A Victorian hospital has been ordered to reinstate a doctor it sacked last year after he filed an unfair dismissal case claiming he was let go after drawing attention to a colleague who was allegedly taking business class flights to New York on behalf of a pharmaceutical company.
Dr Mark Colson of Geelong Hospital told the Fair Work Commission the hospital started investigating his billing procedures after he blew the whistle on his colleague.
He claimed the investigation then led to him being accused of false billing claims in March last year which ultimately led to his dismissal.
The hospital claimed Colson had made the false claims and then sent a disparaging letter to other hospital staff members after becoming enraged by what he said was an allegation of fraud.
The hospital argued its relationship with Colson had been “irreparably damaged” and it would be untenable for the anaesthetist to resume work at Geelong Hospital.
However, the Fair Work Commission found Colson’s dismissal was unfair and in a 51-page decision released this week Fair Work commissioner Julius Roe said the hospital must reinstate the doctor but did not have to pay him any compensation.
Colson was owed remuneration of over $236,179 but the commissioner found Colson’s misconduct has a “significant impact” for which he only belatedly apologised for.
Commissioner Roe said it had not been established in the Fair Work hearing that Colson had “knowingly and willingly” submitted claims for payment in breach of departmental billing guidelines and directives.
The commissioner found while the hospital said Colson’s communications with his manager and about his manager were inappropriate, the doctor had a history of this style of communication which the hospital had “tolerated and condoned” in the past.
“This is a significant factor in favour of a finding that the termination was unfair on the grounds that it was harsh and unreasonable to terminate Dr Colson in a situation where such behaviour had been tolerated without the provision of a clear warning that the behaviour would no longer be tolerated,” the commissioner said.
The Fair Work Commission also took into account “extensive evidence” about the clinical expertise and performance of Colson over 14 years at the hospital and the “significant impact” the sacking would have on Colson’s reputation and ability to find suitable employment in the Geelong area where he lives.
Barwon Health, the operator of the Geelong Hospital, said the decision was “surprising” but it respected the commission’s order and Colson would be back on its payroll immediately.
“The commissioner largely vindicates the approach taken by Barwon Health with regard to following proper process in managing the issue,” it said.
“We find the final directive to reinstate Colson surprising given the apparent support for our position and the clear criticism by the commissioner of Colson for his misconduct.”
The Geelong Advertiser reports the hospital’s cost of defending the case was in excess of $150,000. However, Barwon Health said the cost of defending Colson’s claim was covered by insurance.