Fidge v Queensland Health [2004] QIRC 135 (2004) 176 QGIG 639

13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 639 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – power to recover unpaid wages and superannuation contributions etc. Dr Julian Fidge AND Queensland Health (No. W114 of 2003) DEPUTY PRESIDENT SWAN 30 July 2004 DECISION This application is made by Dr Julian Fidge for the payment of alleged unpaid wages, unpaid superannuation contributions and interest. The employer is Queensland Health and the claim relates to a period when Dr Fidge was working at the Princess Alexandra Hospital (the Hospital). The alleged underpayments fall into the following categories (this claim was amended during the hearing with the consent of the respondent): (a) 35 hours at $20.16/hour equalling $705.60, being payments not made for attending compulsory Intern training and grand rounds each week; (b) 35 half-hours at $21.90/hour equalling $383.25, being payments not made for attending compulsory training at grand rounds each week; -- 1 of 5 -- 640 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 (c) 8 weeks of higher duties allowance being payments not made for higher duties performed in November and December 2001 and January 2002 equalling $3631.50; and (d) General medical training – 9½ hours during one year and 10½ hours in another year which equals $199.79. Overall, the total claim is for an amount of $4920.15. In essence, the claim has two limbs. In Dr Fidge’s statement, those claims are described as follows: “Non-payment for compulsory training conducted at lunchtimes or before work in post-graduate years 1 and 2”; and “Non-payment for higher duties I carried out at the direction of Dr Wakefield, the Deputy Director of Medical Services in the Division of Surgery, PAH.”. THE APPLICANT’S CLAIM GENERALLY Dr Fidge, whilst giving evidence, referred to a number of instances where he had been at odds with his employer relating to a range of issues during his employment at the Hospital. Dr Fidge believed that these issues should be raised to assist the Commission in understanding the motivation behind the employer in not recognising his claims. Those matters were ventilated by Dr Fidge and duly considered, where relevant, by the Commission. Further comment will be made on that issue at the conclusion of this decision. APPLICANT’S CLAIM – NON PAYMENT FOR COMPULSORY TRAINING Dr Fidge had a written direction from his employer to attend Intern training at the Hospital (p. 22 of Dr Fidge’s statement). Dr Fidge obeyed this direction. Dr Fidge stated that the employer had derived a direct benefit from the training, but was not prepared to pay employees to participate in such training. The training sessions were scheduled for one hour, twice weekly (in 2001) and employees would be paid for 30 minutes on each occasion (p. 24 of Dr Fidge’s statement). Lunch was provided by the employer at these sessions. In reality, the claim was for 15 minutes on each occasion. Similarly, for attendance at grand rounds, lunch or breakfast was offered to employees before the rounds commenced. Dr Fidge claimed that, in the post-graduate years 1 and 2, there was a formal obligation on the part of Interns and Junior House Officers to participate in specific training programs. Some particular components of Dr Fidge’s claim were abandoned during the hearing because, from the employer’s records, it was shown that Dr Fidge couldn’t have been at training sessions on specific days. Dr Fidge readily agreed to alter his claim accordingly. In support of his claim for payment for training sessions, Dr Fidge referred to the then applicable Award (Regional Health Authorities – Senior Medical Officers’ and Resident Medical Officers’ Award – State) (the Award) and specifically to sections which related to the parties’ commitment to learning and development programs for employees (see clause 9.1 Training, learning and development of the Award). Reference was also made to case law where the basic entitlement for an employee to be paid wages for work performed had been established (see Mallinson v The Scottish Australian Investment Company Limited [1920] HCA 51; (1920) 28 CLR 66 (26 August 1920); Vickery v Assetta Federal Court of Australia [2004] FCA 555; Automatic Fire Sprinklers Pty Ltd v Watson [1946] 72 CLR 435). Dr Fidge stated that he had attempted to negotiate his claims with the Hospital over the last three years, but to no avail. Dr Fidge believes that the Hospital has not acted in good faith towards him and had actually, by its actions, gone out of its way to hinder his professional progression. RESPONDENT’S CLAIM – NON PAYMENT FOR COMPULSORY TRAINING Dr Jeannette Young (Executive Director of Medical Services) for the Hospital submitted as follows: The Princess Alexandra Hospital Trainee Internship Program is a three week program co-ordinated by the Director of Clinical Training to prepare graduates to work as an Intern. All Interns are encouraged to attend the program. “During the program, Interns are given information about the training opportunities available for them during their Intern year. One of the most significant educational opportunities made available to the Interns is a seminar program conducted twice weekly on Tuesdays and Fridays between midday and 1.00pm. This time was chosen as it is the time most Interns are available to attend.” (See Dr Young’s affidavit point 17). The program lasts for one hour. The first 15 minutes are allocated to lunch and the teaching session occurs over the next 45 minutes. Interns work a standard 8 hour day. They are rostered to work 8.5 hours with half an hour for lunch which is unpaid. “On the days that they attend the seminar program, 15 minutes of that program occurs during their half hour lunch break. Interns would not usually claim for that 15 minute period as having been worked as they are not actually working.” (see Dr Young’s affidavit point 21). Interns are told that the seminar program is compulsory. Usually one-third of Interns attend each session (those not attending might be on secondment to another hospital, some would be on evening shifts etc…). Participation in the formal training program is not graded and does not count towards the grade for an Intern’s term placement. “All other components of the Education Program for Interns are provided in paid time.” (See Dr Young’s affidavit point 27). When one considers the instruments which govern the employment of Interns at the Hospital, there is no direction for the employer to pay Interns who attend these particular training courses. This point is acknowledged by Dr Fidge. His submission is much broader than that – it incorporates the view that any training (or work as the applicant views it) required to be performed by employees should be paid. -- 2 of 5 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 641 The difficulty for Dr Fidge, in this instance, is that there is nothing to support his position within any of the industrial instruments which govern his employment. This is not an industry which has fallen behind industrially because of lack of involvement in contemporary industrial relations issues and regulation. The Award and industrial instrument which govern the employment of employees such as Dr Fidge are ones frequently before the Commission for the purpose of amendment and modernisation. In principle, one might agree with Dr Fidge, but the reality of this situation is that there has been no breach of any industrial instrument or award on the part of the employer in its decision to determine its own training procedures. APPLICANT’S CLAIM – NON PAYMENT FOR HIGHER DUTIES Dr Fidge referred the Commission to clause 3.9 of the Award which states: “Higher duties payment Where an employee temporarily occupies a position to which is attached a higher classification for a period of more than (3) days, that employee shall be paid not less than the difference between the salary of the employee temporarily filling the position and the minimum salary attaching to the position they are temporarily occupying, including any relevant director’s allowance.”. Dr Fidge commenced work in the Gynaecology Department at the Hospital in late 2001. The Registrar attached to that Department had become ill and Dr Fidge states that Dr Wakefield (Deputy Director of Medical Services, Division of Surgery at the hospital) “personally asked me if I would mind carrying out as much of the duties of the Registrar as I could” (see Transcript p. 25). Included in that request from Dr Wakefield was the requirement to be “on call” immediately after hours for about a week while the Hospital looked at alternative arrangements. Dr Fidge remained on-call for a period of a week. Dr Fidge agrees that he was not formally appointed to the position of Registrar and it was not a position he had applied for. Dr Fidge stated that he was actually working as a “Junior Registrar” and his claim for payment for higher duties relates to the pay scale attaching to a first year Registrar. Dr Fidge believes that he has been a “good servant” of the Hospital and attributed much of that to his professional background prior to entering the study of Medicine. Dr Fidge is a qualified Pharmacist and has worked in many parts of the world within the health industry. He had no hesitation in responding to a request to fill in for the Registrar. The debate between the parties centred generally upon the following considerations: Can an Intern (legally and professionally) perform the duties of a Registrar? If the answer to this is “yes”, then should Dr Fidge be paid the wages attributable to a Registrar for the period under consideration? Dr Fidge addressed the “job description” attaching to the position of Registrar. Many of those requirements were met by Dr Fidge when performing his duties (some were not applicable because of the particular staffing levels within this Department). The employer does not quarrel with many of the claims made by Dr Fidge in terms of the work he actually performed during this period, but it strenuously denies the claim that Dr Fidge was ever appointed in an acting Registrar role or in fact performed all of the duties one would expect from a Registrar. The employer agrees that some of the duties attributable to a Registrar can be performed by an Intern. The difference between Dr Fidge’s belief in the work he performed and that of the employer is that the employer states that an Intern does not perform the duties of a Registrar from both a professional and practical perspective. Note: The following witnesses, Dr Allen, Dr Mooring, Dr Holmes and Dr Wilson gave evidence as a consequence of receiving an Attendance Notice to Give Evidence issued by the Registry at the request of Dr Fidge. Dr Allen (Sixth year Obstetrics and Gynaecology Registrar at the Royal Women’s Hospital). Dr Allen has worked with Dr Fidge previously. Dr Allen outlined the progression from university graduate to Registrar. He stated that: “When one enters that Registrar system is dependent on the individual and the regulations of the College at the time. Most Colleges suggest that you have to certainly complete your Internship, some specify that you have to complete the two years post-graduate or three years post-graduate, some specify that you must have done one year as PHO before you can even start.”. Dr Allen was of the view that an Intern could act in the position of a Registrar or a Principle House Officer temporarily if the Registrar was ill. Much depended on whether a Consultant believed that the Doctor was capable of fulfilling those duties. Under cross-examination, Dr Allen acknowledged that an Intern would require full registration before they could work as a Registrar in an accredited training position. If the replacement was not for the purpose of accredited training, an Intern could perform the actual duties performed by a Registrar provided they received significant support from a Consultant. The degree of support and advice needed for an Intern in this position would be greater than that required by a Registrar. Dr Mooring (Junior House Officer at QE2 Hospital in the Department of Gynaecology), explained how her role differed to that of a Registrar in the following ways: Dr Mooring does not perform any on call role. Dr Mooring does not do the “gynae on call rota.” Dr Mooring does not assist in a general sense in major operations – Dr Mooring may assist by holding a retractor, for example. The difference between her role and that of a Registrar is that Dr Mooring would not perform the operation herself. Dr Mooring assisted with some procedures but only with supervision. The Registrar could perform these procedures on their own. Dr Mooring agreed that an Intern would need more advice and support from a Consultant in the absence of a Registrar than that which could be provided by a Junior or Senior House Officer. Dr Holmes (Registered Specialist in Obstetrics and Gynaecology – currently a Visiting Medical Officer at the QE2 Hospital. Dr Holmes formerly worked at the Hospital and was the Chairman of the Department of Gynaecology). Dr Holmes was working at the Hospital during the period when Dr Fidge was employed in the Gynaecology Department. -- 3 of 5 -- 642 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 August, 2004 During the time period under consideration, Dr Holmes stated that there were three Visiting Medical Officers, a Registrar and an Intern in the Department. When the Registrar became ill, the Department was left in the hands of the Visiting Medical Officers and the Intern. Dr Holmes stated that the Hospital appeared to take no steps to fill the void left by the departure of the Registrar. The following exchange occurred between Dr Fidge and Dr Holmes: “DR FIDGE – And so who performed the duties that the Registrar performed on a day-to-day basis, things like seeing patients in the hospital, the in- house consults, seeing patients in emergency when they came in, who did those sorts of things? DR HOLMES – You did, Dr Fidge. DR FIDGE – Thank you. Who would be the best person to know who carried out the duties of the gynaecology Registrar in late 2001? DR HOMLES – Oh, I’m prepared to put my hand up.”. Dr Holmes did state that “quite obviously he wouldn’t be doing the major surgery like abdominal hysterectomies, vaginal hysterectomy and repairs or any other – any other thing that you might class as major gynaecology surgery.” Dr Holmes continued by saying that if there had been a trainee Registrar present than that person would be allowed to do the operations assisted by the Consultants. A Registrar would do major surgery “closely supervised by the Consultant” (see transcript p. 73), but not an Intern. The Intern may only perform minor surgery under supervision. Dr Holmes was adamant that Dr Fidge performed all the duties of a Registrar with the exception that he could not and did not perform major surgery. Dr Holmes, however, does recall a conversation with Dr Wakefield to the effect that there was not going to be any Registrar relief during the period when the Registrar in the Gynaecological Department was absent from work on sick leave. Dr Holmes stated that “he (i.e. Dr Fidge) was in fact doing duties beyond the call of what would be expected of an Intern.” Dr Holmes said that he had supervised other Interns over the years performing higher duties. Dr Holmes did not know of any reason why Dr Fidge should not have been paid for higher duties performed over this period. Dr Charles Wilson (Senior Gynaecologist QE2 Hospital and formerly Visiting Medical Officer at the Hospital) gave evidence that, during the period under discussion in this hearing, he was a Visiting Medical Officer at the Hospital as well as being the supervisor of the Registrar Training Program. Dr Wilson believes that he was told by Dr Fidge and other staff that Dr Fidge was, at that time, the Acting Registrar. Dr Wilson confirmed the duties which were performed by Dr Fidge during this period and believed that Dr Fidge should have been paid for “higher duties” during that time. Dr Wilson did state, “basically I treated Dr Fidge as the Registrar and he fulfilled that role very well.”. Dr Salter (Senior Staff Gynaecologist QE2 Hospital) gave evidence that he had written a letter of recommendation for Dr Fidge for the purpose of his “job application in gynaecology” (see transcript p. 262). Dr Salter’s evidence was, inter alia, as follows: “Well, Registrars are actually appointed by the appropriate college and they must demonstrate that they’ve had I think up to three years training as an Intern for a start and then they embark on a training program which they sign up to follow and – in the case of, say gynaecology that training program lasts for six years. So a Registrar could be a first year Registrar with very little experience, but with the backup of at least three years as a Junior House Officer or could be a very Senior Registrar. I don’t think the Medical Board as such has any conditions. Those conditions are set by the appropriate college.”. Dr Salter stated that, while Dr Fidge may not have been aware of it, “he was very closely supervised” during this period. Dr Salter claimed that, because there was no Registrar in the Department during the period under question, Dr Fidge in effect bypassed the Registrar and consulted directly with the Consultant and in his view “that was the only difference in the whole working of the unit basically.”. Dr Salter claimed that “without a Registrar the Consultants had to come in and do that so I can recall coming in at weekends and at nights and doing these procedures that normally the Registrar would have taken care of.”. Further, Dr Salter submitted: “The Registrar is more likely to perform major surgery and, of course, is on call and looks after patients after hours whereas the Intern – in gynaecology the Intern would be more – certainly sees patients and there’s – quite happy for them to – to make decisions about management but this has always been under – under heavy supervision. I mean it would be quite ridiculous to give an Intern carte blanche to manage patients in a public hospital in these litigious days.”. Dr Jeannette Young (Executive Director of Medical Services at the Hospital) advised the Commission of the educational and accreditation standards which applied to Dr Fidge during his period of employment at the Hospital. The progression of new medical graduates is as follows: Intern (medical graduates in their first year following graduation – an Intern is unable to do any other job other than that of an Intern as they are not fully registered by the Medical Board). Junior House Officer (fully registered medical practitioners generally in their second year following graduation). Principal House Officer (fully registered medical practitioners appointed to a specific job with accountabilities at a senior level). Registrars (fully registered medical practitioners who are on an accredited training scheme). Dr Young states that: “An Intern could not act to fill either a Principal House Officer or a Registrar position, firstly, from a registration point of view and, secondly, that they would not have the requisite skills to fulfil that role. A Principal House Officer or Registrar would be at least a third year graduate and would be able to work unsupervised.”. Dr John Wakefield (Deputy Director of Medical Services, Division of Surgery at the Hospital) stated that one of his responsibilities was to ensure that the junior medical staff allocated to the Division of Surgery (including Gynaecology) were properly managed. Dr Wakefield outlined the differences between the duties of a Registrar and an Intern (see p. 2 Dr Wakefield’s affidavit). Dr Wakefield does recall a meeting held with Dr Fidge where the issues surrounding Dr Fidge’s work in the Gynaecology Department were discussed. Dr Wakefield also recalls discussions around the issue with the three Visiting Medical Officers. He states that Dr Holmes was satisfied with the arrangements which had been made regarding the absence of the Registrar from the Gynaecology Department. -- 4 of 5 -- 13 August, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 643 Dr Wakefield does not believe that Dr Fidge undertook the full duties and responsibilities of a gynaecology Registrar. He states that his opinion is based upon the following: “As an Intern, Dr Fidge did not possess the necessary skills, knowledge and experience to safely act as a Registrar; I provided a lawful direction to Dr Fidge with respect to his duties in the absence of the Registrar. These duties were consistent with his appointment as an Intern; Appropriate and reasonable management action was taken to ensure that Dr Fidge had the support and supervision consistent with his level of training and status as an Intern. Dr Fidge did not communicate to me, at any time during the gynaecology term, his concerns about my decisions in relation to this matter.”. Dr Wakefield was adamant that he had never asked Dr Fidge to be on-call during that period and upon finding that Dr Fidge had been on-call, immediately took steps to ensure that it did not reoccur (see transcript p. 225). An issue concerning Dr Fidge had arisen for consideration by Dr Wakefield after he had made contact with the Director of Clinical Training. Upon considering the matter, Dr Wakefield had determined to leave Dr Fidge in the Gynaecology Department (partly because he did not know how long the Registrar would be taking off work and also because Dr Fidge had shown a real interest in this area of medicine) and that he would be closely supervised by the Consultants. CONCLUSION It should be stated, at the outset, that those Visiting Medical Officers who had actually worked with Dr Fidge in the Gynaecology Department at the Hospital thought well of him. Generally, it was believed that he performed his duties competently and that his professional background in Pharmacy was an advantage to him in the performance of those duties. For reasons outlined earlier in this decision I have rejected the applicant’s claim for payment for training. On the second ground (i.e. “non payment for higher duties”), I have been unable to accept Dr Fidge’s claim for payment for higher duties allegedly performed. The absence of a Registrar in the Gynaecology Department, firstly, did not mean that Dr Fidge automatically filled that position. It must be added that that proposition was not put to me by Dr Fidge. In evidence put to the Commission there are reasons why Registrars placed elsewhere in the Hospital do not always fill in when a Registrar is unavailable to work in the Gynaecology Department. That history was not challenged and I accept that history as being factually correct. A situation arose where the Registrar in the Gynaecology Department unexpectedly could not attend work. Dr Fidge was the Intern present in the Department at that time. I accept that Dr Fidge was advised of the duties he had to perform in the absence of the Registrar. I also accept that the Visiting Medical Officers were required to supervise Dr Fidge in the performance of those duties. I accept that the level of supervision was heightened because of Dr Fidge’s lack of experience at a level other than that of an Intern (see evidence of Dr Salter). It is a matter of fact that Dr Fidge could not and did not perform all the duties expected of a Registrar. Dr Fidge himself accepts that he could not perform surgery beyond the level which had occurred. That he did perform many of the duties attaching to the position of Registrar is not in question, but the fact emerges that many of the duties identified by Dr Fidge were duties often performed by Interns and Registrars alike. I reiterate, that those medical practitioners actually working with Dr Fidge at this time attested to his ability to perform his duties competently, within the constraints of his training and knowledge. But the reality is that Dr Fidge did not perform the regular and accepted duties expected of a Registrar. Dr Fidge was unable, from a registration and skills perspective, to work as a Registrar. Dr Fidge has raised a range of issues within this application which have not been specifically mentioned in this decision. Those issues, where relevant, have been considered. I reject both elements of the claim. Order accordingly. D. A. SWAN, Deputy President. Appearances: Hearing Details: 2004 3, 4 and 23 June Dr. J. Fidge, the Applicant. Ms S. Le Boutillier and with her Ms L. Parkinson for Queensland Health. -- 5 of 5 --