Specialist sues hospital over refused promotion


A specialist who was denied a promotion at his hospital has lost a legal bid to have the decision overturned by the Fair Work Commission.

Dr Ruwan Suwandarathne argued he was a victim of a biased assessment and changing goalposts after having his application rejected for the position of senior specialist in Canberra Hospital’s ICU back in 2021.

A fellow of the College of Intensive Care Medicine of Australia and New Zealand, he had worked at the hospital since 2016, holding a position of staff specialist level 5 — the level below senior specialist.

Having been in the role for three years, he became eligible for promotion to the more senior position in April 2019, although he says he was initially unable to apply as he was not provided with clear advice on the application process for several years.

He finally submitted an application last March, saying he had met the required minimum criteria of three years’ experience as a specialist level 5 and established skills in at least two out of six possible enhanced duties of a senior specialist.

He also demanded the promotion be backdated until the time he first became eligible to apply in light of the fact he hadn’t been informed about the process at the time.

But despite a reference from the ICU’s clinical director, Dr Suwandarathne’s application fell at the first hurdle, and he was refused even an interview for the position by the hospital’s selection committee.

When an internal review also proved unsuccessful, he took his case to the Fair Work Commission, asking for a ruling that he be made a senior specialist, with full salary and benefits backdated to April 2019.

Surprised

Dr Suwandarathne pointed out he sat on numerous hospital committees, held a master’s level qualification in point of care ultrasound, and had been heavily involved in the teaching program — enough on paper to satisfy the “teaching”, “clinical” and “safety and quality” enhanced duties criteria based on the job description.

On top of that, he pointed to an email he had received from the clinical director of the ICU after the application was rejected where she said she was “surprised” at the decision not to promote him, adding she believed he had met all the required criteria.

In the email, the clinical director added: “I am extremely surprised to receive the rating applied to you as an applicant as ‘requiring development’ across all criteria and am curious as to how this would have been the assessment.”

“To have made a judgement on your clinical abilities as ‘requiring development’ against the criteria of being able to work without supervision would imply that you should not be working as a specialist at all. I am not sure how this conclusion can have been reached with the little information they had to review during this process.”

In the lawsuit, Dr Suwandarathne also accused hospital management of breaching their workplace industrial agreement by “shifting the goalposts” for promotion.

He said that as part of his post-application feedback from hospital management, he had been given a standardised document for unsuccessful applications including an “interpretation guide” for each criterion, which differed significantly from the information available to candidates.

In response, the hospital argued these differences were not substantial, with the guide only intended to add context and detail to each criterion.

It also tried to argue that the commission had no jurisdiction in the matter, saying it had provided Dr Suwandarathne with a review of its original decision not to offer him an interview.

But Fair Work Commissioner Alana Matheson sided with the doctor on this point, saying it was clear the dispute had not been resolved by hospital administrators (link to findings).

The commissioner also said she understood Dr Suwandarathne’s frustration at how long it took in giving him the necessary information to apply.

“The lack of clarity provided to him was highly unsatisfactory and had the practical effect of slowing down his application process for two years,” she said.

Nevertheless, she rejected his assertion that the goalposts for promotion had been moved, saying the differences between the stated criteria and discussion guidelines were mostly minor in nature, with the latter providing additional detail to assist the selection committee in assessing a given candidate’s application.

With only his word to go on, she added it was impossible to make a finding on whether he met the criteria either way.

“I am not a medical expert and it would be dangerous territory for the commission to purport to play this role or attempt to apply such expertise on its own volition when it comes to an assessment of matters such as clinical competency,” she said.

“Based on the evidence before me, I am unable to find that [Dr Suwandarathne] should advance to the level of senior specialist.”

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