Introduction
1 On 1 July 2001, Dr Graham Windrum, at the age of 74, commenced providing pathology services as an independent contractor to Matrix Healthcare Pty Ltd t/as Combined Pathology ("Matrix"). These services were subsequently provided from about January 2004 through Monkerai Pathology Services Pty Ltd ("Monkerai"), a company established by Dr Windrum at the request of Peter Court, a director and secretary of Matrix ("the second respondent"), so that Dr Windrum could provide his services through that company.
2 On 16 May 2005, at 5.35 am, Dr Windrum's contract with Matrix was terminated "primarily due to gross neglect of duty and a severe breach of confidentiality". Dr Windrum denies any wrongdoing and says the summary termination was manufactured to get rid of him because he did not accept, in February 2005, changes proposed to his contract. At the time of his termination in May 2005, Dr Windrum, through Monkerai, was earning approximately $752,194 per annum from his contract with Matrix, working Monday to Saturday each week.
The Summons
3 By their summons, Dr Windrum and Monkerai sought an order under s 106 of the Industrial Relations Act 1996 ("the Act") declaring void in whole or in part, from an appropriate date, the contract made on or around January 2001 and arrangements, whereby Dr Windrum and Monkerai performed work for Matrix. An order was also sought that Matrix and Mr Court, jointly and severally, pay Dr Windrum and Monkerai a sum representing 12 months remuneration under the contract.
4 In the alternative, an order to vary the contract, from a time prior to its termination, between Dr Windrum and Monkerai and Matrix was sought as follows:
3. In the alternative an order to vary the contract, from a time prior to its termination, between the applicants and the first respondent.
(a) To provide that should the respondents terminate the contract for any reason they will provide 12 months notice of termination in lieu of such notice.
(b) To provide that the respondents will not discriminate against the first applicant because of his age and will not terminate the contract because of the age of the first applicant or for reasons associated with the age of the first applicant.
(c) To provide that the respondents will consult with the applicants if termination is contemplated and before any decision is made.
(d) To provide that the contract will not be terminated without proper and fair reason.
(e) To provide that the contract will not be terminated unfairly. Should the respondents have any genuine concerns about the conduct or performance of the applicants under the contract it will put such concerns to the applicants and provide substantive and procedural fairness.
General Background
5 Dr Windrum was the only witness for the applicants and with some very minor exceptions, disputed the evidence called by the respondents, which consisted of six witnesses. Dr Windrum swore four affidavits, on which he was cross-examined, for a little over two days. The second respondent, Mr Court, swore an affidavit and was cross-examined. The respondents called in support Dr Simon Clark, a Pathologist currently employed by Matrix; Ms Suzanne Pohlner, former General Manager of Matrix; Mrs Lynne Townsend, former Office Manager of Matrix, who now holds a position of IT Manager with Matrix; Ms Patricia Hagan, the Manager of Matrix between April 2002 and April 2003 and Ms Linda Harris, the Laboratory Manager at Matrix until June this year. All the deponents were cross-examined.
6 I prefer, particularly for the reasons set out at [95], the evidence of the respondent's witnesses, to that of Dr Windrum in respect of any issue in dispute.
7 It was common ground that Dr Windrum is a very experienced Pathologist and that during his time with Matrix, there was a severe shortage of Pathologists in Australia.
8 Dr Windrum says that in or around January 2001, he commenced working as a Pathologist for a company known as E-Path. Dr Ian Katz was the Proprietor of E-Path, which provided pathology services to Matrix.
9 On or around June 2001, Dr Windrum had discussions with Mr Court regarding the number of cases and days he was working and his remuneration. On 1 July 2001, Dr Windrum began providing pathology services, as an independent contractor, directly to Matrix in accordance with an agreement reached with Matrix. Dr Windrum says that the agreement was that Matrix would pay him $1,500 per day on the basis that he would do a minimum of 70 cases per day. At the time, Dr Windrum says he was doing closer to 80 - 90 cases per day. His evidence is that Mr Court agreed with this proposal. Mr Court's evidence was that he required Dr Windrum to deal with a minimum of 100 cases per day to generate an entitlement to his daily fee of $1,500, which was increased to $2,000 per day in October 2003. However, in a subsequent affidavit, Dr Windrum says he was only required to complete an "average" 100 cases per day, which formalised an arrangement, which had already been in place. This is disputed by Mr Court.
10 In late 2001, early 2002, a number of Pathologists working for Matrix resigned or reduced their hours, leaving Dr Windrum as the only fulltime Pathologist. This led to Dr Windrum acting in the role of Supervising Pathologist. By June 2002, Dr Windrum was doing more than half of Matrix's total caseload. Pathology was also carried out by Drs Krausz, Cortis- Jones and Katz during the period Dr Windrum was engaged.
11 In September 2002, Dr Windrum met with Mr Court to review the terms of his agreement with Matrix. In a letter dated 29 September 2003, Dr Windrum proposed a payment of $2,250 per day, together with $1 per case from 1 October 2002, until 30 September 2003.
12 An agreement was reached whereby Dr Windrum would be paid $1,750 per day, together with an additional fee of $50,000 per annum for acting as the Supervising Pathologist. A deed of agreement made on 1 October 2002, was executed to reflect the payment in respect of undertaking the role of Supervising Pathologist.
13 In January 2003, Dr Windrum suffered a heart attack and was absent from Matrix for approximately three weeks. On 29 September 2003, Dr Windrum wrote to Mr Court seeking a review of his agreement. Dr Windrum sought the payment of $2,250 per day, together with $1 per case from 1 October 2003. In addition, he sought the payment of his medical indemnity premiums and the provision of a home computer. An agreement was reached to pay Dr Windrum $2,000 per day, together with $1 for every case he supervised, the provision of a home computer and the payment of his medical indemnity premiums. It was at this time Mr Court suggested that Dr Windrum form a company and provide his services through that company.
14 In January 2004, Monkerai Pathology Services (Dr Windrum's company) began providing pathology services to Matrix.
15 On 21 September 2004, Dr Windrum again wrote to Mr Court seeking a review of his remuneration agreement, suggesting a 15 per cent increase, which was not agreed to in light of Dr Windrum seeking to reduce his hours.
16 On or about June 2004, the respondents contend Dr Windrum advised a number of employees that he wanted to slow down and work less days per week. This is denied by Dr Windrum. This is an important issue in this case, to which I will need to return in some detail. For the moment, it is sufficient to say that they culminated in an arrangement where, after three months notice, Dr Windrum's workload was to be reduced to 250 cases per week and he would no longer hold the position of Supervising Pathologist. Dr Windrum's case is that the termination of his appointment as Supervising Pathologist and the reduction in his caseload were not discussed with him at all. Nor were there any negotiations.
17 On 16 May 2005, Dr Windrum arrived at Matrix at approximately 5.35 am. He was met by a security guard who handed him a letter stating that his contract was terminated immediately for reasons of neglect of duty, breach of confidentiality and overcharging. Dr Windrum received no payment in respect of notice, or any other termination payment.
18 On 1 August 2005, Dr Windrum accepted a position as a contracting Pathologist with Mayne Health. Interestingly, this contract provides in cl 7, Termination, that Dr Windrum may terminate the agreement at any time by providing three months notice to the company.
Issues
19 Mr P Coleman of counsel, who appeared for Dr Windrum submitted that there were two major issues to be determined in this case. First, did Dr Windrum engage in conduct which would justify summary termination, without notice? Mr Coleman conceded that although not finally determinative of a claim for notice under s 106 of the Act, if there was justification for summary termination at common law, then that would impact upon the fairness question in relation to the failure to provide notice. Counsel observed, however, that a failure to provide procedural and substantive unfairness and to have a sound reason for termination, created additional unfairness at termination. In my opinion, for the reasons which I state later, I have reached the conclusion that the applicant did engage in conduct warranting summary dismissal.
20 The second issue raised by Mr Coleman is did Dr Windrum ask to have a replacement found and express an intention to stand aside from his role as Supervising Pathologist in 2004. In my opinion, this question should be answered in the affirmative. The result is therefore that the application should be dismissed.
21 It is more convenient to commence by dealing with the second issue as it enables the circumstances which led to Dr Windrum's termination to be seen in its proper perspective.
Did Dr Windrum consent to a variation to his Contract?
22 The respondents' case is that in recruiting a replacement supervising pathologist for Dr Windrum and reducing his hours, it was simply fulfilling Dr Windrum's requests, which amounted to a consent variation to the contract. The applicants submit that there is no evidence of any agreement in respect of a variation to the contract.
23 In January 2003, Dr Windrum had a heart attack. At this time, he was 76 years of age. The evidence is that over the next 18 months he started to inform employees of Matrix that he desired to reduce his working hours and "slow down". He readily accepted that if Matrix was prepared to accommodate him in this regard, that he could no longer be its supervising pathologist. I can readily understand, taking into account, Dr Windrum's age and his health, that this would have been an unsurprising decision.
24 The evidence leading to what I find to be a consent variation to Dr Windrum's contract was that on or about early June 2004, Ms Pohlner (the former General Manager) had a conversation with Dr Windrum. Her affidavit evidence was:
Dr Windrum: I am at a point where I want to start slowing down. I want to reduce my workload and I would like to do so by Christmas. I thought it best to tell you this now so that you can get another pathologist, and because there will be a number of the staff away at Christmas for which I will not be able to cover.
Ms Pohlner: Thank you for telling me this. I will inform Peter. You obviously appreciate how difficult it is to recruit doctors suitably qualified to be a supervising pathologist. You do realise that if you reduce your work hours you will no longer be able to fulfil the role of supervising pathologist, don't you?
Dr Windrum Of course I do, I am willing to assist you in recruiting another pathologist. I know a lot of people in the industry and I have somebody in mind already.
Ms Pohlner: That's great. I will start making arrangements.
25 Ms Pohlner immediately informed Mr Court of this conversation and he instructed her to attend to recruiting another pathologist in light of what Dr Windrum had said. On or about early to mid June 2004, Dr Windrum and Ms Pohlner met with Mr Chris Wallace from Wavelength Consulting to discuss the possibility of sourcing another pathologist to take over from Dr Windrum and to cover the Christmas period. Due to the difficulties faced recruiting suitably qualified pathologists to fulfil the role of supervising pathologist, Mr Wallace's advice was sought on recruiting a pathologist from overseas. Ms Pohlner continued to liaise in written correspondence following the meeting with Mr Wallace. She annexed a copy of her letter to Mr Wallace dated 17 July 2004. The minutes of a management meeting of the respondent held on 2 July 2007 and attended by Ms Pohlner, Ms Harris, Mrs Townsend and Dr Windrum record that Ms Pohlner advised investigations have been ongoing into the possibility of employing another pathologist and that Dr Windrum and herself had had a meeting with an external consultant regarding the possibility of recruiting a pathologist from overseas.
26 On 9 July 2004, Mr Wallace forwarded an email to Ms Pohlner advising that he had had a chat with the Australian Salaried Medical Officers' Federation about salaries. He set out the salaries for a first year pathologist and a pathologist with seven years experience.
27 On 18 September 2004, Ms Pohlner placed an advertisement in the Sydney Morning Herald seeking a pathologist. Only three replies were received. All applicants were overseas trained doctors with minimum experience and did not meet their requirements. Ms Pohlner discussed this problem with Dr Windrum. The minutes of the management meeting of 24 September 2004 record that Ms Pohlner and Dr Windrum had a meeting with external consultants regarding the possibility of employing a pathologist from another country. The minutes also record that an advertisement was placed in the Sydney Morning Herald to which three replies were received, but none were suitable.
28 On or about 21 September 2004, Mr Court forwarded Ms Pohlner a copy of a letter he had received from Dr Windrum of the same date. In this letter, Dr Windrum advised that his remuneration review was due at the end of September 2004. He set out some figures comparing the first eight calendar months of 2003 and 2004, which showed an 11 per cent increase in patients from 32,639 in 2003 to 35,637 in 2004. Dr Windrum proposed that as his workload had increased from 19,025 patients to 25,068, an increase in workload of 32 per cent for the previous eight months. He proposed that a 15 per cent increase in remuneration was warranted.
29 Ms Pohlner's evidence was that she was shocked at the contents of the letter following the events of June and July 2004, particularly her attempts to recruit a pathologist to succeed Dr Windrum. Mr Court instructed Ms Pohlner to arrange a meeting with Dr Windrum to discuss the contents of the letter. A meeting occurred on 14 October 2004. Mr Court and Ms Pohlner's recollection of what occurred at this meeting is in conflict with that of Dr Windrum.
30 Dr Windrum's evidence is that Ms Pohlner said to him: "We want you to begin working a set number of days each week", to which he responded as the supervising pathologist he had to be available on a fulltime basis. Dr Windrum's evidence is that Mr Court then said "We will continue on as we have been. We will pay you $20 per case plus $1 for every case you supervise. We are currently trying to build up the business with a view to selling it. Do you still intend to continue working to the age of 80? We need to know so we can make plans to build up the business."
31 Dr Windrum says that he responded to Mr Court by saying that he intended to continue with his current workload until he turned 80 and that if they wanted to build up the business then they might want to consider finding another pathologist to cope with any increased workload.
32 Ms Pohlner's evidence of her recollection of the meeting was that she advised Dr Windrum that Matrix had been looking for a few months to recruit someone to take over as supervising pathologist because he had advised Matrix that he wanted to "slow down". She observed that he had been assisting her and that he now wanted a fee increase based on an increased workload. She observed that this did not make sense.
33 Ms Pohlner says that Dr Windrum confirmed that he wanted to slow down but he wanted to be paid appropriately. He observed that it was now October and Matrix had not been able to engage another pathologist. Ms Pohlner advised Dr Windrum that she would continue to recruit another pathologist but it was not easy, to which Dr Windrum replied: "I don't really care about your problems." If Matrix was not prepared to pay him appropriately, he said he may just have to take leave over Christmas like the other pathologists and then see how they coped.
34 In November 2004, Ms Pohlner says Dr Windrum complained to her that not enough was being done to recruit a new pathologist to cover the Christmas period and relieve his workload. She says that she told Dr Windrum she was trying hard to get somebody suitable and that he knew how hard it was to find a suitable pathologist. Dr Windrum denies this conversation.
35 In late 2004, Dr Windrum says that he advised Ms Pohlner that she should contact a colleague of his, Dr Chris Douglas, to cover the Christmas period. Ms Pohlner agrees that this discussion took place.
36 The minutes of the management meeting of 7 December 2004 record that Ms Pohlner and Mr Court had approached Dr Douglas. However, if he was engaged it would have meant that slides would have had to be sent off-site. Dr Windrum and Messrs Harris and Townsend all expressed the view that this had not worked on a previous occasion. The minutes also record that discussion then took place in respect of approaching Dr Simon Clark to cover the Christmas period.
37 In December 2004, Matrix engaged the services of Dr Simon Clark as a locum to cover the Christmas period, with a view to contracting him on a full-time basis as supervising pathologist so that Dr Windrum could reduce his workload.
38 Mr Court contacted Dr Windrum and advised him that Dr Clark had been engaged to cover the Christmas period and to take over the supervising pathologist's position to enable him to reduce his workload. Mr Court said he informed Dr Windrum that he could "relax about it all now". Dr Windrum denies this conversation. Mr Court's evidence is that when he advised Dr Windrum of Dr Clark's engagement, Dr Windrum said:
"That's no good. The last time he was here, there was a lot of complaints and he did not do the job properly. We don't need him anyway, I can handle the workload over the Christmas period."
39 This conversation, apart from the reference to complaints is also denied by Dr Windrum. Mr Court says that he responded to Dr Windrum by advising him that only one minor issue with Dr Clark was ever brought to his attention by any staff member or by Dr Windrum when Dr Clark last worked for Matrix. This is denied by Dr Windrum. Mr Court also advised Dr Windrum that he had spoken to Ms Pohlner and they were both satisfied that Dr Clark was more than qualified to do the work. Mr Court's evidence is that he then said to Dr Windrum: "The reason we got him is because you have been on my back for months to get someone to cover the Christmas period." This is denied by Dr Windrum. Mr Court then advised Dr Windrum that he was not cancelling Dr Clark's contract now and that Dr Windrum couldn't change his mind like that.
40 Mr Court then spoke to Ms Pohlner and asked whether any complaints were recorded against Dr Clark when he had previously worked with Matrix. This conversation is confirmed by Ms Pohlner who says that she informed Mr Court that she did not recall any, but that she would check and get back to him. Ms Pohlner's evidence is that she checked the records held by Matrix and could not find any complaint/s recorded against Dr Clark. She thought that Mr Court may have an issue in respect of Dr Clark's credentials and so she contacted Dr Clark's previous employer, Ms Margaret Stewart, the ex Chief Executive Officer of the Skin and Cancer Foundation, to obtain a verbal character reference for Dr Clark. She said Ms Stewart praised Dr Clark's character and professional performance. Ms Pohlner then passed this information on to Mr Court who told Mrs Pohlner to engage Dr Clark.
41 Dr Windrum then drove to Newcastle where both Mr Court and Ms Pohlner worked to further discuss his concerns with the recruitment of Dr Clark. At this meeting with Mr Court and Ms Pohlner, Dr Windrum said he did not know why Matrix would employ Dr Clark because there had been so many complaints after his last locum and Mr Court had said that he would never be employed again. He advised both of them that a Dr Fisher would now be available to work over the Christmas period as a locum. Ms Pohlner says that she was contacted by Dr Windrum on a number of occasions after he was advised that Dr Clark had been engaged as the locum. During these conversations, Ms Pohlner said Dr Windrum maintained his view that Dr Clark was not capable of doing the job and that there were complaints made about him. Dr Windrum continued to assert that he could cope with the extra workload and did not need any assistance.
42 Ms Pohlner's evidence is that she said to Dr Windrum that he was "back peddling" and had been hounding her for months to make sure she recruited someone before Christmas so he could reduce his workload. Dr Windrum does not recall this conversation. Dr Windrum agreed that he had said to Ms Pohlner that Dr Clark was not suitable but he denied saying he did not want to work with him. Mr Court's recollection of what occurred at the meeting in Newcastle is consistent with Ms Pohlner's recollection and I accept both their evidence in respect of what occurred at this meeting in preference to Dr Windrum's recollection.
43 In December 2004, Dr Windrum says that he contacted Dr Clark after the decision was made to engage him, and invited him to the laboratory to introduce him to the staff and to familiarise himself with Matrix's new procedures.
44 On 23 February 2005, Mr Court instructed Ms Pohlner to call a meeting of all staff at Matrix to inform them of the appointment of Dr Clark as the supervising pathologist and of the reduction in Dr Windrum's caseload. Dr Windrum attended this meeting. Prior to it, a meeting occurred between Dr Windrum, Mr Court and Ms Pohlner to discuss how the succession of Dr Windrum could be arranged to best suit all parties. At this meeting, Dr Windrum's evidence is that Ms Pohlner said: "Matrix wants to expand its business and as part of this process is taking on another pathologist, Dr Clark. Your workload will be reduced and Dr Clark will take over that workload. Dr Clark will also replace you as a supervising pathologist." Dr Windrum says that he asked why he was being replaced as supervising pathologist and what he had done and was advised by Mr Court that he would not be with Matrix forever and it had to make alternative plans. Dr Windrum says that Mr Court also said that they would have to replace him at some point and that pathologists were not easy to come by. Both Mr Court and Ms Pohlner dispute Dr Windrum's version of what occurred at these meetings. Mr Court's evidence is that he advised Dr Windrum that it would be necessary to discuss how Matrix would go about introducing Dr Clark as supervising pathologist and also reducing Dr Windrum's caseload.
45 Mr Court thought that it was best to involve Dr Windrum in these discussions so that the transition was as smooth as possible. Dr Windrum denies that this occurred. Mr Court's evidence is that Dr Windrum responded by saying that he did not want Dr Clark replacing him and that another pathologist was not needed. He would rather do everything himself rather than have Dr Clark in the laboratory. This aspect of the conversation is denied by Dr Windrum.
46 Mr Court's evidence is that he said:
"You told us that you wanted to work two or three days per week to reduce your workload. We told you and you agreed that it was necessary to appoint another supervising pathologist to allow you to do that because you will not be with us forever. You will have to leave us sooner or later, and we have to plan for this. You have known about this for six months and even assisted us in sourcing your successor. Now you are telling me that you do not want to reduce your workload and relinquish the supervising pathologist's role. It's too late Graham, we have already contracted with Dr Clark. You have go nobody to blame but yourself. We have tried to do everything right by you, even when you try to hold us to ransom. This decision was made by you some time ago and it's going ahead now."
47 Dr Windrum did not recall the first part of this conversation and denied the latter part of it.
48 Mr Court's evidence is that Dr Windrum responded by saying: "You can't do this to me because I'm old." Dr Windrum contends that he said to Dr Court: "I believe you are doing this because I am old." This is the only evidence in respect of Dr Windrum's age. It does not enable a finding to be made that the respondent discriminated against Dr Windrum because of his age. This issue did not appear to be seriously pressed by the applicants. Mr Court said to Dr Windrum that this had nothing to do with his age and it is what he had wanted for the past six months. He informed Dr Windrum that his new work plan would be effective from 23 May 2005. From that date, he would not be the supervising Pathologist and he would not be receiving an extra dollar for every case done by Matrix from that date. In addition, Mr Court advised Dr Windrum that Matrix would continue to pay him $20 for each case that he did, providing that he completed 250 cases per week. Dr Windrum accepts that Mr Court told him of the new arrangement but denies this is what he wanted. Ms Pohlner's evidence of what occurred at the meeting is consistent with that of Mr Court. I prefer the evidence of Mr Court and Ms Pohlner. The evidence of Dr Windrum that a business would take on an additional pathologist in the expectation of increasing their business is commercially fanciful.
49 On 24 February 2005, Ms Pohlner, on the instructions of Mr Court, forwarded a letter to Dr Windrum confirming the new arrangements. This letter was in the following terms:
As discussed with Peter Court yesterday, your workload will be reduced to around 250 cases per week effective 23/5/05. Until that date your position with Combined Pathology remains unchanged and, as Supervising Pathologist, you are expected to ensure that accurate results are available for reporting in a timely manner, oversee the work of the other pathologists in the laboratory and provide continuing education for scientific staff, medical practitioners and fellow pathologists who are employed or contracted by Matrix Healthcare.
It is our hope that you will continue to work with Combined Pathology in a less demanding role after the 23/5/05. We greatly appreciate your substantial contribution to the laboratory's success over the past few years and look forward to continuing the relationship. Whether or not this is possible is entirely up to you. We are prepared to be flexible with your working hours so that you can report all your cases on one or two days if that is a preferable arrangement.
Your remuneration will remain at $20.00 per case after 23/5/05 but you will not be paid the extra $1.00 per case you received as Supervising Pathologist.
We also expect that whilst you continue to be contracted by Matrix Healthcare your standard of conduct will at all times be in accordance with the highest ethical, moral and legal standards with respect to all dealings involving pathologists and staff of Combined Pathology, medical practitioners, staff and patients of the Australian Skin Cancer Clinics (or any other referring clinics) and with Matrix. Any attempt by you to solicit, interfere with or endeavour to entice away from Matrix any person who is an employee, contractor, patient or referring doctor of Matrix Healthcare, will be deemed a breach of contract and your contract will be terminated immediately.
50 Ms Pohlner states that after sending this letter to Dr Windrum, she received numerous complaints and concerns from staff at Matrix. Although she could not recall specifically who brought these complaints and concerns to her attention, her evidence was that the majority of the complaints were raised by Mrs Townsend and Ms Harris. These complaints were that Dr Windrum was regularly making sexist and offensive remarks to staff; that Dr Windrum was complaining to staff at the laboratory and unrelated parties visiting the laboratory that he had been "fired" by Matrix, thereby causing embarrassment to other staff members; that Dr Windrum was always criticising and acting in a derogatory manner towards Ms Pohlner and other Matrix management openly in front of staff at the laboratory; that Dr Windrum was leaving early and being unavailable for consultation when needed; that Dr Windrum was putting pressure on staff to start work early to fit in with his desired working hours and that Dr Windrum was failing to diligently report specimens and check reports properly prior to verification.
51 Many of these complaints are verified in a document prepared by Mrs Townsend, referred to later in these reasons titled "Feedback on Graham Windrum" which was prepared on or about early April 2005. On 7 March 2005, Ms Pohlner, after orally raising concerns about Dr Windrum with Mr Court, forwarded a letter to Mr Court setting out her own complaints regarding Dr Windrum's behaviour. The letter was as follows:
I am writing to complain about the manner in which I have been treated by Dr Graham Windrum since my appointment as General Manager in February 2004.
From the beginning Graham has sought to undermine my authority with the senior staff members of Combined Pathology, although he was usually pleasant to me in person. His lack of respect for me and my position initially made it difficult for me to build effective relationships with Linda and Lynne Townsend. At the time I was confused about their negative attitude towards me, but as I gained their confidence they revealed that Graham had tried to turn them against me.
It was after you spoke to Graham in February regarding the changes to his case load that Graham revealed his true colours to me. He asked to speak to me privately and proceeded to call me a cheat and a liar. He suggested that I had schemed to turn the directors against him and was bringing Simon Clark on board purely to save money. His attack was very personal and he was not prepared to listen to anything I had to say in my own defense. I was very hurt by what he said, particularly his accusations that I was lying and had finally got what I wanted, which was to get rid of him, as this is completely untrue.
I have always treated Graham with the utmost respect and have always been honest and transparent in my dealings with him. To learn from colleagues that he has been very derogatory, defamatory and sexist in his discussions about me is harmful and distressing. This, and his attempts to discredit me by telling you (and no doubt others) that I was sacked by Gribbles Pathology (a blatant lie), has made it very difficult for me to interact with Graham in any effective way. I have continued to be civil and polite but he has totally ignored me in recent meetings.
Graham's attitude towards me is making it impossible for me to function properly as General Manager at Combined Pathology. His complete lack of respect and open hostility towards me is creating disharmony in the laboratory We cannot continue to work like this and expect the business to move forward.
52 Mr Court's evidence is that the terms proposed in the letter of 24 February 2005 were in accordance with Dr Windrum's requests. Mr Court's evidence is that throughout 2004, and prior to receiving the letter from Ms Pohlner dated 7 March 2005, he had cause to contact Dr Windrum on a number of occasions to discuss the problems that other staff had with his behaviour and his performance. His evidence was that he informed Dr Windrum that he had been receiving complaints from a number of staff, all raising the same concerns. Dr Windrum's response was that the staff were teaming up to get him out and they were liars. Dr Windrum asked Mr Court if he trusted him and his evidence is that he said:
"I trust you Graham, however I trust them as well. The point is that this quite a regular occurrence. They are complaining that you are racist towards other staff members, that you make sexist and offensive comments around female staff to the point where they cry, that you openly complain about Suzanne and myself, that you undermine the reputations of the other pathologists so as to make yourself look superior, and that you blame everybody else for the mistakes you make. This is damaging staff morale and driving them away. What also concerns me is that you are arriving to the lab extremely early and leaving it unsupervised when you leave by lunch time. This is driving the staff made because they often have to get to the lab before 5 am, and means that you are not fulfilling your role as Supervising Pathologist. You know what is expected of you, you have the Statement of Duties and the NPAAC requirements. I must warn you that this can not continue. This is an official warning. If you continue to behave inappropriately and fail to fulfil your duties we will have to terminate the contract."
53 Dr Windrum rejects that any of these matters were ever raised with him by Mr Court. I prefer the evidence of Mr Court on this issue.
54 Mr Court said that he attempted to balance the complaints the staff had regarding Dr Windrum with the need to have the Matrix laboratory operating efficiently and co-operatively. This became increasingly difficult as complaints continued to be made. After the meeting on 23 February 2005, Mr Court says regular concerns were brought to his attention by a number of staff regarding the professional standards of Dr Windrum's work and his behaviour in the laboratory. The majority of the concerns were raised by Ms Pohlner, Mrs Townsend and Ms Harris and related to Dr Windrum regularly making disparaging remarks about Mr Court and Ms Pohlner and other staff involved in the management of Matrix. Mr Court said after receiving the document titled "Feedback on Graham Windrum" from Mrs Townsend and other complaints, he continued to bring these to the attention of Dr Windrum, advising that he could not continue to keep warning Dr Windrum about these matters. Dr Windrum's response was that none of what was being said was true. The document prepared by Mrs Townsend relevantly provided:
▫ issues with bad taste, sexist, racist and other offensive jokes/comments around staff - on one occasion reducing a staff member to tears
▫ issues regarding not properly checking reports prior to verification
▫ issues regarding incorrect dictation - different dictation in micro to conclusion, would very rarely admit to it being his mistake - always the typist's mistake
▫ issues regarding rude, angry and unfair treatment of staff member in relation to computer issues, phone calls at unreasonable hour whilst staff member at home and interstate because of computer issues at lab and rude and angry response when staff member tried to assist - he didn't like to have his "work" delayed at all but once finished was quite happy to delay others
▫ putting ever increasing pressure on staff by arriving at lab earlier and earlier and constantly putting pressure on admin staff to start earlier to fit in with his desired working hours
▫ leaving lab usually by midday at latest meaning not available when clinic doctors ring wanting clarification or extra information on patient reports
▫ at time of his apparent "salary negotiations" around August 2004 was very bitter, angry and took this out on staff by being short tempered, uncommunicative, rude, sarcastic - constantly making derogatory comments about management
▫ staff were generally concerned that he wasn't taking due diligence with his reporting
▫ from the time of appointment of Suzanne Pohlner he constantly criticised her, belittled her ability, suggested she was incompetent, wouldn't refer to her by name, was always derogatory when referring to her
▫ complained that Suzanne Pohlner and Peter Court were not doing enough to actively find another pathologist
▫ commented that he had been told by a 'source' that Suzanne Pohlner had been "fired" from her position at Gribbles as was not respected by people in that company
▫ once made aware that Simon was being hired would tell everyone visiting the lab, including the TNT courier, that he had been "fired" causing embarrassment to staff
▫ when asked by the NATA assessor whether anything had changed in the lab since our earlier submission Linda Harris and Lynne Townsend replied that nothing had but Graham Windrum responded that that was not true because he had been 'fired', again causing an awkward situation for staff
▫ staff having to field enquiries from clinic staff wanting to know if it was true that he had been fired because he had earlier told them that or told their doctors that (balance of document not part of the tender)
55 Each of the respondents' witnesses were subject to vigorous cross-examination in respect of their evidence that Dr Windrum wished to reduce his workload. Ms Harris, the Laboratory Manager at the time, gave evidence that from mid 2004, Dr Windrum would regularly say to her that he was unable to take any leave because there are no other pathologists available to cover for him. This is denied by Dr Windrum. In or about late 2004, Ms Harris said that Dr Windrum said to her that he wanted Matrix to recruit another pathologist because he wanted to work less hours and to take more leave. He also referred to the need to cover the absence, over the Christmas period of a number of pathologists practicing at the laboratory who were going on leave. Ms Harris was cross-examined regarding this evidence and forthrightly maintained that Dr Windrum had said to her that he wanted to work less hours. The proposition that he had not said this to her was repeatedly put to her and she consistently confirmed that Dr Windrum had informed her on or about mid to late 2004 that he wished to work less hours. I accept Ms Harris' evidence on this issue.
56 Mrs Lynne Townsend, the office manager of the respondent, at the relevant time, gave evidence that from about mid 2004, Dr Windrum said to her on a number of occasions that he wanted Matrix to recruit another pathologist because he wanted to work less hours. Her evidence was that the requirement for Dr Windrum to vacate his position as supervising pathologist if he were to work fewer hours was raised in management meetings at the laboratory in late 2004. The meetings which were attended by Dr Windrum, Ms Pohlner, Ms Harris and Mrs Townsend on 2 July 2004, 24 September 2004 and 7 December 2004 all record that investigations had been ongoing into the possibility of employing another pathologist. Mrs Townsend's evidence is that the recruitment of Dr Clark, who had worked as a locum in 2002, to fulfil the request made by Dr Windrum of working less hours and also to assume the role of supervising pathologist was also discussed in these meetings. Mrs Townsend did not recall Dr Windrum objecting to any of the proposals or resolutions made in those meetings. Her evidence was Dr Windrum would regularly make comments to her throughout late 2004 that:
"they've done nothing to get another pathologist. What is that woman doing to get another pathologist? I still haven't heard anything about what they are doing to get another pathologist."