Dango and Comcare (Compensation) - [2018] AATA 2898

Dango and Comcare (Compensation) [2018] AATA 2898 (15 August 2018)
Division:GENERAL DIVISION
File Number(s): 2015/0513
Re:Marilyn Dango
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member K Parker
Date:15 August 2018
Place:Melbourne

The Tribunal sets aside the reviewable decision and in substitution, decides that Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) to pay compensation to Mrs Marilyn Dango in respect of the injury of “aggravation of adjustment disorder with depression and anxious mood” which occurred on 23 February 2014.
[sgd]........................................................................
Member K Parker
Compensation – psychological injury – adjustment disorder with depressed and anxious mood – whether aggravation or continuation of underlying non-compensable condition – disease – whether injury was the result of administrative action – identification of administrative actions – underperformance management process – refusal to transfer employee to a different branch within the Department – whether each administrative action was reasonable action taken in a reasonable manner – whether actions were inconsistent with the employer’s obligations under an enterprise agreement and its internal policies – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 14, 71
Cases
Comcare v Chenhall [1992] FCA 353
Comcare v Martin (2016) 258 CLR 467
Comcare v Martinez (No 2) (2013) 212 FCR 272
Comcare v Mooi [1996] 69 FCR 439
Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Re Dango and Comcare [2013] AATA 597
Drenth v Comcare [2012] FCAFC 86
Gropel v Comcare [2018] FCA 1146
Hart v Comcare (2005) 145 FCR 29
Lim v Comcare (2017) 250 FCR 298
Lee and Comcare [2012] AATA 867
Melder and Comcare [2013] AATA 534
Tippett v Australian Postal Corporation [1998] FCA 335
Wieczorek and Comcare (Compensation) [2017] AATA 994
Secondary Materials
Department of Immigration and Citizenship - Managing Underperformance Policy February 2012 (Policy)
DIAC Enterprise Agreement 2011-2014 (DIAC EA)
REASONS FOR DECISION
Member K Parker
15 August 2018

Mrs Marilyn Dango has been employed as an Australian Public Service (APS) employee under the Public Service Act 1999 (Cth) for approximately 17 years. Mrs Dango was initially working in a finance role and said she had a background in finance. Mrs Dango completed Year 12 at a secondary school in India, following which she completed a one-year secretarial course.[1] In 2000 and 2001, Mrs Dango completed a one-year Diploma of Business Administration at the North Melbourne Institute of Technology.[2]
[1] Refer paragraph [4] of Mrs Dango’s Statement dated 23 October 2015 (Mrs Dango’s Statement).
[2] Refer paragraph [12] of Mrs Dango’s Statement.
Since 1 July 2008, Mrs Dango has worked in the Department of Home Affairs, formerly known as the Department of Immigration and Border Protection, and before that the Department of Immigration and Citizenship. In 2009, Mrs Dango held the APS4-level position of Finance Officer in the Settlement and Multicultural Affairs Branch of the Department (SMA Branch). Mrs Dango was the only person who held this position in the Victorian Office of this Branch.
In late May or early June 2011, a staff announcement was made that there would be a restructure. Mrs Dango was advised on 29 July 2011 upon her return from leave, that her previous position no longer existed and that she would commence in a temporary position for three months in the Detention Review Management Team. Mrs Dango was not happy with this change and requested that she be put on the redeployment register so that she could be transferred to a finance position in another department or agency within the APS. The Department did not consider Mrs Dango to be in excess to needs and did not agree to place her on the redeployment register.
In November 2011, Mrs Dango was offered an administrative position within the Citizenship Services Section of the Department in the position of APS4-level Citizenship Case Officer. Mrs Dango ceased work due to ill-health and did not return to work in this role until February 2012. Mrs Dango made a workers’ compensation claim at this time, which was not accepted. Comcare’s decision to disallow the claim was affirmed by this Tribunal, differently constituted, on 23 August 2013, on the basis that the reasonable administrative action exception under s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) applied.[3] It was found that Mrs Dango was suffering from the condition of “depression” (2011 Condition).[4]
[3]Re Dango and Comcare [2013] AATA 597
[4] Comcare lodged a set of documents with the Tribunal on 11 March 2015 pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents). Refer T-Documents T7/32.
Following Mrs Dango’s return to work in about February 2012, in the role of an APS4-level Citizenship Case Officer, Mrs Dango experienced difficulties with developing the new skills required to perform that role. Her supervisor and managers placed her on an incremental training program in March 2013 to allow her to graduate slowly from the easy tasks to more difficult tasks required of the role. Mrs Dango commenced training on 21 October 2013 to learn how to process bridging visa applications (BVA’s) under the supervision of her team leader. The Department held concerns in relation to Mrs Dango’s performance in this role and it took various actions to address those concerns with Mrs Dango in late 2013 and early 2014.
Mrs Dango pursued a transfer to another branch within the Department in January 2014 but this did not proceed.
Mrs Dango claimed that she suffered an injury in early 2014 (2014 Injury) for which Comcare was liable to pay compensation under s 14 of the Act.[5] Comcare was satisfied that Mrs Dango suffered from an ailment being a “Major Depressive Disorder”; however, it disallowed her claim.[6] Mrs Dango sought reconsideration of her claim. Comcare reconsidered her claim and affirmed its earlier decision to disallow it. Mrs Dango now seeks review by this Tribunal of the reconsideration decision (reviewable decision).[7]
[5] Refer T-Documents T11/65.
[6] Refer T-Documents T28.
[7] Refer T-Documents T21.
Originally Comcare accepted that Mrs Dango has suffered an ailment. Comcare later changed its position and instead, contended that Mrs Dango did not suffer an ailment in 2014 because “her emotional symptoms were not clinically significant”. Comcare also contended that if the Tribunal was satisfied that Mrs Dango had suffered an ailment in 2014, it was a continuation of, and not an aggravation of, her 2011 Condition, for which Comcare had established it was not liable to pay compensation.
Comcare contended that if Mrs Dango was able to get past those hurdles, the Tribunal could be satisfied that the 2014 Injury was contributed to, to a significant degree, by Mrs Dango’s employment. However, Comcare contended that the reasonable administration action exception in s 5A of the Act applied in relation to the 2014 Injury to exclude liability.
Specifically, Comcare contended that the 2014 Injury was the result of the informal performance management of Mrs Dango from December 2013 to February 2014, which it contended was reasonable administrative action taken in a reasonable manner. Comcare also contended that the 2014 Injury was the result of the refusal by the Department to transfer Mrs Dango “at level” into a finance role in the Translating and Interpreting Service (TIS) within the Department in January 2014, which it contended was reasonable administrative action taken in a reasonable manner.
Mrs Dango, on the other hand, contended that she suffered an ailment in 2014 and it was an aggravation of her 2011 Condition, and not merely a continuation of it. She said her condition was not merely “emotional symptoms”. Mrs Dango contended that the 2014 Injury was contributed to, to a significant degree, by her employment with the Department and that the s 5A exception did not apply.
Mrs Dango claimed that the date of the 2014 Injury was 9 January 2014 and that only administrative actions taken before that date could be considered when assessing whether the s 5A exception applied. For this reason, Mrs Dango contended this was limited to the decision taken by the Department to initiate the informal performance management of Mrs Dango before this date. Mrs Dango contended that this action was not reasonable, nor was it taken in a reasonable manner.
Specifically, Mrs Dango contended that it was not reasonable for her manager-once-removed, Mr Chandrasegaren, to have held the meeting with her on 16 December 2013 to notify her of its decision to commence an informal review period, because:
(a)she had not been provided with specific training on the work she was required to do;
(b)she said her work was improving;
(c)she said she had not previously been informed by her supervisors or managers that her work was not up to standard;
(d)the Department had not put in place a Professional Development Agreement (PDA) for her before this meeting; and
(e)the Department’s work expectations had not been discussed with her before this meeting.
Mrs Dango also contended that the Department’s decision not to transfer her to the TIS, as conveyed to her in late January 2014, post-dated the claimed date of the injury, and was otherwise not reasonable action taken in a reasonable manner.
For the reasons set out in these Reasons for Decision, the Tribunal considers that Mrs Dango suffered an ailment in 2014. The Tribunal finds that this ailment was a disease being the aggravation of Mrs Dango’s 2011 Condition. The 2011 Condition was previously diagnosed as “depression”. Based on updated medical diagnoses giving at the hearing of this application, the Tribunal finds that Mrs Dango’s underlying disease was in fact, “adjustment disorder with depression and anxious mood”.
The Tribunal is satisfied that her employment with the Department contributed to, to a significant degree, the ailment she suffered in 2014. The Tribunal considers that Mrs Dango’s injury was a result of the implementation of an underperformance management process with Mrs Dango from December 2013 to February 2014. The Tribunal also considers that Mrs Dango’s injury was a result of the Department’s decision not to transfer the Applicant to the TIS. Both of these separate administrative actions took place prior to 23 February 2014.
The Tribunal does not consider that the exception in s 5A of the Act applies to Mrs Dango in relation to either of those administrative actions, for the reasons set out below.
Accordingly, the Tribunal sets aside the decision under review and in substitution, decides that Comcare is liable to pay compensation to Mrs Dango under s 14 of the Act for the injury of “aggravation of adjustment disorder with depression and anxious mood” which occurred on 23 February 2014.
RELEVANT LEGISLATION
Section 14 of the Act provides that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in subsection 4(1) as having the meaning given in s 5A of the Act. Section 5A provides:
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee's performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c)a reasonable suspension action in respect of the employee's employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
The term disease is defined in s 5B of the Act. Section 5B provides:
(1) In this Act:
"disease " means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
a.    the duration of the employment;
b.    the nature of, and particular tasks involved in, the employment;
c.     any disposition of the employee to the ailment or aggravation;
d.    any activities of the employee not related to the employment;
e.    any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
The term ailment is defined in s 4(1) of the Act as meaning:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES FOR DETERMINATION
Relevantly, the Tribunal must determine whether Mrs Dango suffered an injury which resulted in incapacity for work or impairment, which will involve the consideration and determination of the following issues:
(a)Did Mrs Dango suffer from an ailment in 2014? If so:
(i)What was the diagnosis for that ailment?
(ii)Was that ailment an “injury” as defined by s 5A of the Act, being either:
·a “disease” (subsection 5A(1)(a) of the Act, as defined in subsection 5B(1)), being an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree, by Mrs Dango’s employment with the Department; or
·an injury (or an aggravation of an injury) other than a disease arising out of, or in the course of, Mrs Dango’s employment with the Department, as defined in subsections 5A(1)(b) and (c) of the Act.
(iii)If Mrs Dango’s ailment was a disease within the meaning of subsection 5B(1) of the Act or an injury (or an aggravation of an injury) other than a disease arising out of, or in the course of, her employment with the Department, whether liability under s 14 should be disallowed under s 5A(1) because the ailment was the result of reasonable administrative action taken in a reasonable manner.
(b)Did that injury result in incapacity for work or impairment?
MRS DANGO’S EMPLOYMENT WITH THE DEPARTMENT
Mrs Dango’s history of employment in the APS is set out below:[8]
(a)in 2001, joined the Department of Defence at the APS2-level working in accounts payable;
(b)in 2004, transferred to the Australian Taxation Office at the APS3-level, working in accounts payable and procurement;
(c)in 2005, transferred to the Department of Treasury at the APS4-level, working as an office manager and secretary;
(d)in 2008, transferred to the Department of Immigration and Citizenship at the APS4-level in a finance role, involving auditing work, and subsequently:
(i)in mid-2009, commenced working as an APS4 Finance Officer in the Settlement and Multicultural Affairs Branch (SMA Branch);
(ii)in mid-2011, the SMA Branch was restructured resulting in Mrs Dango transferring to an administrative role “at level” in the Citizenship Services Section that was initially scheduled to commence in November 2011.
[8] Refer paragraphs [2.5] to [2.13] of Mrs Dango’s Statement of Facts, Issues and Contentions (Mrs Dango’s SFIC).
Mrs Dango provided a further account of her employment history in her statement made on 23 October 2015 (Mrs Dango’s 2015 Statement).
Mrs Dango’s transfer to the Citizenship Services Section
Mrs Dango was absent from work from about November 2011 until February 2012. Upon her return in February 2012, she commenced duties in the role she had been transferred into as a Citizenship Case Officer where she was responsible for receipting public money, processing applications for and evidence of Australian citizenship.
After her commencement in this role, Mrs Dango met with her supervisor at the time, Ms Karen Su, on 19 February 2012. Ms Su made the following file note on 20 February 2012, in relation to this meeting:[9]
I had a meeting with Marilyn yesterday. We discussed about the functions of citizenship, types of applications etc. Marilyn was quite emotional when mentioning her depression. She talked about coming to work and going home early because she can’t cope with crowded train. She specified that she cannot travel for regional tests, cannot go to the counter because of client interactions. She requested not to be introduced to the rest of the section until she’s comfortable settling in. She also requested a permanent desk. She was also stressed about the new role and worried about her workload. I reassured her that she would not be loaded with all different types of applications. We start with simple 119s and training will be provided along the way. Marilyn mentioned that she was not getting assistance from DIAC program and only managing her health issues with her own GP. She was settled at the end of the meeting.
[9] Refer T-Documents T39/261.
A further meeting took place between Mrs Dango and Ms Su on 23 February 2012 during which Ms Su outlined to Mrs Dango the expectations at that time for her PDA. In her file note dated 23 February 2012, Ms Su recorded the following:[10]
Marilyn was fine during the PDA discussion. She asked about receipting and making decisions. She was concerned about reaching targets. Explained to Marilyn that her target will be 5-12 receipting per day in the first 3 months and 12 receipting per day after the first 3 months. Reassured her that the training will be provided for different types of applications. ICSE and 119 training will be first. Marilyn accepted the target and happy with the training plan.
[10] Refer T-Documents T39/261.
Following this, it appeared that there were issues arising in relation to Mrs Dango being able to meet the performance expectations of her under the PDA. Mrs Dango did not progress through the entirety of the training schedule. On 10 April 2012, a meeting took place between Mrs Dango, Ms Su and Ms Su’s manager about Mrs Dango’s performance, during which Mrs Dango was described as becoming emotional.
Mrs Dango was referred for a medical assessment with a Medical Officer of the Commonwealth (MOC) who assessed her as fit to undertake her role. The MOC recommended that a rehabilitation provider be engaged to assist Mrs Dango to determine her optimal learning style and to implement strategies to consolidate learnings of the role. This step was taken by the Department.
The Tribunal notes an email from Ms Elizabeth Brown, Manager – Health and Safety, People Services Branch (HR) to Mr Brett Belcher, Acting Director at that time, on 9 July 2012 to seek approval to engage a rehabilitation provider to assist Mrs Dango.   Of particular note in this letter, Ms Brown states as follows:
…. In this case, the role of the provider would include:
-    Contact Marilyn’s treating doctor and discuss her role, and any further supports/approaches to training that would assist Marilyn to develop her skills and confidence in her duties;
-    Liaise with Marilyn, Karen and her treating doctor regarding the establishment of a training plan to develop her scope of duties in Citizenship Services;
-    Be the conduit between Marilyn, Karen and her treating doctor; and
-    Provide an independent source of support for Marilyn and Karen.
By having this rehabilitation provider in place, the department is demonstrating all reasonable steps are being taken to assist Marilyn to improve her condition and performance, before moving into formal performance management process.
Involvement of rehabilitation provider from July to October 2012

On 30 July 2012, Ms Alison Battley, psychologist, Recovre Psychological Services, prepared an Initial Needs Assessment Report as part of providing rehabilitation support to Mrs Dango.[11] Ms Battley suggested a number of workplace strategies to assist Mrs Dango and also said that she was likely to benefit from evidence-based practice (Cognitive Behavioural Therapy) to “build her cognitive awareness and to assist her in moving forward”. In this report, Ms Battley stated:
[11] Refer T-Documents T39/275-281.
…
Ms Dango advised that she continues to experience a range of psychological symptoms and that she attributes this to the stress associated with her transfer in role. She advised that she feels management were not honest with her when they advised that budget cuts were necessary, as she believes that the finance department have since hired new staff. She indicated that she was having significant difficulties letting go of this issue and adjusting to the “huge change” to her role.
Mrs Dango advises that she continues to experience a range of psychological symptoms which are impacting on her work life and home life. Some of these symptoms include tearfulness, fatigue, low motivation, social withdrawal, nightmares, forgetfulness and difficulties concentration (sic) and learning new information.
Ms Karen Su (Supervisor) and Ms Rosaleen Mitchell (Assistant Manager) attended the second part of the assessment to discuss Ms Dango’s duties and possible strategies to assist Ms Dango in undertaking her role. Ms Dango did not indicate any specific difficulties with tasks but rather indicated that she had trouble retaining new information and remembering instructions she had been given. She reported that she was often forgetful and would need to ask Ms Su the same question a number of times. Ms Su confirmed this and advised that Ms Dango is currently only completing one type of Visa application which is the most straightforward. Ms Su advised that she provides Ms Dango with frequent feedback and guidance and that each day they have an informal meeting to assess Ms Dango’s work.
…
Identified Return to Work Barriers:
…
Psychological factors:
The most significant psychological barrier, which appears to be central to Ms Dango’s psychological symptoms, is that she is having difficulties accepting the change in her role and the lack of control that she felt she had when she was transferred. She spent a great deal of time in the initial assessment talking about the grievances associated with her transfer out of the finance deparment and her perception that management have not been honest with her. She perceives that she has “lost” her career in finance and appears to ruminate about past events, which is significantly affecting her ability to focus on the present and learning in her new role.
…
Workplace Strategies
…
Where possible, positive feedback and encouragement from management is very important as Ms Dango’s low level of confidence in learning this new role is most likely contributing to her anxiety, which in turn exacerbates her cognitively difficulties.
Ms Battley prepared a “Closure Report” on 2 October 2012. Ms Battley in this report explained that she had provided Mrs Dango and her GP with the name of a clinical psychologist near Mrs Dango’s home. Ms Battley also stated in this report as follows:
Ms Dango remains at full work capacity, despite the difficulties she continues to report with her role as a Citizenship Officer. Ms Su has advised that Ms Dango is still not completing all requirements of her role, given the difficulties she is having learning new tasks and procedures.
Ms Battley stated that the aims of her involvement with Mrs Dango had been achieved through the services provided, namely, the provision to Mrs Dango (at a follow-up meeting) of workplace supports and strategies which could be managed by Ms Su on an ongoing basis. Ms Battley also noted that Mrs Dango’s treating health practitioners had not identified any need for ongoing rehabilitation services in the workplace.[12]
[12] Refer T-Documents T39/283.
February-March 2012 PDA
Comcare contended that the February-March 2012 PDA continued to be a reference point for Mrs Dango to focus her learning on throughout 2012 and 2013.[13] Mrs Dango contended that the PDA was not properly followed. The Department refuted this. Mrs Dango contended that she did not complete it. Comcare contended that:
(a)Mrs Dango was provided with significant time during 2012 and 2013 to develop the skills required of her at the APS4-level; and
(b)the PDA was lengthened and dates adjusted to allow her additional time to do this. It was structured into manageable topics to allow Mrs Dango to progress in a systematic way.
[13] Refer T-Documents T39/256.
Mrs Dango commenced processing BVAs in October 2013
Mrs Dango commenced training on how to process BVAs on 21 October 2013. It was not in dispute that this task was a more complex discretionary decision-making task or that it was a core part of the role of an APS4 Citizenship Case Officer.
Mrs Dango said she found the work difficult and was unable to meet expectations because she would come to work with a headache, could not concentrate, could not sleep at night and was always tired and “second guessing”. In a letter emailed to Comcare on 25 June 2014, Mrs Dango stated:[14]
I did not get any extra training I got basic training. Basically a case load is given for processing, QA is conducted for all team members and any mistakes are discussed. The training I received was not different from what the rest of the team members receive. I certainly did not receive any special training or one to one buddying etc. No significant resources, individual training programs etc were prepared specifically for me. The development of checklists, template forms and cheat sheets etc are general tools prepared and saved on the section data bases for all team members to access.
…
An APS4 Work Level Capabilities has already conducted by the department not long ago and a decision was made that I met all the expectations, requirements of an APS4.
…
I have registered my name on the Mobility register for over one year however, I was not offered any movement to assist my rehabilitation process and doctors input/recommendation. There has been movement but I have been denied this opportunity on several occasions I am now left to believe that because of my health condition and current performance management issues I will never get a fair go or an opportunity to move on.
[14] Refer T-Documents T27.
In October 2013 Mrs Dango was working under the supervision of her immediate supervisor, Ms Megan Lucas, who held the position of Team Leader.[15] Ms Lucas reported to her supervisor, Mr Michael Chandrasegaren, who at that time was the Assistant Manager for Citizenship Services Section (Victoria). Mr Chandrasegaren held this position from September 2013 to March 2014. He said he first met Mrs Dango in about September 2013.
[15] Ms Lucas gave evidence that she supervised Mrs Dango from October 2013 to early 2014.
Comcare contended that Mrs Dango was “unable to competently undertake the task” (of processing BVAs); she “continued to demonstrate a high error rate” and for this reason, “the training plan was placed on hold and the informal stage of underperformance management commenced”.[16]
[16] Refer T-Documents T39/256.
Mrs Dango said that after starting on the BVA decision-making, it was her impression that she had been improving each day and was not told by Ms Lucas that she was not performing to standard.
In his statement, Mr Chandrasegaren stated that:[17]
By December 2013, Ms Lucas advised me that [Mrs Dango] was struggling to advance further with her training. After discussions with my manager, Ms Mitchell and my director, Mr Aydin Sipaloglu, Ms Lucas and I agreed it was time to initiate informal performance management to try to help [Mrs Dango] achieve the appropriate level of performance.
[17] Refer Mr Chandrasegaren’s statement dated 25 February 2016 (Mr Chandrasegaren’s Statement) – Exhibit “R6 at paragraph [11].
At the hearing Mr Chandrasegaren was asked whether there were any records kept of this meeting with Ms Mitchell, Mr Sipaloglu and Ms Lucas, to which he responded: “To my recollection no, no formal record, or any form of records”. He also said he could not remember if there were any emails between him and the other attendees as a follow up to that meeting.
Mr Chandrasegaren said that from on or around 1 December 2013 to 12 December 2013, he and Ms Lucas had reviewed Mrs Dango’s work. He said that as a result of that process, he formed a view that Mrs Dango was not performing at the required standard as she was unable to perform each of the duties required of an APS4 decision-maker. He said his estimate was that Mrs Dango was able to perform about 50% to 60% of the tasks required of an APS4-level decision maker as set out in her PDA. He said he was also aware that Mrs Dango was only processing simpler citizenship applications and did not have a similar case load to other APS4 decision-makers as he said Mrs Dango could not process each of the required applications.[18]
[18] Ibid at paragraphs [12] and [13].
At the hearing, Comcare tendered an email from Mr Chandrasegaren to Mr Zarko Sizgoric, Acting Assistant Director, People Services Network, Victoria in HR dated 12 December 2013 raising concerns about Mrs Dango’s performance not meeting “required standards”, following on from the review of her work in the two weeks prior. Mr Chandrasegaren informed Mr Sizgoric that he intended to meet with Mrs Dango on 16 December 2013 to advise her about the issues with her work. Mr Sizgoric was also informed by Mr Chandrasegaren that Step 1 of the underperformance management process would be initiated if Mrs Dango did not improve by mid-January 2014 and he asked Mr Sizgoric if there was any formal step required to take place before he proceeded.
Mr Chandrasegaren gave evidence at the hearing to the effect that he was not aware whether Ms Lucas had communicated any performance-based concerns with Mrs Dango prior to this time. He said that he had not communicated any concerns to Mrs Dango prior to 16 December 2013.
On 12 December 2013, in response to Mr Chandrasegaren’s enquiry, Mr Sizgoric issued him with the following written advice:
Can I suggest you make sure a PDA is in place and it is confirmed that a discussion has been held with [Mrs Dango] about work expectations.
If confirmed then by all means you may meet on Monday to inform [Mrs Dango] of concerns, expectations and consequences should there be no improvement…
Meeting with Mr Chandrasegaren on 16 December 2013
Mrs Dango gave evidence that on 16 December 2013 she was called into a meeting with Mr Chandrasegaren (Ms Lucas was on leave at the time). She said she had not had any previous meetings with Mr Chandrasegaren nor was she given notice of this meeting.
After the hearing and before closing submissions were filed, Comcare lodged with the Tribunal an email from Mr Chandrasegaren to Mrs Dango sent at 10.25am on 16 December 2013 which stated:
Hi Marilyn
I’d like to meet up with you today to discuss how you’ve been going with your work and your progress through the training plan that we’ve been following.
Can we meet at 1.30pm today?
Cheers!
Mike
During the meeting with Mr Chandrasegaren, Mrs Dango said he told her that she was not performing to standard and that she would be subjected to a five-week performance management period as from 6 January 2014. She said he told her that a formal underperformance management process would commence and the possible outcomes included losing her job or being demoted if she did not improve.
In his statement, Mr Chandrasegaren said that he told Mrs Dango in this meeting that she was performing below the required work standards for an APS4 and that as a result, she “would be placed under a five-week informal performance management plan to monitor her work and assist her in improving her performance”. He said he told Mrs Dango during this meeting that she had commenced training on processing BVAs on 21 October 2013 and had spent four and half weeks consolidating her knowledge, however, Ms Lucas and he considered that Mrs Dango was experiencing issues with understanding and processing BVAs.[19] He said that he told Mrs Dango that her training plan would be on hold until “she was proficient in the BVA caseload”.[20]
[19] The period between 21 October 2013 and 16 December 2013 is eight weeks so it is apparent that Mr Chandrasegaren did not include in his calculation the period of leave that Mrs Dango took in November 2013.
[20] Ibid at paragraphs [14] and [15].
Mr Chandrasegaren said that he informed Mrs Dango in that meeting that as from 6 January 2014, as part of the five-week performance management period, Ms Lucas would meet with Mrs Dango on a weekly basis to “audit her caseload, provide feedback on her work and help address any issues”. He also stated (emphasis added):[21]
I also advised [Mrs Dango] that regular coaching and training would also be available, depending on her needs. I reminded [Mrs Dango] that the expectations were that she be able to meet her caseload targets as set out in her PDA and demonstrate an ability to effectively apply the relevant legislation, policy and procedures to her work.
I informed [Mrs Dango] that if by the end of a five-week period she became proficient in her current caseload, her original training plan would continue. However, if at the end of this period she was unable to show improvement, then the underperformance management process would be initiated.
[21] Ibid at paragraphs [17] and [19].
In Mrs Dango’s Statement, she said that Mr Chandrasegaren “used a stern tone with me and was rude to me. I started to cry because of the way he was speaking to me and threatening my job, but he continued with the meeting anyway”.[22] At the hearing, Mrs Dango gave further evidence about that meeting:
[Mr Chandrasegaren] didn’t give me feedback. He told me off that day.
…
He spoke to me in a very arrogant, authoritative manner. I thought it was a misuse of power and I was feeling very – I was feeling demoralised…
…
It was the way he conveyed it to me and also because I had not received the training that I should have received. There was a big gap in that training. I was away in India for four weeks of that training period out of the six weeks …
[22] Refer paragraph [33] of Mrs Dango’s Statement.
Mrs Dango said she was taken by surprise; felt threatened, became upset and asked Mr Chandrasegaren to stop the meeting. She said he continued with the meeting.
Mrs Dango described that “everything escalated” after the meeting with Mr Chandrasegaren. Mrs Dango said in her Statement that:[23]
I believe that when Michael had this discussion with me I was only 6 weeks or so into the new case load tasks. I believe it was unfair that I was threatened with a demotion so early on in learning the new tasks and without proper training and support being provided to me to do so.
[23] Refer paragraph [37] of Mrs Dango’s Statement.
Two days later, Mr Chandrasegaren sent an email dated 18 December 2013 to Mr Dango about this meeting.   Mrs Dango said she did not read the email until early 2014, after she returned from her planned annual leave which she took from 23 December 2013 until 3 January 2014. Mrs Dango said that she told Ms Lucas that when she read it, she felt ill that night. Mr Chandrasegaren’s email to Ms Lucas stated (emphasis added):
FW: Discussion regarding work performance
Hi Marilyn
Following our discussion on Monday (16 Dec), I’d just like to review the points that were covered, and how we will proceed over the coming months.
-    Since 12/03/13 you have been following a training plan with the aim of giving you the tools and knowledge to work as a full effective APS4 citizenship decision-maker. In relation to your work in the Decisions team, your progress was monitored by your team leaders (through regular audits) and you appeared to be meeting performance expectations in relation to the ‘passed test’ and ‘60+’ caseloads.
-    Following your training on BVA discretions on 21 October, you have had 4 and half weeks to consolidate understanding and processing as part of your caseload. As a result, the decision has been taken to place your ongoing training on hold, until these issues can be addressed.
-    From 6 January 2014, a weekly audit of your workload (100% of discretions and a proportion of your ‘passed test’ and ‘60+’ caseload) will commence.   A weekly feedback session will be held between you and your TL, to provide feedback on your work and help address any work issues. Regular coaching and training will also be available, depending on your needs. The expectations are that you will be able to meet your caseload targets as set out in your PDA and demonstrate an ability to effectively apply the relevant legislation, policy and procedures to your work.
-    This review period will continue for 5 weeks. If you are able to demonstrate an ability to meet your performance expectations by the end of that period, your training plan will continue. However, if at the end of this period you are unable to show improvement, then we will initiate the formal performance review process.
I acknowledge that during our meeting you indicated that you have been doing your best to process your caseload and that it’s unfair that you may have to go through a formal performance review. While I understand your frustration, as with any of your colleagues, you are expected to display the work capabilities of an APS4, specifically without the standards outlined in your PDA. As you are currently not meeting those standards, as your managers we must take action to help you address these shortcomings and give you ample opportunity to improve your performance.
I will add these comments to your PDA. If you’d like further clarification on any of the issues we discussed on Monday please come see me.
Cheers!
Mike
Informal performance management process commenced on 6 January 2014
The Department commenced the informal performance management process with respect to Mrs Dango on 6 January 2014. Ms Lucas described this process as follows:[24]
In January 2014 we began a five week informal performance management process. This included a weekly audit of her workload. I checked 100% of her BVA discretions and a proportion of her ‘passed test’ and ‘60+’ caseload. I held a weekly feedback session with Marilyn to provide feedback on her work and to help her address any work issues. I provided regular coaching and training throughout this time.
The purpose of this process was to help Marilyn meet her caseload targets as set out in her PDA and demonstrate an ability to effectively apply the relevant legislation, policy and procedures to your work. It is important to note that this process was focussed on work that Marilyn had already been trained on. There was no new work introduced during this period. The understanding was that if Marilyn was able to demonstrate an ability to meet performance expectations by the end of that process her training plan would continue. However, if at the end of the period she did not show improvement a formal performance review process would begin.
Marilyn did not show sufficient improvement throughout this period. While she did improve in some areas the standard of her work was very inconsistent. Marilyn is able to follow a tipsheet to complete her work but she doesn’t understand the legislative context behind what she is doing. If something unusual arises (i.e. Something that is not covered by the tipsheet) Marilyn is not able to determine how to progress the case. Sometimes Marilyn can achieve 95-100% in quality assurance scores but other times she makes serious errors. I was not confident that Marilyn could make decisions without my checking her work first due to the potential risk her errors posed to the section.
As a further step towards helping Marilyn improve her performance we began a formal performance review process.
[24] Refer Ms Lucas’s Work Report dated 16 April 2014 at T-Documents T26/186.

Mrs Dango did not attend work from 8 to 10 January 2014. She was absent on sick leave.
Mrs Dango requested to meet with Ms Lucas on 14 January 2014 during which a discussion took place about Mrs Dango’s sick leave, her mental health history, and the informal performance management process. Ms Lucas subsequently sent an email to Mrs Dango the same day about the meeting and stated (emphasis added):[25]
…
You approached me and asked you could talk to me. You started by telling me about your medical issues that prevented you from attending work last Wednesday, Thursday and Friday (8-10 Jan 14). You showed me your medical certificates and said that you were anxious that I should know that you were genuinely ill and did not just attend work because you didn’t want to come in. I assured you that I believed you were ill. You were visibly upset. I asked you if the doctors gave you a reason behind your illness. You didn’t specify one but talked about being told to avoid stress and to take it very easy. You told me that until recently (approximately 6-12 months ago) you were seeing a psychiatrist for a mental condition. You stated that you sometimes still get medication for the treatment of this condition from your GP when you need it. You told me that this condition means that sometimes you are not able to think straight. I asked you if you ever considered contacting the [Employee Assistance Program (EAP)]. You said no and that you didn’t want to. You mentioned that you had thought about contacting HR and I said that that is totally fine and to go ahead if that’s what you would like to do. You then went on to mention the conversation that you had with Michael during which he told you that we would be closely monitoring your performance for a 5 week period. You said that it upset you and that didn’t read the follow up email that he sent you. You said that when you read the email that night you became ill. You asked me to ‘go easy’ on you in light of your medical conditions. I asked if you understood why your work was being monitored. You said that you understood that you need to be able to perform at work at the level required. You said that you understood that it was unfair that the rest of your team members do more work than you do. You said you performed well in a previous finance role. You stated that you don’t like that job and want to leave. I stated that we are unable to release you to another section until your performance improves. You said that you must focus on your health and your family before work and that you could not afford to let work negatively affect your health. Your stated that (referring to BVA admin error cases) you try really hard to do them but you just cannot understand them. You said that you find them confusing and this means that you become tense and stress. I mentioned that we need to find some remedies to help you reduce and avoid this stress. I stated that I have tried several approaches to training you on these applications. I asked you to think about what it is in particular with these cases that you don’t understand. I said that if I knew that then I could try a different approach to training and/or focus on your stress point. I advised you to ask me questions before you get to the point where you are so stressed that you can’t focus any more. I said that I feel that you don’t ask me enough questions and that it is my job to help you with work. I asked to please come to me with your questions. I suggested that when you are feeling stressed you might like to go for walk to clear your head. You said that you had one case in particular which was difficult. I said that we could go through it together. Our conversation ended and I felt that we both understood each other’s point of view. We will continue with the BVA case training and try some new approaches.
[25] Refer Mr Chandrasegaren’s Statement at Annexure MC-5.
Mrs Dango responded to Ms Lucas on 15 January 2014 and in effect, stated as follows:[26]
(a)Mrs Dango acknowledged some of the work was mentally challenging for her (in particular, the BVA decision making);
(b)Mrs Dango confirmed that she had undergone medical treatment due to work issues but had stopped all medications six to eight months previously and she did not intend to “go down that path again”;
(c)Ms Elizabeth Brown from HR was aware of Mrs Dango’s medical condition and Mrs Dango had been assured that she would be given the support and time she needed to learn her job;
(d)with the Director’s approval, Mrs Dango had put her name on the mobility register as she wished to work in an area where she could be more productive (not necessarily in a finance role);
(e)Mrs Dango requested that Ms Lucas point out any written material that stated a person could not to be released for transfer until it was proven that they were a “master” in their current role. Mrs Dango asserted that it was unfair of Ms Lucas and Mr Chandrasegaren to have told her that they would not release her until her performance had improved; and
(f)Mrs Dango asserted that she had been performing well in other areas and her current hindrance was Decision Records and that “just because I am not able to write out decision records or understand the visa processing system that does not necessarily mean I am not capable of working in other areas of the department”.
[26] Ibid.
Mr Chandrasegaren stated that Ms Lucas showed him Mrs Dango’s email dated 15 January 2014 which he described as Mrs Dango saying that “she found the work difficult and mentally challenging and requested approval for a transfer to another area”. Mr Chandrasegaren said that Mrs Dango’s admission was of concern to him “as writing decision records and undertaking how the visa processing systems related to citizenship eligibility were keys skills for APS4 decision-makers”. In response, Mr Chandrasegaren said that he advised Ms Lucas to continue the informal performance management period.[27]
[27] Ibid at paragraphs [26] to [29].
Mr Chandrasegaren stated that at the end of the five-week period, “it became clear that [Mrs Dango] was still not meeting the requirement of her PDA, so a meeting was scheduled with [Mrs Dango] to initiate the first stage of the formal underperformance management process”.[28]
[28] Ibid at paragraph [30].
At the hearing Mr Chandrasegaren gave evidence that before the meeting referred to in the above paragraph was scheduled, he met again with Mr Sipaloglu, Ms Lucas and Ms Mitchell. Mr Chandrasegaren was asked whether there was any discussion at this meeting about Mrs Dango’s history of mental health conditions to which he responded, “Not to my recollection, no”. He was also asked if there was a record kept of that meeting. Mr Chandrasegaren said, “I can’t remember that, if there was sort of formal notes or anything like that”. He said that at this meeting Mr Sipaloglu “would have” made the decision to commence a formal performance management process with respect to Mrs Dango consistent with a recommendation from Ms Lucas, which he said he supported.
On 15 January 2014, Mr Chandrasegaren sent an email to Mr Sizgoric to provide an update about the “ongoing performance review” of Mrs Dango’s work to advise that Mrs Dango had informed Ms Lucas that she was finding the process “stressful”; it appeared to be having an impact on her health; and that she had asked to speak to HR.[29] Mr Chandrasegaren informed Mr Sizgoric that he was going to continue with the review. He asked Mr Sizgoric whether there was anything else he needed to do to advise Employee Health about the issue or whether his email to Mr Sizgoric was sufficient.
[29] Ibid at Annexure MC-3.
Mr Sizgoric replied the same day saying that it was “fine so far” and that Mrs Dango could be advised of the EAP if she found the process difficult. He stated that management had the right to manage the performance of a staff member and that they might find it difficult but they still needed to engage in the process. Mr Sizgoric sought confirmation that Mr Chandrasegaren had mentioned it to Ms Brown in HR and that Mr Chandrasegaren could coordinate a meeting between Ms Brown and Mrs Dango “to demonstrate that we do wish to support her”. He said that he feared that if it was left to Mrs Dango, she may not follow it up.
Six days later, on 21 January 2014, Mr Chandrasegaren sent an email to Ms Brown informing her that Mrs Dango was going through an informal performance review and that “a few weeks ago” Mrs Dango had indicated she was finding the experience very stressful and it was possibly affecting her health.[30] He told Ms Brown that Ms Lucas had encouraged Mrs Dango to speak to Employee Health but he was not sure if she had done so. He asked Ms Brown if she would like him to coordinate a meeting between her and Mrs Dango, as Mr Sizgoric had suggested. He explained he would be away for a week from 22 January 2014 and to contact either him that day or alternatively, Ms Lucas while he was away.
[30] Ibid at Annexure MC-4.
Mrs Dango’s approach to TIS for a transfer
Separately, in January 2014 Mrs Dango approached Trevor Neroy, Director of the TIS, to express her interest in joining that Branch of the Department. Mr Neroy referred Mrs Dango to Mr Robert Hrzic, Manager Finance Administration for the TIS.
Mr Hrzic said he met with Mrs Dango on 23 January 2014. Mr Hrzic said he explained there were no immediate vacancies within the area but he would explore the possibility of creating a new role within the team. He said he highlighted to Mrs Dango that it would be subject to him looking into the matter further and obtaining approvals up the line due to interim recruitment arrangements that were in place at that time.[31]
[31] Refer T-Documents T26/191.
Mr Hrzic reported that over the days to follow, Mrs Dango was “quite eager” to progress the matter, prompting Mr Hrzic to ask her to be patient while he explored the option. He said he highlighted to Mrs Dango that no decision about it could be made until the Deputy Secretary had approved it.[32]
[32] Refer T-Documents T26/191.
On 31 January 2014, Mr Hrzic sent an email to one of Mrs Dango’s former supervisors seeking feedback from her, in which he stated: “We are looking to move Marilyn into a finance role within TIS”. The same day, Mr Hrzic sent an email to Mrs Dango to advise her that he was no longer pursuing a transfer of Mrs Dango from the Citizenship Service Section to the TIS.[33] The Tribunal notes that the TIS’s decision not proceed with Mrs Dango’s transfer was made on the same day that Mr Hrzic had undertaken reference checks about Mrs Dango’s work performance.
[33] Refer T-Documents T26/191.
Mr Hrzic later reported to HR (in June 2014) that he had reached a conclusion that he “could not justify an additional FTE at that point in time”.[34] In light of the history given above, the Tribunal does not accept that this was a reason why the transfer did not proceed.
[34] Refer T-Documents T26/191.
Mrs Dango was disappointed that the transfer did not proceed. She said that she was shown a position description for the new role she might hold in TIS by Mr Hrzic. Mrs Dango also gave evidence that her Director in the Citizenship Services Section was contacted by the TIS and asked to provide a reference. Her expectation was that given the advancement that had been made with the creation of the position description, being asked to nominate finish and start dates and the reference checking, that the transfer to the TIS was going to proceed.
However, Mrs Dango gave evidence that she was told by Ms Lucas that she would not be released until she was able to complete the tasks required of her in her current role, which she stated required an entirely different skill set.[35] This is consistent with Ms Lucas’s statement to Mrs Dango in her email dated 14 January 2014 – see the highlighted sentence in paragraph [58] of these Reasons for Decision.
[35] Refer T-Documents T36/250.
On 31 January 2014, Mr Hrzic emailed Mrs Dango to advise her that he would not be pursuing a section 25 transfer of Mrs Dango to his branch.
Mrs Dango, in her letter to Comcare dated 25 June 2014, stated as follows:[36]
…
A position in TIS finance was a certain.
When I called to speak with Trevor [the Director in TIS] and confirm the meeting appointment I was told by Trevor’s [Executive Assistant] that he went home sick and the meeting was the previous day. She continued on to saying that Trevor approved the move and I was to organise a closing/joining date in preparation for the new job. I was all excited and gave the good news to a team member and she told me that transfers were done by the section, that’s when I decided to meet with Robert [Hrzic] to organise the transfer. All Robert said was told (sic) that he wanted to confirm if my name was on the mobility list and would make reference checks with my current section.
…
[36] Refer T-Documents T27.
At the hearing Mr Hrzic was questioned about whether there was an APS4-level position created within procurement (after January 2014). Mr Hrzic gave evidence as follows:
MEMBER: Okay and short of a job share arrangement, has there been a whole position created within procurement at the APS4 level, which – whether or not exists now is irrelevant, but - - -?---There is a different APS4 role. It’s not around procurement. The only procurement aspect to it is goods receipting. But, its more about our interpreter pays.
And do you remember when that came into existence?---I couldn’t tell you with any confidence, but it would be months after that event, at the very least.
Okay?---So, my best guess would be three to 12 months. Anywhere in between that.
Mrs Dango’s enquiry to HR in February 2014 about being transferred
On 11 February 2014, Mrs Dango sent an email to Jo Muratore, Recruitment Adviser in HR, requesting feedback regarding movement opportunities on the Mobility List after explaining that she had registered in March/April 2013 and made a further application in November 2013.[37]
[37] Refer T-Documents T23/135.
On 12 February 2014, Ms Muratore responded stating that the mobility register had been considered by Directors recently at a placement meeting and only a few staff were offered mobility. Ms Muratore stated:[38]
Under the current interim APS recruitment arrangements business areas must seek high level approval to fill positions on a permanent basis. As such we expect that opportunities for staff to transfer at level will be quite limited.
Written direction in mid-February 2014 to attend meeting to discuss “serious issues of concern”
[38] Refer T-Documents T23/135.
On 17 February 2014, Ms Lucas wrote to Mrs Dango stating that “we need to have your Mid Cycle PDA discussion” and suggested that it take place on 19 February 2014.[39]
[39] Refer T-Documents T23/136.
On 19 February 2014, Ms Lucas sent an email to Mrs Dango (and copied in Mr Chandrasegaren, Mr Aydin Sipaloglu, Director, Citizenship Services Section, and Ms Mitchell). This email notified Mrs Dango as follows:[40]
[40] Refer T-Documents T26/189 & 190.
Dear Marilyn,
You are directed to attend a meeting to discuss issues of serious concern to myself and senior management.
You will be aware that for some time now we have had concerns about your work performance and we have had several informal discussions since December 2013 about a range of unsatisfactory performance concerns. These concerns related to your ability to accurately process citizenship applications (all types) and those that involve exercising the administrative error discretion. The concerns also relate to the managing of your ongoing caseload and your ability to process your standard daily allocation of applications, as set out in your PDA.
The purpose of this meeting will be to discuss my continuing concerns with your work performance and to advise I am commencing you on a Step 1 Initial Discussions underperformance process as prescribed at Part 5 of the DIAC Enterprise Agreement 2011-2014 (DIAC EA). A copy of the DIAC EA can be accessed from the IMMInet.
The meeting will be on Monday 24 February at 2.30pm.
I have booked meeting room no.4 of Level 25 to ensure privacy and no interruptions during the meeting.
Please note that you are able to bring a support person to the meeting with you if you so wish. For your information, a support person is not entitled to engage in the discussion or raise issues at the meeting. Technically, their role is usually to bear witness to what takes place at the meeting and to be in a position to confirm this if required at a later date.
I will be bringing Michael Chandrasegaran to the meeting to assist me and to take notes of the discussions.
Can you please confirm your attendance at the meeting and let me know who you propose to bring as a support person.[41]
[41] Refer T-Documents T26/189 & 190.
The same day, Mrs Dango attended the Mill Park Super Clinic for a medical consultation.
On 20 February 2014, Mrs Dango’s union representative sent an email to Ms Lucas to advise that he would be acting as Mrs Dango representative (and not only as her support person), in accordance with Mrs Dango’s right to have such representation at that meeting under clause 1.11 of the DIAC EA.[42] The union representative requested that the meeting be postponed for a fortnight as he would be in hospital on the day of the scheduled meeting.
[42] Refer Clause 1.11 of the DIAC EA is headed “Employee representation” and it provides as follows: The department recognises that employee(s) may, in matters concerning their employment, choose to have a representative of their choice, in which event the department will deal with that representative in good faith. For the avoidance of doubt, such a representative(s) may speak or act as an advocate on the employee’s behalf. A person requested by an employee to represent their interests in dealings with managers may include an elected employee representative, a union workplace delegate or a work colleague.
Ms Lucas replied the next day stating that she did not contest Mrs Dango being represented at the meeting by the union representative but that Ms Lucas was unable to postpone the meeting due to advice from HR based on clause 9.8 of the Managing Underperformance Policy. Instead, Ms Lucas said she was agreeable to postpone the meeting for two days until 26 February 2014 and asked Mrs Dango to confirm whether she would be attending with a support person or representative.
Mrs Dango’s union representative responded to Ms Lucas to confirm that he would be in attendance with Mrs Dango at the nominated time. He commented in that email as follows:[43]
For the record there seems to have been undue haste in pursuing this issue and based on what I have been told by Ms Dango, I am bewildered as to how this has proceeded to this stage…
[43] Refer Mr Chandrasegaren’s Statement at Annexure MC-7.
Mrs Dango’s certified as unfit for work in late February 2014
Mrs Dango returned to the Mill Park Super Clinic to see Dr Mughal, treating general practitioner, on 19, 23 and 24 February 2014 – see paragraph [152], [154] and [155]. He certified her unfit for work.
On 28 February 2014, Ms Brown from HR sent an email to Mrs Dango’s supervisor and managers at that time (Ms Lucas, Mr Chandrasegaren, Mr Sipaloglu and Ms Mitchell), advising that she had received a medical certificate for the period 24 to 28 February 2014 and a workers’ compensation form from Mrs Dango that day.[44] Ms Brown said she had been in touch with Mrs Dango who said she was due to attend further medical appointments that weekend. Ms Brown also told them it was unlikely that Mrs Dango would return to work the following Monday. Ms Brown advised that her section would organise an independent medical assessment for an opinion as to Mrs Dango’s fitness for duty and participation in performance management processes at that time.
[44] Ibid at Annexure MC-8.
DEPARTMENTAL POLICIES AND PROCEDURES

On 29 February 2012, the Chief HR Officer approved a Departmental policy about performance management entitled “Department of Immigration and Citizenship - Managing Underperformance Policy February 2012”. [45]
[45] Refer T-Documents T26/196.
In clause 1.2, the Policy is described as providing further information on processes and procedures under the DIAC EA at clauses 5.10 to 5.19.
Clause 2 of the Policy provides that the aim of the Policy is to provide a clear, simple and fair process for managing employees who are failing to meet performance expectations outlined in their PDA. The “key objectives” are listed as (emphasis added):
-    return underperforming employees to full performance so they meet the performance expectations outlined in their PDA;
-    address and resolve underperformance in a timely and efficient manner;
-    ensure the employee understands the standard of performance expected of them under their PDA and the implications of not achieving the standard; and
-    provide underperforming employees with a reasonable opportunity and appropriate support to improve performance.
Underperformance is defined in clause 3 of the Policy as: “the situation where an employee fails to meet their performance expectations outlined in their PDA”.
Clause 5 establishes a set of key principles for managing underperformance which are to ensure:
-    effective communication between employees and their supervisors;
-    employees understand the work performance (including work output, behaviour and attendance) standards expected of them;
-    employees take responsibility for their individual performance;
-    early identification and action with a view to remediation of underperformance problems; and
-    timely, fair, consistent and transparent processes.
Clause 6 contains an overview of eight different stages of the managing underperformance process. Stage 1 is reproduced in Annexure A to these Reasons for Decision.
DIAC EA
Clauses 11.25 to 11.27 of the DIAC EA establish a set of principles, policies and procedures with respect to mobility of staff within the Department:
Mobility
11.25 The department supports the aspirations of its employees, where
appropriate, to mobility for personal and/or compassionate reasons and/or
career development, and to promote the development of a more skilled
and flexible workforce better able to contribute to departmental outcomes.
…
11.27   The department will, in consultation with the National Staff Consultative
Forum, develop a mobility policy within six months of the commencement
of this Agreement that:
        promotes greater workforce flexibility and fosters a learning culture
        supports the department’s strategic theme of having well trained
and supported staff
supports internal mobility of employees where appropriate, including
between State and Territory Offices and National Office, and
        reduces administrative requirements associated with job mobility.
The DIAC EA establishes a performance management framework in clauses 5.4 to 5.7 inclusive as reproduced at Annexure B to these Reasons for Decision.
EVIDENCE OF MRS DANGO’S SYMPTOMS
Symptoms before 2011
The Tribunal notes from the Mill Park Super Clinic records that there were multiple blood tests performed on Mrs Dango dating back to 2008, where the clinical notes recorded Mrs Dango as “Feeling tired and sleepy a lot” or recorded “tiredness”.
The Tribunal also notes the following entries in those clinical notes:
(a)on 19 August 2008, Dr Jan Moon recorded Mrs Dango as “still feeling sleepy a lot”;
(b)on 23 August 2008, Dr Yasmin Kazi recorded Mrs Dango’s “bloods showing low vit D and calcium…headaches still on and off ?...”; and
(c)on 25 February 2009, with respect to Mrs Dango, Dr TR recorded “tiredness, feeling tired, giddiness, under stress, not able to go to work … mc for 3 days”.
Symptoms in 2011
In a medical report, date-stamped 1 December 2011, Dr Carlos Bangoy stated that Mrs Dango had first attended him on 26 October 2011 “because of moderate to severe mental distress which started after she came back from holidays to work and was immediately transferred to another department by her supervisor and had an argument with”.[46] Mrs Dango had reported to Dr Bangoy that she could not sleep, felt tired, was waking up at night, not able to concentrate on her work and felt a crawling sensation on her face. Dr Bangoy observed Mrs Dango at that time to be “tearful, nervous and depressed”. He diagnosed Mrs Dango with “Post Traumatic Stress Disorder, anxiety and depression” and referred Mrs Dango for psychological counselling and to a psychiatrist for specialist opinion and management. He stated that he considered the factors that contributed to her conditions was the sudden change of assignment and her anxiety about her new kind of work to which she was not accustomed.
[46] Refer T-Documents T23/133.
Ms Rani Singh, a mental health clinician/nurse, in a report dated 30 November 2011 recorded that Mrs Dango had been referred to her for counselling due to her “presentation of depression/anxiety due to work stress/harassment/bullying which had caused disruption with her normal functional skills, causing poor sleep and constant headaches/pain sensation on her left side of face and ears”. Ms Singh described Mrs Dango’s initial presentation as her being in a distressed state, tearful, nervous and very preoccupied with work stress. Mrs Dango was reported as having “expressed feelings of hopelessness and despair, feels fragile and vulnerable, unable to continue with normal day to day functioning due to low energy and motivation”.
The clinical notes produced by Mill Park Super Clinic also included the following entries:[47]
[47] Refer T-Documents T25.
(a)on 26 October 2011, Dr Bangoy recorded “stress” and that Mrs Dango was having work issues, had been doing extra work for ten months and had been transferred upon return from holidays. He also recorded “Today, went to training and was instructed by her supervisor stop her training and to work. Had an argument with supervisors”;[48]
[48] The clinic has numerous earlier entries for Mrs Dango from 25 January 2000 onwards, with other doctors at this clinic.
(b)on 7 November 2011, Dr Bangoy recorded “head pain; stress” and that Mrs Dango had not slept well for three months since “work stress started”;
(c)on 8 November 2011, Dr Bangoy recorded “work stress, anxiety” and that a mental health plan was discussed with Mrs Dango and she agreed to have a plan and to start counselling with Ms Singh;
(d)on 16 November 2011, Dr Bangoy recorded “work related stress and anxiety” and that Mrs Dango “wants to go on work cover” and Ms Singh recorded “presented as highly anxious and nervous due to work place meeting today at 1.00pm. provided supportive counselling”;
(e)on 17 November 2011, Dr Bangoy recorded “PTSD and Trauma” and described “stress and anxiety work relate, insomnia, working up at night, not able to concentrate on her work, left face crawling sensation, no suicidal or homicidal ideation”. He referred Mrs Dango to a psychiatrist, Dr Robert Arulanathan;
(f)on 19 November 2011, Dr Bangoy recorded that Mrs Dango had “insomnia, anxiety” and there was a report of “panic attack”;
(g)on 24 November 2011, Dr Bangoy recorded that Mrs Dango was “having anxiety and mild depression”;
(h)on 3 December 2011, Dr Thiyagarajan Ramasamy recorded “h/o depression, stress” and that Mrs Dango had seen a psychiatrist and was still not able to sleep. Mrs Dango had ceased taking Temazepam and had commenced taking an anti-depressant medication Effexor;
(i)on 5 December 2011, Dr Bangoy recorded “insomnia, depressed” and that Mrs Dango was advised by Dr Arulanathan to take Effexor for at least six months;
(j)on 6 December 2011, Ms Singh recorded poor sleep, anxiety and depression and that Mrs Dango “remains fragile and tearful when talking about her current work position – has applied to different agencies but believes she will not be able to get anything until next March”;
(k)on 9 December 2011, Dr Bangoy recorded that Mrs Dango was still not ready to return to work and was still stressed, depressed and not sleeping well. He noted she was due to see her psychiatrist, Dr Robert, the following week;
(l)on 14 December 2011, Mrs Dango cancelled the counselling appointment with Ms Singh;
(m)on 4 January 2011, Dr Bangoy recorded “PTSD, Depression”. He also recorded that Mrs Dango still had bad dreams at night, was teary, could not sleep well and was frightened and that she was unhappy with her current psychiatrist, Dr Robert;
(n)on 10 January 2011, Ms Singh recorded that Mrs Dango was very distressed regarding the approach by the psychiatrist she had seen;
(o)on 18 January 2011, Mrs Dango cancelled the counselling appointment with Ms Singh; and
(p)on 31 January 2011, Ms Singh recorded that Mrs Dango was worried about the future and decision making and that she had expressed the stressful situation and actions taken and Dr Bangoy recorded “sitting at home is frustrating to her. But not happy to go back to present job. Planning to look for another job”.
Symptoms in 2012 and 2013
The clinical notes produced by Mill Park Super Clinic included the following entries:[49]
[49] Refer T-Documents T25.
(a)on 14 February 2012, Dr Yasmin Kasi recorded “anxiety with depression” and insomnia noted as a symptom as well as anxiety attacks when thinking of going back to work;
(b)on 7 March 2012, Dr Ramasamy recorded “tiredness, under stress, seen [mental health nurse], feeling tired, used to [see Dr Bangoy], says under work [cover], not able to go work, requests [medical certificate], The Patient Report/Medical Certificate was produced”;
(c)on 27 June 2012, Dr Bangoy recorded “Depression”, prescribed Effexor-XR Modified release capsule 150mg and Valium Tablets 5mg, and recorded the following:
4/12 attended by psychiatrist Dr Murphy and prescribed with Valdoxan which she took for 3 [months] but she stopped because it was expensive.
Still depressed, sleeping not as bad as before, concentration and memory are affected. Energy is ok. Teary. No suicidal or homicidal ideation.
(d)on 5 July 2012, Dr Bangoy recorded “depressed mood and tiredness” and “counselling” and Mr/Ms Singh recorded “patient has expressed concerns re- anxiety/fatigue syndrome and depressed mood. Provided supportive counselling and healthy coping strategies to deal with work stress”;
(e)on 25 July 2012, Dr Bangoy recorded that he gave Mrs Dango a copy of the medical report by Dr Paul Kornan, psychiatrist, with a referral also to continue counselling;
(f)on 25 July 2012, Ms Singh recorded notes of the mental health nurse consultation he had with Mrs Dango on this day;
(g)on 14 August 2012 Ms Singh recorded that Mrs Dango had cancelled an appointment with her and rescheduled it to a later date and that Mrs Dango had been referred to Ms Vesela Popovski, psychologist, for cognitive behavioural therapy;
(h)on 21 September 2012 Dr Mohammad Islam recorded that Mrs Dango was going to see her psychiatrist on that day; and
(i)on 7 February 2013 Ms Singh recorded that Mrs Dango had not followed up with further mental health support for more than six months since July 2012 and a “discharge letter” had been sent to Mrs Dango.[50]
[50] Refer T-Documents T25/143.
In Mrs Dango’s Statement, she said that when the issue in relation to the claim regarding the 2011 Condition was resolved (by the decision made by this Tribunal, differently constituted, on 23 August 2013) that:[51]
I was able to move on and stopped attending counselling (sic), as well as stopped my medication. My condition improved and I recovered. By the end of 2012 I felt as though I had returned to normal.
[51] Refer paragraph [21] of Mrs Dango’s Statement.
Symptoms in late 2013/early 2014
Mrs Dango said that in October 2013 she was given a different case load which involved processing citizenship applications and it was more complex. She said she had not worked in such a role; was unfamiliar with the legislation and policies she needed to know; and that she was promised ongoing training and support. Mrs Dango said she was not provided with proper training and support and it caused her stress.[52] Mrs Dango said:[53]
Despite the stress of undertaking the new tasks without proper training and support, I continued on at work and did my best. I felt that I was starting to get my head around the work.
[52] Refer paragraphs [23] and [24] of Mrs Dango’s Statement.
[53] Refer paragraph [29] of Mrs Dango’s Statement.
In Mrs Dango’s SFIC it was contended that after the meeting with Mr Chandrasegaren on 16 December 2013, she became symptomatic for a major depressive disorder and required “renewed” treatment and that the treatment was continuing until the present day (at that stage being 4 July 2016).[54] Mrs Dango said in her statement dated 23 October 2015 that:[55]
My reaction after the meeting with Michael was shock. I could not sleep that night, had chest pain, cramps and the left side of my face felt tingly.
I could not cope with the fear of being demoted or losing my job.
My recollection is that soon after the meeting I went away on 10 days annual leave which I had planned. I believe that I also required leave around that time due to the anxiety and fear of losing my job following the meeting with my then Manager.
I eventually had to seek medical treatment and on 24 February 2014, I attended by General Practitioner, Dr Mughal.
I was told that I was again suffering from depression and anxiety.
After this I wanted to get away from Michael so I tried to get transferred into a Finance role. However Michael told me, as he had threatened in the meeting, that he would not release me until I was able to undertake the citizenship work.
Eventually, after many medical recommendations, I was moved into a less complex case load which I have found easier to manage.
I have remained unable to return to my pre-injury work level or work hours.
[54] Refer paragraph [4.5(f)] of Mrs Dango’s SFIC.
[55] Refer paragraphs [39] to [46].
On about 24 February 2014, Mrs Dango completed a worker’s injury claim form (albeit using an incorrect form).[56] On this form, Mrs Dango was asked when she first noticed the injury/condition to which she answered: “prior Oct 2011 & continuing/ongoing treatment”. On the form, Mrs Dango has indicated that she had previously had another injury/condition or personal injury claim that related to the claimed injury/condition.
[56] Refer T-Documents T11/60.
Mrs Dango submitted a further claim using the correct form.[57] On this form the claimed injury or illness was stated as “Anxiety adjustment Disorder PTSD?”. The parts of the body stated to be most affected were: “Mental state, Body functioning severe headaches 27/7”. When asked when Mrs Dango was injured or when she first noticed she was ill, she answered: “early 2012 or around this time. Not sure of exact date. I was in denial of symptoms & getting treatment for B.P etc”. When asked whether she had ever had a similar symptom, injury or illness, work-related or otherwise, she answered in the affirmative and stated: “Anxiety, Difficulty in concentrating unable to retain information (must refer to written info). Forget easily, Sadness Unhappiness, Lonesome, Dizzy, Trembling. Chest pain, High B.P, Cramps, Bad Mood (?)”. The date provided was “@ 2011-12”. However, Mrs Dango stated that she had not claimed workers’ compensation for a similar injury or illness.
[57] Refer T-Documents T11/62.
When asked what Mrs Dango was doing at the time she was injured, on the claim form, she stated: “To take up continous(sic) new training in a fast changing environment without proper tools, job knowledge, work under high pressure, unreasonable expectations”. When asked what action, exposure or event happened to cause her injury or illness, Mrs Dango stated: “ever changing work expectations high volume work, no work life balance, Not released to work in other areas”. When asked what actually injured Mrs Dango or made her ill, she answered: “Lack of training time, tools, demanding work expectations”. In a later section of the claim form, Mrs Dango stated: “I care about my Health. I only want to recover Medical costs & sick leave taken due to illness. To be placed in a role where I am more constructive and productive”.
Statement by Mrs Dango to Comcare on 23 May 2014
Mrs Dango was requested to prepare a statement to Comcare as part of the claims assessment process. Mrs Dango did so on 23 May 2014 noting on the statement that she was in a confused state of mind and would not be able to provide an “accurate statement/record of events”. Mrs Dango stated (emphasis added):
…
Last year a new supervisor came in and I was to start learning ‘decision record making’, I found it extremely difficult but I learnt the work, unfortunately I was slower than the other members of my team and all my work was being quarantined like other members of the team. At this point in time one the supervisors had a meeting with me and told me; I was not meeting targets, it was not about showing up to work but actually doing meaningful work, I could face a pay cut, a possible demotion from APS4 to APS3 etc. I told the supervisor that I was on a long term treatment for mental well being. I also told the supervisor that I was finding it difficult to understand the new work (decision record making which begun in October 2013) and I was doing my very best. I told the supervisor that I was not happy with the work, I put my name on the mobility list (approved by the Director) and I was looking work elsewhere. The supervisor said that I would not be released until I was performing and met all expectations of the work. I said to the supervisor that the work in another section would not necessarily be the same and I was told they would tell the receiving section about my underperformance and not be released etc. I was put on a work plan and my work was being monitored. I believe I met the required expectations and QA accuracy. I was adviced (sic) by my supervisor that my performance was satisfactory and my PDA should be completed. The next day my supervisor informed me that I could not go ahead with my PDA. It became apparent that I had made a mistake with a decision record. To the best of my knowledge that was a different type of decision making record and if the mistake was made it was because I had no training in those types of applications (late grant of BVE) I was working on (BE ceased on departure). I did my best to brave the situation and continued to work hard and do my best.
Around the same time I had applied for a role in my expertise (finance). I personally approached the Director of that section and advised him that I was unhappy in my role and was looking for work, he said he understood my situation. He told me he had a vacancy, there were funds available to fill the position and to meet with one of his managers. He also told me he would look out for my application when the managers met for the next mobility round. When I met the manager he was impressed with my knowledge and explained the role in detail. At the next meeting he showed me the job description he specifically prepared for me. I was asked to organise an end date with my current section and a new start date with the receiving section. He also told me that he wanted to check with HR if my name was recorded on the mobility list. I told him it was approved on two separate occasions and later forwarded him an email confirming receipt of my application. I believed this was a guaranteed job and a start of a new beginning. I had not told anyone about this except one team member who I confided in. I truly don’t know what happened but the next day I received an email that the transfer would not take place. I did my best to accept reality of the situation unfortunately I could no longer cope with two situations which occurred side by side.
MEDICAL EVIDENCE
Evidence of Dr Naveed Mughal, treating general practitioner

There had been no exploration by HR or Mrs Dango’s managers as to whether a temporary re-assignment of her duties might have supported her to address the underperformance issues. Instead, the Tribunal is satisfied that any such change in Mrs Dango’s case was actively resisted by the Department, in circumstances where Mrs Dango had identified for herself a potential opportunity for a transfer to occur. I do not accept the reasons proffered as to why that transfer was unable to go ahead. I note from the evidence of Mr Hrzic at the hearing that the TIS proceeded to employ someone at the APS4-level in a finance-based role within the year to follow the discussions with Mrs Dango in January 2014. This was inconsistent with the statement made by Mr Sizgoric from HR stated in his letter dated 2 October 2014 to Comcare:
While Ms Dango continues to seek an APS Level 4 position in the Finance section, this is not available in the current environment. The department considers her current position is appropriate and she is expected to demonstrate capacity at the APS Level 4.
The Tribunal is satisfied that no effort was made by the Department to seek to identify a temporary re-assignment of duties or transfer for Mrs Dango. In light of:
(a)the DIAC EA and the Policy;
(b)Mrs Dango’s previous mental health issues;
(c)Mrs Dango’s longevity of service with the APS and the Department;
(d)Mrs Dango’s consistent protests since 2012 following the involuntary transfer the current role that “job fit” was an issue with respect to the position of a Citizenship Case Officer; and
(e)the Department’s refusal to place her on the APS redeployment register in 2012;
the Tribunal considers that it was unreasonable that in January 2014, HR, Mrs Dango’s managers and the managers from the TIS had not jointly discussed Mrs Dango’s underperformance issues, the possible position that had been identified in the TIS and how a transfer or at least, a temporary re-assignment to the TIS at that time, might have supported Mrs Dango to address those concerns as contemplated by the Policy.
Did the 2014 Injury result in incapacity for work or impairment?
This issue was not in dispute between the parties. Based on the medical evidence of a number of the doctors, the Tribunal finds that the 2014 Injury resulted in incapacity for work or impairment. By the time of the hearing, Mrs Dango had successfully returned to work on reduced hours (i.e. for 7 hours per day instead of the usual 7.5 hours per day).
CONCLUSION
The Tribunal is satisfied that Mrs Dango suffered an ailment in 2014. The Tribunal finds that this ailment was a disease, being the aggravation of Mrs Dango’s 2011 Condition. The 2011 Condition was previously diagnosed as “depression”. Based on updated medical diagnoses given at the hearing of this application, the Tribunal finds that Mrs Dango’s underlying disease was, “adjustment disorder with depression and anxious mood”. The Tribunal is satisfied that Mrs Dango’s employment contributed to, to a significant degree, the aggravation of Mrs Dango’s underlying “adjustment disorder with depression and anxious mood”. The Tribunal is satisfied that Mrs Dango’s ailment fell within the definition of “injury” within the meaning of s 5A of the Act.
The Tribunal was invited to exclude liability with respect to the 2014 Injury by operation of s 5A(1) of the Act. The Tribunal considered whether this exclusion applied with respect to the first administrative action identified being the Informal Performance Management Process. It also considered whether it applied with respect to the second administration action identified being the Transfer Decision. Although the Tribunal was satisfied for each administrative action that there was sufficient causation as required by the wording in the exclusion provision, the Tribunal concluded that the Underperformance Management Process was reasonable action but was not undertaken in a reasonable manner. With respect to the Transfer Decision, the Tribunal concluded that it was neither reasonable action nor taken in a reasonable manner. For this reason, the Tribunal was not satisfied that s 5A of the Act did not operate in this case to exclude liability with respect to the 2014 Injury.
The Tribunal concludes that the 2014 Injury resulted in Mrs Dango’s incapacity for work and impairment.
The Tribunal finds that the 2014 Injury occurred on 23 February 2014.
Accordingly, the Tribunal sets aside the reviewable decision and in substitution, decides that Comcare is liable under s 14 of the Act for the injury to Mrs Dango of “aggravation of adjustment disorder with depression and anxious mood” which occurred on 23 February 2014.
I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for decision of Member K Parker
[sgd]………………………………………
Associate
Dated: 15 August 2018
Counsel for the Applicant:  Ms Jennifer Hewson
Solicitors for the Applicant:  Shine Lawyers
Counsel for the Respondent:  Ms Cathy Dowsett
Solicitors for the Respondent:  Australian Government Solicitor
Date of the hearing:  24, 25, 26 and 27 July 2017
Date final closing submissions received:      30 August 2017
ANNEXURE A – Extract from the Policy (as relevant)
6.        Overview of the managing performance process
6.1      The table below outlines the process for managing underperformance for ongoing employees and provides links to relevant sections in this policy and the EA…
Stage 1 Description
The supervisor:
-    Identifies performance concerns and contacts the HR Service Centre or STO HR area for advice before taking any action. Attempts to resolve underperformance informally through initial discussions with the employee including though regular performance feedback. This part of the process is called “Step 1” and takes place over four weeks.
-    Provides appropriate support and strategies and takes action to address the underperformance.
-    Ensures that:
o   A written record is made of the initial discussions including identification of any mitigating factors impacting on the employee’s performance,
o   The record is provided to the employee,
o   There is a written acknowledgement that they have either received a copy of or have read the record of the discussion.
See: Initial discussions about underperformance
See: EA clause 5.13.
Stage 2 …
Initial discussions about underperformance (Step 1)
7. Responding to underperformance
7.1Supervisors must respond promptly to cases of underperformance. Employees who are failing to meet the performance expectations outlined in their PDA and whose performance has been or is likely to be rated as ‘Improvement Needed’ are considered to be underperforming. See: EA clause 5.13.
8. Regular feedback
8.1Ongoing, regular feedback is an important part of managing performance. Supervisors must discuss an employee’s performance with the employee on a regular basis so that the employee is made aware of any concerns with his/her performance as early as possible. Where performance concerns are identified, feedback regarding these concerns must be provided without delay.
8.2Where the employee’s performance is failing to meet performance expectations set out in the PDA and does not improve through the provision of informal feedback, an underperformance discussion should be scheduled. See: Performance Management Policy
9. Initial underperformance discussions (Step 1)
9.1Where there are concerns about performance, and these have not been resolved through regular feedback, initial discussions should occur. These discussion are part of the initial attempt to address the performance issues and should identify any mitigating factors impacting on the employee’s performance. These discussions should also be documented. This is Step 1 of the managing underperformance process.
9.2An underperformance discussion can take place at any time during the year and should occur when underperformance concerns are identified. Such discussions should not be delayed until a mid or end-cycle PDA review. However, before taking an action, please contact the HR Service Centre (or STO HR area) for advice to ensure the appropriate steps are being taken.
9.3Initial underperformance discussions provide an opportunity for a supervisor to discuss the employee’s underperformance, identify the causes of underperformance, develop strategies to improve performance, and provide the employee with a reasonable period of time to implement these strategies.
9.4These discussions should explore and identify possible reasons for the underperformance which may include factors unrelated to the employee’s duties or the workplace e.g. issues of a personal nature such as ill health, family problems.
9.5The discussions should take place in a private venue and the supervisor must give the employee reasonable and sufficient prior notice about the discussion. The supervisor must also advise the employee of the purpose of the meeting (i.e. to discuss performance concerns) and of their option to bring a support person with them to the meeting if they wish.
9.6When planning a performance discussion, the supervisor should take into account any need for support and provide the employee with a reasonable and sufficient period of time to arrange this.
9.7If the employee elects to bring a support person or representative with them to the meeting, they should advise their supervisor prior to the meeting, with as much notice as possible. Similarly, if the supervisor also elects to involve a third party in the discussion, they should advise the employee prior to the meeting with as much notice as possible.
9.8The supervisor or employee may postpone a meeting before or during a discussion, for a reasonable period, to obtain further information and/or support.
9.9The following is good practice when discussion underperformance.

Principle

Description

Be objective

The discussion should be objective, with the supervisor outlining and confirming the required standards of work performance, with reference to the performance expectations in the PDA (including the capabilities applicable to the employee’s level as outlined in the DIAC Capability Development Framework) and explaining where the employee is not performing to the required standard, providing specific examples of their underperformance.

Be constructive

Look to the future and develop strategies for improvement, engaging the employee through a cooperative approach.

The discussion should provide the employee with the opportunity to discuss any support they need to meet performance standards.

Explain the consequences

The supervisor should explain that the consequences of continued underperformance will be a ‘Improvement Needed’ rating and that a formal Assessment Period (Step 2) will be implemented.

9.10Step 1 initial discussions will take place over a four week period, which may be extended by the delegate in exceptional circumstances. If underperformance is not resolved, the supervisor should rate the employee’s performance as ‘Improvement Needed’ in the PDA and recommend that the delegate initiates an Assessment Period (Step 2). See: Initiating an Assessment Period
9.11If an employee’s performance is assessed as ‘Improvement Needed’ this may impact on Salary Point Advancement (SPA) for the employee. See: Performance Management Policy

10. Identifying and addressing causes of underperformance
10.1An understanding of the factors that are contributing to underperformance is necessary to enable a supervisor to develop strategies to improve performance. Supervisors should consider whether the following factors might be contributing:
- the employee does not understand what is expected of them;
- the workload is unreasonable;
-the employee is not properly skilled for the work;
-the employee has not received adequate support or training;
-health/medical issues;
- interpersonal and behavioural problems; and/or
-other issues of a personal nature.

10.2In addressing the causes of underperformance, the supervisor should consider the appropriateness of:
- the performance expectations;
- the development plan (this includes identifying training and development needs and arranging appropriate on or off-the-job training, coaching and/or support); and
- inviting the employee to discuss the impact of any health or other personal issues on their performance.

10.3 Other strategies are:
- Counselling – if appropriate, the supervisor should suggest external counselling though the Employee Assistance Program (EAP). The EAP can provide confidential professional counselling services to assist with work and personal issues…
- Coaching – coaching may be an effective strategy for addressing the areas that require improvement in the employee’s performance. The coach may be the supervisor or other suitable person within/outside the work area.
-Mediation …
-Re-assignment of duties – If it has not already been trialled, consideration might also be given to temporarily re-assigning duties (at level) particularly if job fit appears to be an issue. This may involve a new supervisor who would accept the responsibility for monitoring performance and providing feedback to the employee and the previous supervisor.

…
11. Documenting underperformance concerns and discussions
11.1Although underperformance should initially be managed informally, managers should document and record all underperformance discussions and examples of underperformance where the employee is not effective against the performance expectations. Documents and records relating to underperformance concerns and discussions (Step 1) should not be placed on personnel or other official files. A copy of the documented record showing the date and substance of the discussions and any agreements should be provided to the employee and ideally, this should be signed by both parties. Copies of these documents should also be attached to the employee’s online PDA…

ANNEXURE B – Extract from DIAC EA (as relevant)
Performance Management Framework
5.4 The Performance Management Framework governs the development and performance of employees within the department through a collaborative approach between the department’s managers and employees and, where they choose, their representatives.
All employees will participate in the department’s Performance Management Framework.
5.5 Managers and employees have joint responsibility to participate and contribute to setting performance and development goals and agreeing how work is to be done, as articulated and agreed in each individual employee’s PDA. The Framework is designed to foster regular, two way, fair, objective and consistent, and wherever possible, face-to-face performance feedback.

5.6 The Performance Management Framework, through the terms of each individual employee’s PDA, is designed to ensure that:
-employees are provided with a clear understanding of the standards against which their performance will be assessed, by providing clear performance expectations and accountabilities for their current role and classification level (as set with reference to, for example, relevant business plans, the department’s Capability Development Framework and Work Level Standards)
-employees have the necessary skills and knowledge to deliver against their individual performance expectations and accountabilities, and to progress their development and career plans within the department and the broader APS
-the department continues to improve its performance and delivers on its business priorities as outlined in the DIAC People Plan 2011-14 and employees understand how their work contributes to the achievement of the DIAC People Plan 2011-14
-the department continues to improve its organisational performance and continues to develop a capable, flexible and effective workforce, and
-employee remuneration is linked to performance.

5.7 The scale for rating an employee’s performance under the department’s Performance Management Framework is:
 Superior
 Effective, and
 Improvement Needed.

5.8 If there is a disagreement over the performance expectations or a performance rating determined, the matter may be referred to a Performance Management Framework Reviewer. If no Performance Management Framework Reviewer has previously been nominated, the Reviewer will be a person agreed to by both the employee and their immediate supervisor. If agreement on a Reviewer cannot be reached, an independent person will be appointed by the relevant Senior Executive Service manager.
Throughout this review, the Performance Management Framework Reviewer, employee and their immediate supervisor will continue to together work constructively towards resolution.

5.9 Further information on the Performance Management Framework (including the online 360 degree feedback tool) is available in the department’s Performance Management policy.

Managing underperformance
5.10 The managing underperformance process is a collaborative approach designed to address the management of employees who are not meeting their performance expectations and accountabilities outlined in their PDA (that is, have been, or are likely to be, rated as ‘improvement needed’).

5.11 The key objective of managing underperformance is to address and resolve identified underperformance in an efficient and effective manner with the aim of returning an underperforming employee to full performance.

5.12 The managing underperformance process must allow for procedural fairness by ensuring that underperforming employees:
          understand the standard of performance that is expected of them
          understand the implications of not achieving the standard, and
          are provided with appropriate support and time to improve performance.

5.13 The managing underperformance process can commence at any time during the performance assessment cycle where an employee’s performance is considered as needing improvement. The process covers:
Step 1 – Initial discussions
discussions with the employee as part of the initial attempt to address the performance issues. These discussions should be recorded and identify any mitigating factors impacting on the employee’s performance, such as:
o an unreasonable workload
o adequate support and training, and
oissues of a personal nature.

this process of initial discussions that may lead to an Assessment Period (step 2 below) will be four weeks. The Secretary may, in exceptional circumstances, extend this four week period.
an employee’s performance cannot be formally rated as ‘improvement needed’ until the Step 1 initial discussions above have been completed.

5.14 Step 2 – Assessment Period
The Assessment Period may be initiated by the Secretary after the initial discussion process at Step 1 above aimed at improving the performance has not resulted in an employee’s performance returning to the expected performance standard.

5.15 Where an Assessment Period has been initiated, the employee will be issued with a formal warning. The Assessment Period will be eight weeks for the employee to achieve the standard of performance that has been agreed in the Performance Improvement Plan (see clause 5.16). The Secretary may, in exceptional circumstances, extend this eight week period.
...

Principle	Description
Be objective	The discussion should be objective, with the supervisor outlining and confirming the required standards of work performance, with reference to the performance expectations in the PDA (including the capabilities applicable to the employee’s level as outlined in the DIAC Capability Development Framework) and explaining where the employee is not performing to the required standard, providing specific examples of their underperformance.
Be constructive	Look to the future and develop strategies for improvement, engaging the employee through a cooperative approach. The discussion should provide the employee with the opportunity to discuss any support they need to meet performance standards.
Explain the consequences	The supervisor should explain that the consequences of continued underperformance will be a ‘Improvement Needed’ rating and that a formal Assessment Period (Step 2) will be implemented.