
OUSTED Royal Hobart Hospital chief Michael Pervan has lost his appeal to State Service Commissioner Iain Frawley over an internal investigation into bullying allegations against him.
Mr Frawley yesterday ruled that there had been no miscarriage of justice or denial of procedural fairness by the Department of Health and Human Services in its initial investigation of the bullying allegations.
The decision means a full-blown inquiry into several alleged bullying incidents involving Mr Pervan will now resume.
He remains stood down from his job as RHH chief executive.
But he stays on as the recently appointed acting director of community development, disabilities and housing within the DHHS.
Mr Frawley’s findings did not look at the validity of the bullying allegations made by two RHH doctors.
His only task was to assess whether the way Mr Pervan claimed to have been dealt with by the DHHS in its external preliminary inquiry was contrary to the State Service Act and justified the case being dropped.
Mr Pervan is now considering appealing against Mr Frawley’s ruling to the Supreme Court.
Mr Pervan, a former WA Commissioner of Health, was stood down from the RHH top job in September by Health Department supremo David Roberts, less than one year into his five-year contract.
Mr Pervan was immediately sent on leave while an independent investigator from Sydney appointed by Mr Roberts conducted a preliminary inquiry into the bullying accusations.
But Mr Pervan complained to the State Service Commissioner, backed by the Health and Community Services Union, that he had been denied a right of reply and procedural fairness when he was not interviewed as part of the inquiries.
However, Mr Frawley yesterday handed down a confidential ruling declaring that Mr Pervan’s objection that he had been dealt with unfairly had no merit.
He found, according to HACSU state secretary Tim Jacobson, that independent investigator and workplace grievances expert Jocelyn Sparks was not required to give Mr Pervan a right of reply under his interpretation of the State Services Act, because her investigation was preliminary.
Mr Frawley also ruled that, based on the information provided to him by the DHHS secretary, he believed there were grounds for the department to start an investigation into the allegations against Mr Pervan.
The State Service Commissioner determined a full inquiry into the bullying allegations made against Mr Pervan could now proceed, but that Mr Pervan should be interviewed as part of that process.
DHHS acting secretary Alice Burchill said yesterday the formal investigation into the allegations against Mr Pervan would now resume.
Background:
Excerpts from the State Service Commissioner’s Guidelines:
Alleged Breach of the Code of Conduct, Investigation and Determination (Commissioner’s Direction No. 5 of 2009)
3.5 The onus of establishing any fact is on the party asserting it, and proof is to be on the balance of probabilities
3.6 These procedures are to be applied with procedural fairness, natural justice and in a timely manner.
4.5 During the course of the investigation, the employee suspected of committing a breach of the Code is to be given the opportunity to be interviewed and, if he or she wishes, to provide documentary evidence to the Investigator.
4.9 The Investigator must provide a written report to the Head of Agency on the outcome of the investigation.
This must:
(a) provide evidence relevant to the circumstances relating to each alleged breach of the Code of which the employee was informed;
(b) include any relevant submissions, statements, records of interview or other documentary material; and
(c) only include those matters relevant to each alleged breach of the Code of which the employee was informed of in accordance with Clause 4.4.
4.10 The Head of Agency shall provide the employee with a copy of the Investigator’s report and provide the employee with an opportunity to respond.
Edited for brevity. Download full guidelines:
05-2009-1.pdf
http://www.ossc.tas.gov.au/cd/05-2009.pdf
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