Fired Tauranga vet wins $35k after taking clinic to Employment Relations Authority

Dr Tony Austwick took his former employer to the ERA after he was fired following a series of customer complaints. Photo / Alex Cairns

An experienced vet who was fired after three customers complained about his conduct - including his attempts to euthanise a cow by choking it, then shooting it, after lethal injections failed to work - has won a substantial payout from his former employer.

Tony Austwick worked for Tauranga Veterinary Services Limited for nearly 12 years before several customers complained about the way in which he’d handled their animals’ care.

In the first case, a cat with a persistent limp was brought to Austwick who prescribed it painkillers which appeared to solve the problem. However, the customer took the cat to another vet who diagnosed it with a rare disease.

The second complaint concerned the euthanasia of a pet cow which was supposed to have been done by lethal injection. However, the cow wouldn’t die after being injected with a heavy volume of barbiturates and Austwick tried putting pressure on its windpipe in an effort to suffocate it before eventually having to shoot it instead.

In a third incident, blood tests were run on a dog prior to surgery that showed some inconclusive results that later turned out to be diabetes. The animal’s owners opted to euthanise her and Autwick’s employer said he should have run the tests again and his omission caused the untimely death of the animal.

The three complaints occurred towards the end of 2021 and culminated in Austwick being dismissed from his role at the clinic in April 2022 for what was claimed to be serious misconduct and gross negligence.

Austwick then went to the Employment Relations Authority claiming he was unjustifiably dismissed.

Dr Tony Austwick has won $35,000 from his former employer after taking them to the ERA. Photo / Facebook

According to the authority’s recently released ruling, the clinic raised complaints with Austwick at the end of February 2022 and scheduled a meeting with him, saying it was to discuss a performance improvement plan.

After the meeting, and several letters back and forth, the clinic decided Austwick’s conduct amounted to serious misconduct. Despite further meetings he was dismissed in April.

Best Practice and butting heads

The authority’s ruling notes that the clinic’s director, David McDonnell, and Austwick had different views about veterinary best practice.

McDonnell was a proponent of diagnostic testing while Austwick felt such tests could often be costly and a financial burden to owners.

But it was after the incident with the euthanasia of the cow that the pair really butted heads.

McDonnell was highly critical of Austwick for having choked the animal, which was not a recognised euthanasia technique, and for not having completed an incident report.

McDonnell also reported Austwick to the Veterinary Council which decided to take no further action against him.

The clinic then came to the conclusion that all of its concerns were substantiated and Austwick’s behaviour constituted a continuing pattern of lack of recall, lack of record-keeping, failure to show empathy, lack of willingness to change, failure to manage complex cases, failure to meet expected standards of continuing professional development, and failure to articulate what the clinic called its “guiding philosophy” which it said cumulatively amounted to gross negligence.

Austwick disagreed that his conduct in any of the three complaints amounted to misconduct, and even if they had, the clinic’s process for dismissing him was so poor that it effectively overrode them.

‘Not a case of on-going mistreatment’

Authority member Claire English found that the clinic could not have properly found that Austwick’s conduct amounted to a pattern of gross negligence.

“All three incidents were clinically distinct. Issues arising from euthanasia of a large cow by way of lethal injection and the rare diagnosis for the cat were not part of common practice,” she said.

“In regards to the cow, which was described as serious misconduct, I remain concerned that Mr McDonnell has mischaracterised this as an animal welfare issue, when the expert evidence was clear that the cow would have felt no pain, and this was not a case of on-going mistreatment of an animal or animals which Mr McDonnel was concerned would require “zero tolerance”.

English found out that the clinic’s concerns were not set out in its first letter to Austwick and did not give him a realistic idea of the depth of McDonnell’s concerns or that collectively they were being viewed by him as a serious misconduct matter which could result in him being dismissed.

English found that the clinic did not sufficiently investigate the allegations before firing Austwick, nor did it properly raise its concerns with him.

“This created a fundamental lack of fairness, in that Mr Austwick was never comprehensively put on notice of Tauranga Veterinary Services Limited’s, or of how seriously it (through Mr McDonnell) took matters,” English said.

“Instead, Mr Austwick was told that a likely result was a performance improvement plan. As well as being untrue, it is hard to see how this meets the employer’s obligations of good faith, to be responsive, communicative, and to give Mr Austwick access to relevant information in a timely way.”

English said there was also very little serious consideration given to Austwick’s lengthy service and unblemished record at the clinic.

Ultimately, English concluded that even if Austwick had acted differently in the three situations that caused complaints it was unlikely there would have been clinically different outcomes for the animals.

“While his actions may have fallen short of best practice, and acting differently might (speculatively) have resulted in Tauranga Veterinary Services Limited not receiving complaints, this does not go to the procedural flaws resulting in the unjustified dismissal,” she said.

English ordered the clinic to pay Austwick $8000 in lost wages and $27,000 in compensation.

Austwick told NZME through his counsel he felt vindicated by the ruling and thanked the authority for hearing his claim.

The clinic said it was considering its options for an appeal and declined to comment further.

Jeremy Wilkinson is an Open Justice reporter based in Manawatū covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.