Country Fire Authority v United Firefighters' Union of Australia

[2012] FWA 3686

[2012] FWA 3686

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.709 - Application to FWA to have a dispute resolution process conducted (Div 5)

Country Fire Authority
v
United Firefighters' Union of Australia
(DR2012/227)

United Firefighters' Union of Australia
v
Country Fire Authority
(DR2012/233)

COMMISSIONER ROE MELBOURNE, 30 APRIL 2012

Alleged dispute concerning the performance management of an employee.

[1] On 23 March 2012 the Country Fire Authority (CFA) lodged an application to progress a performance matter. On 27 March 2012 the United Firefighters’ Union of Australia (UFU) lodged an application to have FWA determine whether there were any substantiated allegations against the employee (DS). I determined at a conference on 5 April 2012 to join the matters.

[2] The matter of the request of DS to achieve a transfer to another work area had been subject to earlier dispute notification and conferences before me on 21 November and 6 December 2011 (DR2011/404). The desire of the CFA to commence performance management of DS was raised in these proceedings. I made a recommendation in respect to that earlier dispute notification on 7 December 2011. The implementation of that recommendation did not result in the transfer sought by DS and the UFU nor did it lead to the commencement of performance management as sought by the CFA.

[3] The CFA Professional, Technical and Administrative Agreement 2007 (the Agreement) applies to both the CFA and DS.

[4] Arising from the 5 April 2012 conference I issued the following recommendation which the parties agreed to abide by.

“1. Without prejudice to the position of either party concerning the appropriate processes to be followed in this or other cases, the parties agree that the matter of the natural justice concerns about the process to date concerning DS will be determined by a Recommendation to be issued by Fair Work Australia following a conference/hearing on 27 April 2012. The parties agree to abide by the Recommendation. The parties agree to follow the process set out in the following points in the event that there are no natural justice concerns which are found to justify a modification the process. In the event that there are natural justice concerns which justify a modification to the process then the parties agree to follow the modified process.

2. Ms Saber is to attend a meeting with the CFA within 7 days of the date of the recommendation arising from point 1. At this meeting DS is entitled to be accompanied by a representative of her choice, however, DS is to respond directly to the matters raised at that meeting which go to her work performance.

3. The purpose of the meeting is for the CFA to hear and consider DS’s responses as the starting point for a performance management process in the event that the CFA considers this is required after considering the responses of DS.

4. Whilst any performance management process is in train DS remains able to search for alternative positions within the organisation. Any application that DS may make will be considered by the CFA in a non-discriminatory manner.

5. Upon the satisfactory conclusion of a performance management process CFA will provide career management assistance to DS for a maximum period of three months, should DS request this.”

[5] The UFU and the CFA provided me with written submissions. The UFU also provided a statement from Sean McCormack, Legal Officer for the UFU. The parties had the opportunity to supplement their submissions at a hearing on 27 April 2012.

[6] The extensive history of this matter conclusively demonstrates that the relevant steps of the disputes settlement procedure of the Agreement have been followed and that conciliation of the matter was exhausted. The matter in dispute is a matter which is within the scope of the matters under the Agreement to which the disputes settlement procedure applies. The parties have empowered FWA to determine this matter by a Recommendation.

[7] The UFU have argued that the CFA has failed to adhere to the principles of natural justice in that they allege that the CFA came to the conclusion that DS required performance management without due process.

[8] In 2010 the CFA undertook an investigation into a complaint of alleged breach of privacy made by another employee against DS. CFA engaged an external consultant to investigate the complaint. On 23 December 2009 the CFA set out the nature of the formal complaint received against DS and how the matter would be dealt with. On 22 January 2010 CFA advised DS of the three allegations made relating to accessing personal information regarding other employees and discussing that information with other employees. The investigator found in August 2010 that there was no breach of privacy pursuant to CFA Policy and Procedure or pursuant to the Information Privacy Act 2000. However, the CFA found that DS demonstrated inappropriate behaviours and judgments in relation to the matter and that this should be addressed through the utilisation of a performance management process. It is reasonably clear that the inappropriate behaviour and judgments referred to was the accessing of personal information regarding other employees and discussing that information with other employees as set out on 22 January 2010.

[9] However, the UFU argue that the CFA did not explain why the behaviour was inappropriate, particularly when it was found to not be a breach of privacy law or policy. The UFU says that there was also no explanation as to why performance management was seen as the appropriate resolution and why more informal steps were not considered appropriate.

[10] DS was given the opportunity to respond to the proposed outcomes of the inquiry into the complaint or grievance. She did so. The UFU raised a number of concerns about the process of the inquiry. On 11 April 2011 the CFA advised that the final outcome of complaint was “no formal breach of privacy had occurred” but that DS had demonstrated inappropriate behaviour in the particular incident and that DS would be “required to participate in a performance improvement process.”

[11] The CFA did not institute performance management following the 11 April 2011 advice. The UFU says that this was because the parties were seeking to resolve the matter through other means. The UFU continued to dispute the appropriateness of the outcome and was seeking to resolve the matter through the transfer of DS to another area. When this was not resolved the UFU notified a dispute to FWA in November 2011 (DR2011/404). As discussed earlier the process in FWA in November and December 2011 did not result in an agreed transfer nor in agreement to a performance management process sought by the CFA.

[12] Following the first FWA conference in November 2011 the CFA set out the criteria against which DS would be assessed during the period of performance management. That is, the performance plan to be followed satisfactorily for a minimum of three months. It was evident from that plan that the performance concerns of the CFA were much broader than those identified arising from the earlier disciplinary/grievance process culminating in the final outcome of 11 April 2011. Following the second FWA conference in December 2011 the CFA provided a summary of the performance and conduct issues that the CFA “intends to address through a formal performance management process”. 1 The performance concerns were identified as:

• “Acting in a manner contrary to the agreed FIRS Code of Conduct



• Poor interpersonal and communication skills with colleagues and managers



• Failure to cooperate and work effectively in a team environment



• Failure to accept responsibility for her decisions and actions and



• Unwillingness to follow and implement all reasonable and lawful directions”

[13] The CFA advised that:

“The purpose of convening a performance management meeting with (DS) is to discuss those concerns with examples, reiterate the standards of performance and conduct, and to provide (DS) with a timeframe in which CFA expects improvement in her performance.” 2

[14] The UFU did not regard this summary of performance and conduct issues as sufficiently detailed or evidence based and continued with its position that DS had not had an opportunity to respond to specific allegations prior to conclusions being reached. The UFU stated that there was no evidence that the allegations had been investigated in a manner which provided DS with procedural fairness. The UFU says that DS had not previously been advised that these performance matters existed and was not aware they were being investigated and was therefore not given the opportunity to respond.

[15] The CFA directed 3 DS to attend a performance management meeting on 24 January 2012 to discuss the identified summary of concerns as set out in the 22 December 2011 correspondence.

[16] I am satisfied that the performance concerns which the CFA are now seeking to deal with through performance management are much wider than the matter originally set out on 22 January 2010 and in the findings of the CFA of April 2011. The earlier matter was confined to two related incidents of inappropriate discussion of information concerning other employees.

[17] In the end the CFA did not act on the finding of April 2011 and did not institute performance management in respect to that matter. The CFA argue that the main reason why that did not occur was because of the resistance of the UFU and DS to cooperating with that process. The UFU argues that the April 2011 decision was inappropriate and unfair. What is clear is that the CFA did not proceed to implement performance management based on the April 2011 finding. It did not seek to enforce its right to do this through disciplinary procedures or the disputes settlement processes of the Agreement. Instead in November/December 2011 the CFA advised that it was seeking to institute a performance management process in respect to broader conduct and performance issues.

[18] On 9 February 2012 a meeting was held between the UFU and the CFA and DS. At that meeting the CFA provided DS with a 5 page performance plan. That plan did give some examples of inappropriate behaviour or underperformance but they did not include the dates when they occurred and the related expected actions and behaviours required to rectify the perceived performance/behaviour problem. The UFU stated 4 that these dot points were insufficiently detailed to allow for response. The UFU argued that:

• The plan assumed that DS was responsible for all of the alleged instances of underperformance; and



• DS had never been formally presented with the allegations nor given an opportunity to respond to them.

[19] The UFU requested that the CFA document the allegations in more detail, including when they occurred, and explain what policy or standard is said to be breached by the alleged conduct and then allow DS to respond to those allegations before reaching conclusions.

[20] The CFA responded on 23 February 2012. The CFA stated that the purpose of the performance management meeting they had requested DS to attend was “to give (DS) the opportunity to comment on CFA’s views. The meeting provides (DS) with the opportunity you claim she will not get.”

[21] The CFA stated that there would be a further performance management meeting on 1 March 2012 and this meeting would discuss the performance concerns including examples of where the CFA believe performance was unsatisfactory and DS would have the opportunity to explain why she believes the CFAs views are not correct.

[22] On 29 February 2012 the CFA provided eleven examples of the performance/behaviour concerns. Those examples provided the date of the alleged incident or conduct. These examples were from 2009 onwards and included the incident which had been the subject of the earlier complaint/grievance.

[23] The UFU responded on 5 March 2012. Amongst other matters the UFU raised concern that there was confusion about whether or not the proposed process was informal or formal and whether or not it was a precursor to disciplinary outcomes. The UFU stated that it was an important part of procedural fairness for DS to know what the possible adverse outcomes of the process are. The UFU also repeated its concerns that although the letter suggested that the meeting would provide DS with the opportunity to discuss the CFAs “concerns” and explain why she believes these concerns are unwarranted the letter elsewhere refers to concluded views that the performance and behaviour of DS does not meet the required standards. The UFU expressed the view that the CFA was simply trying to get DS to agree with the CFA about their failings as identified by the CFA.

[24] The UFU also expressed concern that Mr C, direct manager of DS, would have a central role in determining the outcomes of the process. The UFU claimed that Mr C was the source of a number of the allegations, was the sole witness to many of those allegations and had demonstrated a closed mind about the matters.

[25] The CFA responded further on 22 March 2012 confirming that the performance management process was a formal process and that if performance continued to be unsatisfactory after the performance management period disciplinary action was a possibility. The CFA stated that it intends to “develop an appropriate plan to enable DS to improve her performance or behaviour”. However, the CFA stated that it had not:

“reached any final conclusions about DS’s performance”. “CFA repeats its previous statements that the purpose of the meeting with DS is to put these matters to her and provide DS with an opportunity to respond and raise any relevant matters with CFA.”

The CFA also stated that:

“Only after DS has provided her responses and other information she wants CFA to consider, can CFA assess whether its concerns are properly founded and whether any action is necessary.”

Conclusions

[26] The UFU is seeking that I find that the whole process since the CFA first sought to institute performance management in August 2010, in response to an inquiry into a grievance by another employee, was not consistent with natural justice requirements. The UFU is seeking that I find that the whole process has been so contaminated that it cannot be rescued and should be abandoned.

[27] The CFA is seeking that I find that the process has been procedurally fair and that the process should continue as set out in the recommendation of 5 April 2012.

[28] The CFA argues that the UFU submissions are based on a false premise that the original decision to institute performance management based on the inquiry into the grievance or complaint was procedurally flawed and that therefore the subsequent processes are the fruit of this poisoned tree. The CFA argues that the original process based on the inquiry into the grievance which resulted in the finding in April 2011 that performance management was required was fair. They say that, contrary to the submissions of the UFU, DS did have the allegations and then the findings put clearly to her and did have adequate opportunity to respond. The CFA also argue that the November 2009 complaint and the subsequent findings in respect to that complaint are not the basis for the current attempts to seek that DS respond to performance concerns.

[29] I accept the submission of the CFA that the misconduct allegations were adequately detailed to DS, that DS was given the opportunity to respond, that DS was advised of the findings of the inquiry, and that DS was given the opportunity to respond to those findings. I can see nothing procedurally unfair in this process on the material before me. The material before me does not adequately explain why the particular incident of accessing personal information regarding other employees and discussing that information with other employees justified a formal performance management process rather than more informal steps. However, I do not necessarily have access to all relevant information and I make no finding about this matter. I understand why the UFU sought to dispute the April 2011 outcome.

[30] I am also satisfied that the process instituted by the CFA in November 2011 was a new process based upon different and much broader performance concerns. Neither the CFA nor the UFU sought to pursue any rights they might have in respect to the earlier process.

[31] The CFA submits that it is not necessary for DS to be notified of all possible consequences of a performance management process “in circumstances where CFA has not had the benefit of DS’s response to its concerns or determined that it is satisfied DS has not met the standards of performance expected of her.” I agree with this submission, however, I note that the UFU argue that the approach of the CFA has been consistent with the CFA having already determined that DS has not met the expected standards of performance.

[32] The CFA submits that it has complied with the natural justice requirement that the person:

“know the case being put against them and be given the opportunity to respond to the information or evidence being relied upon before a decision is made that may adversely affect their interests.”

The CFA submits that the details provided in their correspondence of 29 February 2012 were sufficient and there is no natural justice requirement to detail the matters in a manner acceptable to the UFU. The CFA stated that they were prepared, during the process, to provide further details in the interests of progressing the matter. I agree with the CFA submission that the correspondence of 29 February 2012 read in conjunction with the correspondence of 23 February 2012 provides details of the case being put against DS and the evidence being relied upon. I consider this to be a sufficient basis on which to expect an employee to attend a meeting to respond to performance concerns. I accept that it may be reasonable for DS to request further details during the meeting to discuss the concerns and should then have reasonable opportunity and time to respond to any further details provided. I understand that the CFA have agreed to provide this opportunity. I agree with the CFA that there is no requirement in the Agreement nor is there any general natural justice requirement for the matters relied upon to be provided in a particular form or manner.

[33] However, I consider that the CFA did not provide relevant details or opportunity prior to the correspondence of 29 February 2012 read in conjunction with the correspondence of 23 February 2012.

[34] The CFA submitted that they were not biased when looked at from an objective point of view. The CFA submit that there is no requirement for the employer to be entirely neutral or free from any predisposition to a view. The CFA says that the question to be determined on bias is:

“whether there is sufficient evidence before the Tribunal for it to from the view that CFA will not genuinely take into account DSs responses to its performance concerns and it has pre-determined the outcome that cannot be changed.”

I agree with the CFA submission that there is no requirement for the employer to be entirely neutral or free from any predisposition to a view. I also agree that I need to consider if the CFA will genuinely take into account DSs responses and does not have a pre-determined outcome. However, I believe it is setting the bar too high to suggest that I can only conclude unreasonable bias if the CFA has pre-determined that the outcome cannot be changed.

[35] I consider that it would be unreasonable bias if the actions of the CFA were demonstrative of an attitude that change to the pre-determined outcome was highly unlikely. I accept that it is reasonable for an employer to make it clear that they have formed the preliminary view that there are performance issues based upon stated evidence and reasons and that if, having considered the responses the employer concludes that this is the case then performance management will result. However, if the employer does not make it clear that they are open to form a different view then this is likely to communicate to a reasonable person that change to the pre-determined outcome is highly unlikely. Although there may be occasions when providing details of a proposed performance management plan prior to giving the employee the opportunity to respond to the concerns may be appropriate, in some circumstances it is likely that this will reinforce an impression that a decision as to the validity of the performance concerns has already been made and that there is no genuine opportunity for the employee to persuade the employer to another view.

[36] I also agree with the CFA that it is reasonable for the direct manager of an employee to be involved in performance assessment and management and that it will be common for that direct manager to also be the source of concerns about performance.

[37] The CFA submit that they have “consistently advised DS and the UFU that no final conclusions about DS’s performance or any performance improvement process had been made by CFA.” It is my assessment that the CFA have not consistently communicated this message. In my view, in the particular circumstances of this case, this failure is not consistent with natural justice. This failure created a reasonable apprehension of bias and that the CFA had pre-determined that performance management was warranted before giving DS an opportunity to genuinely respond to the performance concerns.

[38] Looking at the sequence of events and the relevant correspondence I am satisfied that a reasonable person would have the impression that the CFA had made conclusions about DS’s performance and that it was highly unlikely that this would change. The focus of the November and December correspondence of the CFA was to commence a performance management process and to get DS to respond to the proposed performance management plan. It was only after some disputation that the CFA provided more details of the allegations and made it clear that they were interested in DSs response to the allegations.

[39] The use of the expression “discuss” in the 22 December 2011 correspondence, when read in context, does not suggest that the CFA is open to a conclusion that performance management might not be found to be justified.

[40] The CFA stated on 22 December 2011 that:

“the purpose of convening a performance management meeting with (DS) is to discuss those concerns with examples, reiterate the standards of performance and conduct, and to provide (DS) with a timeframe in which CFA expects improvement in her performance.”

[41] The 9 February 2012 meeting and the original correspondence in November 2011 was structured around a performance management plan which reinforced the impression that the process was about consulting on the details of the performance management plan not about giving DS an opportunity to respond to the concerns about under-performance and for an assessment to then be made about appropriate remedy, if any. I accept that the CFA produced the plan as a draft and were open to change it based upon the input from the UFU and DS. However, focusing the discussion around this document implied that the allegations were assumed to be true and it was only the remedies which were genuinely open to discussion and change.

[42] In the correspondence of 23 February 2012 the CFA states that the meeting is “to give (DS) the opportunity to comment on CFA’s views. The meeting provides (DS) with the opportunity you claim she will not get.” However, this does not make it clear that alternative outcomes might result because the letter elsewhere refers to concluded views that the performance and behaviour of DS do not meet the required standards.

[43] Finally on 22 March 2012 the CFA makes it clear that:

“Only after DS has provided her responses and other information she wants CFA to consider, can CFA assess whether its concerns are properly founded and whether any action is necessary.”

[44] In the earlier correspondence the CFA did not make it clear that performance management would not proceed if DS was able to satisfy them that the allegations were not correct or sufficiently serious to justify a formal performance management process as opposed to more informal outcomes.

[45] The CFA felt that the UFU and DS were trying to obstruct and delay the process. The CFA understandably believed that their rights to effectively manage the work and employees were being compromised. I accept that the CFA believes that the performance concerns they have identified need to be addressed with some urgency and that they adversely affect working relationships and work output in the team where DS is placed. CFA have a right to be able to address such concerns without undue delay. However, this can only be achieved if the process adopted is fair and consistent with natural justice.

[46] If the position set out in the correspondence of 29 February 2012 read in conjunction with the correspondence of 23 February 2012 had been the starting point of the process in November 2011 then I would not have been able to conclude that there was any significant problem with denial of natural justice. However, it is reasonable to read the correspondence in the context of what has been said and done over the period since DS was first advised that she would be subject to performance management in November 2011. In that context I conclude that a reasonable person would believe that it was highly unlikely that the CFA was open to change its views about the alleged performance problems.

[47] I reject the submission of the UFU that the appropriate remedy in these circumstances is to abandon the process. The CFA believe that there are performance concerns that need to be addressed and that they are having adverse effects. They have a right to address these concerns provided that is done fairly. I believe that the appropriate remedy is to modify the process so that a reasonable person would have confidence that there will be a genuine consideration of the responses of DS and an openness to conclusions other than formal performance management.

[48] I consider that the appropriate modification should be the injection of a more independent person to oversee and participate in the process of the meetings and assessment set out in points 2 and 3 of the recommendation of 13 April 2012. That independent person should have access to all relevant material and provide advice to the CFA and to DS and the UFU at the conclusion of step two of the recommendation as to whether or not performance management is appropriate or not and if not whether or not any other action would be appropriate. Otherwise the recommendations should be unchanged. There is no general requirement for an independent person in these processes, it simply arises in the particular circumstances of this case to resolve the dispute and rectify the particular problems that have arisen in this case. There is no general requirement under the Agreement for the involvement of an independent person.

[49] I indicated during the proceedings on 27 April 2012 that this could be a possible outcome and invited the parties to suggest how this might be achieved. I indicated that I did not favour leaving it to the parties to determine this given that would mean further delays which would be detrimental to DS and the CFA. The CFA submitted that should I determine that an independent person was required to provide confidence that natural justice would be observed an internal person would be most appropriate to achieve this. They nominated a person. The UFU said that they would provide advice in respect to this matter by close of business 30 April 2012.

[50] I have decided that in the unique circumstances of this case an independent person should oversee and participate in the process but that the process should be otherwise unchanged. I am not convinced that an internal person is a satisfactory solution. I therefore propose to allow the parties a further 48 hours to advise me of the names of external persons/ organisations that should be considered for this role.  I will then make a further recommendation to finalise the matter of the selection of an independent person.

COMMISSIONER

Appearances:

Ms Joanne Watson and Mr Sean McCormack appeared for the UFU.

Ms Julie Bain and Mr Greg Meredith appeared for the CFA.

Hearing details:

2012
Melbourne
April 27

 1   Correspondence of 22 December 2012.

 2   Correspondence of 22 December 2011.

 3   Correspondence of 23 December 2011.

 4   Correspondence of 16 February 2012.

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