Supervisor leaving practice

What happens if my supervisor leaves the practice?

An individual supervisor’s departure does not necessarily automatically end or terminate a registrar’s employment. Supervision may be provided by more than one person, and practices should, where possible, make alternative supervision arrangements.

Impact on supervision and training
From a training perspective, the training practice must provide supervision in accordance with the guidelines of the AGPT or relevant training program. While supervision is ideally provided by a “supervision team” comprising other accredited and unaccredited clinicians, an assigned supervisor or delegate must always be available to attend in person within a reasonable timeframe if required. If a supervisor leaves, the practice and registrar must urgently consult the training provider to ensure any alternative supervision arrangements are formally approved so the registrar’s training time continues to count towards Fellowship.

Employment and Leave Implications
In circumstances where a practice is unable to provide adequate supervision, it may be reasonable for the practice to require the registrar to take a period of paid annual leave in accordance with section 94(5) of the Fair Work Act. Whether any such requirement is reasonable will depend on the circumstances.

If a practice is unable to make timely alternative supervision arrangements, then the practice may, in rare circumstances, be able to lawfully terminate the registrar’s employment on a number of bases, including:

• that exceptional circumstances exist in accordance with clause 20 of the NTCER (noting that the training provider must be advised of this decision and reasoning as soon as practical); or
• that it is impossible for the registrar to do their job without adequate supervision and for this reason, the employment contract has been “frustrated” at law, effectively bringing the employment to an end.

Establishing an employment contract has been frustrated is a high bar, and practices should seek legal advice before terminating a registrar’s employment in these circumstances. Whether a practice can lawfully terminate a registrar’s employment in these circumstances is context-dependent, and a registrar may have a number of legal claims available to them in respect of any decision by a practice to terminate their employment (such as a wrongful dismissal claim under the common law, or certain claims under statute).

Generally, and subject to some exceptions:

• registrars should continue to receive their usual pay unless and until their employment is terminated;
• practices should provide registrars with the minimum period of notice of termination (or payment in lieu of notice) required, if any, under their contract of employment and/or the National Employment Standards (whichever is greater) if their employment is terminated before the specified end date in their contract; and
• if a registrar’s employment contract does not contain a notice of termination clause, and a practice terminates their employment before the specified end date in their contract, the practice may (depending on the circumstances) have breached the registrar’s contract. In that case, the registrar may be entitled to compensation for the remainder of the agreed term.

Practices are required under the Fair Work Act and in accordance with clauses 6.1 and 20 of the NTCER to pay out a registrar’s annual leave on termination of their employment.

GPRA encourages practices and registrars to seek legal advice in these circumstances.