French v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 95
•21 May 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | French v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 095 |
PARTIES: | John Wayne French v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2011/110 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 21 May 2015 |
HEARING DATES: | 24-28 February 2014, 29 and 30 April 2014 |
MEMBER: | Industrial Commissioner Neate |
ORDERS: | 1. The Appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Psychological injury arising out of or in the course of employment - whether injury arose out of, or in the course of, reasonable management action taken in a reasonable way - Appellant bears onus to establish that the Regulator's decision was wrongly made - Appellant to establish that the elements of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) are not satisfied |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 ss 11, 32 |
| APPEARANCES: | Mr P. O'Neill, counsel for the Appellant, instructed by Sciacca's Lawyers Mr R. Clutterbuck, counsel for the Respondent, directly instructed by the Workers' Compensation Regulator |
Decision
John Wayne French ("the Appellant") applied in August 2010 to WorkCover Queensland for compensation in relation to an injury described as psychological stress which he alleges occurred as a result of workplace bullying. On 5 November 2010, WorkCover decided to not accept the application on the basis of the operation of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") because it deemed that reasonable management action was taken. The Appellant sought a review of that decision from Q-COMP.
In a decision dated 15 March 2011, a review officer of Q-COMP confirmed the decision by WorkCover to reject the application for compensation. It is against that decision that the appeal was made to the Queensland Industrial Relations Commission ("the Commission") on 6 April 2011. As a result of amendments to the Act, Q-COMP was abolished and replaced by Simon Blackwood (Workers' Compensation Regulator) who, as a consequence, is the Respondent in these proceedings.
Background
At all relevant times, the Appellant was employed by Rio Tinto Aluminium Limited ("Rio Tinto") as a process technician at the Rio Tinto Alcan Yarwun Refinery (Exhibit 15). He commenced work there as a process technician (job grade G2) in September 2007, having decided to transfer from ERA for work, health and family reasons, and having had discussions with the then Superintendent at Yarwun, Mark Jenner. According to the Appellant:
(a) Mr Jenner indicated to him that, given his experience and knowledge, there was no reason why the Appellant should not progress through the ranks in the company if he worked hard; and
(b) he took a substantial reduction in income when he transferred to Rio Tinto.
The letter of offer from Rio Tinto to the Appellant (Exhibit 15) contained the terms and conditions for his full-time appointment transfer. The following are relevant to issues in this appeal.
(a) "You are required to perform all tasks that you are assigned, to the full extent of your capability. Your duties may change from time to time as required by the Company. You will only be required to perform tasks that are legal, safe and within your competence."
(b) "The Company is committed to excellence in managing health, safety and environmental responsibilities, and sees it as essential to our long-term success. The Company believes, and we want every employee to behave in accordance with this belief, that every injury, occupational illness, safety incident, and environmental incident is preventable. Our goal for them is zero. Each workplace has formal systems in place to achieve these objectives. You are actively required to promote and encourage safety in the workplace by your participation in, and commitment to, our safety performance."
(c) "Your continued employment relies on your satisfactory performance, against criteria that will be discussed with you, and assessed by your manager. The Work Performance Assessment process is the formal review of your performance, through which the Company rewards your efforts."
(d) "In addition to the terms and conditions contained in this Letter of Offer, there are other Company policies and procedures that apply to your employment. It is a condition of your employment that you act in accordance with all Company policies (as amended from time to time). Copies of policies are available from the Rio Tinto Aluminium HR Portal, or from your manager."
(e) "Staff are required to adhere to the Company's standards of conduct at all times. These standards are set out in the Code of Conduct and are outlined in the booklet The Way we Work. Both documents have previously been provided."
(f) "If you believe that you have been unfairly treated, you can have this action reviewed. You should first discuss the issue with your manager, unless this is inappropriate, in which case you should first discuss it with your manager's manager. The Company also has a Fair Treatment System, which is available to you. It is designed to provide you with access to a formal review where you feel that a decision or behaviour that affects you is unfair. This does not replace the normal discussion and work review between you and your manager. Your manager will discuss this system with you when you start work. It can also be found on the Rio Tinto Aluminium HR Portal."
(g) "The Rio Tinto Speak-OUT programme has been set up to enable staff who may have concerns (or ideas) regarding regulatory, criminal, community, ethical, environmental or safety issues, to have them brought to the attention of senior managers in an anonymous fashion. Details of the system are available from your manager and the Rio Tinto Aluminium HR Portal."
From late 2007 onwards, the Appellant applied for, or provided expressions of interest in relation to, G3, Control Room Operator ("CRO") or relief CRO positions, and Team Leader positions when they were advertised. The Appellant was unsuccessful in relation to each application or expression of interest that he lodged.
In relation to the initial applications, the Appellant received and accepted an explanation that the successful applicants had been there for a longer time than himself and were more experienced. According to the Appellant, he elected to work harder, undertake any training that was available to him, and assist in the training and mentoring of more junior process technicians, in order to reinforce his commitment to the company and his commitment to team work. Despite this, from about August 2008 the Appellant was unsuccessful in either obtaining an interview or the position for which he applied. He also noted that there was an increasing number of occasions where positions were not advertised either internally or externally and the positions were filled from outside the company.
The Appellant gave evidence that:
(a) personnel that he had assisted in training were selected for promotion over him;
(b) training that he required to advance was cancelled or postponed by his employer, in one instance as a consequence of incorrect information being supplied by another employee;
(c) he was required to shift crews, with the effect that he was placed at the bottom of the list for some training.
In June 2009, Donald Ney was appointed as Production Superintendent at Yarwun. Around that time, on a global basis, Rio Tinto was changing the basis upon which it employed workers from the G2 to G5 rating scale to a universal banding scale. The Appellant was uncertain about how this change would affect him.
The Appellant spoke with, and then sent correspondence to, Mr Ney in relation to his disquiet about the change and his failure to advance within the business.
Over the following year there were specific incidents in relation to which the Appellant was criticised by his managers, the Appellant applied unsuccessfully for promotion, the Appellant was on a period of sick leave and he made a Fair Treatment System application in relation to numerous concerns about his employment circumstances, and he continued to have communications with Mr Ney about his behaviour, attitude prospects for advancement within Rio Tinto.
On 16 August 2010, the Appellant and some other staff in his team were instructed to perform the task of a burner front clean on a boiler. The Appellant asked whether they would be getting assistance from appropriate trades persons (in accordance with what he understood the authorised best procedure to be) and was informed that they would not. A series of discussions ensued involving the Appellant, his Team Leader Tony Phillips and Mr Ney. Later that day, Mr Ney and others prepared a Performance Improvement Plan ("PIP") for the Appellant.
On 17 August 2010, in the afternoon, the Appellant attended a meeting with Mr Ney, Mr Phillips and an officer from HR at which the Appellant's behaviour was discussed and he was presented with the PIP. After that meeting, the Appellant was upset, shaking, had a headache and felt dizzy. Mr Ney agreed to him leaving. The Appellant drove to his sister's place. She arranged for him to see a doctor the following day.
The Appellant did not return to work.
On 24 August 2010, the Appellant lodged an application for compensation dated 20 August 2010 with WorkCover (Exhibit 1).
Nature of appeal and onus of proof
This appeal is to be determined by reference to s 32 of the Act. During the period when the Appellant allegedly suffered the injury, and at the date of his WorkCover claim, relevant parts of that section stated:
"Meaning of injury
(1) An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances-
(a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)the worker's expectation or perception of reasonable management action being taken against the worker;
(c)action by the Authority or an insurer in connection with the worker's application for compensation."
The Appellant bears the onus of proof to establish his entitlement to compensation.[1] The standard of proof is on the balance of probabilities.[2]
[1] State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447.
[2] Labaj v WorkCover Queensland (2003) 174 QGIG 370.
The hearing of the appeal from the Respondent's decision was conducted as a hearing de novo. In other words, the Commission does not review the reasons for the Respondent's decision but decides the matter afresh on the evidence before it.[3] According to the Appellant's submission, the Commission has the benefit of a far greater amount of evidence than was before the Respondent's Review Unit when that Unit determined the review application.
[3] Q-COMP v Hetherington (2004) 176 QGIG 493.
Issues
It is apparent from the Respondent's outline of submissions that there is no dispute that the Appellant is a "worker" within the meaning of s 11 of the Act or that he suffered an injury within the meaning of s 32 of the Act.
The issue to be decided on this appeal is whether the injury arose out of or in the course of:
(a) reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment;
(b) the Appellant's expectation or perception of reasonable management action being taken against him.
Nature of the Appellant's injury
Medical evidence was given in relation to the injury by Dr John Chalk, a psychiatrist, called by the Appellant. His evidence was not contradicted. Dr Chalk examined the Appellant on 24 November 2010 on the referral of the Principal Medical Advisor to Rio Tinto Alcan Yarwun. He took into account a range of documents including a psychologist's report. In his report dated 26 November 2010 (Exhibit 17), Dr Chalk provided the following diagnosis:
"Mr French has a chronic adjustment disorder on a background of significant personality traits in the obsessive and passive aggressive spectrum."
Dr Chalk also wrote:
"This 39-year-old man appears to have developed a chronic adjustment disorder with depressed mood in the setting of his perception of workplace difficulties. …"
He explained that the adjustment disorder was an adjustment to a set of circumstances or a situation that leads to the development of psychiatric symptomology and causes clinical distress. Dr Chalk stated that, although the Appellant might take things out of proportion, the Appellant was not in any way delusional and did not misperceive things.
I accept that the Appellant suffered an injury in the form of psychiatric or psychological disorder which was a chronic adjustment disorder.
As to whether the Appellant's injury arose out of, or in the course of, his employment and whether that employment was a significant contributing factor to the injury, Dr Chalk wrote:
"It is work related in the broadest sense in that there do not appear to be other significant issues in his life that have led to the development of his problems.
… Mr French's perception is certainly that work is the primary cause of his problems. However, I think that his current difficulties need to be seen as a complex interaction of personalities, coupled with a well-developed sense of responsibility." (Exhibit 17)
In his written report, Dr Chalk noted that the Appellant had given an account of there being "a chain of events in the workplace over a period of time." The Appellant had "a litany of complaints about how he has been treated in the workplace," and his Fair Treatment claim in March 2010 (described later in these reasons) cited some 16 issues. Dr Chalk recorded a number of the incidents referred to by the Appellant, as well as the Appellant's concerns and perceptions in relation to them.
In his oral evidence, Dr Chalk confirmed that the Appellant did not identify any non-work related stressors that had caused the development of his condition. He had given a history of difficulties in the workplace over a lengthy period of time, and his symptoms had arisen over that period and not in response to one event such as the meeting in August 2010. On the basis of the evidence he had been given and the clinical examination of the Appellant, Dr Chalk expressed the view that the Appellant's employment was a significant contributing factor to his adjustment disorder.
Dr Chalk expressed the view that the fact that the Appellant had been required to take some sick leave because of stress in March 2010 (and consulted a psychologist Tania Gorton) probably left him in a more vulnerable state to decompensate later in the year. Dr Chalk said it was hard to know from the material how well the Appellant was when he went back to work after that leave. His impression was that the Appellant's difficulties had not resolved, and the workplace had not changed, but the Appellant decided to try and "soldier on" possibly for, in part at least, economic reasons.
The Appellant's personality and credibility as a witness
In his written report about the Appellant, Dr Chalk observed that he "has always been a somewhat orderly and meticulous man and certainly the clinical impression was of a rigid personality with significant obsessive traits." During the mental state examination, the Appellant "was quite obsessive and somewhat over inclusive in his history and at other times somewhat labile." Dr Chalk expanded on that statement in his oral evidence when he said that:
(a) the Appellant "tended to get bogged down in some of the details about his history" that Dr Chalk did not particularly want to know, and "we would go over and over the same material;"
(b) lability refers to a range of quite rapid changes in mood during an interview.
Dr Chalk described the development of the Appellant's psychiatric condition as having occurred "against a background of a personality with some clearly obsessional features and certainly a degree of rigidity." Elsewhere he referred to the Appellant's "somewhat black and white approach." He noted that the Appellant "rightly or wrongly, considers that it is others who have the problem and not he. Indeed he was, throughout this interview, quite critical of management both from a style and content perspective." Dr Chalk described the Appellant's condition as being "on a background of significant personality traits in the obsessive and passive aggressive spectrum."
In his oral evidence, Dr Chalk said that his clinical impression of the Appellant was that he was a man "who tended to see things in black and white," that he "wasn't someone who coped particularly well with shades of grey" and that he had a very "right and wrong approach to things." That was "reflected in his difficulty in adapting to the circumstances in which he found himself." In Dr Chalk's opinion, obsessive traits (which tend to have a degree of meticulousness or perfectionism) are not necessarily a bad thing, but the trait can become counter-productive if there is not a degree of flexibility with it. The passive aggressive component described someone who did not seek conflict but would react to events with which he was having difficulty by being passive (by withdrawing from the situation) but at the same time quite angry.
Those observations are consistent with characteristics that Mr French displayed at times in the course of giving evidence in these proceedings.
Dr Chalk agreed that people who display both the obsessive traits and a rigid personality (including the Appellant) are more prone to decompensate or develop some form of psychiatric or psychological symptomatology in circumstances where they may be subject to change or things are not to their liking. He explained:
"It also comes down to an issue, in some sense, of control over your own destiny. But … if you feel that that situation is getting out of control or … you lack any control over it then that, in fact, can lead then to development of quite significant depressive illnesses."
Detailed submissions were made on behalf of the Appellant about his credibility as a witness. In summary, those submissions were that:
(a) the Appellant gave lengthy evidence setting out his recollections of the events giving rise to his injury, and his demeanour in giving that evidence indicates that he was an honest witness who was doing his best to assist the Commission;
(b) although the Appellant had some difficulty on occasions focusing on the questions being asked, and understanding those questions, the Commission should take into account that:
i.the Appellant was clearly not familiar with giving evidence;
ii.he was and is a relatively unsophisticated person who had limited education (which was evident from his oral evidence and documents written by him, for example Exhibits 11 and 22); and
iii.he had sustained a significant psychiatric injury which was clearly still affecting him at the time he was giving evidence.
I accept generally the submission in relation to the Appellant's credibility as a witness. But the implications of that conclusion must be understood in light of Dr Chalk's assessment of the Appellant's personality which, in turn, is relevant to findings in relation to specific events and interpersonal issues considered below, and the Appellant's perception of them. Also, as will be apparent later, I have preferred other witnesses' accounts of some events involving the Appellant where their more detailed recollections are supported by contemporaneous notes.
Overview of the Appellant's case
Unlike the practice in relation to subsequent appeals of this type, the Appellant's case commenced without the identification of specific stressors to mark the boundaries of the appeal.[4] The Notice of Appeal lodged with the Industrial Registrar on 6 April 2011 did not list any grounds of appeal.
[4] See Blackwood v Adams [2015] ICQ 001, [17], [19].
By letter dated 22 February 2013, in accordance with a direction of Vice President Linnane dated 30 January 2013, the solicitors for the Appellant advised that their client:
"sustained the injury for which he claims compensation as a result of a series of circumstances occurring within his workplace from February 2008 culminating in the Appellant lodging a fair treatment review process in March 2010. Those events related to the Appellant receiving a lack of opportunity in being considered for promotions or other relieving positions within the organisation and a failure to provide appropriate feedback to the Appellant about the recruitment process. The Appellant also relies upon the employer denying him training opportunities that were afforded to his co-workers which also inhibited his progression within the business. The Appellant alleges that in the period after raising his concerns using the Speak Out process he was targeted by management."
The letter summarised a series of events by month or date between February/April 2008 and 5 May 2010, and continued:
"When the Appellant returned to work after this fair treatment process in May 2010 he was of the understanding that he would be given a fair go and that there would be a 'fresh start' between himself and his employer. The Appellant contends that his treatment by management thereafter was the exact opposite of a fresh start and a clean slate."
The letter then listed a series of events between 9 July 2010 and 17 August 2010. It contended that the meeting on 17 August 2010, including the issues raised in the meeting and the manner in which the meeting was conducted, "contributed further to the Appellant's injury."
Evidence was given in relation to the events and actions listed in that letter.
The Appellant's written submissions made following the hearing refer to the reasons for decision of WorkCover dated 5 November 2010 (Exhibit 2) which noted that the Appellant relied on the following stressors:
(a) Factor one: unfairly targeted by managers Don Ney and Tony Phillips
(b) Factor two: lack of professional development and direction from management
(c) Factor three: required to attend meetings relating to performance and attitude.
The Appellant's submission then states that the Appellant maintains these grounds but notes that the appeal has been broadened to include the events prior to 2010 where the Appellant has been disadvantaged in training opportunities and in seeking advancement. The Respondent notes that the factors listed are not dissimilar from the factors considered in the Respondent's reasons for decision, and that the proceedings before the Commission are little different from the matters considered upon review. The present case involves a more lengthy consideration of matters alleged to have occurred over a period of time.
Given the way in which the appeal was formulated, and the Appellant's case and Respondent's case were presented, it is necessary to deal with each of those incidents or events in order to ascertain whether the Appellant has discharged the onus that he carries. In particular, those events will be assessed to ascertain whether the Appellant has proved on the balance of probabilities that any or all of them occurred and gave rise to his injury and that his claim for compensation should be accepted because s 32(5) of the Act does not apply.
It is appropriate to deal with the events or incidents in chronological order, both as a means of assessing their impact on the Appellant and to gain an appreciation of the overall or cumulative effect of them on him.
Various managers at Rio Tinto were mentioned, or gave evidence, in these proceedings. Their respective positions in the corporate structure, in ascending rank, were:
(a) process technician: John French (the Appellant);
(b) Team Leader of the team that from time to time included the Appellant: successively Rebecca Smith, Gavin Maines, Bevan Williams, and then Tony Phillips (for about six weeks during the final period of the Appellant's work at Rio Tinto);
(c) Production Superintendent: Mark Jenner, Rob O'Shea, Rob Hocking (for a couple of months); and then Don Ney (from June 2009) - who supervised the four teams, and to whom the Team Leaders reported;
(d) Superintendent's manager: Pat Fordyce, Dane Linforth;
(e) General Manager: Mike Dunstan.
Appellant's unsuccessful application for positions: 2007 to 2009
The Appellant commenced at Rio Tinto as a G2 process technician in September 2007. He gave oral evidence that he lost $71,000 transferring to Rio Tinto. (It was not clear how that figure was calculated or the period to which it applied.) He said that Mr Jenner gave him a pay base rate start and, according to the Appellant, could not understand why the Appellant could not advance through the levels because of the experience and knowledge that he brought to the company (Mr Jenner did not give evidence in these proceedings). The Appellant also said that, during his period of employment with Rio Tinto at Yarwun, his pay was increased following performance reviews.
In late 2007, the Appellant put in expressions of interest for G3 roles, but not for Team Leader because he felt at that stage he was not well equipped to handle a position while he was still becoming familiar with the plant. In about February 2008 he applied for Team Leader and G3 positions, but not for relief CROs as he did not have his advanced Boiler Ticket. The Appellant was unsuccessful with those applications but was informed, and accepted, that other people who had been there before him and had more skill sets than he would be appointed to those positions. He described this as "continual succession."
In 2007-2008, the Appellant moved between teams so that his skills could be used in relation to particular tasks (such as calcination) until the number of employees with relevant experience increased. He provided some technical training to members of his team. He recalled that one person who he trained and who had not been there as long as he, Tammy Gatlin, was appointed to a G3 role.
The Appellant made inquiries of his managers about getting training qualifications and other training. For various reasons, including his transfer between teams with different training dates, some training was postponed or cancelled on several occasions, including in 2010, and he did not undertake it. Although he obtained an Advanced Boiler Ticket in May 2009, and received some training (e.g. in Microsoft Word and Microsoft Excel), the Appellant considered that the consequential delays in opportunities for other training set back his opportunities to obtain higher positions at Rio Tinto.
Documents containing assessments of the Appellant's work performance in the period between August 2008 and the end of 2009 include observations in relation to the Appellant's technical proficiency and aspects of his behaviour. Because there is no issue in this case that the Appellant was competent in the performance of his duties and had the necessary skills to do the work for which he was employed, it is not necessary or appropriate to review in detail those aspects of the exhibited documents. Given the focus in these proceedings on the Appellant's career aspirations and his personality and behaviour in the workplace (in particular whether he was suitable for promotion to a leadership position), it is relevant to focus on those aspects of the assessment documents.
A Work Performance Review dated 19 August 2008 and signed by the Appellant and his leader (Exhibit 6), recorded the stages before, during and after their discussion in relation to his work as a G2 process technician. The Discussion Notes included the following:
(a) Health & Safety: "Good level of safety awareness and commitment, demonstrated in Safety improvement projects, team safety representative and Emergency Response Team member."
(b) People Commitment: "Generally a strong team player with high output level however tends to prefer to work alone. Cares for his team mates and shares communication on safety issues in our area.… John's priorities have a tendency to supersede the teams/personal development priorities. Discussed the need to keep open communication with each other in order to have clear expectations on work/personal development priorities."
(c) Operational Excellence: "consistently strives for optimum efficiency from equipment. Has begun to priorities (sic) maintenance notifications.
Maintain thorough plant checks and continue to show initiative in completing Primary maintenance.
Continue attention to detail on plant operation and anticipate faults.…
Demonstrated area ownership and urgency in returning plant to service by performing minor maintenance tasks that would not have been completed by Reliability until scheduled. I.e., temporary repairs, valve change outs.
Discussed recent lack of motivation towards completion of MIO[5] required training and we agree that John requires further administrative support in order to complete this training. Therefore no completion date has been set in order to allow John to complete at his own pace to a required standard."[5] Master Isolation Officer
(d) Training requirements: "To assist with MIO training provide administrative support; Microsoft Word, Microsoft Excel, Permit and Isolation update.
Continue with MIO training at self pace.
Graeme Clark to notify when next booking available for Element training."
(e) Future direction: "Complete training requirements to meet G3 qualifications. Future aspirations as a Team Leader."
(f) RTAY Values: "Commitment to plant operation and maintenance is of high standard. Works hard to ensure equipment and areas are handed over in satisfactory condition.
Maintain prompt reporting of maintenance, environmental and operational incidents.
At times has not used the correct hierarchy of communication to address issues, generally in regards to training. Has agreed to communicate through Team Leader to allow for planning and team management and request meetings with Team Leader and other parties if required."
(g) Ideas for improving work performance (Team Member behaviour): "Initiative to maintain plant optimum operational efficiency.
Maintain transparent communication within appropriate channels of hierarchy.
Set no deadlines on completing remaining training requirements. Concentrate on delivering high standard of work and confidently."
(h) Ideas for improving work performance (Leader behaviour): "Maintain my levels of transparency in communication."
In March 2009, two G3 process technician positions were filled from outside the company. The positions were not advertised within Yarwun and the Appellant expressed concern about how they were filled.
A Discussion Planner for Interim Review in relation to the Appellant was completed by Gavin Maines, the Utilities Team Leader of the Quoin crew, and dated 16 June 2009 (Exhibit 8). The Interim Review provided feedback to team members on their performance in relation to both the objectives and behaviours that were agreed at the beginning of the year. The document included the following statements:
(a) HSE: "Displays a personal commitment to HSE and care for self and others
Proactively contributes to discussions in start-of-shift and safety meetings - raises safety issues and contributes to solutions
Provides improvement ideas as a recipient to safety interactions
Identifies unsafe acts and conditions in the workplace, however needs to take owner ship and follow through with some of these ideas."
(b) Operational Excellence: "Escalate critical issues with appropriate level of urgency and to relevant stakeholders (eg Shift Controllers/Team Leader)
Work with maintainers to assist equipment problem solving and improvement
Isolate and de-isolate equipment to schedule and prepare the handover in a clean and tidy state"(c) Achievements for 2009: "Achieved 5 safety observations per month.
Calciner MIO's completed and has participated as MIO.
Certificate 3 in Process operations.
Advanced Boiler ticket.
Boiler and Calciner control room training completed to element 4.
Relief CRO for Boilers and Calciners.
Relief Team leader."
Among the matters listed as "working well" or "opportunities for improvement" were the following:
· "I have requested further training SLDP, Work place Trainer but have been unable to get approved.
· I am prompt on CRO requests when requested to attend faults or process trips.
· I assist in other areas when needed or directed and offer assistance where needed."
In relation to future improvements, the Appellant wrote:
"My personal improvements would be my management group whom would mentor and assist myself in my continual improvement goals e.g. SLDP training & work place trainer. So I can develop my gaols of perusing management training.
THANK YOU: JOHN FRENCH 2009-10-01." (Errors in original)
The agreed actions to be taken were:
(a) "Needs to take owner ship and follow through with ideas/notifications/CMR raised.
(b) Need some re-fresher training on Lean principles[6] and how they apply to work team."
[6] In essence, Lean principles are a management tool for business improvement aimed at creating more value for customers with fewer resources through the ceaseless elimination of waste. They require the participation of the whole organisation and are applied in conjunction with 5S (sort, set, shine, standardise and sustain).
The Appellant gave evidence that in 2009 he sought to challenge his Work Performance Assessment. After making the then Superintendent (Mr Hocking) aware of his achievements, including having successfully completed virtually all his training and achieved his advanced Boiler Ticket and having acted as relief Team Leader and as a CRO, his overall assessment was elevated from "satisfactory" to "good." The Appellant stated that he was happy with the overall "Good Performance" assessment.
According to the Appellant he was performing at least at G3 level by 1 July 2009. A G3 position involved a higher level of duties, and that person normally acted in the relief role as Team Leader.
The Appellant gave evidence that he acted as a relief Team Leader, in the absence of the Team Leader, on about 50 or more occasions between September 2007 and August 2010, both before and after he achieved the Boiler Ticket. That role involved a range of duties, including completing Utilities Handover Notes (see Exhibit 7). The duration of his acting in that role varied, and included periods of one or more hours when the Team Leader would be in a meeting or had to go off site. On "several occasions" (a "fair few") he worked a complete shift as acting Team Leader. The Appellant said that before April 2010 he had not received any suggestions that he was not doing the role capably. Two of the achievements listed in Exhibit 8 ("Relief CRO for Boilers and Calciners" and "Relief Team leader") confirm and corroborate his evidence that he had been relieving as both a CRO and a Team Leader before June 2009.
The Appellant gave evidence that he acted as a relief Team Leader to prove that he could do that work quite capably and to assist his ability to fill a position when it became available. In his words, he took on those high duties "to prove that I was … willing and capable and had the mindset and the skill set to do that job."
The G3 position was abolished on 1 July 2009 when another rating system was introduced. The process technician positions remained, and progression was through the ranks of a process technician. The Appellant asserted that, although he attended at least one group meeting about implementation of the new system, he did not completely understand the new system and that his subsequent complaints about not progressing to a G3 level reflected that. He noted that his base pay did not change when the new system was introduced, and agreed that concerns about not being promoted to G3 were of no relevance or concern to him after 1 July 2009. However he was concerned about the "grey areas that were involved" if someone was ready for promotion after that change.
In June 2009, Mr Ney commenced as Superintendant. In early August 2009, the Appellant had a discussion with Mr Ney in which he enquired about a possible increase in pay. According to the Appellant, Mr Ney told him that he was not "going to be increased." However, Mr Ney did make some notes about the Appellant's behaviour and performance. At the hearing, Mr Ney said he did not recall the conversation and did not have his diary notes for 2009 with him.
On 9 August 2009, the Appellant wrote to Mr Ney (Exhibit 9) and referred to their recent discussion about his enquiry for a pay increase on the basis that he felt "qualified as a G3 and above." The Appellant wrote that he had been working hard and continued to become more competent above his G2 role, and had been ready for a G3 position since April-May 2008. Four positions had been allocated to people who had been with the company for shorter periods than he had and who were less qualified than he, with no expressions of interest being advertised internally. The Appellant stated that in 2009 he had been asking for an increase in pay equal to a G3 position. He had been filling several roles and was "not rewarded for (paid) at the level I feel it is fair." The Appellant also stated that "with the new global banding of ITMS[7] I feel I will be disadvantage on a long-term basis." He felt that "drawing this matter out till December will not be reflected in ITMS" and he wanted to address his base rate to reflect a G3 pay rate higher than his present base rate and not by his annual performance rating score. According to the Appellant, he received no response from Mr Ney in relation to his written request. At the hearing, Mr Ney said he had no recollection of what he did in relation to the email message.
[7] Integrated Talent Management System
The RT Performance document completed by Mr Maines in relation to the Appellant for the period 1 January to 31 December 2009 (Exhibit 10) included a final appraisal of performance as "Good Performance". It concluded with the following Leader's comments:
"HSE Commitment - John, you've done some very good work with hazard identification however you need to follow through with these to completion.
Operational Stability - throughout the year you have offsided the fitters and you are always looking to improve in different areas. You have offered your thoughts on improving mill shutdowns and other issues in the boilers.
Business Improvement - You have assisted in achieving the 3 green milestones however you are not sold on the concept of lean and 5S.[8] This area requires some development.
Cost Reduction - You are aware of the cost reduction on site however you need to be more involved in this area by being personally accountable for cost and expenditure in Utilities.
Behaviours - At times you can be perceived to be very negative and you can sometimes struggle with what has happened in the past. You need to focus on the situations that we can control and positively influence.
Overall I have assessed your behaviour as good."
[8] See footnote 6.
In relation to the statement that at times he "can be perceived to be very negative," the Appellant submits that the statement must be seen in the context that, by the end of 2009, he had been unsuccessfully seeking advancement in the organisation for 2 ½ years, he had sent the request for advice and assistance to Mr Ney in August 2009 (Exhibit 9), and he had received no response from Mr Ney in relation to that request.
Appointment of Bevan Williams as Team Leader in January 2010
In January 2010, Bevan Williams, a process technician, was appointed as a Team Leader. The position was not advertised, and the Appellant expressed his concerns to Mr Ney about that. According to the Appellant, Mr Ney responded that the appointment was made to meet the company's requirements and it was not the Appellant's business who they appointed as Team Leader. Mr Ney recalled discussing the Appellant raising the matter with him but did not recall the date or content of the discussion.
Appellant's use of Speak Out process in February 2010
The Speak Out system allows Rio Tinto employees to place telephone calls to speak about the company on a confidential basis and raise any concerns about the company not acting in a proper manner. The Appellant said that he used the system twice.
On 7 February 2010, the Appellant used the Speak Out process to raise concerns about roles not being advertised, not having access to training, and fairness of selection process/decisions.
The Appellant was not aware of anything being done as a consequence of his Speak Out call. However, he said that a couple of shifts after making the call he was issued with a written warning about an incident (considered below). He had a conversation with Mr Fordyce, the Area Manager in charge of Mr Ney, who was apparently aware that the Appellant had made the call.
Control Room Safety Incident and investigation in early February 2010
The Appellant's account: The Appellant recounted that while on a night shift he had returned to the Control Room to relieve another person (Brad Ryalls, a senior CRO) at a time when the Team Leader, Gavin Maines, was not in the room. There had been a change involving the boilers in the Control Room, and the Appellant tried to contact Mr Ryalls on the radio. Both Mr Ryalls and Mr Maines had their radios turned off. The Appellant opened the door and saw both men outside. He "popped" his head out the door and yelled to Mr Ryalls to come inside because there was a major event happening in the boilers. Mr Ryalls was in charge and needed to know what was happening. Les Ogden was around the corner from the door. Mr Maines was under stress from a motor vehicle accident on the previous night and was "very volatile." He told the Appellant he was not to walk out of the Control Room. The Appellant agreed and said that is why he was in the doorway. Somebody reported that he had left the Control Room. The Appellant said that he had not left and could not understand how someone would think he had. He kept the door open and could hear the panel and see the panel clearly.
According to the Appellant, when he came in on his shift on 9 February 2010, he was told by Mr Ney in his office that he would be getting a written warning for leaving the Control Room. The Appellant had received no notice of the meeting and was not afforded an opportunity to have a support person present even though the meeting was about a written warning. The Appellant explained to Mr Ney that he did not leave the Control Room but remained in the doorway. He did not shut the door and remove himself from the panel. According to the Appellant, Mr Ney said he had been told something different and the Appellant did not have an excuse that was good enough.
The Appellant's evidence identified his four concerns or perceptions about this management action:
(a) the Appellant felt that he was being targeted or victimised as he had not left the Control Room;
(b) in any case others had left the Control Room (e.g. to go to the toilet) and had not been disciplined;
(c) Mr Ney did not attempt to investigate what the Appellant had said or talk to anyone else, such as Mr Ryalls; and
(d) the Appellant received a written warning which was later withdrawn, because the Appellant did not have a support person present at the meeting.
The Appellant then made a second Speak Out call in respect of the written warning being provided, which he viewed as being retaliation for his original Speak Out call some two days previously.
Mr Ney's account: Mr Ney gave evidence that, on 3 February 2010, Mr Maines alleged that the Appellant had left the Control Room the previous night. Mr Maines indicated that he had been stressed from being undermanned and as a result of a recent vehicle accident, and that he was upset about the way he had sworn at the Appellant in an aggressive manner. Mr Ney recorded that he was happy with Mr Maines' approach to the Appellant as it was a safety breach and the Appellant needed to understand his action, though he counselled Mr Maines about his inappropriate way of speaking to the Appellant. Mr Ney spoke with the Appellant about this matter twice on 9 February 2010. Apparently the four day shift roster explains why he did not follow-up earlier. It also provides an answer to the Appellant's first concern that he was being targeted following his Speak Out call (a matter also dealt with in the Fair Treatment process in relation to Issue 4, discussed below).
Mr Ney spoke with Sarah Dundas from HR before the meeting. Ms Dundas was present in the first meeting, that morning. Mr Ney acknowledged that he did not give the Appellant prior notice of the meeting or what was to be discussed, and did not offer him the opportunity to have a support person present. Mr Ney stated that the first meeting was not a disciplinary action but was an explanation of what he found. He confirmed that the Appellant denied leaving the Control Room and had said, in effect that he opened the door to the Control Room, stood in the doorway and called out to Mr Ryall.
Mr Ney also said that he spoke to Mr Ryalls and Les Ogden about the incident (apparently after the first meeting). Although he suggested that they confirmed that Mr Maines had correctly stated that the Appellant walked out of the Control Room, his notes of those conversations indicate that:
(a) Mr Ogden did not view the incident; and
(b) Mr Ryalls confirmed that the Appellant left the panel for a short time, which is consistent with the Appellant's explanation that he wanted to get Mr Ryalls' attention and came to the door.
Mr Ney called the Appellant into a meeting at 3.15 pm that day. Again the Appellant was not provided with any prior notice of the meeting or an agenda, and was not given the opportunity to have a support person present. Ms Dundas was present in accordance with company policy. By that stage, Mr Ney had formed the view that it was appropriate for the Appellant to receive a written warning. At that meeting, the Appellant raised concerns that the process was not fair. Apparently he was given a written warning. However, because Mr Ney stepped outside company policy in relation to the second meeting, Mr Fordyce "ripped up the written warning and took it off his record." Mr Fordyce told Mr Ney what he needed to do in the future and follow the process.
Mr Ney subsequently made inquiries in relation to allegations by the Appellant that two other CROs had left the Control Room unattended on occasions. Mr Ney spoke to the team leaders of the persons nominated by Mr French, and was satisfied that they did not leave the panel (e.g. to go to the toilet) before ensuring that someone else was at the panel. Had a team leader reported that any CROs stepped outside, he would have gone through the same process as he did with the Appellant. By that evidence he explained why, in his opinion, he had not treated those employees differently from the Appellant.
Mr Ney's evidence includes, in effect, responses to each of the Appellant's four concerns, and addresses those of his perceptions that were based on lack of information and incorrect assumptions.
Although it was appropriate for Mr Ney to investigate the allegation made against the Appellant, there were a number of aspects of the way in which management dealt with the matter that were unsatisfactory. By their actions, senior managers acknowledged and accepted those criticisms. Mr Maines apparently expressed regret to Mr Ney about having sworn at the Appellant in an aggressive manner and Mr Ney counselled him about that (although that exchange appears not to have been conveyed to the Appellant). The procedural defects surrounding the way in which the Appellant was given a written warning were recognised, if not remedied, by the withdrawal of the warning and instructions given to Mr Ney to follow the appropriate process in the future.
Appellant applies for Team Leader and Control Room vacancies in March 2010
In early March 2010, six CRO positions were advertised and a Team Leader position was to be filled. The Appellant applied for a Team Leader role but was not interviewed. He applied for a CRO position and was one of eight applicants selected for interview. He was unsuccessful. On 4 March 2010 he had a feedback session with Stephen Austin who was in charge of the Control Room and who had conducted the interview. The Appellant wanted to know why he missed out on a CRO position given his qualifications, knowledge, background history and seniority.
The Appellant's account: Although the Appellant's evidence on this point was unclear, it appears that Mr Austin indicated that the Appellant's personality traits, such as not listening, were relevant to that decision. The Appellant stated that Mr Austin "highlighted the same criteria that Don highlights to me all the time." The Appellant also spoke to Mr Ney who apparently gave a similar response. However, the Appellant contended that he did not get a clear understanding of why he missed out on that position.
Mr Austin's account: Mr Austin gave evidence that he met with the Appellant in the company of a person from HR. Consistently with company practice, he had discussions separately with the Appellant and the other unsuccessful candidate about why they had been unsuccessful. He made notes of each discussion a few hours after its conclusion. Mr Austin did not provide a copy of those notes to the Appellant to check whether he agreed with them.
Mr Austin stated that each of the eight applicants who were interviewed, including the Appellant, was technically competent and trained appropriately for the CRO position, although none of them was at the level required for the position and each successful applicant would need to be trained to that level. Some applicants had obtained their qualifications shortly before the interview and had worked for Rio Tinto for shorter periods than the Appellant. The areas where the Appellant "not the best" were:
(a) his ability to listen: in the interview he struggled to answer some questions and would give an answer about something else, e.g. he would divert to the technical issue, particularly when talking about the teamwork aspect; and
(b) teamwork: in discussion the Appellant said that he wanted to get into the CRO role because he would be in control of it, indicating that "it's all about him" even though the critical part of that role is teamwork and integrating the team.
According to Mr Austin, the Appellant was obviously and understandably upset, and wanted to talk through and argue about matters in a lot of detail. His strong focus was on the technical aspects of the role and appeared to be comparing his technical capability with what he perceived to be the technical capability of some of the successful applicants to show why the outcome was unfair to him. Mr Austin stated that the Appellant was "just missing the point" and perhaps had given no consideration to the other selection criteria. He was focussed on technical capability, and Mr Austin kept reminding him that he was technically proficient but that was only one of the selection criteria. Teamwork capability and communication were where the Appellant "fell down." Mr Austin said that teamwork is required for the operation of a refinery. If you don't have a team working environment and are not able to work with others as a team, it can be a very dangerous environment.
Two other matters were raised in the course of that discussion.
(a) The Appellant said that he was starting to get feedback about his communication and his teamwork, and he referred to things that Mr Ney or Mr Fordyce had said to him relatively recently. Mr Austin said that maybe he was finally getting some good feedback and he could improve. He suggested to the Appellant that if he was getting such consistent feedback, this is something that he may need to work on. The Appellant said that he wanted to take this up with Mr Dunstan, the General Manager at the time.
(b) The Appellant had been relieving as CRO for periods (say between 10 minutes and one hour) since obtaining his Advanced Boiler Ticket in about May 2009. Toward the end of the discussion, the Appellant said that he was not paid extra for the work and responsibility of providing supervision while the dedicated CRO would have a brief break. Mr Austin reminded him that this was a development opportunity, but that if he did not want to do that he could make sure that the Appellant did not have to do it again. The Appellant replied that he was grateful for the opportunity, but Mr Austin thought that he was getting frustrated and disappointed about not getting the role.
Mr Austin also gave evidence that:
(a) before the interview process, he and Mr Ney had to make a business case to convince Mr Fordyce and Wayne Glasrin (to whom Mr Austin reported) that there should be an additional six CRO positions;
(b) before the interview process he did not discuss it or individual candidates with Mr Ney, but Mr Ney knew that six of his team members would be selected for the CRO positions; and
(c) he had never been the Appellant's supervisor and after the interview process was complete he would have had discussions with relevant senior managers (Mr Fordyce, Mr Ney and Mr Ogden) about the applicants and the impressions he formed about them at their interviews.
Mr Ney's account: Mr Ney's evidence was, in effect, that he would have known which process technicians were shortlisted for interview and which of those Mr Austin was considering taking as CROs. Mr Ney agreed that he had previously commenced discussions with the Appellant indicating that he did not believe that the Appellant was suitable leadership material. However, he did not agree that he expressed that view to Mr Austin in relation to who was likely to be appointed, and he drew a distinction between a leadership position and a CRO position.
The Appellant submits that, had there been a fair process for the selection of the six employees to fill the CRO positions and had the Appellant missed out on a merit-based application process, there could be no complaint that the process was unfair or unreasonable. However, the Appellant submits that the process was not fair because there had been some involvement or influence exercised by Mr Ney or Mr Fordyce.
The Appellant notes that it seems that he was the longest serving of all the applicants for the positions, and that some of the successful applicants had only obtained their boiler ticket some weeks previously. The Appellant submits that responses to questions about teamwork provide a very narrow basis to knock out one of the most senior applicants for the CRO role. On that basis, and given that there was no evidence of any appeal or review mechanism in relation to the appointment process, the Appellant submits that the Commission is entitled to make a finding that the recruitment process was flawed and that the Appellant was entitled to feel a sense of disquiet about his failure to secure a position. If such a finding is made, the Appellant submits that it is open to find that management action was not reasonably taken.
Conclusion: Having considered the Appellant's detailed submissions in light of the totality of the evidence, I am not satisfied that the recruitment process was unfair or unreasonable. It is clear that the Appellant and all the other candidates had the relevant minimum level of technical capability for the position and the successful candidates were selected by reference to that and other criteria relevant to the CRO role. The evidence does not suggest interference by Mr Ney or Mr Fordyce in the selection process. Just because the Appellant felt an understandable sense of disquiet about his failure to secure a position does not mean that the process was fundamentally flawed.
Appellant on sick leave in March 2010
Shortly after the interview with Mr Austin, the Appellant saw a doctor at the work site and commenced a period of sick leave related to stress. The period of leave was about three to four weeks. The Appellant also made use of Rio Tinto's Employee Assistance Program and was referred to a psychologist, Tania Gorton because he was having trouble dealing with issues and felt that he was at fault for everything. He saw Ms Gorton "frequently" and over time became "a lot better" and "more productive."
Mr Ney recalled a discussion with the Appellant who expressed concerns about missing out on the CRO position, and that soon afterwards the Appellant was on "stress leave" and was seeing a company psychologist. Indeed, Mr Ney had encouraged the Appellant to go to the medical centre. He contacted the Appellant by phone on 15 March 2010, during the period of stress leave, inquiring about his well-being.
Although the Respondent submits that there is no medical evidence attendant to this particular incident, and it is not known what caused the Applicant to leave work at that time, I am satisfied that the Appellant was on sick leave in relation to work related stress.
As noted earlier, Dr Chalk gave evidence that it was hard to know from the material available to him how well the Appellant was when he returned to work after that leave. Dr Chalk expressed the view that, as the Appellant had been required to take sick leave because of stress in March and he had consulted Ms Gorton, he was probably in a more vulnerable state to decompensate later in the year.
Fair Treatment System application
The Appellant initiated a Fair Treatment Review by lodging a Fair Treatment System Issue Statement dated 15 March 2010 with Rio Tinto (Exhibit 11). Thirty pages of documents were attached to it. The following is a summary of the issues raised (many of them in the form of questions) and the preferred outcomes identified by the Appellant.
The issues were, in essence:
(a) why he had not advanced within the company since 17 September 2007 even though he filled a Team Leader relief position and Control Room relief position;
(b) why he had been disadvantaged with role level classification, internal advancements, internal positions, internal promotions and role band changes Stratum to ITMS;
(c) why he had not had fair and equal opportunity with positions (e.g. no advertising of and for roles) and personal advancement;
(d) why, after three years with Rio Tinto, he was told "I don't listen to question for a reason not to obtain a CRO position recently since I asked question about unfair treatment is happening in work group;"
(e) he had no training for 12 months (or his courses were cancelled which would have enabled his skills and qualifications to progress internally);
(f) why he had been disadvantaged with RD and Band change;
(g) why he was subjected to less favourable treatment in the workplace just after using the Speak Out system;
(h) why, having been trained in Rio Tinto systems, policies and procedures, and having been relieving in Team Leader and CRO positions, he did not meet the qualifications to fill a CRO position after two years of interviews (and having been told recently he was not suitable because he doesn't listen);
(i) his role description had changed four times with no communication of the changes and why they were made.
The Appellant wrote that his reason for invoking the Fair Treatment system was that he had again missed out on internal advancement for a Team Leader role (for which he was not interviewed even though he had filled the role "continuously" over a two-year period) and for a Control Room position (because "I don't listen").
The following passage illustrates the basis of the Appellant's concerns. When asked about the misconduct referred to in (c), he said:
"I worked hard to advance. I've done the extra hours. I've come in for over time. I've taken work home. I had a young family. I was planning to build a house and I helped other people and yet they - they got advancement over me."
His aspirations and expectations of promotion to a managerial position within Rio Tinto, and the effort he was willing to put in to achieve that goal, are illustrated in the following passages drawn from Exhibit 11:
(a) "I wanted to be with this company for a long time and make a difference and progress with distinction." (page 2)
(b) "I have transferred internally for the company needs at the time for my skill in certain areas. I am an employee who wishes to have a long term career with aspirations of becoming a manager with Riotinto one day through commitment, meeting company needs & requirements that are so my attributes and skills that do benefit Riotinto and I had hoped long-term they would meet my aspiration in developing me to for fill my long term ambitions with Riotinto." (page 2)
(c) "I did take on duties outside of my role description to meet company needs on the hope this would assist in my advancement in the company and be recognised for the positive attributes I have."
(d) "My training was intense when I started I focused what was required, I took work home to become competent in less time as this would help the company when I was competent in my areas … Calcination and boiler with in 6 month (I even had my wedding in this duration and didn't go on our honeymoon so I could get back to work)." (page 4)
(e) "I still for fill my role and duties with a resolved that things will be addressed and a fair resolve granted to my disposition of other unfair situations, because I have career aspirations to continue to work for this company and act in the best interest of this company because I am a stake holder also of this business and a long term employee." (pages 6-7) (errors in original)
The Appellant listed eight points as the preferred outcome of his Fair Treatment case. As I understand them, they were in summary:
(a) admission that the CRO positions were coached and pre-empted to disadvantage him on the basis of a personal opinion, rather than qualifications and company commitment and values, as he had been doing the job as at March 2009;
(b) review of his unfair treatment and action on the unfair actions that had occurred, so that the personnel management team could comply with the company's values, code of conduct, equal opportunity and policies;
(c) an apology letter from the company for the misconduct in relation to his treatment in this matter;
(d) an increase in pay in his base rate to the top of his band to equal where he would have been if opportunities were settled, and because he had been relieving as Team Leader and CRO without remuneration for duties since early 2008 and because he had been disadvantaged since transferring to Rio Tinto;
(e) an equal opportunity to progress on merit without management influencing the positions and outcomes negatively based on the beliefs or opinions of the few who could have departmental influence on the futures of personnel;
(f) a guarantee of a CRO position as soon as a possible because the role position was influenced by management;
(g) no further acts of malice and belittling of him in the future by his management team;
(h) personnel are treated with dignity and respect, and are valued for their skills and qualifications and commitment to the company.
[100]He said that on occasions he acted in higher positions without remuneration, but did so to show his ability to perform those positions "knowing over time that it would be possible that I would fulfil one of these positions if I'm trying to show that I'm a valued company employee."
[101]The Appellant seemed to think that, given enough time, his undisputed technical competence, loyalty and diligence would be rewarded with a promotion. He was excited when six CRO positions came up "that there was a possibility … I would fulfil the position finally" particularly as he was the "senior long-term employee at the time." In his words:
"I have a lot of dignity. I mean, I've worked very hard. I had worked very hard. I continue to work very hard. I don't act disgruntled where I don't want to do it at all. I'll still do the job 'cause I know I have a job. I valued Rio Tinto. I was proud to work for a Rio Tinto. … Just at the last year, I just couldn't understand why I was being treated the way I was, why I was missing out on things. I couldn't understand. Nobody can give me a decent answer. I felt it was just victimisation of me. … I'd become a target."
[102]The Appellant seemed not to appreciate or accept that the positions of Team Leader and CRO required more than technical qualifications, and included skill in management such as the ability to look after people and control them. When it was put to him, in cross-examination, that people in those positions would be assessed on the basis that they had those leadership skills, he said:
"No. You get issued a ticket. You're qualified to operate an advanced boiler."
When he was then asked: "But I'm talking about the positions of supervision and management?" the Appellant replied:
"Yeah. When I was on the panel, I was calling up operators all the time to ask them to do jobs outside. I'm able to instruct them because they're competent in the area."
The Appellant's return to work
[103]The Appellant continued seeing his psychologist during the Fair Treatment process as he said he was worried that something might happen to him as a result of how he was being treated.
[104]The Appellant recalled a discussion on 22 April 2010 with Mr Ney and Ms Dundas of HR about his condition on his return to work, and what he could or could not do. At that time, he was also apparently still receiving treatment for an arm injury that occurred in October 2009 which led to a frozen shoulder. He had been on light duties on day shift for about four or five months following that injury.
[105]Mr Ney, however, agreed that the discussion on 22 April 2010 would have been about mental health issues. That was confirmed by his contemporaneous note. Mr Ney was aware that even after returning to work, the Appellant was continuing to see a psychologist.
[106]The Appellant was put on day shift and had to perform to a particular level (including not disrupting the crew) before he would be allocated to night shift. He stated that he was not disrupting the crew but was helping them and mentoring them on every shift. He continued to act as a relief CRO and relief Team Leader for a while after he returned to shift work.
Fair Treatment Review and outcome
[107]Richard Smallcombe, the HR Manager of Rio Tinto based in Brisbane, was appointed as Review Manager in relation to the Appellant's Fair Treatment application. He spoke to the Appellant by telephone about the process and the issues that would form the basis of the investigation. After several interviews, and when the Appellant had confirmed his chronology of events, Mr Smallcombe conducted interviews by phone with Mr Ney, Mr Phillips, Mr Fordyce, Mr Glasirin, Mr Hocking, Mr Maines, Mr Ryalls (CRO) and Mr Clark (Training). The investigation process took several weeks.
[108]Mr Smallcombe provided the outcome of the Fair Treatment Review in a document dated 5 May 2010 (Exhibit 12). That document set out the background to the Review and the investigation process. It then set out the four issues to which the Appellant's concerns related and which formed the basis of the review. Those four issues were prepared following discussions between the Appellant and Mr Smallcombe. It is relevant for the purpose of this appeal to set out the issues and the key findings and recommendations in relation to them.
[109]Issue 1 - Having a fair and reasonable opportunities to complete training - in particular, core technical skills training required for progression to G3 classification (such as Master Isolation Officer (MIO) and Advanced Boiler Ticket): On the basis of the information gathered, Mr Smallcombe was satisfied that the Appellant had been provided with fair and reasonable opportunities to complete core skills training, and he found no evidence to suggest that decisions as to who and what training would be provided were not based on merit and business needs. He was also satisfied that training requirements and skills pathways were explained to the Appellant on several occasions. He gave as an example the steps followed resulting in the Appellant passing out on his Advanced Boiler Ticket in a timely manner (May 2009). There was evidence to suggest that, on occasions when there was a change to the Appellant's training plan, the reasons for the change were generally communicated to him by his leader in a timely manner.
[110]Mr Smallcombe recommended that the Appellant and his leader review and agree on a proposed training plan for 2010 based on identified development needs (if that had not already been done). The first priority was to agree the technical and behavioural requirements for the Appellant to be effective in his current role. The Appellant's aspirations to progress to a CRO or Team Leader role should be discussed as part of the review process. In relation to that, Mr Smallcombe wrote:
"John's leader is accountable for providing honest and constructive feedback on what is required to be considered for a CRO or team leader role and current gaps in John's capability;
John is accountable for listening and accepting coaching and feedback when provided and taking responsibility for addressing the skills gaps identified. John is also accountable for proactively seeking out coaching and feedback from his leader and Superintendent."
He also recommended steps to be taken in the event that there are changes to the training/development plan.
[111]Issue 2 - Fairness and transparency of advertising and selection processes - including progression from G2 to G3 Process Technician classifications: In relation to the advertising of vacancies, Mr Smallcombe found that:
(a) in the majority of cases, vacancies were advertised internally in the interests of fairness and transparency;
(b) in those instances when roles were not advertised internally and staff were appointed at the discretion of a Superintendent or Manager, the decisions to appoint staff were based on merit and were within the scope of Rio Tinto's recruitment and selection policy;
(c) the process and recruitment for G3 opportunities to be advertised (and the company's right to appoint or progress staff to G3 without advertising) was not well understood or communicated, and it was understandable that the Appellant felt that some selection decisions may not have been fair or transparent;
(d) however, when the Appellant raised the issue with Mr Glasirin and Mr Hocking in early 2009, they sought to clarify these issues with him (specifically, that progression was not an automatic entitlement and that appointments could be made without advertising at a Manager's discretion).
[112]In relation to the selection process, Mr Smallcombe found that:
(a) on several occasions there was "a failure of the recruitment processes" when the Appellant had applied for internal vacancies and received either no feedback or feedback which was not provided in a timely or open, honest and constructive manner;
(b) there was no evidence to suggest that selection decisions were unfair or not based on merit;
(c) most recently (March 2010), the Appellant's leaders had endeavoured to provide timely and constructive coaching and feedback following him being advised he was unsuccessful for roles.
[113]Mr Smallcombe made no particular recommendations, but outlined the respective roles of those responsible for recruitment (including to ensure that candidates receive timely and constructive feedback on their application) and stated that, when feedback is provided, it is a team member's "accountability to listen and respond appropriately to coaching provided."
[114]Issue 3 - Fairness of remuneration compared to peers: Mr Smallcombe stated that he had reviewed the Appellant's base salary compared to his peers and was satisfied that it was "appropriate taking into consideration skills, performance and time in role at YAR." Accordingly, no action was recommended.
[115]Issue 4 - "Victimisation" as a consequence of raising a Speak Out call on 7 February 2010, in particular, the investigation and disciplinary process arising from an alleged safety breach on 9 February 2010: Mr Smallcombe found no evidence to suggest that the Appellant had been victimised as a result of using Speak Out. Nor was there evidence to support the Appellant's allegation that the safety incident investigation (on 9 February 2010) and subsequent disciplinary process was motivated by him raising a Speak Out call on 7 February 2010. In particular, he noted that, as Mr Dunstan and Mr Fordyce were the only YAR leaders aware of the Appellant's Speak Out call on 7 February, it was not possible that Mr Ney's actions were motivated in any way by the Appellant's decision to use Speak Out. Mr Smallcombe found that there was no evidence to support the Appellant's allegation that he had been "victimised" or subject to a "witch hunt" as a consequence of using Speak Out or subsequent Fair Treatment Review. Accordingly no action was recommended.
[116]Mr Smallcombe was cross-examined closely in relation the investigation process and aspects of his findings. Although he conceded that some of the Appellant's allegations could have been investigated more extensively, he did not resile from his conclusions or the reasons for them. For example, he agreed that if it was established that scheduled training was cancelled (or at least postponed) on one occasion because of a rumour that the Appellant was leaving, he might have interviewed additional informants to establish whether it was a reasonable management response to cancel that training. However, Mr Smallcombe said that there was a significant amount of evidence to suggest that the training requirements were explained to the Appellant on several occasions and efforts were made to give him a development plan. Mr Smallcombe did not accept that the Appellant was fundamentally denied opportunities to train or was not informed about what was required to complete that training. He noted that training was cancelled or rescheduled for a number of people, not just the Appellant, in relation to change in operational requirements and for other reasons. That was a known issue of frustration for many staff, and the Appellant was not singled out.
Briefing about the Fair Treatment Review outcome
[117]Mr Smallcombe spoke to the Appellant in person at work (possibly for one to two hours), gave him a copy of the report and told him that there was no evidence to support his 16 points. He asked the Appellant what he wanted to get out of the process. According to the Appellant:
"I just said I wanted to get a fair go. I wanted the opportunity to prove myself, because I wasn't getting paid for the maintenance. And he said, well, you're not a maintenance fitter, so you're not to do maintenance. You're employed as a process technician, so you're in the - you're in the process. And from that conversation, I believe there was - there was going to be a, you know, a fair go for me to have a chance for advancement again."
[118]The Appellant reiterated that Mr Smallcombe told him that he was not to perform maintenance because he was not classified as an operator maintainer but was employed as a process technician.
[119]Mr Smallcombe said that he did not recall indicating to the Appellant that there was no requirement for him to perform maintenance duties. Nor did he tell the Appellant not to do any maintenance. However, he recalled the Appellant raising concerns with him about the reasonableness of him being required to undertake maintenance duties and whether that was fair and reasonable in accordance with his job. They had discussions about what was reasonable and within his role requirements. Mr Smallcombe did not recall specific discussions about the Appellant's job description, and said that he focused the Appellant on the four agreed issues which formed the basis of the review. His purpose was to explain the outcome of the investigation and the allegations they agreed he would investigate.
[120]Conclusion: Having considered how the Fair Treatment Review was conducted, I conclude that the process was reasonable and the findings and recommendations reflect a fair assessment of the circumstances applying to the Appellant before May 2010. Indeed, the ongoing concerns which prompted his Fair Treatment System application were dealt with in the Review process, and the findings and recommendations were provided to him by way of the report and were explained to him by Mr Smallcombe. The Appellant gave evidence to the effect that he was satisfied with how the Review was conducted and the outcome was explained to him, and that upper management would become aware of what middle management were doing and that the situation would be rectified.
[121]However, the Fair Treatment Review and report did not resolve the Appellant's concerns.
[122]Mr Ney confirmed that he was aware of the scope of the Appellant's Fair Treatment claim. Mr Smallcombe interviewed him and contacted him by telephone in relation to it. Mr Ney was made aware of the outcome. That outcome would have informed the discussion between Mr Ney and the Appellant after he returned to work following his period of leave.
Appellant's conversation with Mr Ney on 10 May 2010
[123]Mr Ney's account: Mr Ney gave evidence of a conversation with the Appellant on 10 May 2010 in relation to the Appellant's desire to progress into a leadership role. He described the meeting as being "about coaching" and "developing a person." Mr Ney said that he explained to the Appellant that he had to change to be able to move into one of those roles. Mr Ney listed four concerns he had with the Appellant: that he would not listen, that he was very argumentative, that he became very negative, and that he would not accept direction from leadership. According to Mr Ney, the Appellant basically agreed with him about displaying these behaviours. Mr Ney gave him examples of how the Appellant kept going back to what had happened in the past, in particular not being promoted to a G3 role, and Mr Ney explained that this was out of his hands. Mr Ney "wanted to close the chapter on that and open a new one and where we leave this to yesterday and today we have a positive person that accepts the change and move forward."
[341]Removal as relief Team Leader: The Appellant's criticisms of the action of Mr Ney in removing him from acting as relief Team Leader on 9 July 2010 are set out earlier in these reasons along with my conclusion that his decision was defensible (and hence not unreasonable):
(a) because he had authority to make it;
(b) by reference to the overall approach he was taking to the management of teams including his treatment of other workers in them; and
(c) because, although the Appellant's behaviour and attitude had improved in the previous two months, the Appellant's leadership capacity had not yet been demonstrated to the Superintendent's satisfaction.
[342]Radio incident: The Appellant submits that:
(a) the Appellant's evidence regarding this event and the manner in which Mr Phillips spoke to him has largely not been contradicted, and hence should be accepted;
(b) although it may be reasonable for Mr Phillips to speak to the Appellant about not being able to be contacted, it was not appropriate and not reasonable for him to do so in an aggressive and abrupt manner and in a way which was intimidating; and
(c) the management action of Mr Phillips on this occasion was not taken in a reasonable way.
[343]The Appellant relies on the decision of Hall P in WorkCover Queensland v Heit[34] for the proposition that the Commission must consider issues of Mr Phillips' language, tone of voice and demeanour in implementing the management action in relation to the Appellant's radio battery being flat. In that decision, President Hall wrote:
[34] WorkCover Queensland v Heit [2000] 164 QGIG 121, 122.
"With the benefit of hindsight, the question whether the action taken by Ms James on the various occasions was reasonable management action displaced from the prominence which they should otherwise have had, the issues relating to Ms James's language, tone of voice and demeanour. All of those matters were of course relevant to whether the action was taken 'in a reasonable way', and to the broader issue whether over a period of time Ms James had engaged in a course of conduct more likely than not to have caused Ms Heit's disorder."
[344]The Appellant also cites the decision in Gregory Versace v Ronald Braun[35] as an example of when management action was not taken reasonably and the communication of a decision of management had not been implemented in a reasonable way.
[35] Gregory Versace v Ronald Braun (2005) 178 QGIG 315.
[345]Those decisions are distinguishable from the circumstances in this case, particularly as they referred to a course of conduct or a series of communications that might have been characterised as management action that was not taken in a reasonable way. It was appropriate that Mr Phillips, as Team Leader, should speak to the Appellant about the safety issue underlying the radio incident. Even if he reprimanded the Appellant in an abrupt, loud and aggressive manner, that interaction alone would not deprive s 32(5) of its operation.
[346]Gas turbine incident: In relation to the gas turbine incident, the Appellant again relies on the decision in WorkCover Queensland v Heit and submits that:
(a) it was not appropriate for Mr Phillips to take him to task for not following the direction given that the Appellant was not trained on the gas turbine nor had he been passed out as being competent to operate it;
(b) the manner in which Mr Phillips spoke to him was completely inappropriate, belittling and humiliating; and
(c) this was not reasonable management action.
[347]The gas turbine incident is described earlier in these reasons. Having regard to the matter in issue, if the Appellant's account is accepted that would form the basis for a finding that the management action on that occasion was not reasonable and that, in any case, it was not taken in a reasonable way.
[348]Isolation incident: On the basis that his evidence is accepted, the Appellant submits that:
(a) Mr Ney did not afford the Appellant procedural fairness in relation to the meeting (in particular, by providing him with no notice of the meeting or an agenda and not affording him the opportunity to have a support person present);
(b) Mr Ney was aware that the Appellant had experienced stress-related psychological issues earlier in the year and was continuing to see a psychologist;
(c) Mr Ney spoke to the Appellant about a written warning but there was no warning for Alex, the other employee involved in the incident;
(d) the meeting was a further example of the Appellant being treated differentially to another employee and being singled out by Mr Ney; and
(e) that was not reasonable management action.
[349]Those criticisms were dealt with earlier in these reasons. In essence, I have concluded that it was appropriate for Mr Ney to discuss the alleged isolation incident with the Appellant (as the confirmation officer). Although Mr Ney referred to considering issuing a written warning, he had not done so for procedural reasons. That is consistent with Mr Ney having learned from his experience (in relation to the Control Room incident in February 2010) the importance of following appropriate procedures in relation to the issue of warnings. Had Mr Ney followed due process and investigated the matter when it occurred, there would probably have been a counselling session for the Appellant and a file note to Alex. That is the reason why Mr Ney did not contact Alex. It is also clear that the Appellant accepted that the isolation process is a double check system to ensure that there is no fault. He was willing to attend relevant training, and did so in a short period after the meeting. He was not prevented from performing isolations subsequently.
[350]Consequently, having regard to the content and context of that event, I am satisfied that it was reasonable management action taken in a reasonable way.
[351]Emergency response incident: In relation to the Emergency Response incident, the Appellant again relies on the decision in WorkCover Queensland v Heit and submits that:
(a) he was simply carrying out his duties as a member of the Emergency Response Team and yet he was subject to another unwarranted attack from Mr Phillips which was verbally aggressive and apparently included swear words;
(b) the Appellant was effectively being reprimanded for doing his job;
(c) the management action taken by Mr Phillips on this occasion was inappropriate and unreasonable, and was taken in an unreasonable way given the manner in which Mr Phillips spoke to the Appellant.
[352]Given that the only evidence in relation to this event came from the Appellant, and I have found him to be a generally credible witness, I conclude that Mr Phillips reprimanded the Appellant in a robust manner. If the Appellant's account of the events is correct, Mr Phillips' actions were inappropriate both as to how he spoke to the Appellant and the basis on which he delivered the reprimand.
[353]The boiler incident and subsequent events on 16 August 2010: The Appellant submits that it was entirely appropriate for him to raise, at the task assignment meeting with Mr Phillips, the issue that the burner front removal task required the presence of both a fitter and a rigger. Accordingly, the Appellant submits that:
(a) the Appellant was entirely correct to raise his concerns about what was being proposed;
(b) it was an unreasonable management request to seek to have the Appellant perform the task in a manner that did not comply with Rio Tinto's ABP;
(c) it was an unreasonable request for Mr Phillips to seek to place the Appellant in a position where he was acting in a way that did not comply with the Appellant's position description;
(d) Mr Phillips did not give a lawful direction when he sought to have the Appellant undertake the task in a manner that breached the ABP; and
(e) as a consequence, it was not reasonable management action.
[354]The Appellant submits that to take him to task through a number of meetings on 16 August 2010, and to then instruct him to sit at a computer terminal for the balance of his shift until he received further instructions from Mr Phillips, was not reasonable management action.
Earlier in these reasons, I set out my conclusions in relation to the events of 16 August 2010. It is not necessary to repeat them. In light of those conclusions, I do not accept the submission that the way in which the Appellant was treated by his supervisors on 16 August 2010 was not reasonable management action.
[356]The events on 17 August 2010: The Appellant submits that the events of 17 August 2010 should be viewed as being unreasonable management action, and management action that was taken in an unreasonable way. In particular, the Appellant submits that:
(a) it was unreasonable management action not to give the Appellant greater notice of the meeting, particularly given the Appellant's psychological vulnerability and Mr Ney's knowledge of that, and it could be said that the Appellant was "ambushed" by his employer;
(b) given the Appellant's past history, it would have been appropriate to provide him with an agenda for the meeting;
(c) given management's knowledge of the Appellant's psychological functioning and vulnerability, it was not reasonable management action for the meeting to proceed without the Appellant having a support person present (particularly if the Appellant asked for the meeting to be postponed because he was unable to find a support person in the short time available to him);
(d) an experienced HR practitioner, upon seeing the Appellant becoming increasingly agitated as the meeting progressed, would have called a halt to the meeting;
(e) even when the Appellant identify that he was unwell and was shaking etc, none of the three management staff showed any empathy to him or suggested that he seek treatment at the medical centre on site; and
(f) nor was there an evidentiary foundation for a PIP for the Appellant to be prepared and put in place.
[357]The Respondent submits that, in reality, it was Mr Ney who tried to assist the Appellant, even though the Appellant perceived Mr Ney's conduct as harassment and bullying. In the Respondent's submission, the meeting of 17 August 2010 was designed to reacquaint the Appellant with his failings and once again give him the opportunity to improve. The Appellant agreed to attend without a support person. Objectively the PIP was an appropriate identifier of tasking. There was no absence of procedural fairness. Any irregularity in management practice could only be a mere blemish.
[358]There is evidence to support aspects of each submission.
[359]However, contrary to the Appellant's submissions, there was a sound basis for preparing and implementing a PIP for him. The PIP potentially had two functions:
(a) to address behavioural and attitudinal concerns (and provide the written guidance in relation to those matters that the Appellant complained he had not been given previously); and
(b) in doing so, potentially assist the Appellant meet his aspirations of advancement within Rio Tinto.
I do not accept that the PIP was put in place solely because of the events of 16 August 2010, although the events of that day clearly precipitated its preparation and presentation to the Appellant. At the meeting on 17 August 2010, Mr Ney said to the Appellant that in the previous meeting the Appellant had asked that he note down the relevant behaviours and he had done so.
[360]Mr Ney said that the role of the meeting on 17 August 2010 was to deliver a PIP and that he expected the Appellant would sign that and would progress on it. It is clear from the evidence of Mr Ney and Ms McIntosh-Brown that the PIP had been drafted before the meeting without the Appellant's knowledge or input, and the Appellant was not going to be afforded an opportunity to have input into it. Mr Ney did not tell the Appellant that there was going to be a PIP at that meeting. He agreed that the process was flawed.
[361]In cross-examination, Ms McIntosh-Brown described the PIP as a coaching tool and said that the meeting was not a disciplinary meeting. She understood that Mr Ney had advised the Appellant about the purpose of the meeting in advance. In those circumstances, she considered that the opportunity for a support person and the notice given were reasonable. She said, however, that:
(a) if the Appellant had not been told of the purpose of the meeting before it commenced, that would not be reasonable; and
(b) if the meeting had gone ahead despite the Appellant requesting that it be deferred because he could not find a support person that would not be appropriate.
[362]Ms McIntosh-Brown agreed that the documents on the Appellant's personnel file (Exhibit 18) contained no indication of there being any reports of misconduct by the Appellant or any counselling of him. She said, however, that performance-related discussions in the workplace would constitute coaching.
[363]There appear to have been some breaches of Rio Tinto's Human Resources Policy - Performance and Conduct (Exhibit 19). For example, there is no record of the meeting that was signed by the leader manager and the Appellant being counselled, and by other people who are present as observers (though that is not surprising in the circumstances).
[364]Mr Smallcombe gave evidence relevant to this issue. He had been the HR manager at Rio Tinto but left that company in 2012 and was HR manager for another company at the time of the hearing. Mr Smallcombe was asked in cross-examination whether it was usual practice to ensure that a worker who was to be the subject of the meeting and the provision of a PIP had at least some prior notice of the fact that they were going to be involved in that process. In reply, he stated that the purpose of a PIP is not necessarily the outcome of a disciplinary process and that it was not necessarily the case that an employee would be forewarned of a discussion involving a PIP. It was his evidence that it was entirely possible and reasonable that a leader would invite the person into have a discussion about their concerns. The PIP would clearly articulate what was expected of the employee, and would form the basis for ongoing discussion and coaching. It was not necessarily mandatory that the employee would be forewarned that they were about to have such a discussion with their leader. Whether such notice would be given would be decided on a case-by-case basis having regard to the number of factors including the nature of the PIP, the person's performance and the seriousness of the issues that are being put to them.
[365]In his experience, typically the leader would prepare the PIP, then take the employee through it, explain the basis of it, clarify exactly the performance that was required, discussed any specific development actions and then typically give the employee the opportunity to reply with any questions. An employee would be encouraged to review the plan and have some input into it particularly by providing ideas about how to improve it. Mr Smallcombe was referred to the statement in the Rio Tinto HR policy Performance and Conduct (Exhibit 19) that a leader/manager would "Where necessary, in consultation with the employee, develop a PIP." When asked whether there should be some degree of communication with and input from an employee in relation to the development of a PIP, Mr Smallcombe highlighted the words "where necessary."
[366]My conclusions in relation to the meeting on 17 August 2010 are set out earlier in these reasons. I need not repeat them. On the basis of those findings, Mr Ney's acknowledgement that the process was flawed, and Ms McIntosh-Brown's opinion that significant aspects of the conduct of the meeting would have been inappropriate, I find that the management action on that occasion was not taken in a reasonable way. I have come to that conclusion even though:
(a) it was reasonable management action to prepare a PIP and present it to the Appellant at a meeting; and
(b) I accept Mr Smallcombe's evidence to the effect that an employee would not necessarily be forewarned of a discussion involving a PIP or that the employee would not necessarily be involved in the development of a PIP.
However, given Mr Ney's knowledge of the Appellant's mental health issues and medical treatment, and the nature of his and other managers' discussions with the Appellant in previous months about the Appellant's performance and behaviours, I conclude that it was not reasonable to continue with the meeting when the Appellant was unable to find a support person and he was manifestly uncomfortable about proceeding with the meeting on that basis at short notice.
[367]The remaining issue is whether, in light of that conclusion, the appeal should succeed on the basis that s 32(5) of the Act does not apply.
Reasonable management action and the totality of the evidence
[368]Given that the Appellant's case and Dr Chalk's diagnosis are based on a series of events which cumulatively led to his injury, it is necessary to consider whether s 32(5) of the Act applies having regard to the range of management action is taken in the period from August 2009 until 17 August 2010. In other words, although the Appellant referred to and made submissions in relation to a series of incidents and interactions between the Appellant and his manager or managers, it is appropriate to look at the totality of the evidence in order to decide whether s 32(5) of the Act applies to this appeal.
[369]Respondent's submissions: The Respondent submits that, in the circumstances of this case (given the Appellant's personality type as described by Dr Chalk), management was caused to take the position of attempting to bring the Appellant back into a position consistent with the company ethos, and attempt to explain to him the difficulty that management were having with his attitude, that is, taking matters out of proportion, construing his obligations in a rigid way, arguing his rigid view, and perceiving management as bullying him. In particular, the Respondent refers to the Appellant:
(a) not having acquired positions of greater seniority because of his rigid and unrelenting approach;
(b) perceiving that he was being passed over when he did not meet criteria necessary for the position that he was seeking;
(c) having an angry but passive (and perhaps even stubborn) approach to conflict;
(d) having a personality style that caused him to get bogged down in details, not being able to understand what others (particularly management) were trying to explain to him;
(e) perceiving that he was being singled out and unfairly bullied by management when he:
·realistically was not an appropriate candidate for a supervisory role;
·took constructive criticism to heart and did not learn by that criticism;
·would go over and over the same material, time and again, and would only see something his way.
[370]The Respondent submits that if any irregularity in management practice is found to exist, it could only be a mere blemish. On that point, the Respondent relies on statements by President Hall in Q-Comp v Hohn[36] that:
[36] Q-Comp v Hohn (2008) 187 QGIG 139, 145-146.
"Reasonableness does not equate with perfection. It is also the case that reasonableness does not equate with industrial fairness. … management action might be reasonable though blemished."
[371]Appellant's submissions: The Appellant submits that s 32(5) of the Act does not apply to exclude the Appellant's injury from being compensable. In particular, the Appellant submits that:
(a) the Commission would accept on the totality of the evidence that the Appellant was a person susceptible to suffering from depression or some other psychiatric illness if he was placed under stress;
(b) it was relevant for management to take into account the Appellant's fragile psychological state in determining what management action was to be taken against or in relation to the Appellant and how that management action was to be implemented, and that factor is also relevant for the Commission in determining whether the management action was reasonable and whether it was reasonably taken (particularly in relation to the events from May 2010 to 17 August 2010);
(c) rather than there being a series of blemishes in the management taken in connection with the Appellant's employment at Rio Tinto Yarwun, there was a series of fundamentally flawed management actions which could never be viewed by the Commission as being an exercise in reasonable management action;
(d) the Appellant was treated differently from other Rio Tinto employees by Mr Ney and Mr Phillips, particularly in the period commencing from January 2010.
[372]Further, the Appellant submits that the Commission is entitled to find that:
(a) there was an inappropriate focus upon the Appellant by Mr Ney and Mr Phillips;
(b) the Respondent's case theory that there was long-term performance, attitude and behavioural issues by the Appellant is not made out on a proper analysis of the evidence;
(c) the actions of the Appellant on 16 August 2010 were those of an experienced employee focused upon safety and seeking to ensure that the task of the burner front removal was done in accordance with the ABP for that task, and he was correct that the task required both a rigger and a fitter for the removal and reinstallation of the burners;
(d) the requirement of Mr Phillips that the Appellant do the task in a manner not in accordance with the relevant ABP would mean that the Appellant was breaching one of the fundamental requirements of his position description that he was to perform his work according to the documented ABP, and such a requirement could never be viewed as being reasonable management action;
(e) the PIP was put in place solely because of the events of 16 August 2010 rather than because of a set of behaviours over time, and hence there was no basis for the implementation of the PIP and that management decision was completely unreasonable in the circumstances;
(f) the manner in which the management action was implemented on 17 August 2010 was fundamentally flawed, in that it denied the Appellant procedural fairness (particularly given that management knew that he had psychological fragility).
[373]Some of those submissions are addressed earlier and it is not necessary to repeat my conclusions in relation to them. It turn now to the remaining issues.
[374]On the basis of the medical evidence, it is apparent that the Appellant was susceptible to depression or similar psychiatric illness. Given that, at least from March 2010, Mr Ney was aware of the Appellant's stress-related condition, it was relevant that management take his condition into account when deciding what management actions to take and how to take them. However, the significance of those factors should not be overstated. It is clear that the Appellant was continuing resolutely with his work and his attempts to advance his position within the company. Management had to deal with his specific needs and aspirations as well as his overall conduct, e.g. in relation to safety issues and the scope of his role, in the workplace
[375]I agree that the evidence points to managers paying particular attention to the Appellant, but I am not satisfied that such attention was inappropriate. To the contrary, it appears that (whatever occasional friction there might have been between some individuals) the managers, in particular Mr Ney, were seeking to manage the Appellant in ways that:
(a) encouraged him to be a positive and productive member of a team (and reduced any negative impact his behaviours might have on the work of his team); and
(b) identified aspects of his behaviour and attitude that needed improving; and
(c) provided him with means of demonstrating that improvement and potentially enhancing his prospects of advancement within Rio Tinto.
[376]Although the Appellant formed the view that he was being unfairly targeted and that his prospects for advancement were being unfairly restricted or prevented by management, the totality of the evidence suggests otherwise.
[377]It is clear from the Appellant's evidence that he had aspirations (and perhaps expectations) of promotion to a managerial position with Rio Tinto, and that he used his best endeavours to reach that goal. However, he did not seem to appreciate or accept that a Team Leader role had a management component, although it had a higher duties component.
[378]His frustration and disappointment at being unsuccessful in achieving his goals, or at least advancing toward meeting them, in the period from September 2007 to August 2010 is palpable in his written and oral evidence. So, too, is his difficulty in understanding why he was in that situation despite his best endeavours to do his work well, obtain additional qualifications, train others and act from time to time in supervisory roles.
[379]It is important to repeat in relation to this aspect of the case that the employer took no issue with the Appellant's technical skill or competence. The managers were not concerned about the Appellant's technical skill but aspects of his behaviour and other personal characteristics, and whether he displayed the qualities or attributes necessary for someone to be given a leadership position.
[380]Contrary to the Appellant's submissions, at least as early as August 2008, work performance reviews had identified some of the attributes and behavioural issues which assumed greater prominence in the minds of management subsequently. Exhibit 6 referred to the Appellant's tendency to "prefer to work alone" and his priorities having "a tendency to supersede the teams/personal development priorities." It also recorded that "at times" the Appellant had "not used the correct hierarchy of communication to address issues, generally in regards to training. Has agreed to communicate through Team Leader to allow for planning and team management and request meetings with Team Leader and other parties if required." The ideas for improving work performance (Leader behaviour) stated "Maintain my levels of transparency in communication." (Issues about chain of command communications were also identified in subsequent discussions with the Appellant). In relation to training, Exhibit 6 reports that the Appellant's "recent lack of motivation towards completion of MIO required training and we agree that John requires further administrative support in order to complete this training. Therefore no completion date has been set in order to allow John to complete at his own pace to a required standard."
[381]In June 2009, the Interim Review prepared by Mr Maines stated that although the Appellant identified unsafe acts and conditions in the workplace, he "needs to take owner ship and follow through with some of these ideas." The agreed actions to be taken were:
(a) "Needs to take owner ship and follow through with ideas/notifications/CMR raised.
(b) Need some re-fresher training on Lean principles and how they apply to work team."
[382]Those matters were reiterated six months later in the RT Performance document for the period 1 January to 31 December 2009 (Exhibit 10). Although the overall appraisal was "Good Performance," the Leader's comments included that:
(a) the Appellant needed to follow through to completion his work on hazard identification;
(b) he was "not sold on the concept of lean and 5S" and this area "requires some development;"
(c) at times the Appellant could be perceived to be "very negative" and he could "sometimes struggle with what has happened in the past." He needed to "focus on the situations that we can control and positively influence."
[383]Mr Austin gave evidence of his discussion with the Appellant in March 2010 about teamwork and communication issues. Mr Smallcombe's report on the Fair Treatment Review referred to the need to agree the technical and behavioural requirements for the Appellant to be effective in his current role and for the Appellant's Team Leader to provide honest and constructive feedback on what is required to be considered for a CRO or Team Leader roles. The Appellant would be accountable for listening and accepting coaching and feedback when provided and taking responsibility for addressing the skills gaps identified.
[384]The evidence supports a finding that by March 2010, (see [83]) Mr Ney had formed the view that the Appellant was probably not Team Leader material and that on or about 9 July 2010 he had conveyed his assessment to the Appellant. (see [139])
[385]However, I am satisfied that management attempted to assist the Appellant in his endeavours to secure advancement within Rio Tinto by identifying how he could improve aspects of his behaviour and attitudes as they involved management and fellow team members. Indeed, on 11 July 2010, Mr Ney said that if the Appellant focused on the four behaviours they had talked about, then he would consider the Appellant. At that stage, although he had observed a "massive turnaround" in the Appellant's behaviour and the Appellant had started to do what he had to do to be put in a leadership position, Mr Ney said that he needed some evidence over a longer period of time to prove that the Appellant had the ability to act up into that position.
[386]Despite Mr Ney's attempts to explain to the Appellant which of his behaviours and attitudes needed changing, the Appellant seemed unable to remember that guidance. The Appellant offered as a defence or explanation that he had not been provided with written guidance on these matters. In particular:
(a) although he received a return to work plan from Mr Ney on 10 May 2010, the Appellant said that there should have been something written for him to follow so that they both had something to refer to later;
(b) when he spoke to Mr Ney on 11 July 2010, the Appellant said that he could not remember the conversation of 10 May 2010 as Mr Ney had not sent him an email, and that it was Mr Ney's responsibility to record such things on paper (even suggesting that it was discrimination not to send him the information by email).
One of the functions of the PIP was to provide the written guidance in relation to those matters that the Appellant complained he had not been given previously.
[387]There were undoubtedly flaws in the process adopted in relation to some of the meetings between the Appellant and his manager or managers. However, where those flaws were significant, action was not taken to the Appellant's detriment. In relation to the Control Room incident, the written warning was withdrawn when it became apparent that Mr Ney had not followed company policy in relation to meeting with the Appellant. In relation to the isolation incident, no warning was issued, essentially for procedural reasons. The Appellant was not forced to sign the PIP on 17 August 2010 but was permitted to take it away to review.
[388]Having regard to the totality of the evidence, I am satisfied that, despite some acknowledged blemishes, reasonable management action was taken by the employer in relation to the Appellant in connection with his employment.
[389]The remaining issue is whether reasonable management action was taken in a reasonable way. I am satisfied that Mr Ney, having identified aspects of the Appellant's behaviour and attitudes that affected his performance and adversely influenced his prospects of promotion, took reasonable steps in reasonable ways to assist the Appellant to make appropriate adjustments. The fact that the Appellant criticised Mr Ney for not providing him with written guidance in relation to those matters, does not mean that Mr Ney acted unreasonably. In retrospect, he might have done more to tailor the way in which the advice was delivered to meet the Appellant's special requirements. But it is not clear that he was aware of that facet of the Appellant's concerns until at least late July 2010. The fact that he might have done things differently does not mean that what Mr Ney did was not reasonable. Although the Appellant argued with Mr Ney and became upset in the course of some meetings, that does not mean that Mr Ney was acting unreasonably.
[390]There appears to be a more significant criticism in relation to Mr Phillips' behaviour when he was the Appellant's Team Leader in the weeks immediately preceding the Appellant's decompensation. The Appellant asserts that in relation to the radio incident, the gas turbine incident and the emergency response incident Mr Phillips spoke to him in an inappropriate way that was unwarranted having regard to the issues being discussed. Given the lack of evidence from Mr Phillips about that aspect of these interactions, it is difficult to make firm findings. However, having regard to the Appellant's account of these incidents, I am willing to proceed on the basis that the exchanges might have been abrupt and on at least one occasion was not reasonable. Because those incidents and exchanges occurred relatively late in the sequence of events (well after the stress leave in March 2010), and were only a part of the factors which cumulatively precipitated the Appellant's psychological or psychiatric condition, they do not prevent an overall finding that the management actions were taken in a reasonable way.
[391]The Appellant's criticisms of Mr Phillips' behaviour on 16 August 2010 depend on the Appellant's version of events. As noted earlier, however, I am satisfied that the Appellant was raising concerns based on a misunderstanding about the requirements of the applicable ABP. Consequently, although the Appellant believed that he was raising a genuine issue and that what he was asked to do was inconsistent with the applicable ABP and his role description, he was incorrect. Consequently, the dispute between him and his Team Leader was precipitated, in part at least, by a difference of understanding about what the Appellant could or could not be instructed to do. Mr Phillips took appropriate steps to deal with the situation based on his understanding of the applicable practice and the role of process technicians. Later that day he initiated a second conversation with the Appellant and apologised to him.
[392]Again, having regard to the totality of the evidence, I am satisfied that, despite some acknowledged blemishes, management action was taken in a reasonable way by the employer in connection with the Appellant's employment
[393]For completeness I note briefly that, as will be apparent from the earlier analysis of the evidence, some of the Appellant's concerns arose from his perceptions about the meaning of actions taken by management (or occasionally perceived inaction) in relation to him. Although those perceptions were based on real events which did occur to him (and hence were not imagined), some of his most significant perceptions were based on assumptions drawn from incomplete or incorrect information. When tested by reference to what had happened, or management's rationale for acting in a particular way, those perceptions were shown to be flawed or false.
[394]In light of those conclusions, I am satisfied that:
(a) the Appellant's injury arose out of management action;
(b) the management action was reasonable; and
(c) the management action was taken in a reasonable way.
In other words, s 32(5) of the Act operates in relation to this appeal.
Conclusion
[395]For the reasons given above I have concluded that:
(a) the Appellant suffered a psychological/psychiatric injury and the injury arose out of, or in the course of, his employment and that his employment was a significant contributing factor to his injury; and
(b) the Appellant's injury arose out of reasonable management action taken in a reasonable way.
[396]Consequently:
(a) the appeal is dismissed;
(b) the decision of the Regulator is confirmed;
(c) the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
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