report that have not been proven in these proceedings.
I do have serious concerns about the ongoing viability of the employment relationship between the applicant and the respondent. The fractures in the relationship were demonstrated by the applicant's lack of acceptance of previous warnings relating to his conduct towards staff, his failure to undertake remedial action as directed to address those concerns, his unwillingness to accept his obligations to co-operate with the respondent with regards to matters such as the investigation process itself, informing the respondent when he intends to publicly criticise their policies and keeping them appraised of complaints made against him to relevant professional bodies.
I have considered very closely the impact any decision to terminate the applicant may have upon him, those within his team and the many patients who he would otherwise assist through the public health system. I am of the view that there is a proper basis to conclude that the necessary elements of trust and confidence in the relationship have been considerably damaged. Accordingly, I have decided not to exercise my discretion to make an order restraining the respondent from terminating the applicant on the basis of: 1. The applicant's previous disciplinary history, including the unreasonable refusal of the applicant to accept identified interpersonal shortcomings and complete remedial actions; 2. Concern about the reputation of the NBMLHD, the applicant's response to these matters in the proceedings and that patients and staff will continue to experience similar interactions with the application that have occurred previously; and 3. The loss of trust and confidence in the applicant and the irreparable damage to the employment relationship caused by the applicant not being willing to accept his behaviours contribute to complaints about him and his unwillingness to complete the required training.
However, I have also concluded that it may be that the parties are able to work through these matters with the benefit of this decision and the passage of time that has elapsed since the applicant was initially stood down. Accordingly, I have decided to make a recommendation the parties participate in formal mediation with a view of establishing whether the relationship can be restored effectively. The respondent should now proceed to conclude the disciplinary process in view of this decision.

Orders

I make the following order: 1. The respondent is restrained from terminating the applicant on the basis of the allegations of misconduct made against him by Patient A and his conduct at the 'Natural birth: What women need to know' in Newcastle run by a law firm, Catherine Henry Lawyers in November 2017.
I make the following recommendation: 1. The parties confer with a view of arranging a mediation with the aim of exploring whether the employment relationship can be restored effectively.

Amendments 26 July 2023 - 1. [69] (4) "application" amended to "applicant" 2. [131] - "it note" amended to "I note" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2023

Industrial Relations Act 1996(NSW)ss 83, 84, 89(7), 130

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Judgment (21 paragraphs)

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