Goddard v Legal Aid Queensland
[2021] QIRC 154
•11 May 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Goddard v Legal Aid Queensland [2021] QIRC 154 |
PARTIES: | Goddard, Shelby v Legal Aid Queensland |
CASE NO: | TD/2019/88 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 11 May 2021 |
HEARING DATE: | 16, 17, 18, 20 November 2020 |
MEMBER: HEARD AT: | Pidgeon IC Yeppoon |
ORDER: | The application is dismissed |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - where the applicant is on a performance improvement plan - whether the applicant has performed her duties carelessly, incompetently or inefficiently - whether the applicant has contravened without a reasonable excuse a standard of conduct applying to the employee under an approved code of conduct - whether termination was harsh unjust or unreasonable |
LEGISLATION: CASES | Industrial Relations Act 2016 (Qld), s 316, s 317, s 320 Public Service 2008 (Qld), s 187 Code of Conduct for the Queensland Public Service Coleman v State of Queensland (Department of Education) [2020] QIRC 032. Dr Lucy Zhao v The University of Technology Sydney [2020] FWC 416. Gold Coast District Health Service v Walker (2001) 168 QGIG 258 Laegal v Scenic Rim Regional Council [2018] QIRC 136 |
| APPEARANCES: | Ms S Goddard as self-represented Applicant. Ms J Marr of Counsel instructed by Crown Law for the Respondent. |
Decision
Ms Shelby Goddard (the Applicant) was employed as a Litigation Support Officer (LSO) by the Respondent, Legal Aid Queensland (LAQ). During the time Ms Goddard worked for Legal Aid Queensland, she was situated in the Rockhampton Office.
Ms Goddard commenced employment on 15 April 2015 on a temporary basis. From 9 February 2016, Ms Goddard was permanently employed.
Ms Goddard's role was to provide support to the two family lawyers. Ms Goddard, along with other administrative staff, assisted with administrative tasks at the front counter, answering phones, attending to clients who came into the officer from time to time.
During Ms Goddard's employment, the Principal Lawyer of the Rockhampton Office had overall supervision of her work performance. The day to day allocation of tasks and Ms Goddard's work was undertaken by the two family lawyers.
On 12 September 2019, Ms Goddard was informed that following a show cause process, a decision had been made to terminate her employment.
On 3 October 2019, Ms Goddard filed an application for reinstatement. The application was accompanied by an affidavit and the termination letter was included at exhibit A to the affidavit.
Essentially, Ms Goddard argues that the performance management process that was implemented was unjust and had 'set her up to fail'.
Ms Goddard does not seek reinstatement to her previous position. Ms Goddard's application states that she seeks re-employment in another position that the employer has available and that the Commission considers suitable, and reimbursement of lost earnings.
The onus is on the applicant to demonstrate that the termination (for disciplinary reasons) was harsh, unjust or unreasonable.[1]
[1] Gold Coast District Health Service v Walker (2001) 168 QGIG 258, [259].
The Respondent accepts that the onus falls on it to prove the findings made against Ms Goddard in the disciplinary process to the reasonable satisfaction of the Commission.[2] However:
Whether or not the Commission can be satisfied the misconduct occurred is a separate consideration to whether the dismissal was harsh, unjust or unreasonable within the meaning of the Act and whether the former employee is entitled to a remedy under the Act. However, if it is determined that an employee's dismissal was not authorised by the PS Act, that may lead to a conclusion that the dismissal was 'unjust' within the meaning of the Act.[3]
[2] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [69].
[3] Ibid at [71].
The matters which need to be determined in this proceeding are:
·Whether Ms Goddard engaged in the conduct subject of Allegation 1;
·whether Ms Goddard engaged in the conduct subject of Allegation 2;
·whether this conduct gave rise to a disciplinary finding that was fair;
·whether the termination was harsh, unjust or unreasonable;
·whether reinstatement is impracticable or otherwise inappropriate; and
·those issues mandated by s 320 of the Industrial Relations Act 2016 (IR Act).
Legislation, Code of Conduct and Performance Standards
Section 320 of the IR Act sets out the matters to be considered by the Commission in hearing an application under s 317.
320 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider –(a) whether the employee was notified of the reason for dismissal; and
(b) whether the dismissal related to –
(i)the operational requirements of the employer's undertaking, establishment or service; or
(ii)the employee's conduct, capacity or performance; and
(c) if the dismissal relates to the employee's conduct, capacity or performance –
(i)whether the employee had been warned about the conduct, capacity or performance; or
(ii)whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
(d) any other matters the commission considers relevant.
The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.[4]
[4] Laegal v Scenic Rim Regional Council [2018] QIRC 136 at [63]-[65]
Ms Goddard was employed under the Legal Aid Queensland Act 1997 (Qld). As an LAQ employee, Ms Goddard was subject to the disciplinary regime under the Public Service Act 2008 (PS Act), Chapter 6 and to the Code of Conduct for the Queensland Public Service.[5]
[5] The Respondent explains in their outline of argument:
a.By s 21(1)(b) of the PS Act, read together with the Public Service Regulation 2018 (Qld), s 3 and Schedule 4, Legal Aid Queensland is declared to be a 'public service office'.
b.By s 23 of the PS Act read together with the Public Service Regulation 2018 (Qld), s 3 and Schedule 4, s 3 and Schedule 4, ss 1, 3 and 4, the PS Act Chapter 6 applies to Legal Aid Queensland and is employees, including relevantly, ss 187 and 188.
c.Further, by s 23 of the PS Act, read together with the Public Service Regulation 2018 (Qld), s 3 and Schedule 4, s 2, Legal Aid Queensland's chief executive officer is declared to be the head of the declared public service office.
d.By the Public Sector Ethics Act 1994 (Qld) (PSE Act), s 2, read together with Public Sector Ethics Regulation 2010 (Qld), s 3 and the Schedule, Legal Aid Queensland is prescribed as a 'public service agency'.
e.Accordingly, by the PSE Act ss11, 12B and 12H, the Code of Conduct applied to Legal Aid Queensland, and the applicant was bound to comply with it. [footnotes omitted].
The PS Act (as in force in June 2019) relevantly provided:
187 Grounds for discipline
(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has –
(a)performed the employee's duties carelessly, incompetently or inefficiently; or…
(f) contravened, without reasonable excuse –
…
(iii)a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.
188 Disciplinary action that may be taken against a public service employee
(1) In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.
Examples of disciplinary action –
· termination of employment
· reduction of classification level and a consequential change of duties
· transfer or redeployment to other public service employment
· forfeiture or deferment of a remuneration increment or increase
· reduction of remuneration level
· imposition of a monetary penalty
· if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
· a reprimand
The position description for Ms Goddard's role sets out the expectations of the role:
a. Manage administrative activities associated with a case file including opening, closing and archiving files; transcribing interviews; filing and service of documents; data entry and searches.
b. Help the lawyer prepare for matters including preparing correspondence, keeping detailed file notes, gathering personal information from clients, drafting affidavits and preparing summons/subpoenas.
c. Compile briefs for counsel including photocopying, indexing, typing instructions and collection of relevant police material from the police station or prosecutions.
d. Act as the first point of contact and manage all incoming calls including providing legal information, referral advice and help clients prepare applications and legal documents.
e. Help lawyers prioritise daily tasks and maintain appointments and calendars including scheduling appointments with clients, interpreters, experts and other relevant stakeholders. Also make bookings for rooms, videoconferences, flights, accommodation and hire cars.
f. Ensure appropriate grants of aid are allocated to files, process requests for grants or extensions of aid using elodge, pay accounts, generate cheques and prepare submissions to grants for expensive case requests.
g. Obtain court lists, organise material, coordinate and direct clients at court. Help counsel at conferences and attend court to take and relay instructions as required.
h. Help with administrative activities including providing a secretariat function, preparing spreadsheets, maintaining equipment and supplies, mail, records management and other activities as directed.
i. Actively participate in team planning and service improvement activities and comply with corporate responsibilities.
j. Models the values of respect, quality and accountability.
k. Maintains a high standard of practice through governance and risk management.[6]
[6] Exhibit 10: Supplementary affidavit of Stephanie Nicholas sworn 30 October 2020, SN-3: Position Description for the AO3 LSO role.
Ms Goddard agrees that the above is a fair description of her role but says that she did not pay accounts.[7]
[7] T1-36, Ll 39-45.
Ms Goddard agreed that she was aware at the time of applying for the role on a permanent basis that the position description for her role also outlined under the heading 'What we are looking for' included two bullet points that read
You can build and maintain positive relationships with team members' and 'you take on additional duties when required, demonstrate flexibility, and reschedule or reorganise work to reflect changes in priority.[8]
[8] Exhibit 10, SN-3.
Each year, an Achievement Development Plan (ADP) was developed with the applicant which set out the outcomes to be achieved for the year. The plan for the 2017/2018 year listed the outcomes as:
a. Responds to clients in a timely manner;
b. Model the values of respect, quality and accountability;
c. Develop letter writing skills and basis punctuation, spelling and grammar skills. [9]
[9] Exhibit 10, SN-6: 2017/2018 Achievement Development Plan.
The Respondent submits that Ms Goddard undertook training regarding the Code of Conduct on 22 April 2015, 3 May 2016, 3 May 2017 and 3 May 2018.[10]
[10] Exhibit 10, SN-4 Code of Conduct training attendance records.
Ms Goddard called the following witnesses:
·Ms Shay Hawker
·Ms Scheryn Aspinall-Clarke
·Herself.
The Department called the following witnesses:
· Ms Marita Kitchiner
· Ms Louise Hedges
· Ms Stephanie Nicolas
Reasons for decision
Section 320: Matters to be considered in deciding an application for reinstatement
Was Ms Goddard informed of reason for dismissal?
There is no dispute between the parties that Ms Goddard was informed of the reason for her dismissal. I note that the termination letter under the hand of Anthony Reilly, Chief Executive Officer provides the reason for termination.[11] Therefore, s 320(a) of the IR Act has been satisfied.
[11] Exhibit 2, Affidavit of Anthony Reilly, AR-10: Penalty Letter dated 12 September 2019.
The dismissal does not relate to the operational requirements of the employer and therefore s 320(b)(i) is not relevant.
Did the dismissal relate to Ms Goddard's conduct, capacity and performance?
With regard to s 320(b)(ii) of the IR Act, the termination letter clearly states that the termination relates to Ms Goddard's conduct, capacity and performance.
Following the implementation of a formal performance management process, a show cause disciplinary process was commenced which led to the substantiation of the following allegations:
Allegation 1 – that between 15 February 2019 and 3 June 2019, you failed to meet the expected performance standard required of you in your role as a Litigation Support Officer (LSO) with respect to appropriate communication with administrative staff; and
Allegation 2 – that between 15 February 2019 and 3 June 2019, you failed to meet the expected performance standards required of you in your role as a LSO with respect to task management and appropriate communication with family lawyers (your immediate supervisors).
The Respondent submits that:
·from August 2018, Ms Goddard was warned of her unsatisfactory performance through a series of informal performance management meetings;
·on 31 January 2019, the applicant was given written notice that she was not meeting the performance standards of her role and would commence on a Performance Improvement Plan (PIP);
·the PIP process itself involved an initial performance improvement meeting on 13 February 2019 and then a series of eight performance improvement meetings between 6 March 2019 and 3 June 2019;
·the PIP clearly articulated the areas requiring improvement, the required standard of an LSO in respect of each area, the action to be taken in respect of each area, and the expected outcomes;
·Ms Goddard was involved in setting the terms of the PIP, and the final version as agreed was signed by Ms Goddard on 15 February 2019; and
·the show cause disciplinary process commenced by letter of 12 June 2019, delivered on 17 June 2019, which notified the applicant of the two allegations against her and invited her to respond. That response was received on 1 July 2019.[12]
[12] Respondent's outline of argument filed 11 November 2020, [2].
Ms Nicholas prepared a script to support her performance discussion with Ms Goddard and introducing the informal process. The script clearly outlines issues with Ms Goddard's technical skills and professional interactions and presentation. The script addresses public contact & interpersonal skills at length.[13]
[13] Exhibit 11: email of 17 August 2018 containing final draft 'Performance discussion with Shelby Goddard'.
The Respondent sets out the process which unfolded over the course of the eight performance improvement meetings:
i.prior to the meetings, Ms Nicholas would seek feedback form the applicant's family lawyer supervisors, Mr Rundle and Ms Kitchiner, regarding the applicant's performance;
ii.this feedback would then be relayed to the applicant in the meeting, together with any other relevant feedback, including in respect of other administrative staff;
iii.a written summary of what was discussed at the PIP meeting would be provided to the applicant by Ms Nicholas in advance of the subsequent PIP meeting;
iv.at the PIP meeting, the applicant would be given an opportunity to raise any matters arising out of what was discussed at the previous meeting, and what had occurred in the intervening period;
v.additional training was provided to the applicant during the PIP process to facilitate improvement in the relevant areas of performance;
vi.additional support was provided to the applicant throughout the PIP process through the proviso of external counselling sessions through the Employee Assistance Program;
vii.the applicant was also advised that she was entitled to bring a support person to the PIP meetings.[14]
[14] Exhibit 11, [56(c)].
There is no doubt that Ms Goddard was warned about her conduct, capacity and performance and understood that she was participating in a process to manage her performance. That Ms Goddard understood the seriousness of the matter is underlined by the fact that she sought legal advice regarding the content of the Performance Improvement Plan.[15]
[15] Exhibit 1, Affidavit of Shelby Goddard sworn 2 September 220, [228].
The Respondent says that at each stage of the performance management process, the applicant was given a reasonable opportunity to respond and availed herself of that opportunity. I will explore the various stages of the process below.
The first show cause notice was 19 pages in length and clearly set out the two allegations against Ms Goddard and provided detailed particulars as to each allegation. It also included a number of attachments.[16]
[16] Exhibit 2, AR-4.
With regard to the show cause disciplinary process which followed the performance management process, the Respondent says Ms Goddard:
a. was provided with 14 days to respond to the First Show Cause Notice. Although her response was received outside of this timeframe, it was nonetheless taken into account in Mr Reilly's determination of whether the allegations were substantiated;
b. was afforded a further period of seven days to respond to the Second Show Cause letter. At the applicant's request, this was extended by an additional 14 days. The applicant's response, by her then legal representatives, Grant & Simpson Lawyers, was received on 23 August 2019. It addressed both the First Show Cause Notice and the Second Show Cause Notice. Although by the Second Show Cause Notice, the relevant disciplinary findings had already been made, Mr Reilly nonetheless addressed each of the matters raised by the applicant's response in the Penalty Letter.[17]
[17] Respondent's outline of argument filed 11 November 2020, [59].
Ms Goddard does not dispute that she was given an opportunity to respond.
Other matters
Ms Goddard says that the PIP required her to successfully interact with a colleague who had previously bullied her and that the performance plan involved improving a relationship with a second colleague who she says did not have to act fairly or reasonably towards her. I will give detailed consideration to the performance improvement process below.
Further to her submissions about the unfairness of the process, Ms Goddard says that the dismissal was harsh, unjust and unreasonable because LAQ did not give consideration to other disciplinary action that could have been taken against her.[18]
[18] T4-7, Ll 25-28.
Ms Goddard submits that she undertook work for lawyers in the office other than her direct supervisors, family lawyers Marita Kitchiner and Lance Rundle. Ms Goddard says that Mr Rundle did not complain about her work and that the PIP was put in place because one lawyer, Marita Kitchiner complained about her work.
Background: The informal performance management process and other events from August to December 2018
Ms Nicholas said that ADP meetings and reviews are conducted annually. Ms Nicholas said that Ms Goddard was due for her ADP review for 2017/18 and a new ADP for 2018/19 around mid-August 2018. In the lead up to such meetings, Ms Nicholas says that she obtains feedback from the direct supervisor or the relevant staff member. Ms Nicholas said that as part of the process she sought formal feedback from Ms Kitchiner and Mr Rundle and both generally raised concerns with her about Ms Goddard's performance.[19]
[19] Ibid, [10],[11].
Ms Nicholas said that based on the feedback and her own observations of Ms Goddard, Ms Nicholas determined that Ms Goddard's work performance was not satisfactory and required improvement.[20]
[20] Ibid, [12].
Prior to meeting with Ms Goddard on 20 August 2018 to informally discuss Ms Goddard's work performance, Ms Nicholas took a number of steps in preparation. She also consulted with Ms Camden, Assistant Director, People Culture and Capability (PCC) team at LAQ's Brisbane head office and Julie Cork of Julie Cork & Associates (an external consultant) to seek advice on the best way to manage Ms Goddard's performance issues.[21]
[21] Ibid, [13].
The three issues noted as areas of concern with Ms Goddard's performance at the 20 August 2018 meeting were:
a. technical skills;
b. professional interactions and presentations; and
c. public contact and interpersonal skills.[22]
[22] Ibid, [12].
Further to this, Ms Goddard was advised that if her performance did not improve over the following three months, Ms Nicholas would consider placing her on a PIP.[23]
[23] Ibid, [18].
Ms Nicholas and Ms Kitchiner then met with Ms Goddard on 14 September 2018, 26 September 2018, 2 November 2018 and 29 November 2018. The Respondent says that the purpose of these meetings was to provide Ms Goddard with an increased level of support to help her improve her performance prior to finalising her ADP for 2018/19. Ms Goddard was also provided with some additional training.[24]
[24] Ibid [15],[16].
Ms Kitchiner's statement also outlines her reflections on Ms Goddard's performance and the feedback she provided during the informal performance process.[25]
[25] Exhibit 6: Affidavit of Marita Jane Kitchiner affirmed 29 September 2020, [21]-[29].
Ms Goddard's statement addressed what she called a 'breakdown caused by Marita Kitchiner'. Ms Goddard said that on 11 October 2018, she had a conversation with Ms Kitchiner about their current files. Ms Goddard said that Ms Kitchiner's tone and body language started to become aggressive toward her and that she became upset about the way Ms Kitchiner spoke to her.[26] Ms Goddard said that she disclosed to Ms Nicholas that Ms Kitchiner had been using passive aggressive tone and body language toward her and it was making her very upset. Ms Goddard went to her doctor and following this was on leave from 12 October 2018 until 23 October 2018. Ms Goddard said that on 29 November 2018 when she met with Ms Nicholas and Ms Kitchiner to discuss her performance. She said that when she tried to speak up about her concerns, she was shut down and then accused of being aggressive toward Ms Nicholas and Ms Kitchiner.[27]
[26] Exhibit 1, [172].
[27] Exhibit 1, [175]-[182].
In response to this, Ms Nicholas says that she recalled being advised that Ms Goddard was upset. When Ms Nicholas attended on her, Ms Goddard was sobbing. Ms Nicholas said that she does not recall Ms Goddard saying that Ms Kitchiner was using passive aggressive tone and body language toward her. Ms Nicholas does recall her saying words to the effect of 'I can't take it anymore' before she spoke about Ms Hedges and the PIP process generally.[28]
[28] Exhibit 9, [147].
Further, in response to Ms Goddard saying she had been shut down in the meeting on 29 November 2018, Ms Nicholas disagrees and refers to the notes of the meeting.[29]
[29] Exhibit 9, SN-1.
Ms Goddard's evidence was that she didn't recall 'task management' being raised as an area of concern in the informal performance meetings but that she did recall that discussion about timely completion of tasks was discussed 'briefly'.[30]
[30] T1-45, Ll 1-13.
Ms Goddard said that she recalled there being comments about completing her dictations on time and thought the main issue raised with her was her spelling and grammar. She also recalled that there were comments about the importance of prioritising tasks so that urgent work was done first.[31]
[31] T1-45, Ll 15-22.
Ms Goddard recalled that at the meetings she was told that if she had any issues working out what work was more important to complete or if she couldn't get tasks done within the set timeframe, that she should raise that with the relevant family lawyer.[32]
[32] T1-45, Ll 24-30.
Ms Goddard was asked if she recalled that one of the issues raised with her by Ms Nicholas was her interfering in workplace relations in the office and her keenness to lodge formal complaints. She was also asked if she recalled Ms Nicholas drawing her attention to the employee complaints management policy and suggested that in the first instance she raise complaints informally. Ms Goddard said that she did not recall this.[33]
[33] T1-59, Ll 35-46.
Ms Goddard also said that she didn't recall that Ms Nicholas had said to her that even in raising informal complaints, Ms Goddard had to show some maturity and judgement before coming to Ms Nicholas with issues.[34]
[34] T1-61, Ll 16-19.
Ms Goddard agreed that at one of the meetings she raised a concern about communicating with Ms Kitchiner and that she wasn't sure how to interrupt her because she often had her door closed. She also recalled that at the meeting held in November 2018, one strategy that was suggested was to use email.[35]
[35] T1-45, Ll 32-43.
Ms Goddard remembered receiving feedback that Ms Kitchiner and Mr Rundle felt that if Ms Goddard stopped allowing herself to be distracted by extraneous matters, she would be better able to concentrate on performing her role.[36]
[36] T1-46, Ll 1-4.
Ms Goddard was taken to a complaint that she made about her colleague Ms Hedges in July 2018. Ms Goddard agreed that the complaints against Ms Hedges were found to be unsubstantiated and that one of the outcomes of her complaint was that LAQ organised for Ms Goddard and Ms Hedges to attend a coaching session with an external psychologist consultant called Penny Gordon.[37]
[37] T1-49, Ll 10-18.
Ms Goddard was asked if she recalled that during that session she was coached and given some strategies for managing conflict. When asked if she recalled whether she and Ms Hedges were given some strategies about how to moderate their responses to one another, Ms Goddard said:
[MS GODDARD] I didn't listen to one bit of it.
[MS MARR]You didn't listen to any of that training?---
[MS GODDARD] Penny Gordan wasn't independent. She was employed – she's employed by Legal Aid Queensland as a psychologist. I had my own ways and was – had my own external, who was independent to everyone in Legal Aid, that was helping me cope with these strategies.[38]
[38] T1-49, Ll 27-32.
Ms Nicholas said that at the conclusion of the informal process, whilst there had been some improvements, Ms Nicholas remained of the view that Ms Goddard was not working to an acceptable standard as required of an LSO. Ms Nicholas said that the main areas of concern were communication, task management and accuracy. For example, Ms Goddard had not made any significant effort to complete the training tasks set for her and her interaction with other staff continued to be of concern.[39]
[39] Exhibit 9, [17].
Ms Nicholas said that on 12 December 2018, she wrote to Ms Camden regarding her concerns and sought guidance about placing Ms Goddard on a PIP. Ms Nicholas says that Ms Camden confirmed that it would be reasonable to progress to a PIP process with Ms Goddard given the need for ongoing improvement in certain areas as identified during the informal review process.[40]
[40] Exhibit 9, [18].
Ms Nicholas met with Ms Goddard on 13 December 2018 and advised her that as she was still not performing to an acceptable standard, a PIP would commence in the new year.[41]
[41] Exhibit 9, [19].
On 31 January 2019, Ms Nicholas formally notified Ms Goddard in writing of the decision to implement a PIP for a period of three months. Ms Nicolas attached a draft PIP to the letter and asked Ms Goddard to attend a meeting with Ms Camden and herself on 4 February 2019 to discuss the PIP.[42]
[42] Exhibit 9, SN-2.
On 4 February 2019, Ms Goddard requested the meeting to discuss the PIP be postponed to 11 February 2019 at 4pm. Ms Goddard was concerned that she had been given one business day to consider the correspondence regarding the PIP and advised that she was seeking legal advice.[43] The request to move the meeting was granted.
[43] Exhibit 9, SN-3.
On 11 February 2019, Ms Nicholas says she received a letter from Ms Goddard in response to her correspondence dated 31 January 2019.[44] In the letter, Ms Goddard said that she was shocked at the contents of the letter and was of the understanding from feedback that she was meeting the requirements of her position. Ms Goddard set out her concerns regarding the assertions about her performance and also requested an external investigation of her complaint dated 7 January 2019 (in relation to the events of 6 and 10 December 2018) be re-investigated by an independent person as she was not satisfied with the outcome.[45]
[44] Exhibit 9, SN-4.
[45] Exhibit 9, [23].
A meeting of Ms Goddard, Mr Castle (Specialist Consultant, Performance & Coaching) and Ms Nicholas was held on 11 February 2019 to discuss the draft PIP. Ms Nicholas recalls Mr Castle informing Ms Goddard that this was a supportive process, not a 'show cause' or disciplinary process. The request for an external investigation of Ms Goddard's complaint was also discussed. During the meeting, Ms Goddard advised that she was feeling sick and wanted to postpone the PIP meeting. Ms Nicholas says that this was accommodated and Ms Goddard was encouraged to bring a support person to the future meeting.[46] Ms Nicholas's notes setting out the matters discussed at the meeting were sent to Ms Goddard in an email on 12 February 2019.[47]
[46] Exhibit 9, [24].
[47] Exhibit 9, SN-5.
Ms Nicholas recalls a meeting with Ms Goddard and Ms Camden where the PIP was discussed and some amendments were made. The detail of this meeting is set out from [26]-[28] of Exhibit 9.
Ms Goddard was shown the performance improvement plan dated 15 February 2019 which is signed by her. Ms Goddard agreed that she had had the opportunity to see a draft of the plan and further agreed that she had taken legal advice on the draft plan. Ms Goddard also agreed that changes were made to the draft performance improvement plan and it was the final version incorporating those changes that was finally signed off.[48]
[48] T1-51-52.
Ms Goddard said that she sought legal advice about the PIP as she did not want to sign it but felt that if she failed to sign it she would be terminated. Ms Goddard said that she provided a response to the PIP and that she felt the PIP was retaliation by Ms Nicholas to the informal complaint made about Ms Kitchiner in November 2018 and the formal complaint with respect to Ms Hedges in December 2018. Ms Goddard said she had no faith in the PIP process.[49]
[49] T4-3, L 45- T4-4, L 20.
The Performance Improvement Process – February 2019
The final version of the PIP was provided to Ms Goddard with an accompanying email outlining the nature of the PIP.[50]
[50] Exhibit 9, SN-7.
The PIP outlined a number of areas of improvement but the Respondent submits that there are three which are relevant to the show cause disciplinary process and these proceedings.
Item 1 of the PIP lists the 'Area Requiring Remedial Actions' as: Communication with family lawyers (immediate supervisors). The column headed 'Action to be Undertaken' lists three actions. These are: communicate any difficulties with task management to lawyers at an early stage so that competing priorities can be managed; Be upfront and honest in your responses to queries about the progress of the allocated work; Advise lawyers in a timely manner when there is important information or an update about files, e.g. when subpoena material is returned. There are four items listed under the 'Expected Outcome' section:
· You proactively advise lawyers if you cannot meet allocated timeframes or have other difficulties with files, without reminding or lawyers having to follow up;
· when lawyers allocate you tasks and timeframes, the work is completed to an acceptable standard within expected timeframes without lawyers having to follow up;
· when lawyers ask you about the progress of a matter you provide an honest and open response; and
· you will build trust with the lawyers and be able to communicate openly and positively with them.
Area Requiring Remedial Action Item 3 of the PIP is: Communicate with administrative staff and attending to administrative office tasks. The relevant 'required standard' is: You can build and sustain positive relationships with team members and colleagues. The relevant 'expected outcome' is: You will build trust with other administrative staff and be able to communicate openly and positively with them.
The final Area Requiring Remedial Action relevant to this proceeding is Item Five: Task Management. The required standards and expected outcomes are listed on page three and four of the PIP. I won't list them here as they are extensive.
There was evidence led at the hearing regarding a range of matters which I would characterise as either relating to task management and communication with the family lawyers or relationships with other administrative staff. I have dealt with that evidence under my discussion of each of the allegations subject of the show cause process.
The PIP process was extended in April 2019. The Respondent says that this was to provide Ms Goddard with a further opportunity to complete and implement training. Ms Goddard says that the PIP was extended without her consent, that she had no opportunity to seek legal advice about the extension and that she felt she had no option but to sit and complete the process.[51]
[51] Exhibit 1, [247]-[251].
Ms Nicholas says in her statement that Ms Goddard was employed as a family law LSO. At the Rockhampton Regional Office there were only two family lawyers to whom Ms Goddard reported, Mr Rundle and Ms Kitchiner. Ms Nicholas says that once the PIP process commenced, she made it clear to Ms Goddard that she should be focusing on completing tasks for Ms Kitchiner and Mr Rundle. Ms Nicholas says that she was of the view that this would provide the best opportunity to meet the expectations of the PIP if Ms Goddard was not occupied or distracted by other work.[52]
[52] Exhibit 9, [133].
The Show Cause Disciplinary Process
Ms Goddard was notified of the two allegations against her and invited to respond to the allegations by way of a first show cause notice dated 12 June 2019, delivered on 17 June 2019. Ms Goddard provided a response on 1 July 2019.
A disciplinary findings letter dated 29 July 2019 was delivered to Ms Goddard on 2 August 2019. This letter informed Ms Goddard that the allegations were found to be substantiated, and that the proposed disciplinary action being considered was termination. Ms Goddard was invited to respond and this response was provided by Ms Goddard's legal representatives on 23 August 2019.
On 12 September 2019, Ms Goddard was informed of the decision to terminate her employment and provided with reasons for that decision.
As the allegations arise from the unsuccessful PIP process, the below sets out information pertaining to each allegation accompanied by my consideration of the material.
Allegations subject of the Show Cause Disciplinary Process following the unsuccessful PIP
Part of the particulars of Allegation 1 specifically related to interactions with fellow LSO Ms Shay Hawker who also worked at the LAQ Rockhampton Regional Office.
While I accept that it was during the course of the PIP that Ms Hawker told Ms Nicholas about the things which Ms Goddard had said to her, it is unclear to me which of these events occurred prior to the PIP during the second half of 2018. While Ms Goddard made mention of the events happening some time ago and asked Ms Hawker if it took her six months to complain, it appears that the interactions with Ms Hawker occurred over a number of different occasions, and the show cause process demonstrates that Ms Goddard provided detailed responses to the particulars of the allegations regarding her interactions with Ms Hawker.
The Respondent submits that when the interaction with Ms Hawker was raised with Ms Goddard at the PIP meeting on 28 March 2019, Ms Goddard did not deny making the remarks, though she said that the remarks were made in the context of things being said on both sides.[53] The Respondent notes that Ms Goddard has consistently denied that she made remarks in front of a colleague during the front counter training which inferred that Ms Hawker could not do her job without Ms Goddard. However, even if I am not satisfied on the evidence that such remarks were made, the Respondent submits it should not detract from the finding that as a whole, Ms Goddard's conduct in respect of Ms Hawker was substantiated.
[53] Exhibit 9, SN-15.
I note that Ms Goddard's affidavit states that it was apparent to her that Mr Sheppard and Ms Hayes had no confidence in Ms Hawker's work and she says that both had made comments to her about not trusting the accuracy in the conflicts identified by Ms Hawker.[54]
[54] Exhibit 1, [151]-[154].
Ms Goddard called Ms Hawker as a witness to the proceeding. Ms Hawker confirmed that she had not made a formal complaint to Ms Nicholas regarding Ms Goddard.
Ms Goddard did not ask Ms Hawker about any of the other communication or interactions between them that formed the particulars of the allegation.
Under cross-examination, Ms Hawker agreed that when she started at LAQ, Ms Goddard said to her, 'I hope you're not here to take my job'. She also agreed that at a dinner on the evening of her first day at LAQ, Ms Goddard had told her who to stay away from in the office and who there might be 'dramas with'.[55]
[55] T1-19, Ll 8-21.
With regard to the other particulars of the allegation as they related to Ms Hawker, her evidence was, in summary:
·She couldn't recall word-for-word what Ms Goddard had said to her but there were days when some comments did make her feel she wasn't 'chalked up to what everyone else knew in the office';[56]
[56] T1-20, Ll 10-13.
·Ms Goddard said to her that Mr Sheppard would come to get Ms Goddard to do his work;[57]
[57] T1-20, Ll 18-19.
·she could recall Ms Goddard saying a comment to the effect of: 'I pick up your slack when you're not here';[58]
[58] T1-20, Ll 30-36.
·when Ms Goddard claimed Ms Hayes came to her to have tasks performed, this caused Ms Hawker to feel deflated and not good enough to do her job.[59]
[59] T1-20, L 45 – T1-21, L 11.
·she recalled not long before she left that she and Ms Goddard had said that they would stop talking about work,[60] that is, issues outside of what is directly at hand.
[60] T1-21, Ll 16-19.
·she could not recall Ms Goddard warning her against talking to Ms Nicholas;[61]
[61] T1-21, Ll 13-24.
·she recalled Ms Goddard saying that she had seen Ms Hawker in Ms Nicholas' office and asking why Ms Hawker had gone in there. But she could not recall Ms Goddard saying that it wasn't a good idea to go and talk to Ms Nicholas;[62]
[62] T1-21, Ll 26-34.
·she recalled attending lunch with Ms Goddard where she was informed about a conversation between Ms Goddard and Ms Nicholas regarding Ms Hawker's work hours and that Ms Nicholas had commented that Ms Hawker's hours where not enough and that Ms Goddard had to pick up her slack;[63]
[63] T1-21, L 36 – T1-22, L l4.
·following the lunch, Ms Hawker went to see Ms Nicholas. She recalled becoming very upset in the meeting. She told Ms Nicholas what Ms Goddard had said to her about having to pick up the slack with Mr Sheppard and Ms Hayes;[64]
[64] T1-22, Ll 23-42.
·Ms Hawker also recalled telling Ms Nicholas about the incident where Ms Goddard had said in front of Ms Hawker's fiancée that Ms Hawker had a crush on Mr Rundle;[65]
[65] T1-23, Ll 1-5.
·she wanted the outcome of the meeting to be that Ms Nicholas would talk to Mr Sheppard and Ms Hayes and that if there was a problem it could be fixed;[66]
·she knew Ms Nicholas was going to raise the comments with Ms Goddard but that she didn't want 'the drama or the chaos that went with it';[67]
·she said that at a second meeting, Ms Nicholas told her that Mr Sheppard and Ms Hayes did not make comments;[68]
·she did not want to escalate the matter to a formal complaint as she didn't want any more chaos;[69]
·she recalled a meeting held by Ms Nicholas that Ms Hawker and Ms Goddard attended, "I remember Stephanie saying our behaviour is, like, high-schoolist, and j – gave – just gave us a direction just to – to stop – just stop our drama, and stop our cattiness, and stop distracting the other workers because of it".[70]
[66] T1-23, Ll 7-12.
[67] T1-23, Ll 14-23.
[68] T1-23, Ll 35-40.
[69] T1-24, Ll 6-7.
[70] T1-24, Ll 9-19.
The Respondent submits that Ms Goddard's remarks about Ms Hawkers' hours of work and 'picking up her slack' were insensitive and unnecessary in circumstances where she knew that Ms Hawker had recently suffered a great personal loss and that at a PIP meeting on 6th March 2019 Ms Goddard had been reminded to be mindful of her conversations with Ms Hawker in the context of an earlier interaction where Ms Hawker had found Ms Goddard's communication style a little intimidating.[71]
[71] Exhibit 9, SN-10.
Ms Goddard says that she was not provided with a written copy of the complaint and that the allegation was read out to her from handwritten notes made by Ms Nicholas. Ms Goddard says that following the discussion with Ms Nicholas and Ms Hawker, she thought that was the end of the matter. Ms Goddard say that she has still not received a written copy of such complaint as per the LAQ complaint policy, despite many requests for it to be provided and LAQ using it as a reason for her termination. Ms Goddard said that from March 2019, when the matter was raised with her, she was very anxious about what would be thrown at her next. Ms Goddard said that she was afraid that if she brought it up with Ms Nicholas, she would take it as a complaint and it would be used against her with respect to point number two of the PIP.
Ms Nicholas says that Ms Goddard was not provided with a copy of a written complaint from Ms Hawker because the complaint was informal and not made in writing. Ms Nicholas said that she had dealt with Ms Hawker's complaint as an informal process and had written notes of her conversation with her which she relayed to Ms Goddard. Ms Nicholas recalls that Ms Goddard admitted the conduct which was the subject of Ms Hawker's complaint and says that this is set out in her notes dated 25 March 2019.[72]
[72] Exhibit 9, [173], SN-37.
In summary, the disciplinary finding regarding Allegation One as it pertains to Ms Hawker was substantiated on the balance of probabilities:[73]
·The substance of the allegations were relayed to Ms Goddard in her PIP meeting of 28 March 2019;
·Ms Goddard did not specifically deny any of the allegations made;
·Ms Goddard was provided with a written summary of the discussion at the meeting on 28 March 2019;
·Ms Goddard's response to the matters raised at the 28 March 2019 meeting was inconsistent with her assertion that the allegation was 'inherently implausible';
·Ms Goddard's response to the allegation focused on challenging Ms Hawker's work performance but the allegation was concerned with the nature of Ms Goddard's interactions with Ms Hawker; and
·in relation to the incident, Ms Goddard was specifically reminded that her communication with other staff must remain professional and courteous.
[73] Respondent's outline of argument, full particulars of the allegations and the findings are set out in the First Show Cause Notice AR-4, Second Show Cause Notice AR-7 and Penalty Letter AR-10.
Complaint against Ms Hedges
The relationship between Ms Goddard and Ms Hedges
In her closing submissions, Ms Goddard outlined the background issues that existed in the lead up to or alongside the informal process at the end of 2018 and the formal process in 2019. Ms Goddard recalled making a complaint about Ms Hedges in 2017 in which allegations were found to have been substantiated. I note that this is not in dispute between the parties.
Ms Hedges' statement for this proceeding also discusses the history of her relationship with Ms Goddard. Ms Hedges acknowledges that in 2017, Ms Goddard made a formal complaint about her and that some of the complaints were found to be substantiated. Ms Hedges says that after that complaint, she felt that she and Ms Goddard had been able to move forward. Ms Hedges says that she took on board feedback and made more of an effort with Ms Goddard and that in her view they were maintaining a civil working relationship.[74]
[74] Exhibit 7, [6], [10].
Ms Goddard discussed her unsubstantiated complaint against Ms Hedges in July 2018. She said that at that time she requested to move to another part of the office but that this request was denied.
Ms Hedges also said that in July 2018, Ms Goddard lodged a further complaint about her. Ms Hedges said that in August 2018 she was informed that the allegations were unsubstantiated. Ms Hedges said that in September 2018, she had a phone conversation with Ms Gordon and that the following day she participated in a meeting with Ms Goddard and Ms Nicholas facilitated by Ms Gordon.[75]
[75] Exhibit 7, [12], [14]
Ms Goddard recalled the meeting with Ms Gordon, Ms Hedges and Ms Nicholas held on 3 September 2018. Ms Goddard said that the meeting was unsuccessful as Ms Hedges failed to apologise to her and failed to acknowledge that her actions were wrong. Ms Goddard said that she thought the conversation with Ms Gordon was 'stacked against' her.[76]
[76] Exhibit 1, [162]-[168].
Following private discussions with Ms Hedges and Ms Goddard, Ms Nicholas recalls Ms Gordon telling her words to the effect of 'a mediation is not appropriate as they are both too upset, and both feel very unsafe'.[77]
[77] Exhibit 9, [145].
Ms Goddard's statement recalls an incident on 6 December 2018 where she says Ms Hedges approached her and started waving a piece of paper in her face and speaking to her aggressively.[78] Ms Goddard also recalls an incident on 10 December 2018 when Ms Nicholas asked her to go and sit in the front reception area as they were short staffed. Ms Goddard says that she advised Ms Nicholas that Ms Hawker was going to be back in the afternoon and there would be sufficient staff but if Ms Hawker did not return, Ms Goddard would go and sit out there.[79] Ms Goddard says that not long after this, she heard Ms Hedges telling Ms Nicholas that Ms Goddard's medical certificate was 'bullshit' and she was needed out the front. Ms Goddard said that she was upset that her medical condition had been disclosed and she was embarrassed that colleagues had witnessed it and a member of the public could have walked in at any time.[80]
[78] Exhibit 1, [185]-[186]
[79] Exhibit 1, [189].
[80] Exhibit 1, [190]-[192].
Ms Nicholas' evidence was that on 10 December 2018 she had a conversation with Ms Hedges where she spoke to her about her behaviour toward Ms Goddard.[81]
[81] Exhibit 9 [150], T3-16, Ll 1-13.
Ms Goddard says that on 13 December 2018, she raised her concerns about the incidents on 6 and 10 December 2018 with Ms Nicholas. Ms Goddard says that Ms Nicholas admitted in the conversation that Ms Hedges' actions on 10 December 2018 were 'out of line'. Ms Goddard says that Ms Nicholas informed her that she had 'left it too long' for Ms Nicholas to deal with as she was going on leave. Ms Goddard said that Ms Nicholas went on leave that same day and this made Ms Goddard very upset as she would be waiting for six weeks until Ms Nicholas returned on 16 January 2019.[82]
[82] Exhibit 1, [193]-[197].
[100]Ms Goddard recalled that she did not think Ms Nicholas had taken her complaints seriously and that this had led her to make a further complaint to Ms Volk in January 2019. Ms Goddard said that it was after this third complaint that she believes the relationship with Ms Nicholas deteriorated again.[83]
[83] Exhibit 1 [210]-[215], T4-3, Ll 35-43.
[101]The outcome letter provided to Ms Goddard regarding her complaint comprehensively addresses both of the allegations made against Ms Hedges and the information available to Ms Volk in considering Ms Goddard's complaint. The letter concludes:
I make no findings of workplace bullying. In coming to this conclusion, as mentioned above, I have also taken into consideration your two previous formal complaints and outcomes from 2017 and 2018. I do not find Ms Hedge's actions 'unreasonable and repeated' which is required in order for them to amount to workplace bullying.
I find in respect of Allegation 1 that appropriate management action will be taken by Ms Nicholas when Ms Hedges returns from leave. In respect of Allegation 2, I am satisfied that appropriate management action has already been taken and no further action is required.
…
It is clear from my enquiries that you have not allowed Ms Nicholas reasonable time to resolve your complaint given the Christmas closure and absences on leave. I am satisfied that Ms Nicholas did take your complaint seriously when you raised it with her on 13 December 2018 and that further, you were provided with assurances from Ms Nicholas that she would look into and take appropriate action in relation to your complaint. She advised you that she would likely not be able to resolve the matters before she when on leave. However, her clear intent was to resolve the matters. In the circumstances, you should have allowed Ms Nicholas reasonable time in order to address the matters you raised with her.[84]
[84] Exhibit 1, Attachment E
[102]Ms Hedges said that she was surprised to find in January 2019 that Ms Goddard had made a further complaint of bullying against her. She said she was subsequently advised that there had been a finding that those allegations were unsubstantiated.[85]
[85] Exhibit 7, [17].
[103]Ms Hedges said that she felt that Ms Goddard's complaints against her were vexatious and frivolous in nature. She said that the complaints were causing her significant stress and anxiety, Ms Hedges was concerned about future communication with Ms Goddard may result in further complaints being made. Ms Hedges lodged a complaint against Ms Goddard on 10 May 2019. The allegations in her complaint were found to be not substantiated.[86]
[86] Exhibit 7, [18]-[21].
The 29 May 2019 interaction and subsequent complaint
[104]Ms Goddard was asked to recall the interaction with Ms Hedges that occurred on 29 May 2019. Ms Goddard agreed that she had passed Ms Hedges in the hallway around 2.00pm, just after lunch and that Ms Hedges had asked whether Mr Rundle had taken his own car to Gladstone. Ms Goddard agreed that she had responded by saying that Mr Rundle had gone on his lunch break and that this was the end of the conversation.[87]
[87] T1-62, Ll 8-32.
[105]Ms Hedges' statement outlined the interaction which occurred with Ms Goddard on 29 May 2019. It mirrors Ms Goddard's recollection in terms of where it occurred and what was said. Ms Hedges says that it was a passing comment and she did not use any aggressive tone with Ms Goddard. Ms Hedges says that she asked the question in a general conversational tone, considered it to be a civil conversation and did not think any further about it.[88]
[88] Exhibit 7, [22]-[24].
[106]Ms Goddard said that following that conversation she was extremely anxious.[89] It was put to Ms Goddard that with the benefit of hindsight she might agree that the anxiety she felt as a result of the interaction may have been the result of a negative assumption on her part and that she may have assumed that by Ms Hedges making that remark that she was questioning Ms Goddard. Ms Goddard disagreed and said that Ms Hedges came across as though she was questioning or interrogating her.[90]
[89] Exhibit 1, [266], T1-62, Ll 34-35.
[90] T1-63, Ll 1-8.
[107]Ms Goddard was asked if now, with the distance of some time, and reflecting back on the day and the event, she accepted that another way of interpreting that situation may have been that Ms Hedges was just making a passing remark and that an alternative may have been to ignore Ms Goddard altogether which would have been inconsistent with the messaging Ms Hedges and Ms Goddard had been given by the external psychologist during their joint sessions with Penny Gordon. Ms Goddard disagreed that Ms Hedges had made a passing remark but agreed another option may have been to ignore her. With regard to the messaging provided by Ms Gordon, Ms Goddard said "And like I said to you before, I don't – I didn't take into consideration what Penny Gordon said."[91]
[91] T1-63, Ll 10-26.
[108]However, Ms Goddard agreed that she had earlier given evidence that she recalled that one of the strategies that Ms Gordon gave to both she and Ms Hedges was to greet each other or acknowledge each other when they passed each other as a way of rebuilding the working relationship.[92]
[92] T1-63, Ll 28-31.
[109]Ms Goddard asked Ms Hedges if Ms Hedges had made attempts to get along with her. Ms Hedges said that she tried to maintain a civil relationship and say, 'good morning', 'good afternoon', and general discussion about work related issues.[93]
[93] T2-4, Ll 5-15.
[110]Ms Goddard recalled that she was upset enough at Ms Hedges' remark to send an email to Ms Nicholas about it. Ms Goddard was taken to the last paragraph of the email:
This is the sort of behaviour that I have complained to you previously in my complaints that gives me anxiety. I don't appreciate being questioned about where Lance is and given that he was in the office all day and made it clear that he was going to lunch. I am as anxious as ever and now I am back to square again (sic) one.[94]
[94] Exhibit 9, SN-25.
[111]Ms Goddard said that she wasn't upset when she sent the email and agreed that she had said that the interaction had caused her anxiety at a time when she was already on a medical certificate. Ms Goddard said that the interaction 'triggered a big anxiety attack for me' and agreed that she expected Ms Nicholas to treat it seriously and follow through on it.[95]
[95] T1-64, Ll 25-64.
[112]Ms Goddard said that she wanted to build a better relationship with Ms Hedges.[96] Ms Goddard also said that she expected that Ms Nicholas would go and speak to Ms Hedges about the email.[97]
[96] T1-65, Ll 37-38.
[97] T1-66, Ll 1-2
[113]Ms Hedges evidence was that finding out that Ms Goddard had complained to Ms Nicholas about the interaction had 'totally caught her off guard'. She said that she thought that the comment to Ms Goddard had been 'a general off hand comment as we passed'. Ms Hedges said that the impact on her personally on being notified that the issue had been raised was:
[MS HEDGES] I totally broke down because I think that was the fourth complaint Ms Goddard had made against me. As I say, I – it was totally unexpected because I – I didn't believe that I'd done anything to bully or harass her. I just totally broke down crying. That was sort of the – the final straw for me. I - I didn’t' know if I could continue to work in that environment. I had to go into work that morning because I had a couple of conferences scheduled. So I contacted my senior supervisor in Brisbane, advised her what was happening and she suggested that I'd take a few days off just to – to sort of get myself together. But I was ex – extremely upset.[98]
[98] T2-10, Ll 35-43.
[114]Ms Goddard was taken to a document dated 30 March 2019 that she described in her affidavit as a suicide note.[99] Ms Goddard was asked if a couple days before she wrote the note, she had recorded in her PIP review meeting that the communication with the administrative staff had been amazing. Ms Goddard agreed but said 'my self-esteem went up and down…every day I went to work. It was amazing one day. It was shit the next.'[100]
[99] Exhibit 1, attachment F.
[100] T1-66, Ll 7-21
[115]Ms Goddard agreed that the note reflected that she had lost faith and trust in a lot of people and that she felt that LAQ, particularly the Rockhampton office, was not a good place to work at the time and that things didn't improve for her right through to June 2019.[101]
[101] T1-66, L 40 – T1-67, L l3.
[116]Ms Goddard referred Ms Hedges to Ms Hedges' affidavit where she described the impact of the ongoing interpersonal issues between them both.[102]
[102] Exhibit 7, [33]-[40].
[117]Ms Hedges was asked if she thought Ms Goddard may have been experiencing similar emotions as her. Ms Hedges replied by agreeing and stating that during the meeting they both had with Penny Gordon, it was acknowledged that both women were suffering stress and anxiety.[103]
[103] T2-9, Ll 19-28.
[118]Ms Goddard asked both Ms Hedges and Ms Nicholas questions to determine if they were aware of Mr Rundle's movements on 29 May 2019. It appears to me that the reason she was doing this was to establish that both women should have been aware that Mr Rundle could not have taken his car to Gladstone that day. This would mean that Ms Hedges would have no reason to ask about Mr Rundle's whereabouts and that Ms Nicholas would have been able to determine that Ms Hedge's question was unnecessary. The evidence did not demonstrate that either woman had reason to be across the details of Mr Rundle's calendar for the day, or that his calendar made it clear that he was not required to be at court in Gladstone.
[119]I accept the Respondent's submission that whether Mr Rundle had left to go to court or not is a distraction. The grievance communicated to Ms Nicholas in Ms Goddard's email is that she believed Ms Hedges had questioned her, that she didn't appreciate it and it had caused her anxiety.[104]
[104] Exhibit 9, SN-25.
[120]Ms Goddard asked Ms Nicholas if a requirement of the PIP was that Ms Goddard was to bring any concerns or feelings that she was experiencing to Ms Nicholas agreed that it was.[105] Ms Nicholas also recalled that as well as the section in the PIP called 'Communication with a Principal Lawyer', there was a conversation with Ms Goddard prior to the first informal meeting and that it was at this meeting she used the 'script' which Ms Cork, an external consultant. Ms Nicholas prepared the document on the advice of Ms Cork.[106]
[105] T3-11, Ll 12-13.
[106] T3-21, Ll 1-21.
[121]Ms Nicholas was referred to a copy of the 'script' that was used in the discussion with Ms Goddard. Ms Nicholas was directed to one part of this document and was asked whether this issue was raised with Ms Goddard. She agreed that it was. The section reads:
One of the issues which is interfering with your workplace relations at the moment is your keeness to lodge formal complaints. I want to create an environment where you feel able to follow the whole process laid down in our policy and which is the problem solving process that we generally follow in our day-to-day lives. That is, to talk about the issues with which you are having trouble before escalating the issue and lodging a formal complaint. I want to see less escalation of issues and more discussion and informal resolution. In order to make this happen, I am setting out some steps I want you to follow – some boundaries.
If something is troubling you in the workplace, you should firstly consider addressing the issue with the staff member in question. If this is not appropriate or does not resolve the issue, you must make an appointment with me and I want you to do this at an early stage. Your most recent complaint alleged numerous incidences of bullying by Louise, but none of these were substantiated. Instead, it was found that most of the issues you raised were issues appropriately resolved by the immediate manager – that is me. I can't resolve issues if I don't know about them. I could have discussed these with you had you come to me about them.[107]
[107] Exhibit 11.
[122]Ms Goddard asked Ms Nicholas about the email sent on 29 May 2019 and why it was acted on as a complaint. Ms Goddard put it to Ms Nicholas that the email did not state that it was a complaint and said that it was just expressing her feelings. She asked if Ms Nicholas thought to speak to Ms Goddard about the email before treating it as a complaint. Ms Nicholas said that she took the email to be a complaint and something she needed to follow up.
Look, it was a matter brought to my attention in writing, that was serious in nature. I took it as a complaint and I think it was perfectly appropriate to do so and it was perfectly appropriate to investigate it.[108]
(a) I did not consider that the status of Ms Goddard's friendship with Ms Hawker could have any bearing on the proposed disciplinary action as Ms Hawker is no longer an LAQ employee.
(b) Despite LAQ facilitating the implementation of various reasonable and appropriate measures over a lengthy period to assist with resolving interpersonal difficulties, Ms Goddard continued to fail to fully engage with these measures. This failure further enhanced the deterioration of the interpersonal relationships to the point where the situation posed a risk to the health, safety and welfare of her co-workers. I was of the view that LAQ had made reasonable efforts to manage Ms Goddard's performance and interpersonal conflicts to improve outcomes for her and other staff, to no avail.
(c) The loss of trust and confidence in Ms Goddard's ability to carry out her duties to the standards expected of an LSO was further impacted by the inconsistency of her explanations for her performance and conduct and inability to take ownership of the relevant conduct.
(d) I took into consideration Ms Goddard's length of service and overall work record and concluded that those matters were not sufficient to outweigh the seriousness of the allegations, the loss of trust and confidence and the risk that ongoing deficiencies in Ms Goddard's performance would have. I further found that Ms Goddard's length of service and interaction with Code of Conduct training meant that she should have been aware of the standards expected of her as an LSO.
(e) I formed the view that there was no appropriate penalty. Termination was reasonable and appropriate given Ms Goddard's demonstrated inability to build and sustain positive and professional relations and perform the inherent requirements of her role to a satisfactory standard.[157]
[157] Exhibit 2, AR-10.
[191]Mr Reilly was not cross-examined by Ms Goddard and his evidence was tendered by consent. The outcome of this is that despite submitting in her application for reinstatement that the facts complained of would not usually warrant actual dismissal, Ms Goddard has not availed herself of the opportunity to put this to the decision maker.
[192]Mr Reilly said that he considered the types of disciplinary action that were available to him to take, including actions other than termination of employment.[158]
[158] Exhibit 2, [24].
[193]Ms Goddard had proposed an alternative penalty in her second show cause response, that is, to establish a dedicated grants officer role for her to undertake. Mr Reilly said that he did not consider this to be a viable alternative given that:
(a) there was no established position of funding for such a role, nor was such a position planned, or possible for the foreseeable future;
(b) following the restructure of the LAQ Grants function, individual grants officers located within regional offices no longer had responsibility/oversight of the processing of grants for their own office or the local preferred suppliers;
(c) given Ms Goddard had been unable to meet the required standards as an LSO, despite the provision of support over a significant period, I did not have trust and confidence that she would be able to meet the standards required within the context of the LAQ Grants function; and
(d) I had lost trust and confidence in Ms Goddard's ability to build and sustain positive, professional and courteous relationships, in a manner which ensured the safety, health and welfare of her co-workers.[159]
[159] Exhibit 2, [25].
[194]Mr Reilly also said that he carefully considered Ms Goddard's suggestion of a mediation with Ms Hedges. However, Mr Reilly was of the view that there had been a complete breakdown of the professional working relationship between Ms Goddard and Ms Hedges and that resolution of the issues between them was not a likely or possible outcome of mediation, given the loss of trust and confidence between them.[160]
[160] Exhibit 2, [26].
[195]I have considered all of the material exhibited to Mr Reilly's statement:
·Briefing note dated 31 May 2019.[161]
[161] Exhibit 2, AR-1.
·Suspension letter dated 31 May 2019.[162]
[162] Exhibit 2, AR-2.
·Briefing note dated 11 June 2019.[163]
[163] Exhibit 2, AR-3.
·First Show Cause Notice and Attachments.[164]
[164] Exhibit 2, AR-4.
·Response to First Show Cause Notice dated 1 July 2019.[165]
[165] Exhibit 2, AR-5.
·Briefing note dated 29 July 2019.[166]
[166] Exhibit 2, AR-6.
·Second Show Cause Notice dated 29 July 2019.[167]
[167] Exhibit 2, AR-7.
·Response to Second Show Cause Notice dated 23 August 2019.[168]
[168] Exhibit 2, AR-8.
·Briefing note dated 12 September 2019.[169]
[169]Exhibit 2, AR-9.
·Penalty Letter dated 12 September 2019.[170]
[170] Exhibit 2, AR-10.
[196]The material listed above provides a comprehensive and detailed account of the process. I find that the matters raised by Ms Goddard in her show cause responses have been carefully considered and responded to on each occasion.
[197]The Respondent submits that the Commission should be slow to disrupt the autonomy of the decision-making process in circumstances where the decision maker has exercised his discretion after proper consideration and on the grounds set out in the penalty letter.
[198]Further, the Respondent says that the Commission should consider that in all the circumstances, there was no viable alternative to termination. The circumstances, the Respondent submits, included the following
·Ms Goddard was fully aware of the requirements of her role and gave evidence of this;[171]
[171] T1-36, L 32 – T1-39, L 14.
·Ms Goddard understood the requirements as set out in the position description and was familiar with and understood the detailed requirements set out in the file management standards;[172]
[172] T1-39, Ll 28-46.
·prior to the PIP process, Ms Goddard had already been involved in regular, informal performance management meetings from August to December 2018 where clear feedback was provided and areas for improvement were identified.
·the PIP set out in unambiguous detail the five areas for improvement, the standard required of an LSO, the actions to be taken, and the expected outcome;
·Ms Goddard was involved in setting the terms of the PIP and had the benefit of legal advice before doing so;
·during the PIP review, Ms Goddard participated in approximately fortnightly performance review meetings and at those meetings the expectations of her role were reinforced and Ms Goddard received feedback regarding how she was tracking against the improvement areas identified in the PIP;
·despite some variable improvement during the implementation of the PIP, progress was not sustained;
·at the final PIP review on 28 May 2019 there were still significant deficiencies in Ms Goddard's performance;
·this was despite Ms Goddard being given the opportunity to undertake various training programs targeted at the areas of the PIP provided and funded by the Respondent;
·the PIP was extended to 3 June 2019 with the objective of allowing Ms Goddard more time to put in place the skills training she had undertaken; and
·despite all of this, Ms Goddard was almost entirely resistant to change.
[199]The picture that emerged over the course of the hearing and in reviewing all of the witness statements and accompanying documents is that despite multiple interventions, support and detailed feedback, Ms Goddard was unable to meet the requirements of the PIP.
[200]Ms Goddard's questioning of several witnesses about whether she had been making morning tea or bringing in cheesecakes for morning tea demonstrates two things to me, the first is that Ms Goddard held a genuine and sincere belief that bringing the food for morning tea would improve her relationships with colleagues. However, the second thing it demonstrates is that Ms Goddard may have misunderstood that fundamentally, the communication and behaviour required of the PIP was with regard to every day workplace interactions and work related communication. All the cheesecake in the world won't improve workplace communications if the fundamental issues are not being addressed.
[201]While Ms Goddard's PIP did include a requirement for her to first raise issues with Ms Nicholas instead of raising a formal complaint, the support and intervention provided over time was also designed to help Ms Goddard to first understand what a genuine 'issue' was and to first reflect on matters before raising a complaint. It seems to me that with regard to workplace interactions and communication, Ms Goddard was unable to apply self-reflection strategies and decide to either de-escalate or to not react to certain situations.
[202]Ms Goddard's insistence on proving that the work calendar for 29 May 2019 showed that Mr Rundle was in the office demonstrates that she was not interested in considering whether she may have overreacted to a seemingly benign comment being made by Ms Hedges or that she was capable of accepting Ms Nicholas's consideration or analysis of the matter. At the hearing, some 18 months after the events took place, Ms Goddard appears unable to look at how this interaction with Ms Hedges and the raising of concerns/complaint with Ms Nicholas reflected on her engagement with and success in achieving the aims and objectives of the PIP.
[203]While Ms Goddard focused on the relationship and communication issues she was experiencing with one of her supervisors, Ms Kitchiner, the evidence demonstrates that Ms Goddard's task management was not improving and that this was continuing to have a negative impact on Ms Kitchiner's capacity to do her work.
[204]It is clear from the evidence before me that the ongoing issues with Ms Goddard's workplace behaviour were debilitating for the Rockhampton office. It is notable that the suspension letter informed Ms Goddard that one of the reasons for her suspension was concern for the health and safety of others working in the office.
[205]The Commission heard evidence from a number of witnesses regarding the impact of Ms Goddard's conduct on other staff in the Rockhampton workplace.
[206]The detailed emails accounting for each PIP meeting demonstrate that hours and hours of work was being done by Ms Nicholas to manage the PIP and support Ms Goddard through the process. Ms Nicholas' statement for these proceedings detailed the impact on her as the PIP process was ending and the concern/complaint from Ms Goddard about Ms Hedges was made.[173] She said that she felt she was in an untenable situation in respect of managing the work environment in the Rockhampton office.[174] Ms Nicholas said, 'I felt like my office had imploded and that there was no way to fix the situation.'[175] Ms Nicholas referred to a particular day when she 'separately had Ms Hedges, Ms Hawker and Ms Kitchiner in her office crying as a result of the ongoing situation with Ms Goddard.' Ms Nicholas said that she had not carried a full file load for over two years and her stakeholder relationships were nearly non-existent due to the relentless amount of work required in managing Ms Goddard.[176]
[173] Exhibit 9, [107]-[108].
[174] Exhibit 9, [87].
[175] Exhibit 9, [89].
[176] Exhibit 9, [92].
[207]Ms Nicholas said in her statement that she was often approached by other staff in the office who would tell her that when they engaged with Ms Goddard they felt like they were being scrutinised and everything they were saying was being noted by Ms Goddard. Ms Nicholas said that she also observed staff to be hesitant in engaging with Ms Goddard and Ms Nicholas got the impression they were cautions speaking around her.[177]
[177] Exhibit 9, [104].
[208]The evidence regarding the impact the process had on Ms Kitchiner is addressed above at [169]. Ms Nicholas also reflected on the impact the process was having on Ms Kitchiner.[178]
[178] Exhibit 9, [107].
[209]The evidence regarding the impact that the issues had on Ms Hedges is addressed in Ms Hedges' statement for this proceeding,[179] Ms Hedges' evidence is also addressed above at [103].
[179] Exhibit 7, [27]-[31], [33]-[36].
[210]Ms Aspinall-Clarke gave evidence that she and Ms Goddard were very close friends.[180] She said that she would not describe Ms Goddard as a person who was fairly sensitive or someone who would get over-run by her emotions.[181] In answer to a question about whether Rockhampton LAQ office was a pleasant or an unpleasant place to work, Ms Aspinall-Clarke said 'unpleasant'.[182]
[180] T1-29, Ll 38-40.
[181] T1-31, Ll 31-34.
[182] T1-32, Ll 1-2.
[211]When asked if the tension in the office improved or deteriorated over the first six months of 2019, Ms Aspinall-Clarke said 'it improved after [Ms Goddard] had been put on leave with pay'. When asked to elaborate on how it improved, Ms Aspinall-Clarke said,
[MS ASPINALL-CLARKE] That – like, there was less tension in the office, and that we could approach [Ms Kitchiner] and her – Steph's time wasn't consumed by dealing with the issues between Shelby and Louise all the time, which – and she was also able to take on crime files again, which, in my time at Legal Aid, she was just very consumed and unapproachable, really, because she was always stressed out over complaints being made by Louise and Shelby with each other.[183]
[183] T1-32, Ll 7-14.
[212]When asked about what the impact would be if Ms Goddard was to return to the Rockhampton office now, Ms Aspinall-Clarke said 'I think the office would go back to how it was, with all the tension, and it wouldn't be good for the office, especially in a small town when everyone talks and that, so it would be very uncomfortable.'[184]
[184] T1-32, Ll 29-33.
[213]I have considered Ms Goddard's submissions about the difficulties she may face in finding other work. However, I do not see that the hardship she may face while seeking other employment serves to displace the findings regarding her workplace communication and performance of her duties and the decision maker's assessment that termination was the disciplinary outcome of the process.
[214]Ms Goddard was clearly informed that there were concerns with her performance and was initially taken through an informal process to address these concerns. The PIP process set out in comprehensive terms the expectations of her in performing her role. A range of support and training was provided to Ms Goddard along the way and she had the benefit of detailed notes and regular updates and meetings with her supervisors and Ms Nicholas. When the situation required it, timelines were extended to provide Ms Nicholas with procedural fairness. Ms Goddard provided responses throughout the show cause process and accessed legal advice.
[215]In the circumstances and having considered all of the material, I find that the decision of Mr Reilly to terminate Ms Goddard's employment was not harsh, unjust or unreasonable.
[216]The application for reinstatement is dismissed.
0