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Barwon Health ordered to reinstate Dr Mark Colson

Senior Industrial Relations Adviser, Andrew Lewis, reports on the Fair Work Commission’s (FWC) decision regarding Dr Mark Colson, including AMA Victoria’s involvement and the decision’s implications for health services and our members.

The 11 February FWC Order that reinstated Dr Mark Colson to his former specialist anaesthetist position ended a train of events that began with Barwon Health’s 20 May 2012 summary dismissal of Dr Colson for serious misconduct. 

This FWC hearing and its outcomes have been in many ways unusual. The significant media coverage of both AMA Victoria’s industrial involvement and of the hearing itself is not typical of such cases. Additionally, the salary loss at stake is understood to be the highest to have been considered by the FWC, and the order to reinstate is unusual: compensation in lieu is a far more likely outcome in this jurisdiction. The decision is also the first to be published in summary form with the intention of facilitating public understanding of how FWC arrives at decisions.

The decision

Dr Colson has built a strong reputation as a highly skilled specialist anaesthetist during his 14 years with Barwon Health. However, the FWC found that as far back as 2007 there had been behavioural tensions between Dr Colson and his department’s management, and that for a number of months from late 2011, the method Dr Colson used to claim for his after hours work was regarded by Barwon Health as contrary to its direction and policy.

The issues came to a head when Dr Colson responded to management’s March 2012 allegations that he “may be knowingly and willingly submitting false claims” by writing to his colleagues in the department, using language that Barwon Health deemed to be “deliberately offensive, a genuine challenge to the authority of management…[and] designed to embarrass Barwon Health and damage its reputation.” These two issues resulted in Dr Colson’s 20 May summary termination.

In AMA Victoria’s view, Barwon Health avoided an opportunity to deal with the false claims issue as a standard industrial dispute under the AMA Certified Agreement and chose termination instead. Furthermore, Dr Colson had no warning he could be terminated and therefore had no opportunity to modify his behaviour for fear of serious consequence.

The FWC found that Dr Colson’s claiming conduct did not meet the standard required for summary dismissal for serous misconduct and therefore Barwon Health was in breach of its own policy and procedures, which require a system of warnings. The FWC found:

  • Allegations Dr Colson had made “false claims…[could] not be sustained…[and] did not constitute serious misconduct or provide a valid reason for termination.”
  • Although it was reasonable for Barwon Health to believe Dr Colson's after hours claim method was inconsistent with its policy, “it was not fanciful or fraudulent or directly inconsistent with policy.” The FWC therefore “could not accept” that Dr Colson's actions “were dishonest or in defiance of any policy directive.”

Regarding Dr Colson’s correspondence criticising management, the FWC found:

  • “The letter was written in anger, in response to an allegation which was subsequently not sustained, and circulated within the Department in a situation where there is a collegiate approach to the discussing of matters…[These] are factors which favour a finding that termination was a disproportionate response.”
  • Given that Dr Colson had a history of “inappropriate communication” and there had never been counselling requiring a change in behavioural style, “Barwon Health tolerated and condoned” Dr Colson’s interactions with management.

Activism supporting Dr Colson’s reinstatement

Dr Colson received critical support from the Barwon Health senior medical staff (SMS). After news of Dr Colson’s termination became widespread, and in the knowledge that an Unfair Dismissal Application had been lodged, the Barwon Health Senior Medical Staff Group (SMG) Executive convened a 27 June meeting of SMS. Around 110 SMS attended the meeting, with AMA Victoria attending by invitation. At that meeting we raised our concerns that there was a perceived lack of procedural fairness leading to the termination.

SMG rule limitations caused AMA Victoria to take the Chair mid-way through the three-hour meeting, which culminated in the SMS passing a motion expressing “full confidence” in Dr Colson, “no confidence” in Barwon Health’s handling of the issues and demanding Dr Colson’s reinstatement. On 15 August, AMA Victoria convened another meeting attended by around 65 SMS. On this occasion a motion was passed expressing “grave concern” about how Barwon Health had handled the matter, and asking that “considerable effort...be put into improving the relations between hospital administration and senior medical staff.”

AMA Victoria subsequently met with Barwon Health Senior Executive to discuss ways to rebuild relations with the SMS and what role we could play in the future to “circuit break” similar issues at an early stage.

Media reports

Apart from keen media interest covering the four days of FWC hearings, ABC TV News led one of its August bulletins with AMA Victoria’s correspondence to the Chief Executive Officer of Barwon Health about the 27 June SMS motion.

Lessons to be learned

Health services assess their risk profile nearly exclusively through the implications and liabilities resulting from adverse/sentinel events that occur during treatment of patients. This FWC decision starkly highlights the risks that accrue from managing medical staff in their capacity as employees rather than as clinicians.

The inadequacies of Barwon Health’s approach to decision-making, and its failure to address issues earlier rather than later, have had a variety of otherwise avoidable consequences. There was a disproportionate response to Dr Colson’s conduct, which impacted greatly on his financial, professional and personal situations. There was resulting discontent among the SMS for many months. Had the conduct been referred to, for example, Barwon Health’s medical review committee, or had the board been advised, process and governance would likely have deescalated matters and avoided the drastic decision to terminate. Instead, Barwon Health did not take the time or care to precisely define the problem and encourage reasonable adjustment through agreed pathways.

Any AMA Victoria member can take comfort from the fact that we have a full suite of services to provide them with advice, representation and pastoral care. AMA Victoria’s involvement in a workplace dispute at an early stage may help to avoid it escalating. Members should reflect that they are best served by seeking our advice so that they can make decisions in their own self-interest, as did Dr Colson, rather than calling on us as a last resort to resolve a crisis.

Conclusion

Dr Colson is an AMA Victoria member and as such we have provided ongoing advice and support, have coordinated an industrial response to support his interests and the interests of Barwon Health SMS, and have worked with Dr Colson’s legal team. We are thrilled that Dr Colson has been vindicated and will be able to return to work with his reputation and career restored.

The full text of the Fair Work Commission’s decision on the case can be found on the Commission’s website: www.fwc.gov.au/decisionssigned/html/2013fwc766.htm

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