The former clinical director of the intensive care unit at Canberra Hospital, Dr Bronwyn Avard, has lost her appeal. Photo: Supplied.
A doctor who tried to sue the ACT Government over allegations of poor treatment when working at the Canberra Hospital has lost her attempt to appeal the dismissal of her case.
Dr Bronwyn Avard is the former clinical director for the hospital’s intensive care unit. She lodged a case in the Federal Court in 2022, naming the ACT and two hospital executives as respondents.
She claimed the Fair Work Act 2009 had been breached, alleging she raised workplace health and safety issues with hospital executives over several years and action was only taken against her after she raised such concerns.
But last year, the Federal Court dismissed her originating application, finding the hospital executives had mostly not taken adverse actions against her. When they had, their actions had not been motivated by her exercising a workplace right, Justice Geoffrey Kennett said.
Dr Avard appealed, arguing Justice Kennett erred when interpreting part of the law, which resulted in the matter going before three judges of the Federal Court earlier this year before they dismissed her appeal on Friday (23 May).
The three judges, Justices Natalie Charlesworth, James Stellios and Erin Longbottom, said Dr Avard lodged four staff incident reports through the Canberra Health Service (CHS) health and safety incident reporting system in 2021.
Senior officers at the CHS then directed her to attend an independent medical examination before she was transferred to a non-ICU role at another hospital.
During this process, the CHS sent her three letters in 2022 in which she was told of the outcome of separate preliminary assessments of allegations of misconduct against her.
“On each occasion, Dr Avard was neither given prior notice of the allegations or that an investigation was being considered, nor an opportunity to respond to the allegations or be heard as to whether that investigation should occur,” the three judges said.
Dr Avard began working at the Canberra Hospital in 2004. Photo: James Coleman.
When the doctor launched her case, she argued the failure to give her an opportunity to respond to the allegations prior to beginning each investigation was “a denial of procedural fairness”.
Judge Kennett dismissed her claims after a discussion around the meaning of procedural fairness. In the doctor’s appeal, she argued the judge erred in his interpretation of this element of the law.
In her appeal, she argued the real question was whether procedural fairness was required before beginning a formal investigation, but the government claimed that since starting her case, it had drifted to a more general one around this question.
The three judges agreed with the government and found her case was confined to an alleged breach of failing to provide an opportunity for Dr Avard to be heard as part of the preliminary assessment process.
The judges also refused to allow the doctor to advance a new argument on appeal around her question, saying it was not in the interests of justice.
They ultimately found the laws identified in the case did not confer a right to be notified as part of a preliminary assessment that allegations have been made or a recommendation for an investigation was being considered, nor do the laws require an opportunity to respond to those allegations or be heard as to whether that recommendation should be made.
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