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Federal Court of Australia |
Last Updated: 26 August 2020
FEDERAL COURT OF AUSTRALIA
Rudakova v Congregation of Religious Sisters of Charity of Australia trading as St Vincent’s Private Hospital, Sydney [2020] FCA 1222
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Appeal from:
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Rudakova v The Congregation of Religious
Sisters of Charity of Australia trading as St Vincent's Private Hospital, Sydney
[2019] FCCA 3717
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File number:
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Judge:
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Date of judgment:
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Catchwords:
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INDUSTRIAL LAW – exercise of a
workplace right to make a complaint against employer – employee dismissed
– separateness of decision-making
processes to investigate complaint and
reasons for termination
INDUSTRIAL LAW – adverse action – reason for acting not a prohibited reason – employer discharges reverse onus |
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Legislation:
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Cases cited:
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Berkeley Challenge Pty Ltd v United Voice
[2020] FCAFC 113
Board of Bendigo Regional Institute of Technical and Further Education v
Barclay [2012] HCA 32, (2012) 248 CLR 500
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833,
(2001) 117 FCR 424
Commissioner of Taxation v Scone Race Club Ltd [2019] FCAFC 225,
(2019) 374 ALR 189
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson
Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273
Construction, Forestry, Mining and Energy Union v Personnel Contracting
Pty Ltd [2020] FCAFC 122
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR
192
General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR
235
Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW
Police Force) [2020] NSWCA 160
James Cook University v Ridd [2020] FCAFC 123
Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3
NASB v Minister for Immigration and Multicultural and Indigenous
Affairs [2004] FCAFC 24
Nichia Corporation v Arrow Electronics Australia Pty Ltd [2019]
FCAFC 2
Psychology Board of Australia v Mair [2010] VSC 628
Robinson Helicopter Company Inc v McDermott [2016] HCA 22, (2016)
331 ALR 550
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
VUAX v Minister for Immigration and Multicultural and Indigenous
Affairs [2004] FCAFC 158
Whittaker v Child Support Registrar [2010] FCAFC 112
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Date of last submissions:
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4 August 2020
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Registry:
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New South Wales
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Division:
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Fair Work Division
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National Practice Area:
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Employment and Industrial Relations
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Category:
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Catchwords
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Number of paragraphs:
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Counsel for the Respondent:
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Ms E Raper SC with Mr A Flecknoe-Brown
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Solicitor for the Respondent:
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MinterEllison
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ORDERS
BY CONSENT, THE COURT ORDERS THAT:
AND THE
COURT ORDERS THAT:
FLICK J:
The termination decision
The decision to terminate the services of Dr Rudakova was made by the then Chief Executive Officer of the Hospital, Mr Robert Cusack. The letter of termination signed by Mr Cusack extensively canvasses the factual background and detail of these complaints. The letter concludes:
In consideration of matters pertaining to the allegations as set out above, SVPHS has found the allegations to be substantiated and determined that you have:
3. breached the expectations set out in (Allegation/Complaint 1):
7. breached the expectations set out in (Allegation/Complaint 2):
The Federal Circuit Court, again in very summary form, rejected the argument advanced on behalf of Dr Rudakova that a reason for the making of the decision to terminate her services was the fact that Dr Rudakova had exercised her “workplace right” to make a complaint. In doing so, the Federal Circuit Court accepted the evidence of Mr Cusack that the letter of termination set forth the reasons for his decision and, more specifically, Mr Cusack’s evidence that the exercise of the workplace right and the complaints made by Dr Rudakova had played no part in his decision-making processes: [2019] FCCA 3717 at [297]- [298].
The Grounds of Appeal
As expressed in her written Outline of Submissions, the contention is:
... that the patent objective lack of seriousness of the Complaints made against her – accepting for the present purpose that the Complaints have been upheld and it is not open in these proceedings to contend that they should not have been upheld - as matters to be treated as grounds to dismiss her from employment, was such as to cast doubt on whether SVPH’s genuine, or sole genuine, reason for dismissing her was that the Complaints had been upheld.
Contraventions of the Fair Work Act
Division 3 – Workplace rights
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
(emphasis in original).
The “workplace right” relied upon by Dr Rudakova was the right to make a complaint or to raise what were referred to as “grievances”, as provided for in s 341(1)(c) of the Fair Work Act.
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
And s 361 imposes what has been described as a “reverse onus”. That section provides as follows:
Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
[27] In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.
The reasons & findings of the primary Judge
[100] ... the central question for the court is “why was the adverse action taken?” (Barclay at [5] and [44] per French CJ and Crennan J). The actual operative reasons of the decision-maker (in this case Mr Cusack) at the time of the adverse action (the termination of Dr Rudakova’s employment) are the focus of the inquiry (see Barclay at [101] and [127] per Gummow and Hayne JJ and at [140] and [146] per Heydon J and [Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243] at [7] and [19] per French CJ and Kiefel J and at [85] per Gageler J). As French CJ and Kiefel J pointed out in BHP Coal at [7], “the enquiry involves a search for the reasoning actually employed by the [decision maker]” (and see Barclay at [146]). The court is concerned to determine “the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reasons had subconsciously influenced the decision-maker. Nor should such an inquiry be made” (see State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32] describing the principles that emerge from Barclay and BHP Coal). This requires an inquiry into the mental processes of the decision-maker.
No challenge is made on appeal to this exposition of the “Legal Principles”.
[159] Mr Cusack acknowledged that he was aware of the grievance. His evidence was that he did not take it into account in deciding to terminate Dr Rudakova’s employment as it was not relevant to the reasons for the dismissal and also that he had disregarded it in accordance with Ms Taoro’s advice in the meeting of 10 July 2017. His evidence in this respect is considered further below.
...
[172] Mr Cusack’s evidence is that he did not take Dr Rudakova’s criticism of the investigation of her grievance into account in deciding to terminate her employment, because it related to entirely different issues and was not relevant to his decision. He maintained this evidence in cross-examination. He also referred to following Ms Taoro’s advice not to take into account any complaints Dr Rudakova had made in relation to her employment, but to limit his consideration to the allegations in the show cause letter and the information sent to him by HR.
...
[215] Ms Taoro attested in cross-examination that she wanted to distinguish Dr Rudakova’s allegation about bullying (the grievance) and to educate Mr Cusack that his decision should not be influenced by Dr Rudakova’s workplace right to make the original bullying complaint.
[216] Mr Cusack’s evidence was that he understood the guidance Ms Taoro had provided to him and that he made his decision to terminate Dr Rudakova’s employment consistent with this guidance. In cross-examination he confirmed that he acted in accordance with this advice.
...
Mr Cusack’s Evidence about his Reasons
[230] In his affidavit evidence Mr Cusack stated:
I decided to terminate Dr Rudakova’s employment for the reasons set out in the termination letter [of 27 July 2017]. In particular:
a. I was very concerned about her conduct in relation to the [Dr B] Complaint, as her failure to follow instructions and observe appropriate professional boundaries presented a serious clinical risk to patients and their care, particularly for vulnerable patients and may have resulted in a disastrous outcome for the patient and her family. Because of this risk, I took the view that it was not possible for Dr Rudakova to continue to be employed at the Hospital;
b. Dr Rudakova’s conduct in relation to the Confidentiality [Dr A] Complaint was, in my view, not as serious as the [Dr B] Complaint, however, it showed a pattern of behaviour by Dr Rudakova where she failed to follow instructions, which, again, is critical in a clinical setting; and
c. Following my conversation with Associate Professor Scott, I was very concerned that Dr Rudakova had previously been counselled about her behaviour and it had not been improved and on each occasion, these complaints had been raised with Dr Rudakova, but she continued to overstep professional boundaries.
The primary Judge then set out a summary of some of the evidence of Dr Rudakova, including the “grievance” she had previously expressed and continued:
[232] Mr Cusack’s evidence was that he did not take into account any of these matters in his decision to terminate Dr Rudakova’s employment because he was either not aware of such matters (as was the case in relation to the alleged grievance of 30 April 2017) or because those matters related to entirely different issues and were not relevant to his decision.
The primary Judge concluded:
[296] On all the evidence, I am satisfied that the Hospital has established on the balance of probabilities that the fact that Dr Rudakova had raised her grievance played no operative part in the mind of Mr Cusack when he terminated her employment. Rather, I accept that Mr Cusack’s considered view was that Dr Rudakova had engaged in conduct that amounted to serious misconduct and, as explained in the termination letter and in his direct evidence, that this was the reason he terminated her employment.
[297] Dr Rudakova was a first year medical intern who was still on probation at the time her employment was terminated. Her conduct, within a very short period of the start of her internship, had been found by her superiors to reveal performance difficulties, to have placed a patient at clinical risk and to involve overstepping appropriate professional boundaries. This may well have raised an issue as to whether Dr Rudakova was either incapable, due to lack of insight, or unwilling, to follow directions, to accept feedback or to learn from her mistakes, as counsel for the Hospital suggested. Whether or not that is so, I accept Mr Cusack’s direct evidence in relation to his reasons for terminating the employment of Dr Rudakova. I am satisfied that it has been established that Dr Rudakova’s grievance was not an operative reason for Mr Cusack’s decision on behalf of the Hospital to take adverse action against her.
[298] The only claim in these proceedings is a claim of a contravention of the general protections provisions of the Act. The evidence before the court is such that I am comfortably satisfied by the Hospital that the termination of Dr Rudakova’s employment was not for a prohibited reason and that the substantive and operative reasons of the decision-maker did not include the fact of the Applicant exercising a workplace right in making a complaint in relation to her employment.
[299] It has not been established that the Hospital contravened s.340 of the Act. Hence it is unnecessary to determine whether, had there been a contravention, Dr Rudakova would have been entitled to the relief sought.
The formidable task confronting the Appellant
[2020] HCATrans 95) 
(as cited: James Cook
University v Ridd [2020] FCAFC 123 at [142] per Griffiths and SC
Derrington JJ).[2] ...It is not open to this court to determine issues of fact, as if the findings of the learned trial judge had not been made. While this appeal is an appeal by way of rehearing, the court’s function is to correct errors in the decision below. It is necessary for an appellant to identify putative errors and to articulate the basis on which it is said that error has occurred. This is particularly important where the findings of the learned trial judge depend upon his Honour’s view of the credibility of witnesses. The appellants’ arguments do not recognize, much less seek to overcome, the constraints within which a challenge to findings on credibility in an appeal by way of rehearing must be decided...
(citation omitted).
Also in Nichia Corporation v Arrow Electronics Australia Pty Ltd [2019] FCAFC 2 at [124], Jagot J expressed concurrence with the observation there made that it “is not open to this court to determine issues of fact, as if the findings of the learned trial judge had not been made”. Besanko and Nicholas JJ agreed with Jagot J. An appeal, accordingly, does not proceed “without regard to the findings made in the court below”: Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [73] per North, Barker and Katzmann JJ. See also Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192 at 208-210 per Windeyer J.
[43] ... A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”....
(citations omitted).
See also: Berkeley Challenge Pty Ltd v United Voice [2020] FCAFC 113 at [29] per Rares J (agreeing with Collier and Rangiah JJ); Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) [2020] NSWCA 160 at [66] per Bathurst CJ, Bell P and Macfarlan JA.
A further difficulty – a different case on appeal
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
Leave, however, to raise a new argument may be granted where it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel J (as her Honour then was), Weinberg and Stone JJ. It is thus well recognised that it “is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7. Gibbs CJ, Wilson, Brennan and Dawson JJ went on to further observe that if “it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish”.
[10] Dr Rudakova’s Points of Claim did not clearly allege that the Hospital dismissed her for a reason that would constitute a contravention of s.340 of the Act. However, as understood by the Hospital in pre-hearing submissions and as confirmed by counsel for Dr Rudakova during the hearing, her contention in these proceedings is that her employment was terminated because she exercised a workplace right by making a complaint in relation to her employment in a letter of 27 May 2017 sent to Professor Abdullah Omari, Head of Vascular Medicine and senior staff specialist who was also the Director of Prevocational Education and Training at the Hospital (the DPET). In that letter (the grievance) Dr Rudakova alleged that she was bullied by her medical supervisor and a hospital staff member at a meeting of 25 May 2017. She also complained about perceived shortcomings in her training and the support provided to her.
On the above basis, the Appellant will contend that the Grievance letter of 27 May 2017 was the formal raising of a grievance but that the above earlier communications of 30 April and 21 May 2017 formed part of the relevant exercise of a workplace right, so that the issue of whether Rudakova’s employment was terminated, as it was on 21 July 2017, for the reasons that she exercised a workplace right should be decided on the basis that such exercise had commenced on 30 April 2017 and comprised a series of complaints leading to the Grievance letter on 27 May 2017. (Reasons para [127])
The reference to para [127] is self-evidently a reference to para [127] of the reasons for decision of the primary Judge. That paragraph, together with the following paragraph state as follows:
[127] Insofar as Dr Rudakova asserted that the “process” of complaints by her began in April 2017 with an email complaint of 30 April 2017 to Dr Omari, in her witness statement Dr Rudakova stated that this email was “not to hand”. When asked at the hearing about the correctness of this statement, she claimed that she had sent a copy to her counsel. In cross-examination she explained that she did not have a copy of that document with her, but suggested that she could “pull it up on her phone”. Her counsel advised the court that he did not have it to hand. He did not tender any such document, but nonetheless sought to rely on Dr Rudakova’s evidence that she had emailed Dr Omari on 30 April 2017 raising concerns about “lack of training, insufficient supervision and lack of clarity regarding protocols during [her] Psychiatry rotation”.
[128] Accepting for present purposes that Dr Rudakova sent an email to Dr Omari on 30 April 2017, there is no evidence that such email was brought to the attention of Mr Cusack. I accept Mr Cusack’s unchallenged evidence that he did not recall Dr Rudakova making any such complaint and was not aware of any such complaint at the time he made the decision to terminate her employment. As I accept that Mr Cusack was not aware of any such complaint I am satisfied that he did not take it into account in his decision to terminate Dr Rudakova’s employment.
but before this Court, Counsel for Dr Rudakova seeks to contend that:
There are two incidences involving the insulin resistance/metabolic syndrome diagnosis and management protocol. My BPT colleague was surprised to hear that the endocrinology team is not involved in educating or supervising the intern in how to deliver this difficult diagnosis to the patient. I also believe the metabolic syndrome management protocol needs to be made clear for the clinicians and the psychiatry consultants. Especially as this matter concerns a regularly implemented protocol/procedure, I am wondering if this matter requires the RiskMan assessment by the hospital?
The other matter is my skills of communicating patient treatment information to a senior clinicians and inadvertently making the clinician feel as if I am challenging their expertise/authority. The BPT colleague suggested that there is something called “graded assertiveness training” that I could benefit from.
There may be some uncertainty, at least to a lawyer rather than a medical practitioner, as to the “two incidences” being referred to. Counsel for Dr Rudakova asserted that this email refers to “general criticisms of Dr Rudakova’s communication skills and how she proposes that any deficiencies might be remedied by ‘graded assertiveness training’”. The 27 May 2017 letter refers to her taking issue with “Dr Biggs blaming everything on [her] ‘communication’”. But before the primary Judge, Dr Rudakova claimed that the 30 April 2017 email was directed to her psychiatry rotation ([2019] FCCA 3717 [19]), a rotation during which Dr Biggs was not her supervisor. It is concluded that the specific subject matter of this email formed no part of the complaint being made by Dr Rudakova on 27 May 2017.
With reference to this letter, submissions advanced on behalf of Dr Rudakova:
With reference to the 21 May 2017 Psychiatry letter, submissions made on behalf of Dr Rudakova:
Neither letter, with respect, can be characterised as a letter in which Dr Rudakova was simply “responding” to complaints made against her rather than letters in which Dr Rudakova was also seeking to raise complaints against the Hospital.
Individual Grounds of Appeal
Paragraph [172] moreover sets out the reasons advanced by Mr Cusack for his evidence that he had not taken into account the “grievances” raised by Dr Rudakova – namely:
As set out in his affidavit, Mr Cusack deposes to a conversation between himself and Ms Taoro on 10 July 2017 in which she said words to the following effect:
It is important that any decision you make about Dr Rudakova’s employment is not influenced by any other matter other than the matters outlined in the show cause letter, Dr Rudakova’s show cause reply, and all evidence I will send you today including the HR investigation. You cannot take into consideration Dr Rudakova’s complaints or any concerns or enquiries she has made in relation to her employment, including her grievance.
Mr Cusack’s affidavit goes on to state that he “made [his] decision consistent with this guidance”.
MR ROLLINSON: All right. I will go straight to it, Mr Cusack. Your real reason for - your real reasons, plural, on behalf of the hospital for dismissing Dr Rudakova, were, number 1 - a combination of these things. They were a combination of these things. Number 1 -you're upholding - agreeing with Ms Taro's conclusion in regard to the Bokey complaint and the Auyeung complaint. That's number 1. Number 2 - you're upholding - agreeing with three other complaints that Dr Scott had drawn to your attention. Number 2. And number 3 - your decision that, all things considered, it was best for the hospital to be rid of this intern who had unhelpfully raised a baseless grievance?––Look, I don't accept that last comment at all. The situation was, there had been a very serious patient complaint raised. I dealt with that on it - on its own. It was separate to the other matters. It could have had very dire outcomes for the patient involved. We went through due process to find out what the reasons, you know, to - Dr Rudakova was given her opportunity to respond. She claims it didn't happen, and so it was necessary to - to look at other matters, including other complaints that may have - that occurred during that time, which demonstrated there was, you know, similar sorts of issues that had occurred. I might say the - the letter from Dr McDonald was also pretty important as well. Like, do you mind if I go to that? Am I allowed to do that?
We’ve already- I’ve asked you some questions about Dr McDonald’s letter, but ...?––Well, I- I’m making it clear that the issues about the grievance are - are matters that were over that, weren’t taken into account in relation to investigation of the patient complaint matter.
Right?––So - so issues related to other patient complaints most definitely were, and issues about overstepping professional boundaries were taken into account. Because they're – they’re the two critical issues that were at the forefront of my mind when making the decision.
Do you agree that this matter of overstepping professional boundaries was inextricably intertwined with her grievance that she - as she had formulated it, that she was not overstepping professional boundaries, but was simply attempting to do her job and was being unjustly criticised and bullied for doing it in the way that she had?––No, I don't accept that, because in the - in the psychiatric rotation, and I’m going back to Dr McDonald’s statements. So I think it would be helpful to refer to those if we can.
Well, in regard to Dr McDonald’s statements, you say that that’s another matter that was weighing on your mind when you made the termination decision?––-It was a- could I - could I just refer to the particular points that Dr McDonald raised?
All right. Well, we can go back to that page, which is at page ...?––It’s - I think
... 58. Thank you. Page 58 of your bundle?––Okay. At the bottom of that page it says:
But as time progressed I realised that Marianna seemed oblivious to the obvious hierarchal effect that she is the intern and I am the consultant. That is, she was uncomfortable with taking direction or advice. This seems to be - to me to be a significant problem for a young, inexperienced doctor.
Right. And then he gives two examples that are on page 59, of that, according to himself?––Sure. But – but it’s a general statement though. Dr Scott had indicated that she had spoken to Dr Rudakova about the issue about overstepping professional boundaries before in relation to those complaints that she had received.
Dr McDonald, it may be noted, was a consultant psychiatrist at the Hospital. He had emailed the Hospital in May 2017 about an incident when Dr Rudakova “became irritated” with his decision not to commence a particular drug which Dr Rudakova considered appropriate for a patient. Dr McDonald had raised his concerns about Dr Rudakova with Dr Scott. Mr Cusack had referred to this exchange in his letter of termination.
But to decide that there has been a pattern of overstepping professional boundaries, one has got to – they’re satisfied that the pattern, that is the other instances, actually exist and are not just allegations that are unproven. Do you agree?––What I had to do was, look to advice from people who were dealing with the matters at the time. So her professional and her senior professional colleagues.
And that’s what you did, you consider. Is that right? Well, just to be clear, what I’m suggesting is that, one of your reasons in ultimately deciding to issue the termination was also that you were mindful of her history, of her grievance with a capital G, grievances – plural, which had been found unsubstantiated, and you considered that it was in the best interest of the hospital to terminate her employment so that there would be no repetition of such raising of unjustified grievances?––I don’t accept that. What – the reason for her termination primarily was in relation to a very serious patient complaint which could have – could have had very poor outcomes for the patient and their family, and those sort of things can’t be ignored. It was a – it – it could have, you know, fortunately it wasn’t but it could have been a very serious matter. And so if that sort of pattern of behaviour, about overstepping professional boundaries, was happening despite counselling by a senior colleague – clinical colleagues at the time, that was a serious concern. That was – that was primarily what the decision was made by. The – the issue with Dr Yeung was more that – that was another example of not accepting a – a clear instruction. Not – not following a clear instruction.
It was a very venial sin though, wasn’t it, the Dr Auyeung matter? Do you agree?––It - it was. On its own it wasn’t - it wasn’t a major issue, but it - it fell into a pattern of not following a clear - clear - very clear instructions that had been given to Dr Rudakova.
Of present relevance is the fact that there is nothing in this exchange in cross-examination that would cast doubt upon the findings made by the primary Judge. The propositions being advanced by the cross-examiner as to the matters “inextricably intertwined” with the decision to terminate the services of Dr Rudakova were put to the decision-maker and rejected.
The judge erred in not deciding that the fact that Rudakova, by her email at 6.00 pm on 28 June 2017 to Cusack, and the copies of emails attached to it (between Rudakova and Ms Coleman on 25 June and 26 June 2017, and copy of Rudakova’s letter of 9 June 2017 to Ms Taoro), had further reminded Cusack of her Grievance – by which she complained inter alia of bullying behaviour by Dr Omari and Dr Biggs in relation to her Psychiatry and ENT rotations, and contrasted SVPH’s suspension of her from duty and threat to terminate her employment over its own complaints against her with the failure of SVPH to proceed in any similar way against those against whom she had complained; and this was a further reason to infer that Rudakova’s exercise of her workplace rights to complain (the Grievance) was an operative factor in Cusack’s decision to terminate her employment. (Reasons par 53, 171, 198, 199, 263 – 264)
Ground 22 also provides as follows:
The judge erred in not deciding that one of the operative reasons for the decision by Cusack was the desire to terminate the employment of an intern who had unhelpfully raised grievances against SVPH management, that is, exercised workplace rights to complain about her employment. (Reasons par 240 – 253, 255, 262 – 264)
The Grounds of Appeal are variously expressed in terms of the primary Judge having erred “in concluding” or “in deciding” particular matters (e.g., Grounds 9 and 11), and Grounds 16 and 22 are but instances where the error is expressed in terms of “not deciding...”. The various expressions are but means of seeking to undermine findings made with a view to ultimately seeking to impugn the ultimate findings as to what Mr Cusack did and did not take into account.
[198] It appears that Dr Rudakova was aware that Mr Cusack would have a decision-making role in relation to the complaints about her. She went to his office on 28 June 2017. That day she emailed Mr Cusack copies of her text messages with Dr Auyeung of 2 June 2017, her letter to HR of 14 June 2017, a copy of the Dr B complaint and part of Patient B’s hospital records. Later that day, after Mr Cusack advised her that in any decision-making he would carefully consider all the information, Dr Rudakova sent Mr Cusack an email as follows: Today you also mentioned that any [the Hospital] employee faced with allegations of serious nature would be put through the process that I am going through right now. I’d like to bring your attention for comparison to the attachment and below email thread in relation to my grievance of bullying. None of the parties that I have complained about went through the process of suspension or had the impact on their jobs or potentially (sic) careers and, I would argue that an allegation of bullying is just as grave, if not more, as those that I am faced with currently.
The primary Judge further refers to the email as follows:
[218] As described above, Mr Cusack had previously received other information about Dr Rudakova, including in relation to the grievance investigation and the material Dr Rudakova sent him on 28 June 2017.
And, as with other aspects of the evidence of Mr Cusack, the primary Judge accepts his evidence. In the absence of reason to question the findings of fact made by the primary Judge, this is but another example of the broader conclusion of the primary Judge that the evidence of Mr Cusack was to be accepted. That was a decision, at least initially, for the primary Judge. Whatever may have been the conclusion had important evidence not been adverted to in reasons for decision, the 28 June 2017 email was a matter taken into account by the primary Judge and findings of fact were made. The evidence of Dr Rudakova was taken into account, as was the evidence of Mr Cusack. Ultimately, the primary Judge had to weigh the evidence and the competing submissions. No appellable error is exposed in the approach of the primary Judge.
...
These Grounds present no reason to reach any different conclusion. Both the affidavit evidence of Mr Cusack, for example, and his evidence in cross-examination accept that the complaint made by Dr Auyeung was not “as serious” as the complaint made by Dr Bokey, but show that it assumed importance by reason of the complaint raising concerns as to Dr Rudakova “overstepping professional boundaries ...” or “not accepting... a clear instruction”. The evidence of Mr Cusack thus accepted his own weighing or assessment as to the comparative seriousness of the subject matter of the complaints made by Dr Bokey and Dr Auyeung. And no error is exposed in the primary Judge taking the considered approach of Mr Cusack into account when making the findings set forth in the reasons for decision.
Further evidence
[42] In order for this Court to receive further evidence, generally speaking ... it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: .... The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: ...
(citations omitted).
[261] Having regard to the temporal and limited factual connection between the grievance and the subsequent termination of Dr Rudakova’s employment I have given consideration to the “true motivations” of the decision-maker ..., although I note that the dismissal followed a HR investigation which was conducted after, and separate from, the finalised grievance investigation.
(citation omitted).
Even though this reasoning was but part of the reasoning of the primary Judge, and irrespective of the fact that Mr Cusack “was not aware of any such complaint” ([2019] FCCA 3717 at [128]), it nevertheless assumed some importance to the case being advanced on behalf of Dr Rudakova.
A patent objective lack of seriousness
The decision, moreover, follows:
Mr Cusack, it would appear, was a person well experienced in the management of large hospitals. He had occupied his position at St Vincent’s for a period of about ten years. Prior to this position, he was employed by the Prince of Wales Hospital as its General Manager. There was no error in Mr Cusack (inter alia) seeking “advice from people who were dealing” with Dr Rudakova at the time and people who were “her professional and her senior professional colleagues.”
CONCLUSIONS
BY CONSENT, THE COURT ORDERS THAT:
AND THE COURT ORDERS THAT:
Associate:
Dated: 26 August 2020
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