Australia: Procedural fairness in workplace investigations

Last Updated: 23 December 2015
Article by Julien Fraccaro and Andre Wyman

Case Study: Where doctor subject of investigation - Court emphasised need for natural justice/procedural fairness – Hospital found to have fallen short of disclosure requirements.

The recent Supreme Court decision in Vega Vega v Hoyle & Ors [2015] QSC 111 emphasises the requirement that a staff member who is the subject of an investigation be afforded natural justice and procedural fairness.

The Facts

On 22 January 2014 Dr Vega Vega, a specialist urologist, performed a left nephrectomy (removal of a kidney) on a patient with a complex anatomy as a consequence of spina bifida. Unfortunately following a difficulty surgery with complications, the wrong kidney (which was also compromised) was removed. On 29 April 2014, following the discovery that the wrong kidney had been removed, Dr Vega Vega's employment was suspended.

Solicitors were engaged by Queensland Health to coordinate and assist with three concurrent investigations; a Root Cause Analysis ("RCA"), a Clinical Review ("CR") and a Health Service Investigation ("HIS"). These investigations are administered under the Hospital and Health Boards Act 2011 (Qld) ("the Boards Act").

Separate to these investigations, on 9 May 2014 the Medical Board of Australia ("MBA") suspended Dr Vega Vega's registration. On 27 June 2014, following proceedings in QCAT, this decision was set aside and it was held that Dr Vega Vega did not pose a serious risk to persons and there should be no suspensions or conditions placed on his registration.

The three parallel Queensland Health investigations continued. The HSI Report which included the CR Report was delivered on 5 September 2014. On 12 September 2014 Dr Vega Vega filed application for a statutory order of review contending that there was a breach of the rules of natural justice (procedural fairness) in relation to the HSI Report.

The principles of natural justice require decision makers to make their decisions and conduct investigations without a reasonable apprehension of bias and to afford the person a fair hearing. Dr Vega Vega argued that the reports were invalid as they had been written in contrast to natural justice, and that the investigators had denied him access to information and documents relied upon, thereby preventing him from being able to properly respond. Justice Lyons agreed and found there had been a breach of natural justice.

Bias

One lawyer was engaged to give advice in relation to the initiation of the investigation but within weeks was appointed as an investigator of that very review. The Court considered that a reasonable observer may have concerns about the closeness of that association. However, the Court determined that a reasonable apprehension of bias could not be sustained. This was on the basis that the lawyer was involved at an early point in time and it did not follow that the lawyer had formed a view in relation to the doctor's actions.

Sufficient Information

The Court found that there was a consistent failure to supply the interview notes and investigation information of one of the Investigators, Dr Philip Hoyle, to Dr Vega Vega. This was despite repeated requests made by Dr Vega Vega for those documents on the basis that the information was considered significant. The requests were rejected on the basis that it was not considered necessary to provide access to the materials collected during the investigation in order to respond to the issues and questions.

The respondents submitted that sufficient disclosure had been made and that interview notes were not included on the grounds of confidentiality. However, in considering the view formed by Dr Hoyle about the failure to communicate, the Court determined that it was critical to know what evidence Dr Hoyle was relying on and the source of that information. Further, the Court found that providing extracts of interview statements rather than the entire content of the interviews was insufficient disclosure. For these failures the Court was satisfied there had been a breach of the rules of natural justice.

Additionally, it was determined that the delivery of the final HSI Report in the face of repeated requests for information and requests for time to consider that information was a breach of the rules of natural justice.

The Court emphasised that the rules of natural justice mean a doctor, or indeed any staff member, who is subject to investigation must be afforded access to full witness statements, not mere summaries, which also include the identity of the witness. It was determined that Dr Vega Vega was also entitled to receive the draft report before it was finalised to assess whether the investigator had used the evidence fairly.

The Court reaffirmed that in circumstances where a person's rights might be affected due to being assigned blame for an adverse outcome, that person must be provided with disclosure of all information, including that which is both positive and negative. A person must have the opportunity to see the source documents, statements, and assessments, in order to rigorously scrutinise then properly respond to and, if necessary, contest the conclusions drawn.

Conclusion

Workplace investigations require consideration to be given to what is considered fair and proper procedure. It must be ensured that the person who is subject to the investigation is not subject to predetermined outcomes or disadvantaged by information being withheld, particularly when their careers and livelihood are at risk. At the commencement of any investigations, employers should always consider whether the process that is adopted will be upheld by courts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Julien Fraccaro
 
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