AMP Bank Limited v Ayoub
[2010] NSWWCCPD 37
•14 April 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| Status: Confirmed on Appeal – Ayoub v AMP Bank Limited [2011] NSWCA 263 | ||||||
| CITATION: | AMP Bank Limited v Ayoub [2010] NSWWCCPD 37 | |||||
| APPELLANT: | AMP Bank Limited | |||||
| RESPONDENT: | Joanne Ayoub | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-3398/09 | |||||
| ARBITRATOR: | Mr G McIlwaine | |||||
| DATE OF ARBITRATOR’S DECISION: | 3 November 2009 | |||||
| DATE OF APPEAL DECISION: | 14 April 2010 | |||||
| SUBJECT MATTER OF DECISION: | Psychological injury; section 11A of the Workers Compensation Act 1987. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Hicksons Lawyers | ||||
| Respondent: | Carroll & O’Dea Lawyers | |||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 3 November 2009 is revoked and the following decision is made in its place: | |||||
| Award in favour of the Respondent. | ||||||
| 2. No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
The Respondent, Ms Joanne Ayoub, commenced employment with the Appellant, AMP Bank Limited (‘AMP’) on 30 August 2004. She was employed as a Senior Product Manager until she was made redundant on 15 November 2007.
She claimed that since late February / early March 2007 she was “bullied, harassed and intimidated by other staff, including her manager, Robert Slocombe,” and “was exposed to racial, carer obligation and gender discrimination in the workplace, as well as sexual harassment and other forms of unfavourable treatment,” as a consequence of which she suffered from anxiety and depression.
She reported her injury/condition to the Appellant on the 15th or 16th of November 2007. Although no formal claim was made by her on the Appellant’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’), until 15 January 2008, Allianz wrote to her on 27 November 2007 advising that it had received notification of her injury and was declining liability on the basis that “the employer has acted in a reasonable manner in regards to…work performance and employment restructure.” This decision was based upon AMP restructure documents dated 28 August 2006, a record of a meeting with Ms Ayoub dated 14 March 2007 and “briefing notes dated 15/11/2007.”
Following receipt of her formal claim, Allianz sent her a section 74 Notice on 16 January 2008. On this occasion, liability was again declined and the following reasons given:
“There is no evidence to confirm your allegations that you were subjected [to] ongoing harassment, bullying and intimidation by your managers at AMP. Rather, your concerns relate to pre-existing psychological features.
You were given a ‘satisfactory’ performance rating at a review in March 2007 and you did not accept [this]. This caused you distress but according to Dr Ong [general practitioner], you recovered from this episode.
You suffered severe distress following the death of your father in September 2007. According to Dr Ong, your distress had abated.
According to the certificates of Dr Ong, your current anxiety and depression is as a result of the events at work on 15/11/2007 when you were made redundant.
According to Bridget Gurton, psychologist, you have an adjustment disorder with mixed anxiety and depressed mood as a consequence of your redundancy.
There is no evidence that your employer had acted unreasonably in relation to your redundancy. There was a restructuring of the business and there were only two positions available for senior production managers. The two managers chosen to fill the positions were considered better candidates than you…and the Bank had no other positions into which you could be successfully deployed.
There were a number of staff made redundant following the restructuring of the business.
The Bank followed its established policy in relation to the restructuring and notice of the process was not part of that policy.
Counselling was made available to those who were made redundant.
There is minimal medical and documentary evidence in support of your alleged injury, incapacity and the need for treatment.
We consider that on the basis of the interviews that are reported by Bridget Gurton in her pre-liability assessment report dated 14/12/2007, your allegations of ongoing harassment, bullying and intimidation by your managers at AMP are without foundation and that the employer acted reasonably when you were retrenched.”
By an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 4 May 2009, Ms Ayoub sought weekly benefits from 15 November 2007, medical expenses, and lump sum compensation.
The parties attended a conciliation/arbitration hearing on 5 August 2009. It was resumed on 31 August 2009 and again on 23 September 2009. Ms Ayoub gave oral evidence on the last two days. A transcript of all the proceedings is contained in the Commission files, and copies have been sent to both parties.
In a reserved decision delivered on 3 November 2009, the Arbitrator found in favour of Ms Ayoub.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 3 November 2009 with an accompanying Statement of Reasons (‘Reasons’), records the Arbitrator’s orders as follows:
“Findings
1. Ms Ayoub suffered a psychiatric injury arising out of or in the course of her employment with the respondent on 15 November 2007.
2. Ms Ayoub’s employment with the respondent was a substantial contributing factor to the psychiatric injury pursuant to Section 9A of the Workers Compensation Act 1987.
3. The psychological injury to Ms Ayoub was wholly or predominantly caused by the failure to consult with her as required by a reasonable retrenchment process.
4. The action taken by the respondent in respect of Ms Ayoub was not reasonable either as part of its performance review and/or retrenchment processes.
5. Ms Ayoub suffers from a total incapacity pursuant to section 33 of the Workers Compensation Act 1987.
6. Ms Ayoub is entitled to be paid weekly payments of compensation on the basis that she is a single person.
Orders
7. Respondent is to pay the applicant weekly payments of compensation at the rate of $1563.50 from 16 November 2007 to 31 March 2008.
8. Respondent is to pay the applicant weekly payments of compensation at the rate of $1594.00 from 1 April 2008 to 15 May 2008
9. Respondent is to pay the applicant weekly payments of compensation at the rate of $374.90 for a single worker from 16 May 2008 to 30 September 2008
10. Respondent is to pay the applicant weekly payments of compensation at the rate of $381.40 for a single worker from 1 October 2008 to 31 March 2009
11. Respondent is to pay the applicant weekly payments of compensation at the rate of $389.10 for a single worker from 1 April 2009 to 30 September 2009 and thereafter as adjusted from 1 October 2009 to date and continuing.
12. Application is to be referred to an Approved Medical Specialist for assessment of the whole person permanent impairment of the applicant in relation to her psychiatric injury on 15 November 2007.
13. The documents to be referred to the Approved Medical Specialist are the documents as set out in paragraph 20 and 21 of these reasons.
14. File is remitted to the Registrar for necessary referral to an Approved Medical Specialist to be selected by her after giving the parties the opportunity of first agreeing on the Psychiatrist to be utilised. The Approved Medical Specialist selected by the Registrar is to be given a copy of this Statement of Reasons.
15. Respondent is to pay the reasonably necessary medical and treatment expenses of the applicant on production of accounts or receipts or notices of charge pursuant to section 60 of the Workers Compensation Act 1987.
16. The Respondent is to pay the Applicant’s costs as agreed or assessed. In this matter, there was a need for careful consideration to be given to Section 11A of the Workers Compensation Act 1987. The hearing was lengthy and proceeded over three separate days. Further, there were Directions for Production authorised to be issued and an additional issue was raised as to the admissibility of a number of documents filed by the applicant. Accordingly, in any such agreement or assessment as to costs it is to be noted that I am satisfied that the matter is complex and it is so certified. Both parties are to receive a 30% uplift in their costs.”
It is from this decision that the Appellant seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
ISSUES IN DISPUTE
The Appellant acknowledges that Ms Ayoub has been diagnosed with a psychiatric illness. Although noting the apparent contradiction between the Arbitrator’s finding that Ms Ayoub suffered an injury on 15 November 2007 and his findings at [93] of the Reasons that:
“93. In this matter there are basically two main circumstances which contributed to the injury to Ms Ayoub:
(a) The performance appraisal commenced by her former Manager and not concluded before her new manager took over in late February/March 2007 and
(b) Retrenchment of the applicant on 15 November 2007,”
the Appellant does not challenge the findings by the Arbitrator at [93].
The focus of the Appellant’s challenge is on the Arbitrator’s findings that the actions of the Appellant in relation to appraisal of Ms Ayoub’s performance and the retrenchment process were unreasonable. In the Appellant’s submission:
“Whether there be one or two factors in the production of the worker’s psychiatric disorder, it is clear that the worker has reacted either to performance appraisal or to retrenchment or both, and it is this reaction, rather than anything else in her employment, that has led her decompensation.”
Ms Ayoub however claimed that her condition resulted from bullying, harassment and discrimination in the workplace. Notwithstanding these assertions, the Arbitrator concluded at [94] that it would not be “helpful” if he expressed his view “one way or the other on the conflicting statements” and instead focussed on the Appellant’s reliance upon the provisions of section 11A of the 1987 Act. At [66] he noted:
“For various reasons, including the privacy of the individuals involved, I have not found it necessary to embark on a process of individually considering each allegation of Ms Ayoub covering the period from “late February/March 2007 when a new Manager, Robert Slocombe, commenced employment with AMP” to her retrenchment.”
Nevertheless, in order to properly consider and assess the claims of both parties, and in line with the Commission’s objectives and guidelines, and the review process, in my view it is necessary to consider the totality of the evidence.
THE EVIDENCE
At the outset, I should say that the material tendered by both parties in this case is voluminous. In a Direction issued by the Arbitrator on 10 August 2009, he noted the parties’ attempts to resolve the matter and added:
“If Consent Orders are not filed, then the parties are directed to confer on ways in which the excessive amount of documents currently lodged with the Commission can be reduced to that which is relevant to the proceedings. In the absence of agreement, a specific Direction will be issued requiring the parties to produce an Agreed bundle of documents to that effect.”
Regrettably, no such further Direction appears to have been issued. In these circumstances, I have had regard to all the material before the Arbitrator identified at [19-21] of his Reasons, as well as other evidence tendered during the proceedings and referred to in the transcript. It is impossible to reproduce in full the lengthy statements, medical reports, file notes, emails and other documents pertaining to the dispute between the parties, but particularly given the nature and extent of Ms Ayoub’s allegations, I have endeavoured to reproduce in some detail those aspects of the evidence of particular relevance to the dispute, but elsewhere, I have simply summarised the evidence whilst assuring the parties that it has been carefully considered in full.
Ms Ayoub’s Evidence
Ms Ayoub prepared a detailed 24-page statement dated 13 February 2009. Relevant extracts are as follows:
“Things were going well with my employment until around late February/March 2007 when a new manager, Robert Slocombe, [Head of Strategy, Product and Marketing] commenced employment with AMP. I had prior contact with Robert in a previous position at St George Bank where I believe he had developed a preconceived attitude towards me. I believe from his manner towards me that Mr Slocombe carried into AMP these attitudes and prejudices.
I had no issues at all with my previous manager, Therese Matthews. I had never been informed of or counselled on any issues regarding my performance apart from areas of improvement for development purposes…
Robert Slocombe treated me unfavourably and discriminated against me by providing other members of the Strategy, Product and Marketing Team access to opportunities for promotion, higher performance ratings and hence higher bonuses. This upset me as I felt as though I was being treated unfavourably because of my racial background. The other employees at or about my level were all of Anglo Saxon origin and appearance.
(a) February/March 2007. Mr Slocombe avoided doing a 2007 Performance Agreement with me. This act upset me because I felt that I was being discriminated against because of my racial background for the following reasons:
i. All other team members had an opportunity to sit with Mr Slocombe and prepare and finalise their performance agreements; and
ii All other team members were of Anglo Saxon background and/or have Anglo Saxon features;
iii My previous manager had always completed my performance agreements with me as this is a compulsory requirement of HR policies. I felt I was being treated less favourably by Mr Slocombe because I did not possess the Anglo Saxon characteristics as other employees.
Mr Slocombe did not provide me with an opportunity to discuss, develop, approve, agree and formalise my 2007 performance agreement…Mr Slocombe treated me unfairly and prejudicially; as a result I was disadvantaged financially.
(b) June 2007. Mr Slocombe ignored my request that I attend the AMP Women’s Further Career Development [seminar]. I found this act to be discriminatory on a racial basis because Mr Slocombe did not prevent other female team members, who all exhibited Anglo Saxon features, from attending the seminar.
(c) March-August 2007. Mr Slocombe avoided discussing, providing, approving and developing my 2007 stretch targets with me. This act caused me to become upset because I felt that I was being discriminated against because of my racial background…I believe that I was treated less favourably by Mr Slocombe because I did not possess the same Anglo Saxon characteristics as his other delegates.
(d) September 2007. Mr Slocombe claimed to have conducted a desk based assessment (DBA) but, if he did so, it was without my knowledge or participation. This DBA was used to justify making my position redundant on or about September 2007, and he had unfairly used my 2006 performance rating of ‘satisfactory’ which was not agreed nor accepted by me and which was under dispute.
(e) September 2007. Mr Slocombe displayed a preconceived prejudice to make my position redundant before any legitimate DBA occurred. I regard this as discrimination on the basis of my racial background. The conduct caused me considerable distress…No other team member, all of which were of Anglo Saxon origin, suffered the less favourable treatment by Mr Slocombe. I believe that the DBA that ‘allegedly’ led to my retrenchment was a ‘rubber stamp’ exercise to conceal Mr Slocombe’s discriminatory behaviour…”
Thereafter, Ms Ayoub criticised much of the contents of the Pre-Liability Assessment Report prepared by Ms Bridget Gurton, consultant psychologist, at the request of Allianz and dated 14 December 2007, and the validity of the claimed DBA conducted by Mr Slocombe in September 2007 by reference to emails and conversations she had with Mr Slocombe. She repeated her claim that the DBA was a ‘tool’ invented by Mr Slocombe and Ms Nicol [Human Resources Manager] “as a cursory excuse to terminate my employment undertaken in a prejudice [sic] way…” She again added that:
“ I believe that I was discriminated against because this is the first time that a DBA has been utilised for the purpose of a redundancy/retrenchment and I believe that I was treated differently because of my Lebanese heritage, appearance and custom.”
Ms Ayoub similarly criticised much of a statement made by Mr Slocombe to Ms Gurton. She claimed that between March and November 2007, Mr Slocombe ignored her request to have her workplace grievances investigated and addressed. She said that she found this “to be an act of discrimination on a racial basis.” She added that “Mr Slocombe condoned the racial harassment being perpetrated against me” and that he “further victimised me for raising these issues.”
Ms Ayoub claimed that her retrenchment was not in accordance with the Appellant’s HR policy and that her termination was unfair and “an act of discrimination against me…” She set out in considerable detail her reasons for this view, with particular reference to the actions and comments of Mr Slocombe, Ms Nicol and Mr Stephen White [Managing Director]. She said that Mr Slocombe and Ms Nicol “facilitated my undignified and humiliating exit from AMP.” She added that: “I did not receive a farewell lunch…I found this act to be discriminatory on a racial basis…” She continued commencing at page 11 as follows:
“ With no prior warning Mr Slocombe [and Mr White] altered my performance rating to ‘substandard’ as soon as my previous manager moved…I felt that this was predominantly because of my appearance being essentially ‘middle eastern’ as there was no other possible justification…
AMP cut off my security access card prior to my final day of employment…
Mr Slocombe, Mr White and Ms Nicol all discriminated against me by voicing their opinion that I was a ‘spoilt brat’ still living at home and having everything handed to them on a platter. I was ridiculed because they formed the opinion that my father had purchased me a $130,000.00 vehicle…Clearly Mr Slocombe Ms Nicol and Mr White indicated that I did not warrant a job at AMP because of what they saw to be my financial situation. This unfair assessment again became a factor in my retrenchment…September 2007-Mr Slocombe unfairly and unreasonably denied my application to take 40 days leave…which is part of my religious background…
March-November 2007: Mr Slocombe frequently cancelled my regular fortnightly catch ups and meetings with him. I regard this to be attributable to my racial background…he did not treat the other employees in this way…
December 2005: I was sexually harassed by an intoxicated Mr Denis Roams at AMP’s Christmas Party…This act was witnessed by Ms Denise Taouk…
March 2007: Mr Craig Newham racially harassed me…I raised the matter with Mr Slocombe who failed to follow it up…[he] did not investigate the matter and he simply ‘swept it under the carpet’…
Mr Slocombe made comments about Lebanese people which indicated to me that he was racist towards Lebanese people in general and myself in particular…
Mr Slocombe played mind games which were intimidating and harassing. On one occasion…[he] directed me to perform a pointless and demeaning job that had nothing to do with my position but directed me to do another colleague’s make up for a video shoot. He was merely degrading me in front of other team members…
Mr Slocombe would often make demeaning remarks to others concerning my working hours…”
She then detailed various remarks she claimed were made by Mr Slocombe at particular times which she said were “offensive and demeaning, and indicative of Mr Slocombe’s prejudice towards me.” She also claimed that Ms Nicol and Mr White also made adverse comments about her personal life, and bullied and intimidated her, especially following the death of her father in September 2007. She again made reference to their statements to Ms Gurton.
Ms Ayoub claimed that there was a dispute with AMP following her retrenchment about certain funds in an account she controlled and that she was harassed “for weeks thereafter” which led to “my nervous breakdown.” She then set out details of her condition, treatment and symptoms.
As the Arbitrator noted at [13] Ms Ayoub has a concurrent claim in the District Court under an Income Protection Insurance Policy, and a claim in the Federal Court for “discrimination apparently on racial or religious grounds.” Although not mentioned by the Arbitrator, she told Dr Lee (whose report I shall consider later) that she had a conciliation meeting with the Australian Human Rights Commission in March 2009, and has made a complaint to the Privacy Commission because she believes that AMP have infringed her privacy rights. Ms Ayoub included in her Application a letter from Baker & McKenzie, the solicitors acting on behalf of AMP, dated 14 November 2008 addressed to the Australian Human Rights Commission. Ms Ayoub made a complaint and the Commission requested a response from AMP. That was the subject of the letter. Ms Ayoub then attached a 16-page document titled “Response to Baker & McKenzie” dated 11 December 2008. This included much of the contents of her statement dated 13 February 2009, added further detail on occasions, and essentially reinforced her claims of harassment and discrimination in the workplace.
Other material included a copy of a letter addressed to Ms Ayoub dated 15 November 2007, signed by Mr Slocombe. It confirmed the redundancy, and advised that Ms Ayoub could contact Ms Nicol with any questions, and since “we recognise that this is a difficult time for you…” she could seek access to the Employee Assistance Program. A further letter dated 16 November 2007 outlined “important information in relation to your retrenchment” and advised that a Career Management Consultant was available at AMP’s expense “to assist you in your career relocation plans.” A copy of a letter addressed to other staff dated 15 November 2007 confirmed AMP’s restructuring plans, and advised that the roles held by Ms Ayoub and another man would no longer be required, and be made redundant.
A document titled “AMP Restructures Desk based assessment” apparently “created” in June 2006 stated that one of its purposes was:
“To support a fair evaluation and selection process during restructures and reorganisations that result in redundancy of positions and redeployment of people.”
In an email to Ms Taouk dated 26 March 2007, Ms Ayoub asked her to have a look at a draft email to Mr Slocombe. That email requested a week to look at a letter he had given her that day in order to review it and provide changes she had already identified as necessary. She added:
“There are some other comments that I would like included within my file that are also critical to my ‘well being’ here at the Bank. I also seek your guidance as to how to appropriately address these. I will need to go through file notes to retrieve exact dates, times, events etc. These relate to statements made about me in relation to my ethnicity, my religion, the suburb in which I live and comments being made about me acquiring my expensive clothes by sleeping with men. I would like these noted with Group HR as I certainly would like this innuendo to cease immediately.
I am happy to discuss these with you in person if you wish.”There is no evidence that this “draft” sent to Ms Taouk was in fact sent to Mr Slocombe.
There was a record of a meeting with Ms Ayoub, Mr Slocombe and Mr White held on 14 March 2007 to discuss her 2006 Performance Appraisal prepared by Mr White. It appears that Ms Ayoub has written on the document: “False Records – Advised Them – swept under carpet.” Mr White stated that he asked Ms Ayoub to open the discussion and she “tabled the following concerns”:
· “She was not happy with her performance rating of ‘Satisfactory.’ She had been led to believe in October by her then manager (Therese Matthews) that her performance rating would be higher than this.
· She disagreed with some of the comments in her performance appraisal…[namely]…room for further improvement… not meeting strategic performance management requirements…KRF that more contact and engagement required.
· She claimed that her Manager at the time of the Oct 06 performance review did not pass some of the feedback in the KRF on to her.
· She felt she was being treated unfairly as she believed she had produced a Deposits Strategy paper in 2005, which was signed off by the Bank Leadership Team in 2006 and she did not look to others to provide the strategy and direction.
· She felt her Manager had not provided her with honest feed back, which did not give her the opportunity to improve her performance.”
Mr White then set out his responses, summarised as follows:
· “I made it clear that we were not saying that her performance was unsatisfactory…I said that satisfactory was meeting the requirements of the job…higher ratings were given where staff members exceeded objectives.
· As Deposits growth was only 45% of [2006] plan, she had not delivered on her main performance target and this was the reason why she was rated satisfactory…Joanne said she was not responsible for retention (inferring that failure to retain deposits was the reason for not achieving growth) and I responded saying she was the Portfolio Manager and therefore was responsible for the growth of the portfolio…Joanne then commented that her Manager had not raised this issue in Oct…I responded saying that at Oct 06 Deposit growth was ahead of target but…the remainder of the year and continuing into 2007 had significantly reduced growth.
· I informed her that the comments in her performance review that she was concerned about were my comments. As the Deposits Portfolio Manager I expected her to own and drive the portfolio and achieve the growth targets. In my view she did a good job in administering the portfolio but strategic management and strategy need to be improved. She is a highly paid officer. In assessing her performance with peers in the Bank…in my view her performance was below some others. With regard to the KRF feedback, the comments provided to her were from the persons she nominated to provide feedback…Joanne commented that some of the feedback had not been given to her in Oct and if she had been given honest feedback she would have addressed it. I responded saying I was not in a position to comment on why Therese had not given her all the feedback, except that I suspected Therese was concerned not to upset her. I was providing her with honest feedback and her reaction to the feedback was I suspect the reaction her previous manager wanted to avoid.
· I then reaffirmed that her rating of ‘satisfactory’ was driven by her failure to achieve the growth objective…In regard to developing strategy for the deposits portfolio, her new manager (Robert Slocombe) will work with her to develop her skills in this area…
· I then added that I would be failing to give honest feedback if I did not mention two other areas where some people were critical of her behaviour and which undermined her credibility:
Dress: At times her dress was extreme to the point that some people felt it was outside of smart business attire.
Behaviour in meetings: At times interested in personal appearance than the business at hand, eg, playing with hair, apply lip gloss.· I stressed that these matters were not taken into account when assessing her rating for 2006, but in terms of giving her honest feedback, I felt I needed to make her aware because of the negative feedback I regularly received.
· Joanne became very upset at this point and asked to be excused.”
A further copy of this record of meeting is included. Ms Ayoub has inserted her own additional comments to Mr White’s notes. Many are repetitive, and focus on specific matters referred to by Mr White such as the “KRF” issue, and her belief that certain aspects of the discussion were without proper foundation. Some of her comments (highlighted) are as follows:
· “She was outraged with her performance rating of ‘Satisfactory’ which came as a total surprise to her causing her anxiety…she had been led to believe by her then manager that her…rating would be much higher…
· She disagreed with most of the comments in her performance appraisal and claimed that they were manifestly inconsistent with her Manager’s comments and that her Manager had not mentioned any negative feedback to her…
· She felt that the comments were false and misleading in order to financially disadvantage her for a number of reasons particularly with the false claim that she was not doing her job in terms of driving strategy…
· She felt that Stephen White’s feedback was manifestly inconsistent with that of her Manager (Therese) and was not given in a timely manner…
· I kept bringing Stephen White back to the crux of my issue which was ‘Why was I not given this feedback earlier to give me an opportunity to modify my behaviour? Stephen White could not provide an answer and so he kept deviating away from my issue by saying things like you are one of the highest paid officers in the Bank and I expect a lot more out of you…he kept saying things like you are not respecting my feedback…
· [Re the deposit growth target] I repeated [why I was not given feed back earlier] about 6 times. Stephen White began to sweat on his forehead and became extremely agitated and said in a very loud and angry tone ‘your manager didn’t want to tell you because she was scared that you would react by crying because you are very sensitive. At this point I said to him so you are now admitting that I have not been provided with honest feedback and I reminded him of the Bank’s …policy to provide me with honest and timely feedback. Stephen White became even angrier and I then became very upset and anxious. Stephen White had totally lost his cool because I had cornered him into telling the truth and admitting that I was unfairly treated….
· It is my personal belief that Robert Slocombe had plotted with Stephen White to remove me from the organisation. His hatred for me began at St George…
· I was providing her with honest feedback and her reaction to the feedback was I suspect the reaction her previous manager wanted to avoid. No, the reaction was not what he had suspected because Therese would never have attached [sic] me with such a vicious and angry tone and then move straight into having a personal attack at my physical appearance and choice of work attire. Stephen White started to say that people did not like my dress attire and did not like the clanking of my jewellery and me applying lip gloss in meetings etc. His personal attack on me was so vicious and uncalled for that I broke out in tears and heavy crying to the point that I could almost not breathe. I asked to leave the room and was not given permission to leave…I repeatedly asked to leave the room and permission to leave was not granted…
· I then alleged that I was being unfairly treated because of my individualism and because as a person with strong morals, I refused to flash my boobs around like other women in the organisation…
· I have always received such positive feedback regarding my immaculate work attire…
· I stressed that these matters were not taken into account…I felt I needed to make her aware because of the negative feedback I regularly received. If he received regular feedback, then why was this the first time it had been relayed to me? Stephen has had ample opportunity to provide me with this regular feedback…
· Joanne became very upset at this point and asked to be excused. No, I became very distressed much earlier on because of the personal attack on me and because I was not given permission to be excused after repeatedly asking for it. At this point I asked Stephen: ‘Are you through?’ He then said yes and I was allowed to exit the room.
· I then went to a conference room and called my mother and was crying so much that I could barely breathe…During this conversation, my co-worker Claire Giles… and Senior Legal Counsel heard my cries and entered the room to console and comfort me. They were outraged at the state I was in…
· I made my way home and no one from the Bank called me to enquire about my well- being. I did not return to work for 10 days due to depression and anxiety…
· During this time Robert Slocombe called me several times not to check on my well-being but to encourage me to come back to work. He told me that I could ‘start a clean slate with him.’
· When I returned to work I was given a copy of these minutes and asked to read and accept them. I advised…that I did not agree with them and that I wished to make amends [sic]….Robert said: ‘Why? They looked pretty spot on to me.’ As you can see from the above, the minutes have required many amends [sic] by me to reflect the true record of the vicious meeting that attacked my individualism, caused my anxiety every single day thereafter to the point that I feared coming to work and feared being dismissed from the Bank. This was the beginning of Robert’s plot to drive me out of the organisation.”
A copy of the 2006 Performance Review was included. Ms Ayoub has also added handwritten remarks at times which I have highlighted. It listed Ms Ayoub’s “key achievements” in 2006. It also added:
“At the half year Joanne was asked to further lift her performance in the following areas:
· Focus on improving portfolio profit…to deliver targets…
· Building more effective relationships with her peers through: active listening, taking ownership for problems and resolution, ensuring on-time attendance at meetings…
There has been some improvement in these areas but there is room for further improvement. [Therese advised all was improved]
Joanne has a strong desire to achieve and with coaching and support has the ability to lift her performance. It is important that Joanne understand that feedback is provided to help her improve her performance. [Does not stipulate dress/behaviour in meetings]”
An undated and unsigned document headed: “KRF’ – Joanne Ayoub” was in evidence. It appears to form part of the 2006 performance review, and sets out comments in relation to Ms Ayoub’s performance in this area, such as approachability, effective communication and proficiency.
Ms Ayoub sent an email to Mr White on 27 April 2007, asking to “catch up for a quick chat” adding that “I just want to make sure that the discussion that happened in March has not impacted on our working relationship and that we could put this behind us.”
Ms Ayoub gave oral evidence on both 31 August 2009 and 23 September 2009. She had made a number of handwritten notes and markings particularly on Ms Gurton’s report, and also on the section 74 Notice dated 16 January 2008. The principal purpose of her evidence was to address those comments. Commencing at [T31], she confirmed that she had been interviewed by Ms Gurton, as had Ms Taouk, Ms Nicol, Mr Slocombe, Mr White and Dr Ong. At [T32] she said that she gave a copy of the report to Dr Ong and that she had “marked up” the report. At [T33], she said that she did not sign a copy of her interview with Ms Gurton because “it didn’t represent my assertions.” She had marked with an “x” those portions she claimed were “not entirely accurate” and “big crosses” through the body of the text meaning that she was not “the maker of that statement.” At [T36] she confirmed that she had made handwritten notes on the section 74 Notice dated 16 January 2008. The Arbitrator then said, somewhat obliquely:
“So what I'd like you to do is re‑sign this document, please, and put today's date… It will go back into the application as part of the proceedings.”
I am assuming that the Arbitrator was referring to the statement made to Ms Gurton, but it is not clear.
The hearing re-commenced on 23 September 2009. Ms Gurton’s report contained a “Disclaimer Withholding Personal Information” wherein she recommended to the insurer that her report not be provided to Ms Ayoub because:
“…the information contained in this report may pose a serious risk of causing the claimant significant distress…[and] the information…may have an unreasonable impact on the privacy of other people named in this report.”
At [T45], Ms Ayoub said that the report was not sent to her with the section 74 Notice but was given to her by Dr Ong to whom it had been sent by her previous solicitor. She said that she consulted Dr Ong who warned her about its contents, and she read it for the first time after she left Dr Ong’s rooms, at which time she added her notes to it.
Cross-examination commenced at [T48]. Given that it related primarily to Ms Ayoub’s comments about various medical reports and the notes made by AMP following various meetings, I think that evidence would be better understood once I have set out the balance of the evidence.
Ms Ayoub’s Medical Evidence
Dr Ong prepared a report dated 2 February 2009 stating:
“Ms Ayoub contacted me by telephone on 15-11-2007 stating she was retrenched from work on that day. She was upset and anxious.
I saw her on 16-11-2007, making a home visit as she was unable to go to work. I found her to be anxious, extremely distressed and had depression. She was unable to go to work.
As a background, I had seen her in consultation on 9-3-2007. She stated that she had a meeting at work on 8-3-2007 which upsetted [sic] her greatly and she had headaches which I felt were migraines in nature. She was unable to go to work.”
Dr Ong has provided Ms Ayoub with certificates certifying her unfit for work since November 2007. His clinical notes were also in evidence. They confirm Ms Ayoub’s attendance on 9 March 2007 complaining that she was upset following a meeting at work on 8 March 2007. Dr Ong saw her again on 16 March 2007. The entry reads “Counselled” and a medical certificate was provided. Ms Ayoub did not consult Dr Ong again until August 2007 with an unrelated condition. She next saw him on 8 September 2007. The entry reads: “Stress over father…” The next entry appears to be on 14 or 17 September 2007 where it is noted: “Father deceased today…” On 11 October 2007 Ms Ayoub again consulted Dr Ong. His notes state: “Counselled about father’s death…” An entry on what appears to be 21 October 2007 is mostly illegible. The next entry is on 16 November 2007 where Dr Ong records that she was “made redundant at work…” Ms Ayoub consulted Dr Ong regularly thereafter with complaints of insomnia, anxiety and stress. He ultimately referred her to Dr Sydney Oen, psychiatrist, in January 2008.
Dr Oen first saw her on 10 January 2008. In a report dated 12 January 2008, he said:
“In essence, she alleges that the arrival of a new manager at her work, with whom she had some previous history, resulted in her persecution over the course of 2007 and ultimately her retrenchment in November. She feels that this termination was not handled legally and, therefore, has claims with regard to the psychological distress caused by her treatment prior to her termination and also with regard to the legality of the termination itself. This distress was complicated by the issue of her father’s sudden death…
Diagnostically I think she is somewhere between a non-melancholic major depression and an adjustment disorder with depressed and anxious mood. The dilemma she faces is that of moving forward whilst having one foot mired in a compensation battle. Psychologically, she needs to see herself as being undamaged by the alleged treatment of her and negative assessment of her performance just prior to her departure…”
In a report dated 20 September 2008 addressed to AMP Life Limited, Dr Oen added more detail of Ms Ayoub’s complaints regarding her treatment at work and repeated that: “She believed that her termination was not handled properly and launched a workers compensation claim.” He continued:
“On review in February she brought a medico-legal report from Dr Julian Parmegiani that concurred with the diagnosis of major depressive disorder. She had started going to the gym but was withdrawn socially. She appeared at that stage to be emotionally stronger with less vulnerability but over the next month she reported being persistently low in mood. She had had some exposure to reports prepared by her ex-employer and had felt both angry and afraid by some of these allegations.
In May she said that she had lodged a claim for income insurance with AMP. She had failed her university examinations…she was starting to question whether or not she was employable. In June she appeared despondent and negative about events and prospects. This was balanced by a determination to get what she considered justice for herself…
By July she had become frustrated that her income protection was being declined...
She had started to apply for work in an attempt to prove to herself that she continued to be employable. She got to the third interview of one position but failed when she became anxious during the interview when asked questions that reminded her of her treatment at the hands of her former manager…At my assessment in July I considered her much too fragile emotionally to be able to work…
At the time I last saw her I considered her unfit as a result of the psychological injury she sustained…”
In a report dated 4 October 2008 addressed to Dr Ong, Dr Oen said:
“Just a short note regarding Joanne Ayoub whom I have seen every couple of months as she becomes more and more involved in legal battles that have followed on from her departure from AMP.
As you are no doubt aware, she is increasingly despairing of the situation she feels trapped in whereby she is unable to progress in her life and is incurring increasing financial hardship. Overall she feels very angry and determined about the principle of justice and fair treatment that she is trying to defend but of course intermittently becomes downhearted and despairing…”
Dr Oen’s clinical notes were also in evidence. Relevant entries are as follows:
“1/10/08: Has been O/S to try and clear her head at mother’s expense. Has opened another line of attack via barrister against AMP. Offloading assets to fund her law suits. Went over her decision to stay in the fight rather than walk away….
28/10/08: Adamant about inability to handle being patronised/criticised in hostile fashion…
28/11/08: Was interested in how much anger she had v/s self blame…New barrister has started action regarding income protection…alternates between being upset & being angry/determined. Pattern appears to be that initial hurt gets replaced by angry determination…
9/1/09: Has cases running with 5 statutory bodies. Has commenced further litigation and feels she is being made to look like a serial complainer…feels she is so far in she cannot back out on any front. Needs to be ready for a long personal battle. Accept (as her mother has told her) that she could walk away but in fact has chosen to stay and fight for what she believes is right…
2/2/09: Not heard yet from superannuation trustee. Some positive signs from the Human Rights Commission. Negative news today regarding sale of property…
11/3/09: APRA approval received. Relief regarding property sale…
21/4/09: No income yet…no news on income protection…Distressed by Dr Lee’s report [and] surveillance of her that is actually not of her…Difficult session with painful disclosure and discussion of my report on Dr Lee's report, i.e. my agreement with some aspects of his report. When pressed about which aspects ‑ diagnosis, i.e. atypical aspect of her depressive disorder, e.g. her ability to function/think/focus on her case, e.g. dissecting Dr Lee's report for hours and finding fault with his arguments - she can explain her ability to overcome her severe depression in this area by saying she is extremely motivated in this area but no others. Did not readily accept my assertion that this “lacunae” was unusual.
Clearly unhappy that my report was not completely supportive of her. ‘So you don’t think I have anything wrong with me?’ put to me accusingly. Reminded her that at the start of our contact I warned her that this was likely to happen when I provided what I believed to be balanced reports…
24/6/09: Had conference last week…Very needy; seeking repeated and repetitive reassurance… Needs more self reassurance and less instantaneous running for psychological hand holding… ‘Hardening up’ when the other side dare oppose her & responding with shock & dismay that they are going to fight her…”
Throughout 2008 and 2009, Dr Oen wrote various short reports to, inter alia, APRA and Ms Ayoub’s superannuation fund, confirming that she suffered from a psychological injury which was being made worse by financial hardship.
In a report dated 28 March 2009, addressed to AMP Life Limited, Dr Oen commented on the report of Dr Leonard Lee of 23 February 2009. He said that he had “no significant disagreement” with Dr Lee’s account of the background to the claim and added:
“ I can report that she has been consistent in her reporting to me with regard to the severity and consistency of [her symptoms]…I would agree however with Dr Lee that her reported severity of these symptoms is not supported by objective observation of her in the interview situation where she presents well; organises her arguments efficiently; and has good recall and command of the facts in her case. She has a number of claims with a number of bodies and is able to explain to me in reasonable detail where each of these is up to. Despite this, however, I have little doubt that she is psychologically suffering and is distressed by each and every one of these issues.
I further agree with Dr Lee that it is her position that her psychological symptoms will continue as long as she is in conflict…
I agree with Dr Lee that the assignation of a DSM IV diagnosis to Ms Ayoub is problematic…
I believe Ms Ayoub is motivated to return to work as a product manager with a different employer or to a position of similar intellectual demand but I believe that this motivation is for the medium to long term rather than in the short term…she clearly has unfinished business on a variety of fronts to settle before she can feel that she can move on to the next phase of her life…I would estimate perhaps 12 months after the completion of her legal conflicts…”
Dr Oen prepared a final report dated 8 August 2009 tendered in the proceedings on 31 August 2009 [T40]. After detailing her treatment regime, he said:
“The prognosis of Ms Ayoub is extremely difficult to predict. Since I have met her and up to the present time she is mired in a disabling mixture of depressed mood; anger and hurt; fragile anxiety; absolute conviction about the correctness of her position; and determination to receive the justice that she feels she deserves. It is my belief that unless Ms Ayoub receives a satisfactory outcome she will be unable to work again at anywhere near the capacity that she has previously done so. On the other hand, a satisfactory result and vindication of her position is likely to allow her to put the hurt and pain behind her to a significant degree and return to employment although I am guarded about her ability to return to a competitive or combative work place…
Her focus on her own areas of litigation are seemingly all consuming and would make proper performance of any other role unlikely to be able to be carried out to a satisfactory degree.”
Ms Ayoub was referred to a psychologist, Ms Sawtell, in March 2008. Her records are in evidence. On presentation, she records:
“Presenting probs: unfair dismissal Nov 15th 2007 (‘retrenchment’) Mtg [with] executives – since Feb 26th 2007 – harassment. Mar 07 sexual, verbal, racial, bullying, scornful remarks…”
By December 2008, Ms Sawtell noted that Ms Ayoub “continues to be highly preoccupied/angry about workplace issues and ongoing processes.” That situation continued until her last documented visit in June 2009.
Ms Ayoub consulted Dr Parmegiani on 18 February 2008 at the request of her solicitors. In a report of the same date, he noted that Ms Ayoub had consulted a psychologist in her teens, following a motor vehicle accident when she was 13, for which she received compensation. He also noted that Ms Ayoub had undergone rhinoplasty and septoplasty in September 2007.
He recorded this history:
”She did not experience any problems with her performance until 2007. Her manager, Ms Matthews, was promoted in November 2006. A new manager, Mr Slocombe, began working for AMP in early March 2007. Ms Ayoub was somewhat anxious about his arrival because she had worked with [him] at St George Bank. At the time, he made inappropriate comments, including that she was spoilt.Her previous manager gave her a positive verbal appraisal in November 2006, rating her 1 or 2 in most areas. Shortly after Mr Slocombe’s arrival, Ms Ayoub received a written performance appraisal [which was] in stark contrast with the previous verbal appraisal. She was rated 3 in most areas, and a number of deficiencies were identified.
Ms Ayoub could not understand why performance issues were not raised with her beforehand. The company had a policy of ‘no surprises’ in providing performance appraisals. Ms Ayoub called a meeting with Stephen White, the CEO of AMP. During the meeting Mr White suddenly accused her of being disliked by their colleagues, and he made negative remarks about her dress, her lipstick and her jewellery. He did not explain why she was not given an opportunity to rectify the alleged performance deficiencies beforehand. Ms Ayoub became distraught during the meeting, and she asked to leave the room on repeated occasions. Mr White let her go only once she calmed down. Ms Ayoub consulted [Dr Ong] who prescribed Zoloft and recommended time off work.
Ms Ayoub stated that Mr Slocombe was aggressive towards her from the first day. He accused her of bullying a contractor in their first meeting. Ms Ayoub denied doing so. He continued to belittle her in front of others, making comments about her appearance. He asked her whether her suntan was real, and on one occasion he said, ‘Do people know about your real nose?’ (referring to her rhinoplasty).
He made derogatory remarks about Ms Ayoub living in Bankstown. When the media reported crimes involving Lebanese men, he asked her whether her family had guns. Mr Slocombe frequently cancelled their fortnightly meetings, and he did not sign off on her projects. Ms Ayoub missed deadlines, giving rise to complaints from colleagues and customers.
Occasionally Ms Ayoub arrived at work one or two minutes late, and Mr Slocombe exclaimed loudly, ‘Good morning, it’s 9.02.’ Ms Ayoub saw this as again another form of intimidation. Mr Slocombe often had coffee with the two other senior managers, and he excluded Ms Ayoub. He told colleagues that she was a spoilt brat, because her father bought her a BMW.
Ms Ayoub did not lodge a formal complaint about Mr Slocombe’s behaviour. She told me that she had previously complained about a manager who made a derogatory remark about Lebanese people. The complaint went nowhere, and she lost trust in the HR Department.
Ms Ayoub developed panic attacks in March 2007. She experienced frequent episodes characterised by palpitations, shortness of breath and a feeling of impending doom. These episodes lasted up to 30 minutes, and occurred 3-4 times per week. Her sleep deteriorated, and she worried about going to work in the morning.
Ms Ayoub’s father died unexpectedly in September 2007. Ms Ayoub returned to work after two weeks. She continued working until November 2007. She was called to a meeting without warning, and she was informed that the department was going to be restructured, and that she no longer had a role. Ms Ayoub believed that the restructure was an excuse to terminate her position, and that of another employee. Ms Ayoub learnt that her colleagues were forbidden from speaking to her. She became increasingly depressed and withdrawn. She applied for a workers compensation claim but it was rejected. AMP’s [HR] department gave Allianz a 75 page document, which again attacked her character, appearance and performance.”
Dr Parmegiani then documented her symptoms and concluded that Ms Ayoub had developed a “Major Depressive Disorder in 2007” and was presently unfit for work.
Dr Parmegiani re-assessed Ms Ayoub on 29 October 2008. In a report of the same date, he said:
“Ms Ayoub continued to experience anxiety and depression. She had panic attacks once or twice per day. Her symptoms included palpitations, shortness of breath, and a feeling that she was about to die…She remained anxious between attacks [and] felt depressed, unmotivated and hopeless about her future… Her appetite was erratic…[she] was emotionally labile…[she] avoided contact with friends…[she] did not answer telephone calls…[she] neglected her appearance…
Ms Ayoub experienced significant financial hardship over the past 8 months…[she] could not afford the cost of ongoing psychological treatment…[she] placed her investment unit on the market. She resented having to do so…
Ms Ayoub attempted to return to the work force on 3 occasions…interviewers told the agency that Ms Ayoub lacked confidence and assertiveness…[she] worried about tarnishing her reputation in the financial industry. [Dr Ong] certified her unfit to work…
Ms Ayoub’s psychological problems escalated when she received documents from AMP. She described the documents as a character assassination. She disagreed with AMP’s account of events…[she] questioned whether her former employer deliberately delayed paying income protection benefits…
Ms Ayoub continued to present with a major depressive disorder…
Ms Ayoub attributed her symptoms to events that occurred at work. Her employer provided a conflicting version of events…If Ms Ayoub’s account of events is accepted, employment will constitute a substantial contributing factor to [her disorder]…”
Dr Parmegiani again considered Ms Ayoub to be unfit for work “at present, because she is too depressed”. He added that:
“It is unlikely that Ms Ayoub could live independently without support. She did not shower, unless encouraged by her mother. [She] spent most of her day in bed, in her pyjamas. Her appetite was erratic, and she did not prepare meals…her mother provided significant personal and domestic assistance…
If Ms Ayoub’s account of events is accepted, her psychiatric impairment is wholly attributable to events that occurred during the course of her employment. Her father passed away in 2007, and Ms Ayoub grieved the loss. In the absence of work related stressors, she would have been able to return to work within days…her grieving process would have resolved within 12 months…”
The Appellant’s Evidence
The Appellant included in its Reply a document titled “Restructures – Business Case.” It was “updated on 28/06/2006.” It confirmed AMP’s intention to restructure its Strategy Product and Marketing (SPAM) team. It noted that, overall, two staff members may be made redundant. The proposal was to conduct DBAs for the three product managers to determine the suitability of all candidates and select the two best candidates. The process was expected to take some time, and was scheduled to be announced on 15 November 2007.
Some of the material included in the Reply was also contained in Ms Ayoub’s Application such as the minutes of the meeting on 14 March 2007. Also included was what appears to be an interim 2007 performance appraisal. It is unsigned but states:
“2007
Manager Comments: Joanne AyoubJoanne has had a solid first half and is continuing to gain further understanding of the elements required to run the deposits portfolios. After her 2006 full year review I am very pleased to see Joanne actively address the suggested development areas”
The document then set out various “highlights of the 2007 first half” but added four “key areas for Joanne to continue to focus on.” It concluded:
“ Rating: Satisfactory.
Development activities: Joanne is completing a law degree that AMP is funding.”
Other documents included a series of detailed “Briefing Notes” for the meeting on 15 November 2007. It was noted that Ms Ayoub sent an email to Ms Nicol on 15 November 2007 at 8:38 pm asking for copies of all her employment contracts with AMP and “The Bank’s Bereavement Policy.” She added:
“I will be sitting for my exam this semester…I will be submitting the costs associated with this semester …for reimbursement…
Following my half yearly review in August 2007, I was not provided with my development plan. Kindly advise why this was not provided… During my annual leave in July 2007 I fell ill…I am entitled to submit these 2 weeks as sick leave…
Please feel free to contact me…
Regards and thanks,
Joanne Ayoub.”
Ms Gaebrielle Nicol [Human Resources Manager] prepared a file note in relation to the meeting on 15 November 2007 as follows:
“On 15 November 2007 at 2pm the [SPAM] team met…to discuss the restructure of the team….Robert Slocombe (RS) and myself (GN) attended this meeting along with all team members…
At approximately 2.20pm RS and GN met with Joanne Ayoub (JA) to discuss the impact to her role as a result of the restructure. RS commenced the meeting by explaining the reasons for the restructure and the impact to her role. RS explained the desk based assessment and why AMP were providing her with a retrenchment package. During this session, both RS and GN asked JA if she was ok and if it was alright for us to continue…JA on each occasion said she was ok and we could continue. GN said that this must be quite a shock for her and that we were concerned for her well being given the recent death of her father.
GN explained the documentation contained in the folder [and that] at present there were no redeployment opportunities at AMP which would result in her retrenchment…GN suggested that JA go home and either return the following day or week to sort out her personal things and maybe attend a farewell with fellow team members.
GN explained that she had been made redundant previously and that JA would be feeling a range of emotions. GN explained that an Outplacement Counsellor was present [who] would provide her with emotional support as well as assisting her in the job search process. GN advised JA that if she was not up to driving then AMP would provide her with a taxi to her home. JA declined. GN advised JA that she could contact her at any time. The meeting… concluded and GN delivered her to the counsellor…
After JA met with Cheryl, the counsellor, GN met with the counsellor to debrief on how JA was feeling. Cheryl advised that JA was ok and very well composed which was a good sign. Cheryl advised GN that she has offered JA a taxi ride home however JA advised she was ok and wanted to sort her files out…
60. The third area which I would identify as being of relevance to the question of reasonableness was the relatively short period of notice that the applicant was given, a period of one month's notice. A period of one month's notice might be usual for a factory worker or a shop worker, even perhaps for a tradesman, but a period of one month's notice for a senior executive appears to me to be quite unreasonable. One does not readily find available jobs for insurance claims managers or insurance company managers at short notice. The period of notice given to Mr Pirie must be contrasted with a period of notice which Franklins Ltd had given to other employees earlier… [Warehouse employees were given six weeks notice].
61. The fourth area which was the subject of complaint to me by Mr Pirie in his evidence, and a submission on his behalf by counsel, was the lack of the provision of counselling services. It is clear from the circular letter which I have just quoted that when it was proposed to retrench warehouse staff at Chullora family counselling was made available and financial advice and planning was made available as well as a job centre being established in order to help retrenched workers to find alternative employment. No counselling of any form was offered to Mr Pirie or indeed to the members of his team nor was any financial advice or planning service offered…”
His Honour was also critical of the employer’s failure to adequately address the issue of finding alternative employment for Mr Pirie, however this was in circumstances where it was clear that interviews arranged were stymied by the attitude and conduct of certain individuals.
It is obvious that unexpected retrenchment is an inherently distressing experience. There is no easy way to inform a worker of his or her retrenchment, and it would be remarkable indeed if persons in the position of Ms Ayoub did not become upset and distressed, or indeed “angry and outraged.” But it is not the actual retrenchment I must consider, but its process.
Taking the issues sequentially as his Honour did in Pirie, there is no evidence, other than Ms Ayoub’s assertions of racial and gender discrimination (about which I have concluded there was insufficient evidence to support) that the antecedent relationship between the parties formed part of the process of Ms Ayoub’s retrenchment. She had been rated ‘satisfactory’ following her review in March 2007. The document I described as a 2007 interim performance review at [59] above confirms that she had had “a solid first half” and appeared to be progressing well following the 2006 appraisal. Irrespective of the merits of AMP’s decision to reduce staff, that was clearly the basis for the retrenchment.
Turning to the issue of ‘notice’, the Arbitrator’s conclusion that AMP’s actions were unreasonable is based solely on the fact that AMP chose not to inform Ms Ayoub prior to 15 November 2007 that her position was to be made redundant. The issue here was not whether the retrenchment was “unlawful.” The “well established Law” to which he referred relates to industrial disputes, and although useful in some contexts, is, as the Appellant points out:
“not authority for the proposition that it is unreasonable for an employer to reach a conclusion that a certain employee or employees are to be made redundant, as a result of a necessity to reduce staff, without consulting those employees.”
Although Ms Ayoub held a fairly senior position at AMP, it was not of the status of Mr Pirie. Relevant to the circumstances of this case is Neilson CCJ’s comment referred to above that:
“Of course one cannot postulate that in every retrenchment a worker ought be consulted beforehand. If a company's trading arm is losing money and the executives deem it necessary to close that trading arm or that division then the input of an ordinary worker in a factory or a shop would be of no assistance whatever to the employer in coming to a decision.”
Although clearly not “an ordinary worker in a factory” there is no evidence to suggest that Ms Ayoub’s position was such that she should or ought to have been consulted over the issue of staff reduction. Indeed, the evidence is clear that she was one of three people being considered for retrenchment when the decision was made to reduce the product managers from three to two.
In these circumstances, I am not persuaded that AMP’s decision to inform her of her retrenchment on 15 November 2007 was unreasonable. Even if I am wrong in my decision on this point, I am guided by the remarks of Spigelman CJ in Department of Education andTraining v Sinclair [2005] NSWCA 465 at [97] where he said:
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline.’ In my opinion, a course of conduct may still be reasonable action even if particular steps are not.”
If the lack of notice can be seen as a “blemish” there is no evidence that that fact was material in a causative sense: it was the fact of the retrenchment, rather than the lack of notice of it, that was causative of Ms Ayoub’s decompensation. However, there remains to consider whether the whole course of the conduct was reasonable.
Unlike in Pirie’s case, AMP took steps to have at the meeting on 15 November 2007 a counsellor. Mr Slocombe also advised Ms Ayoub in his letter to her of 16 November 2007 that she had access to the Employee Assistance Program and to a Career Management Consultant at AMP’s expense.
The Arbitrator’s reference to Ms Nicol’s notes of that meeting where she expressed concern for Ms Ayoub’s wellbeing as in some way reinforcing his view that the abruptness with which she was told of her retrenchment was unreasonable is misconceived. In my view, it is further evidence of AMP’s reasonable approach in attempting to cushion the impact of the retrenchment. Ms Nicol’s actions at that meeting and indeed her follow-up contact with the counsellor I regard as compassionate and appropriate in the circumstances.
In her oral evidence, Ms Ayoub did not substantially challenge Ms Nicol’s documented version of events on 15 November 2007. There was no suggestion by her that her “redundancy package” either in terms of any requirement to continue working or of financial benefit was unreasonable.
Having carefully considered all of the evidence, I have concluded that a “reasonable observer” would be satisfied that the process adopted by AMP in relation to Ms Ayoub’s retrenchment was reasonable in all the circumstances of this particular case.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249) I have concluded that the Appellant’s actions in relation to both the performance appraisal and retrenchment of Ms Ayoub were reasonable such as to entitle it to rely upon the defence contained in section 11A of the 1987 Act. It is clear that it is Ms Ayoub’s reaction to these events that is the whole or predominant cause of her condition.
DECISION
The decision of the Arbitrator dated 3 November 2009 is revoked, and the following decision made in its place:
1. Award in favour of the Respondent.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
14 April 2010
I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ACTING DEPUTY PRESIDENT DEBORAH MOORE OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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