Goh v Westpac Banking Corporation
[2020] NSWWCCPD 25
•29 April 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Goh v Westpac Banking Corporation [2020] NSWWCCPD 25 |
| APPELLANT: | Young Goh |
| RESPONDENT: | Westpac Banking Corporation |
| INSURER: | Self-insured |
| FILE NUMBER: | A1-3545/19 |
| ARBITRATOR: | Mr C Burge |
| DATE OF ARBITRATOR’S DECISION: | 1 November 2019 |
| DATE OF APPEAL DECISION: | 29 April 2020 |
| SUBJECT MATTER OF DECISION: | Whether the Arbitrator’s decision that the respondent employer had discharged its onus of showing that it took reasonable action in relation to the applicant worker for the purposes of s 11A of the Workers Compensation Act 1987 by way of performance appraisal and/or discipline was correct; there was no dispute that the appellant had suffered a psychological injury that was wholly caused by the actions of the respondent by way of performance appraisal and/or discipline; the issue was reasonableness |
| PRESIDENTIAL MEMBER: | Acting Deputy President Larry King SC |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr B Carney, counsel | |
| Stacks Goudkamp | |
| Respondent: | |
| Mr T Ainsworth, solicitor | |
| HWL Ebsworth Lawyers | |
ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination of 1 November 2019 is confirmed. |
INTRODUCTION
The appellant worker appeals from a decision of an Arbitrator finding that psychological injury suffered by him was wholly or predominantly caused by reasonable action taken by the respondent employer in accordance with s 11A of the Workers Compensation Act 1987 (the 1987 Act) with respect to performance appraisal and/or discipline in relation to him.
It was common ground that the appellant had suffered psychological injury that was wholly or predominantly caused by actions of the respondent with respect to discipline and/or performance appraisal.[1]
[1] Goh v Westpac Banking Corporation [2019] NSWWCC 354 (Reasons), [12], [62].
Thus, the only issue was whether the respondent’s actions were “reasonable”. On that issue it was also common ground that the respondent carried the onus of proof.
The question upon which this appeal turns is whether the Arbitrator’s finding that that onus had been discharged was correct.
BACKGROUND
This case involved competing evidence of a familiar, indeed almost inevitable, kind.
The lay evidence relied upon by the appellant was primarily what could be described as his own evidence, namely a lengthy statement dated 24 October 2018 he made to an investigator, a written notification to the respondent’s HR Department of a grievance on the part of the appellant against his immediate superior Ms Beirne dated 21 June 2018, a letter from him to the respondent’s General Manager, HR, dated 4 October 2018 “escalating” that grievance, and an application or complaint to the Westpac Group Employee Ombudsman taking the form of two letters dated 30 November 2018. The appellant also placed reliance upon the statement of a colleague who was part of the team of workers the appellant, headed, Mr Declan Egan, also taken by the investigator, and dated 26 October 2018.
With regard to the medical evidence, the appellant’s Application to Resolve a Dispute put forward two reports from psychiatrists qualified on a medico-legal basis. They were the reports of Dr Teoh dated 24 January 2019 and Dr Canaris dated 8 June 2019. These were reports of independent medical examiners and the appellant elected to rely on the report of Dr Canaris, so that, in effect, the tender of the report of Dr Teoh was withdrawn.[2]
[2] Reasons, [14].
In addition to the report of Dr Canaris, the appellant relied upon a number of medical certificates of his general practitioner, Dr Hamilton, of the Cremorne Medical Practice.
Mr Egan’s statement was put into evidence before the Arbitrator as part of the respondent’s reply to the appellant’s application. It and other documents were annexures to the report of the investigators, SureFact Australia Pty Limited dated 2 November 2018, the entirety of which was put into evidence by the respondent.
The respondent also put into evidence other documents including emails passing between the appellant and Ms Beirne together with other emails, and relied upon the statement of Ms Beirne and of her superior, Ms Bansal, also taken by the investigator.
As regards medical evidence, the respondent relied upon the general medical practitioner’s notes from the Cremorne Medical Practice, a report from Dr Hamilton dated 8 October 2018, together with medical certificates from her, and a report from a psychiatrist qualified on a medico-legal basis, Dr Graham Vickery dated 7 November 2018.
This does not exhaustively describe the documentary evidence that was before the Arbitrator, nor purport to summarise and discuss the content of that evidence. It will be necessary to refer to some of the evidence later in these reasons.
THRESHOLD MATTERS
So far as I can see, there is no dispute that the threshold requirements of s 352(3) and (4) of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act) have been met.
ON THE PAPERS
The parties agree that this appeal may be dealt with “on the papers”. Having read the papers, and having regard to Practice Directions No 1 and 6, I am satisfied I have sufficient information to proceed ‘on the papers’ in accordance with section 354(6) of the 1998 Act.
FRESH EVIDENCE
Neither party has tendered fresh or new evidence upon this appeal.
ISSUE IN DISPUTE
The sole issue in dispute is that stated in para [4] above. Was the Arbitrator correct to find that the respondent had discharged its onus of proof for the purposes of the application of s 11A of the 1987 Act?
EVIDENCE
I will summarise the evidence and make reference to the Arbitrator’s treatment of it below.
It is convenient to refer to the medical evidence at the outset.
As abovementioned, it comprised the reports of the psychiatrists retained by each of the parties, and medical certificates and a brief report from Dr Hamilton.
The Arbitrator dealt with the medical evidence in paras [63] and [64] of his reasons. I take what he there said to be that beyond the point of establishing that the appellant had suffered psychological injury caused by events at work, the evidence was not material. Expressions of opinion whether the respondent’s conduct was or was not reasonable exceeded their proper role. That question was a factual one for the Arbitrator. I see this view as anchored to this case: I do not think that the Arbitrator or anybody else would say that there could not be cases in which expert medical opinion upon an employer’s course of conduct could never be relevant on this issue, but this case was not such a case.
On that basis, I am in complete agreement with his view. The important evidence is the lay evidence to which I now turn.
In the appellant’s case, the evidence from him is that noted above. The relevant passage of his statement to the investigator dated 24 October 2018 is paras [52]–[89]. His correspondence to the respondent’s HR Department and what I take to be the respondent’s internal Ombudsman’s office, are to be read with his statement.
As abovementioned, Mr Egan’s statement to the investigator was relied upon by the appellant and I shall return to it when considering the respondent’s evidence.
It is not necessary to refer in detail to the evidence for the appellant for two interlocking reasons.
First, I think it is fair to describe the totality of the appellant’s evidence as a detailed account of bullying and harassment at work, exclusively or chiefly by Ms Beirne. What is spoken of by the appellant amounts to more than the steps taken to appraise and improve his work performance, although it is also fair to say that those matters are mentioned in his statement and in the documents he prepared, and that in para [83] of his statement he acknowledged that the respondent’s HR Department determined that his allegations of bullying were unsubstantiated. Secondly, notwithstanding the more expansive evidence put forward by the appellant, his case was conducted upon the basis that what caused the appellant’s injury was the appellant’s conduct by way of performance appraisal and/or discipline. As abovementioned, this characterisation of the relevant conduct was accepted by the appellant before the Arbitrator.[3] The conduct which amounted to performance appraisal and/or discipline, in my view, was a part of the conduct referred to by the appellant, not the whole of the conduct which he characterised as bullying.
[3] Reasons, [62].
On the other hand, there is no doubt that the evidence relied upon by the respondent was almost wholly an account of action by way of performance appraisal and/or discipline, with the exception of the evidence of Mr Egan. This means that it is both appropriate and necessary to focus on the evidence of the respondent, essentially that of Ms Beirne and Ms Bansal. Consideration of the evidence of Mr Egan is also required.
The evidence of all three of these witnesses is contained in the statements they made to the investigator.
Ms Beirne’s statement
Ms Beirne was appointed the respondent’s Director of Pricing for Life Insurance on 22 May 2017, having been successful in her application for the position over the appellant who also applied for it. Upon securing the position she became his immediate superior. He had previously reported to Mr Andrew Katon. On 1 June 2017, Ms Beirne went on maternity leave and returned to work part-time on 31 October 2017. During her absence Mr Katon was again the appellant’s manager.
On her return from leave, Ms Beirne had a handover meeting with Mr Katon. She learned that the appellant had been the object of some constructive and some negative feedback from a few stakeholders. He was sloppy in some areas such as attention to detail. His messaging needed focus.[4] As she tried to gain an understanding of her team’s needs, she got the impression that the stakeholders were a little anxious about the quality of the work coming from her team. The fellow employees she spoke to who were the source of that feedback told her that it had been passed on directly to the appellant and Mr Katon.[5] Before Christmas 2017, the appellant was awarded a bonus. His evidence was that it was Mr Katon who arranged that, but Ms Beirne’s evidence was that she was involved and that at the same time she passed onto him “… that there was performance feedback that required improvement. I believe I said that more is required from him in a senior manager role.”[6] The appellant questioned this and Ms Beirne “… referred him to go and speak to Andrew and that the focus would be to work on those areas that Andrew had highlighted. The areas were attention to detail, managing the team and attention to deadlines, and managing stakeholder expectation.”[7] Paragraphs [29]–[42] of Ms Beirne’s statement recounted difficulties in the appellant’s work performance as she saw it up until May 2018. Stakeholders were still dissatisfied with the performance of his team. She informed him of that. At a point in time which seems to have been just before May 2018, the appellant mentioned that he was concerned about his mental health. Ms Beirne told him of the availability of an entity known as Access, which offered psychological assistance.
[4] Ms Beirne’s statement 23 October 2018, [22].
[5] Ms Beirne’s statement 23 October 2018, [24].
[6] Ms Beirne’s statement 23 October 2018, [26].
[7] Ms Beirne’s statement 23 October 2018, [28].
It seems that by May 2018, Ms Beirne had determined to implement an Informal Performance Improvable Plan (IPIP) for the appellant. That led to an initial meeting between them on 8 May 2018 which was followed by a number of other meetings.[8] It is apparent from this passage of Ms Beirne’s statement that by June 2018, increasing difficulty was developing between her and the appellant. Things came to something of a head at a meeting on 5 June 2018 when the appellant read a statement to Ms Beirne which was critical and accusatory of her. She thereafter went to her superior, Ms Bansal, and the respondent’s HR Department was consulted. The appellant sent Ms Beirne a statement by email which contained “… a lot less detail of what he had read to [her] in the meeting, but of a similar vein on 6 June”. HR advised that the best course was to extend the performance management and try to address the appellant’s concern. Arrangements were made for him to have an internal support person at the meetings. Ms Bansal offered to fill that role but the appellant did not agree. A meeting took place on 14 June 2018 at which the appellant was supported by an employee of the respondent, Ms Diane Wong. It seems that the meeting went relatively well and Ms Wong “… was quite positive at the outcome of that meeting with [the appellant’s] level of engagement”.[9]
[8] Ms Beirne’s statement 23 October 2018, [44]–[61].
[9] Ms Beirne’s statement 23 October 2018, [62]–[69].
The appellant endeavoured to have “someone external” at the next meeting the following week as his support person. That was not agreed to and the meeting did not take place. At about this time the appellant submitted his complaint against Ms Beirne. As abovementioned it was not successful, and following it Ms Bansal arranged a meeting for 4 September 2018 with the appellant to discuss the outcome of it and the next steps. It seems that Ms Bansal, Ms Beirne and the appellant were at the meeting, agreement was reached and that a further meeting be scheduled for 11 September. The appellant did not attend that meeting. He went off work apparently the day before owing to what I take to be his injury.[10]
[10] Ms Beirne’s statement 23 October 2018, [70]–[76].
Ms Bansal’s statement
Ms Bansal’s statement of 26 October 2018 records that whilst Ms Beirne was on maternity leave, she was on sick leave, Mr Katon was the Acting Director. Upon her return to work she was apparently involved in the meeting with Ms Beirne and Mr Katon which Ms Beirne described in her statement as a handover meeting. Mr Katon reported “… that he had some concerns with [the appellant’s] performance and the level that he was expecting was not the level that [the appellant] was at. [The appellant] came to us with a lot of experience, probably 20 years’ experience, and had a lot of industry knowledge but he wasn’t able to really showcase that. The quality of his work was poor and his engagement with the business was also poor”.
Because of a particular submission put for the appellant, it is desirable to set out paras [25] and [28]–[30] of Ms Bansal’s statement, as follows:
“25. I also got alarming feedback from the business about the quality of [the appellant’s] work. I had a catch up with Tracey Crowe in the first week of coming back to work and she told me how difficult it had been dealing with [the appellant]. Tracey told me the quality of his work was so poor, she had lost total trust in him, and she really needed me to do something about it.
…
28. I had been getting feedback from this [sic] stakeholders and [Ms Beirne] had been getting feedback as well. We had discussed the feedback, discussed putting [the appellant] on informal performance management and I agreed with that approach. They had a few informal coaching sessions.
29. The first time that [the appellant] raised any issues with myself was on 1 June 2018 when he said to me that he felt that he was being harassed by [Ms Beirne] and he didn’t want to continue going through with the PIP and he thought it was an unfair process and it wasn’t working. He never said anything negative to me about [Ms Beirne] before that. I asked [the appellant] why he thought it was unfair and to give me some examples. He was not able to give me an examples [sic] and just kept repeating his statement that it was an unfair process and he wants the performance improvement to stop now otherwise he would make a complaint to HR. I said to him again to give me some examples but he was unable to. I told him that he can if he wishes go to HR and make a complaint and that was absolutely up to him but unless he could give me some sort of idea of what he meant by the performance improvement plan being unfair then it made it very difficult for me to do anything especially as I had received feedback on his performance first hand from his stakeholders.
30. I offered to write an email to his stakeholders and ask her [sic] to provide him with feedback which I did. I then asked Tracey, Andrew and Suzanne to provide [the appellant] with written feedback. Tracey replied back to me that she had done it so many times and provided him with feedback about his work on the errors that he was making. She didn’t know what else to do. Suzanne said she had had a chat to [the appellant] and had very frank discussions with him. He may not have been given written feedback all the time but I’ve been told that he was provided with very clear feedback.”
Then in para [34] Ms Bansal went on:
“34. Suzanne Moody who reports to Tracey also told me that she had provided feedback to [the appellant]. She told me that she had had very frank conversations with [the appellant]. Yvonne and Sue [General Managers] have also said to me that the quality of [the appellant’s] work was not acceptable. I am not really sure how else [the appellant] expects to get feedback. There were so many examples where consistently over a long period of time the quality of his work was really poor and he was not able to manage deliverables for the team and the team was not able to get proper workflow guidance from him, stakeholders had lost trust in him and I’m not sure what else we could do. That’s why we went to performance improvement.”
Ms Bansal’s statement is shorter than Ms Beirne’s, but they are consistent with each other. Consistent with Ms Bansal’s statement are emails put in evidence passing between her and Ms Crowe and her and others referred to as “all”, whom I take to include not just Ms Tracey but Ms Moody and, it seems, an employee whose Christian name was Yvonne.
Mr Egan’s statement
The statement of Mr Egan dated 26 October 2018 is relied upon by both parties and, for that reason, I think warrants detailed consideration. In para [15], Mr Egan says that he was not aware of any complaints about the appellant’s work performance before Ms Beirne returned from maternity leave, but I would take that to mean that he was not privy to the interaction between Mr Katon and the appellant. In paras [16]–[20], he recounts difficulties the whole team, of which he was a member and the appellant was the leader, had in answering to Ms Beirne. There is no suggestion that this involved any performance appraisal or any disciplinary action. Paragraph [21] conveys that Ms Beirne was a forceful person. At para [22], Mr Egan states that on one occasion Ms Beirne spoke to the appellant in a fashion which Mr Egan thought did not show appropriate respect for his senior position. Paragraph [23] recounts that shortly after Ms Beirne returned from maternity leave, the team got “general feedback” that some advice the team had presented to senior management “… wasn’t of quality to give to the business … That was the first negative piece of feedback that the team had received from management. That is the only piece of negative feedback that comes to mind”.
Paras [26]–[33] are as follows:
“26. I have been aware and noticed that [the appellant] has had problems for the last six months. I am not sure if he ever mentioned that he felt stressed but we did talk about the difficult conversations that he was having with [Ms Beirne]. I think there was a point where he wasn’t sure if it was workplace bullying or not. I think we again spoke about his health again [sic] alluding to how his heart rate recorded on a fit bit watch which showed that his heart rate was better when he was off work.
27. I was also aware that [the appellant] was put on an informal PIP. At the time it was more that [Ms Beirne] felt that [the appellant] wasn’t performing in the various areas and a structure was put towards improving those areas. If anything he had a glass half full attitude and he could see that this was where they were and he could come out of it better at the end. If there was [sic] moments of feeling down it was probably more about it not being a nice place to be on a PIP in the first place. It’s hard to separate stress from the negative perception of being on a PIP.
28. I do remember a comment that [Ms Beirne] was asking him to make changes to details of what the team were doing or to have a tighter reign. [The appellant] did put changes to how we operated, getting us to submit what we were working on and so on. Some weeks later he said that he had still got the feedback that the team wasn’t working. He was concerned because he had asked to make changes, he made the changes, and then it wasn’t seen as good enough. I can’t say I say [sic] anything to say that there was a lack of support though.
29. He took a week off for stress in June 2018 I think. I was on holidays at that time myself.
30. I am not sure what triggered [the appellant] to go off work as I was on holidays.
31. [The appellant] returned to work in July I think. I was aware that there was still the question marks over performance and the need to improve but I thought things had gotten better to the point where I know there was that incident before he went off work. Apart from that I wasn’t expecting him taking extended time off work. We had been working on a type of normal flow after he came back from that first time off.
32. Just before he went on that time off in August we had a new girl start in the team, so there was a bit of relieve [sic]. Just before he came back from his leave in August that girl had an accident and had to have a few weeks off so when [the appellant] came back he was doing a different type of work as he had to step into her role and present that work for her. That led to the final incident that I have already mentioned.
33. I don’t think that [Ms Beirne] thinks she was wrong in her expectations. A clash of personalities could be a factor as well.”
My interpretation of Mr Egan’s evidence as contained in his statement is that it is not entirely dependent upon what he was told by the appellant about the appellant’s contact with Ms Beirne. That emerges with reasonable clarity from paras [16]–[20] and especially paras [21] and [22]. But the passage from his statement set out immediately above is to my mind the most informative and important aspect of his evidence. It puts the onset of the appellant’s “problems” more or less chronologically at the time the improvement program was imposed upon the appellant; it is concerned with the appellant’s reaction to it, the reference to “difficult conversations” being in my view a reference to the scheduled meetings that were the apparent essence of the program; and it is evidence derived exclusively or almost exclusively from conversations Mr Egan had with the appellant. In my view, paras [26]–[33] of Mr Egan’s statement provide support for the respondent’s case, which support comes from him entirely or substantially via the appellant himself.
This last matter is relevant to the Arbitrator’s commentary upon Mr Egan’s evidence, as I shall mention below in dealing with the appellant’s submissions.
THE ARBITRATOR’S DECISION
Following his review and analysis of the evidence, the Arbitrator, as indicated in the Introduction hereto, held that the respondent had demonstrated that its conduct was reasonable. In so deciding, the Arbitrator clearly accepted and acted upon the evidence of Ms Beirne and Ms Bansal.
In reaching that view, one particular part of his reasoning process involved his saying that the evidence of Mr Egan was in effect, derivative of statements to Mr Egan by the appellant.
GROUNDS OF APPEAL
The appellant advances six grounds of appeal which I shall set out below, but it will be immediately apparent that there is much overlap among them:
(a) The Arbitrator erred in that he failed to properly assess the evidence of Declan Egan when he found that his evidence was only evidence “relayed to him from (the appellant)” (Paragraph 42 of reasons) (Ground one).
(b) The Arbitrator erred by not giving weight to the contemporaneous emails of the appellant to the HR department (Ground two).
(c) The Arbitrator erred in weighing up the evidence of reasonableness of the respondent’s actions towards the appellant (Ground three).
(d) The Arbitrator erred in accepting that complaints by clients were made about the appellant when no direct evidence of such complaints existed (Ground four).
(e) The Arbitrator failed to properly apply the burden of proof in assessing the evidence that gave rise to the respondent’s 11A (sic) defence (Ground five).
(f) The Arbitrator erred in finding for the respondent (Ground six).
I regard Grounds three, five and six as stating the same proposition in different ways, that proposition coming down to an assertion that the Arbitrator erred in holding upon the evidence that the respondent had discharged its onus. The remaining grounds could be subsumed in that proposition as well, but I think they raise separate questions as to the Arbitrator’s treatment of some particular features of the evidence and I will deal with them separately.
SUBMISSIONS AND DISCUSSION
Ground One
As to Ground one, the appellant submits that the Arbitrator’s view that Mr Egan’s evidence should be accorded less weight than that of other witnesses because he was recounting what the appellant told him, was not correct. That submission is supported by specific reference to paras [16] and [17] of Mr Egan’s statement and a brief outline of some of the content of his statement.
In response, the respondent also noted some of the content of Mr Egan’s evidence, and stressed one aspect in para [19] of its written submissions, which it is not necessary to repeat, but essentially pointed out that before the Arbitrator, it was conceded that much of Mr Egan’s evidence came from discussions with the appellant (para [15]); that some of the factual matters referred to in the appellant’s written submissions were not put to the Arbitrator (paras [16] and [17]) and that, in any event, the Arbitrator’s evaluation of the evidence of Mr Egan was not erroneous (para [20]) or alternatively, if given greater weight, would have made no difference (para [21]).
As indicated in para [36] above, not all of Mr Egan’s evidence was a statement of things he had been told by the appellant himself. The appellant’s submission is correct to that extent, but in my opinion, it goes no further. This is because the parts of his statement which clearly are based upon direct observation are not concerned with the relevant action by way of performance appraisal and/or discipline. They constitute a description of Ms Beirne’s manner or style of dealing with subordinates, including the appellant. Additionally, they seem to concentrate upon a period of time leading up to the implementation of the performance plan. The case was not put upon the basis that those things caused the appellant’s injury. The respondent is correct in noticing in its written submissions that in raising them, the appellant is departing from the way the case was conducted before the Arbitrator. Moreover, I think one can properly take from all the evidence, including Mr Egan’s evidence, that the appellant’s injury developed following the implementation of the performance program, and that it was a correct forensic decision, arrived at independently it seems by both parties, to contest the case upon the basis that it was the respondent’s action in conducting the performance program, that is, the reasonableness of the conduct of the program, which was critical.
Again, as mentioned in para [38] above, Mr Egan’s evidence on that matter was not personal observation but was a recitation of what he was told by the appellant. If the Arbitrator’s comment in para [42] of his reasons is read as referable to Mr Egan’s evidence about what he was being told by the appellant of the appellant’s meetings with Ms Beirne which formed part of the performance program, there is no difficulty, but at the same time, if it is accepted that the Arbitrator’s comment is inaccurate in absolute terms, I would agree with the thrust of both paras [20] and [21] of the respondent’s written submissions. It follows that this ground fails.
Ground Two
As to Ground two, the appellant submits that only senior management, and not the members of the team headed by the appellant, were asked to comment on his detailed grievance reports. It was further put that given the detailed nature of the document, the Arbitrator’s reliance on the evidence of senior management “… does not constitute a true weighing up of the evidence on reasonableness.”
It appears that the grievance report was made by email, but it is the only email referred to in the appellant’s submissions on this ground notwithstanding the reference to “contemporaneous emails” in the plural in the ground itself.
In response, the respondent submits that this ground is irrelevant and puts that in any event it was not advanced before the Arbitrator as an argument. It is further put that the grievance was dismissed when internally investigated and that it was a reflection of the appellant’s own view of the conduct of his manager constituting the conduct of the performance improvement plan. Finally the respondent submits in para [25] of its written submissions that even if this ground were seen as having substance, it would not affect the decision of the Arbitrator because there was no evidence that it in effect carried over into and significantly influenced consideration of the real issue, namely the issue of the reasonableness of the conduct of the performance improvement plan.
In my view, the submissions of the respondent are correct in saying that this ground was not part of the appellant’s case before the Arbitrator, and that in any event, there was nothing to suggest that the way this grievance was dealt with relevantly affected the performance appraisal or disciplinary action which the performance improvement plan constituted.
This means, in my view, that this ground must fail, but in any event, I do not think it is at all clear that when the appellant’s grievance report was dealt with only senior management were consulted. I think that the idea that only senior management were consulted is probably inspired by the fact that the investigator took statements from senior management with the exception of Mr Egan, in this connection “senior management” being represented by Ms Bansal and Ms Beirne. It is perhaps inspired further by the fact that the content of Ms Bansal’s statement in particular refers to her discussions with other people who probably were senior to Mr Egan and the members of the appellant’s team. This ground fails.
Ground Four
As to Ground 4, the essential point put by the appellant is that the only direct evidence of complaint about the appellant’s performance from “stakeholders” was an email from Ms Tracey Crowe. This was not sufficient to justify the implementation of an informal performance improvement plan.
In response, the respondent puts that it is not a correct statement of the evidence to say that the email from Ms Crowe was the totality of the evidence.
In my opinion there can be no doubt that the respondent is correct. True it is that Ms Crowe’s email is the only documentary evidence. But as indicated above, the statements of Ms Beirne and Ms Bansal contain a number of references to their being told by others that there was dissatisfaction with the appellant’s performance. As the respondent submits in para [32] of its written submissions, the statement of Mr Egan can be read as reflective of that as well.
It is implicit in the appellant’s submissions on this ground that the relevant information which came to the attention of Ms Beirne in particular was hearsay and may not have been admissible before a court or tribunal bound by the rules of evidence. It is trite that the Commission is not so bound and in any event the way the evidence of what prompted the implementation of the performance improvable plan emerged in this case before the Arbitrator does not involve any serious question of its cogency or reliability. This ground fails.
Grounds Three, Five and Six
As to Grounds three, five and six, these remarks may be made at the outset.
First, as supported in his written submissions, Ground three really depends upon Grounds one and two: see para [2] of the appellant’s written submissions under Ground three. The respondent, appreciating this, repeats its submissions in relation to the first and second grounds of appeal: see para [27] of the respondent’s written submissions.
Secondly, in addition to repeating that the appellant’s team was not consulted in paras [2] and [3] of his written submissions under Ground three, the appellant puts in the second sentence of para [2] a proposition that relates to Ms Beirne’s qualifications that is difficult to understand. I take it to be a submission that Ms Beirne did not have the skills necessary to supervise the appellant’s team and conduct or carry out a performance improvement program or plan with the appellant himself.
In response, the respondent puts that the evidence, especially that of Ms Beirne and Ms Bansal, shows that there is no substance in this argument of the appellant’s.
In my view that is correct. The Arbitrator’s reasons cannot, with all respect to the appellant, be read without seeing that he did consider the reasonableness of the respondent’s action, and that specifically as to why it was implemented and how it was implemented. The evidence of Ms Beirne and Ms Bansal which the Arbitrator considered showed these things:
(a) that they received input or feedback from “stakeholders”;
(b) that there was consultation between the two of them;
(c) that there was consultation with Mr Katon and with the HR department;
(d) that the contact with stakeholders extended to discussion about what could be done regarding the appellant with the involvement of stakeholders, and
(e) that before the implementation of the performance plan attempts had been made by direct contact with the appellant to have him improve his performance
To the extent that a rolled up consideration of Grounds three, five and six requires consideration of the merit of Ground three, in my view, it fails and therefore does not assist the appellant in respect of any cumulative impact of these three grounds.
The balance of the appellant’s argument may be dealt with shortly. As abovementioned, it was common ground that the onus lay upon the respondent. As I read the appellant’s written submissions, what is put in paras [1]–[4] of his written submissions under Ground five is that in effect the Arbitrator, by not apparently saying more clearly in his reasons where the onus lay, did not apply the onus correctly and that his treatment of the evidence shows that in fact his decision-making process involved a reversal of the onus of proof.
Again, with all respect to the appellant, I can see nothing in the Arbitrator’s reasons to justify this criticism and I think the response of the respondent in para [35] of its written submission, which was in essence that the Arbitrator understood that the respondent bore the onus of proof and was satisfied it had been discharged by the respondent, puts the position correctly. Thus this ground, considered individually, fails.
Ground six of the Grounds of Appeal adds nothing to Grounds three and five, and for the reasons given above, when these grounds are rolled up and considered collectively, they must fail.
DECISION
Upon this appeal, in order to succeed the appellant carried the onus of demonstrating that the Arbitrator erred in fact, law or discretion in such a way as to impugn his decision.[11] As will be apparent from comments and conclusions I have expressed above in my analysis of the evidence and the submissions upon the grounds of appeal, the Arbitrator’s decision was correct.
[11] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156.
Accordingly, the Arbitrator’s Certificate of Determination of 1 November 2019 is confirmed.
Larry King SC
ACTING DEPUTY PRESIDENT
29 April 2020
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