Haywood and Comcare (Compensation)
[2016] AATA 667
•31 August 2016
Haywood and Comcare (Compensation) [2016] AATA 667 (31 August 2016)
Division
GENERAL DIVISION
File number
2014/5839
Gregory Haywood
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member Date 31 August 2016 Place Canberra Comcare’s decision on 5 September 2014 is affirmed.
..............................[sgd]..........................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Applicant suffered psychological condition as result of counselling session — whether counselling session was reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment — decision under review affirmed.
PRACTICE AND PROCEDURE — whether counselling session tainted by bias — no actual bias — content of rules of procedural fairness that apply to counselling session — whether fair-minded observer could reasonably apprehend that decision maker did not bring an impartial mind to decision to counsel Applicant — no apprehended bias.
LEGISLATION
Public Service Act 1999, ss 13, 15
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 7(4), 14
CASES
Comcare v Martinez (No 2) (2013) 212 FCR 272
Deal v Kodakkathanath [2016] HCA 31
Drenth v Comcare (2012) 128 ALD 1
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Isbester v Knox City Council (2015) 255 CLR 135
Kioa v West (1985) 159 CLR 550
Lim v Comcare [2016] FCA 709
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Smith v Comcare (2013) 212 FCR 335
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
REASONS FOR DECISION
Dr James Popple, Senior Member
31 August 2016
Summary
The applicant had a meeting with his supervisor and two other people who also worked at what was called (at the time) the Department of the Environment (the Department). At that meeting, the applicant was counselled about what the Department called his inappropriate workplace behaviour. Comcare concedes that the applicant suffered an adjustment disorder as a result of that counselling session, and that his condition is a “disease” for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
However, the counselling session—and what the applicant’s supervisor and another person did at the counselling session—was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay him compensation.
Background
Mr Gregory Haywood worked for the Department. On 9 December 2013, he made a claim for compensation for “anxiety disorder (or similar)”. On 7 April 2014, Comcare denied that it was liable to pay him compensation under s 14 of the SRC Act for what it characterised as “adjustment reaction with mixed emotional features”.
On 4 July 2014, Mr Haywood requested a reconsideration of that determination. On 5 September 2014, Comcare affirmed its determination.
On 11 November 2014, Mr Haywood applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.
Decision under review
The decision under review is Comcare’s decision on 5 September 2014 to affirm its determination that Comcare is not liable to pay compensation to Mr Haywood.
Issue
Comcare concedes that Mr Haywood suffered an adjustment disorder which was contributed to, to a significant degree, by his employment by the Department. That means that his condition is a “disease” as defined in s 5B of the SRC Act.
Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.
The issue in this review is whether Mr Haywood’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. If it was, it is excluded from the definition of “injury” in s 5A, and Comcare is not liable to pay him compensation. If it was not, Comcare is liable to pay him compensation under s 14.
The parties agree that, if Mr Haywood’s disease is an injury for the purposes of the SRC Act, the date of that injury is 24 July 2012—the date when he first sought medical treatment for the disease.[1]
[1] See SRC Act, s 7(4). In Smith v Comcare (2013) 212 FCR 335 the Full Court of the Federal Court explained that the question of liability under s 14 should be decided before considering the potential operation of s 7(4): at 342 [34] per Buchanan J, with whom Greenwood J agreed (at 336 [1]); and at 346–347 [54] per Bromberg J. This is because, if the condition is excluded under s 5A, there is no injury for the purposes of the Act and, therefore, no injury for s 7(4) to apply to.
People involved
I have before me statements from the following people who worked for the Department at relevant times:
·Mr Haywood, who worked in the Department’s International Wildlife Trade Section (the IWT);
·Ms Joanne Beath, who was head of the IWT and Mr Haywood’s supervisor;
·Ms Deb Callister, who was head of the Wildlife Branch and Ms Beath’s supervisor;
·Ms Nina Thappa, who was a colleague of Mr Haywood’s in the IWT, and had acted as head of the IWT for three months before Ms Beath took up the position;
·Ms Melinda Pearce, who was a colleague of Mr Haywood’s in the IWT, but worked in a different team to Mr Haywood;
·Mr Wes Spencer, who was acting head of the Department’s Environment Investigation Unit (the EIU) and, later, was head of the Department’s Professional Standards Section (the PSS); and
·Ms Elizabeth Oliver, who was a union delegate.
All of these people, except for Ms Thappa, gave evidence at the hearing. Another person also gave evidence at the hearing:
·Mr Matthew McCorry, who worked in the IWT and was supervised by Mr Haywood.
The following person was involved in events relevant to this review, but did not provide a statement or give evidence at the hearing:
·Mr Paul Monagle, who worked in the Department’s human resources area.
In his compensation claim form, Mr Haywood gave the following as the cause of his injury:
I was subjected to a code of conduct counselling session and was pressured by Mr Wes Spencer to sign a 5 page document I had never previously seen to acknowledge my alleged wrongdoing which included false accusations by Ms Beath.
The “code of conduct counselling session”—what I will call the counselling session—occurred on 6 July 2012. Mr Haywood, Ms Beath, Mr Spencer and Ms Oliver were present at the counselling session. What happened at the counselling session, and in the lead up to the counselling session, is crucial to this review. The parties agree that the counselling session was a cause of Mr Haywood’s disease. Comcare says that the counselling session (and what Ms Beath and Mr Spencer did at the counselling session) was reasonable administrative action taken in a reasonable manner in respect of Mr Haywood’s employment. It is not completely clear to me, but I think that Mr Haywood does not say that there was any other cause of his disease apart from the counselling session.[2] In any event, if only one cause of a disease satisfies the exclusion in s 5A(1) of the SRC Act, the exclusion applies and the disease is not an “injury”.[3]
[2] See [118] below.
[3] See Drenth v Comcare (2012) 128 ALD 1 at 7 [29] per Rares, McKerracher and Murphy JJ.
Before the counselling session: findings about evidence generally not contested
I make the findings set out in [14]–[44] below, on the balance of probabilities. These findings are based on the evidence before me, especially statements made by the people listed at [11] above, and evidence that they gave at the hearing. These findings are generally not contested.
Mr Haywood started working for the Department in 2003. He worked in the IWT from February 2006 until August 2012. The IWT was responsible for the regulation of the import and export of wildlife and wildlife products. At relevant times, Mr Haywood led a team within the IWT that was responsible for compliance and enforcement.
Mr Spencer worked in the EIU from October 2008 until May 2009. During that time, Mr Haywood had some dealings with the EIU.
Ms Beath became Mr Haywood’s supervisor on 14 November 2011. Their relationship was (initially, at least) friendly and professional.
Unless otherwise indicated, dates specified in the remainder of these reasons for decision are dates in 2012.
On 12 January, Ms Beath conducted Mr Haywood’s annual mid-cycle performance review. Ms Beath rated Mr Haywood’s performance as “good”.
On 31 January, at the beginning of a meeting with Mr Haywood and Mr McCorry, Ms Beath recounted a joke that she had heard on television the night before. Comcare concedes that the joke was inappropriate. Mr Haywood found the joke offensive, and later made a note about it in his diary. He asked Mr McCorry to make a note, too. Mr McCorry had not taken offence, but made a diary note. Ms Beath must have sensed that the joke had not been well received. She also made a note about it in her diary, and later mentioned it to her supervisor, Ms Callister.
On 8 February, at an IWT section meeting, Ms Beath made a statement about the effect of particular legislation on the work of the IWT. Mr Haywood’s view was that Ms Beath had misinterpreted the legislation, and he expressed this view at the meeting. The next day, Mr Haywood sent an e-mail to IWT section staff, reiterating his view and copying relevant provisions of the legislation.
On 1 March, the IWT was restructured.
On 7 March, a person from the EIU sent an e-mail to Ms Pearce (who worked in the IWT) with a link to a news item about a rare animal. The e-mail asked whether those animals would be listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Ms Pearce replied the same day, explaining how the CITES process would apply to those animals. On 19 March, the person in the EIU who had initiated the enquiry e-mailed Ms Pearce saying that it had been “a bit of a joke query” but thanking her for her prompt response. Mr Haywood raised the matter with Ms Beath. She discussed it with the initiator of the enquiry, who (on 23 March) sent her an e-mail explaining that the enquiry had been light-hearted, and not intended to trivialise the importance of the work of the IWT. Ms Beath forwarded that e-mail to Mr Haywood and Ms Pearce.
On 8 March, Ms Beath met with Mr Haywood, and discussed concerns she had about a letter that the IWT had sent without specifying a deadline for the recipient’s response.
On 20 March, Mr Haywood and Ms Pearce met with Mr Monagle from the Department’s HR area. They raised with him concerns they had with Ms Beath’s management of the IWT. Mr Haywood prepared a document, which he gave to Mr Monagle, which set out his concerns under three headings. Under “judgement”, he referred to the joke that Ms Beath had told (see [19] above) and to two other issues. Under “competence” he set out what he says were examples of Ms Beath not competently performing her role. (Ms Beath’s judgment and competence are not relevant per se to this review, and I make no findings about them.)
In the document that he gave to Mr Monagle, under the heading “vindictiveness/bullying”, Mr Haywood:
·raised the issue about the interpretation of legislation (see [20] above and [51] below);
·raised the issue about the letter sent without a specified deadline for response (see [23] and [57]);
·referred to the initiation of an “internal audit” of all of his cases (see [30] and [62], about the “peer review”); and
·claimed that Ms Beath was generally not appreciative of his contributions to meetings etc., and dismissive and rude about those contributions (see, for example, [50] and [53] below).
On 20 or 21 March, Mr Monagle rang Ms Callister and told her of the discussion he had had with Mr Haywood and Ms Pearce. On 21 March, he e-mailed Mr Haywood and Ms Pearce to advise them that he had spoken to Ms Callister, and that she wanted to talk to them about their concerns.
On 23 March, Mr Haywood met with Ms Callister.
On 29 March, Mr Haywood met with Ms Beath. They discussed an upcoming recruitment process that Mr Haywood was to conduct. Mr Haywood thought that the advice that Ms Beath gave him about that process, which he saw as “standard procedural work”, suggested that she thought that he was not performing at an appropriate level. He asked her whether that was her view; she assured him that it was not.
On 30 March, Mr Haywood met with Ms Beath again. Mr Haywood referred to this as the “clear the air” meeting.
On 3 April, Ms Beath sent an e-mail to Mr Haywood. The e-mail was about a forthcoming “peer review” of the IWT’s compliance and enforcement responsibilities. Ms Beath set out what she thought the review would involve, and asked Mr Haywood whether there was any other aspect that he would like covered by the review. Mr Haywood gave Ms Beath his comments on the peer review process on 12 April.
On 20 April, Mr Haywood met with Ms Beath. He went on planned leave the next day, returning to work on 4 June.
On 5 June, Ms Pearce and another IWT staff member complained to Ms Beath about Mr Haywood’s behaviour towards an IWT staff member. Ms Beath spoke to Mr Haywood about the complaints, and also raised with him a conversation she had overheard him having with another staff member the day before. Later that day, Ms Beath forwarded the e-mailed complaints to Mr Spencer and Ms Callister. Mr Spencer passed the complaints to two other staff of the PSS, and asked them to make preliminary inquiries and make a recommendation to him about future action.
On 7 June, staff of the PSS discussed with Ms Beath the complaints about Mr Haywood’s behaviour.
On 18 June, Mr Haywood met with Ms Beath. Ms Beath asked Mr Haywood to hold regular meetings which included all of his team members. Mr Haywood questioned the utility of all of his team attending those meetings.
On 21 June, Mr Haywood chaired an IWT section meeting. Mr Haywood met with Ms Beath later that day.
On 22 June, Mr Haywood and Ms Beath had a discussion in the general office area, within the hearing of some other IWT staff. They discussed legal advice that Mr Haywood had obtained on behalf of the IWT from the Department’s legal area, and the circumstances in which it had been obtained.
On 22 June, or at an earlier meeting, Ms Beath observed that Mr Haywood would sometimes refer to members of his team by their surnames. Ms Beath told him that she thought that that was inappropriate. Mr Haywood says that he did this only with colleagues whom he knew well and had worked with for a long time.
On 25 June, Ms Beath sent several e-mails to the PSS staff whom she had met with on 7 June. Her e-mails detailed concerns that she had, and that had been expressed to her, about Mr Haywood’s behaviour.
Also on 25 June, Mr Haywood met with Ms Beath. They discussed their 22 June meeting.
At their 21 June meeting or at their 25 June meeting or at both, Ms Beath told Mr Haywood that staff had complained about the way he had chaired the IWT section meeting on 21 June.
On 4 July, Mr Haywood met with a member of his team. Some other IWT staff, who overheard their discussion, told Ms Beath that Mr Haywood had behaved aggressively.
Sometime between 25 June and 5 July, staff of the PSS recommended to Mr Spencer that the issues raised about Mr Haywood’s behaviour did not warrant a formal APS Code of Conduct[4] investigation. Instead, they recommended that Ms Beath and Mr Spencer formally counsel Mr Haywood about his behaviour. The PSS prepared notes for the counselling session. These notes later became the counselling session record.[5]
[4] The APS Code of Conduct is set out in s 13 of the Public Service Act 1999. The Code imposes obligations on APS employees (people engaged under the Act).
[5] See [70] and following, below.
On 5 July, Mr Haywood met with Ms Beath. They discussed the meeting on 4 July. Mr Haywood denied that he had behaved inappropriately.
Also on 5 July, Ms Beath scheduled the counselling session for the following day. She sent an electronic meeting request to Mr Haywood, which included the following:
As discussed with you, management now have some significant concerns regarding your behaviour and conduct in the workplace. Management has decided to formally meet with you to discuss what is considered by management to be a pattern of inappropriate workplace behaviour—specifically a lack of respect and courtesy towards your colleagues.
During this meeting these issues will be discussed in more detail and you will be given an opportunity to respond. I anticipate that one of the outcomes of this meeting will be that you will be counselled regarding your inappropriate behaviour and you will be reminded of your obligations and responsibilities as an APS employee.
The meeting request also advised Mr Haywood that Ms Beath and Mr Spencer would be at the counselling session; that Mr Haywood could bring a support person, if he wished; and that his attendance was compulsory.
Before the counselling session: findings about contested evidence
As noted above, the findings that I have made to this point are generally not contested. Other aspects of the events leading up to the counselling session are contested.
Mr Haywood says that Mr Spencer was biased against him before and at the counselling session. He says that there was a meeting in March 2009 between officers from the IWT (including him) and officers from the EIU (including Mr Spencer). He says that, at that meeting, Mr Spencer was disrespectful of the IWT’s role. He says that the relationship between the two sections—and between him and Mr Spencer—was strained. Ms Callister confirmed that the relationship between the two sections had been strained at one point, but she did not recall Mr Spencer being involved. Mr Spencer says that he has no recollection of meeting with Mr Haywood in March 2009. Mr Spencer did not recall having had many dealings with Mr Haywood when he was working in the EIU, and he said that he had not spoken with Mr Haywood between leaving the EIU (in May 2009) and the counselling session (more than three years later). As I explain below,[6] I do not think that a finding that Mr Spencer had a low opinion of Mr Haywood or his work supports Mr Haywood’s argument in the way that he contends. In any event, I accept Mr Spencer’s evidence that he did not have any recall of any previous dealings he may have had with Mr Haywood before the counselling session: I find, on the balance of probabilities, that Mr Spencer did not have any opinion of Mr Haywood’s work or work capacity when he received Ms Beath’s e-mail (on 5 June) about Mr Haywood.
[6] See [67] below.
One of the PSS staff who assisted Mr Spencer to prepare for the counselling session had earlier worked in the Wildlife Branch and, like Mr Spencer, had also worked in the EIU. Mr Haywood says that there was at least an apprehension that she, too, was biased against Mr Haywood. If I understand Mr Haywood’s argument correctly,[7] the basis for this apprehension of bias is the fact that there was a strained relationship between the IWT and the EIU in 2009. I do not find that that member of the PSS staff held any opinion about Mr Haywood before Mr Spencer asked her (and a colleague) on 5 June to make preliminary inquiries and a recommendation.
[7] See [118] below.
Ms Beath says that, before she conducted Mr Haywood’s mid-cycle performance review on 12 January, she consulted Ms Thappa. Ms Thappa had supervised Mr Haywood for three months before Ms Beath became head of the IWT. Ms Beath’s diary note of that discussion indicates that Ms Thappa had told her that Mr Haywood had a “previous history with EIU”, “doesn’t like change”, had “fixed ideas” and was “rigid in [his] work ways”. The diary note also indicates that Ms Thappa had said of Mr Haywood: “sometimes the way he speaks to people”, the clear implication being that he did not always speak to people appropriately.
Mr Haywood says that nothing of substance that was critical of him was raised at the performance appraisal on 12 January. Ms Beath says that she raised concerns she had about his body language and his general behaviour in the workplace, which she had observed. I find, on the balance of probabilities, that Ms Beath did raise these concerns with Mr Haywood on 12 January, which is consistent with the notes that she took of her conversation with Ms Thappa before the performance review.
On 19 January, Mr Haywood and Ms Beath discussed a proposal to restructure the IWT. Mr Haywood points to Ms Beath’s diary note for that day, and what he says is Ms Beath’s comment that he “does lots of babe level stuff”. Mr Haywood did not become aware of this diary note until after he made his compensation claim, so the comment cannot have contributed to his disease. But, he says that the comment is indicative of the low opinion that Ms Beath had of his work, and her behaviour in the counselling session would have been affected by that opinion. Ms Beath says that her diary note reflects the fact that Mr Haywood had requested that the restructure of the IWT result in his team gaining an extra resource to do the “base level” (not “babe level”) work that he was doing. At the hearing, Ms Beath denied that she did not have a high opinion of the work that Mr Haywood did or the way he did it. As I explain below,[8] I do not think that a finding that Ms Beath had a low opinion of Mr Haywood’s work supports Mr Haywood’s argument in the way that he contends. In any event—and whether Ms Beath wrote “babe level” (whatever that might mean) or “base level”—I find, on the balance of probabilities, that her diary note on 19 January is a reference to Mr Haywood’s request for extra staff to do some of his team’s more mundane work: it is not evidence that Ms Beath had a low opinion of Mr Haywood’s work or work capacity.
[8] See [67] below.
Mr Haywood says that Ms Beath reacted negatively to what he said at the IWT section meeting on 8 February about the effect of particular legislation. He also says that she later asked him why he had contradicted her at the meeting. Ms Beath denies having reacted negatively to Mr Haywood’s comments at the meeting, or to the e-mail that he sent to IWT section staff the next day. It does not matter who was right about the proper interpretation of the legislation.[9] And I do not need to make a finding about whose version of events is the more accurate. As I explain below,[10] I do not think that a finding that Ms Beath reacted negatively would support Mr Haywood’s argument in the way that he contends.
[9] Whether Mr Haywood or Ms Beath had correctly interpreted the legislation is not relevant to the question whether Mr Haywood’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment: see Lim v Comcare [2016] FCA 709 at [12]–[13] per Flick J.
[10] See [67] below.
On 9 February, Mr Haywood and Ms Beath and others attended a meeting between the IWT and the EIU. Mr Haywood says that the then director of the EIU (not Mr Spencer, who was by this time head of the PSS) told Mr Haywood to “shut up”. He says that Ms Beath did not respond to this. He says that, as his supervisor, Ms Beath should have supported him. At the hearing, Ms Beath did not recall Mr Haywood being told to “shut up” at the meeting. I make no finding on this point. Again, as I explain below,[11] I do not think that a finding that Ms Beath did not support Mr Haywood at this meeting would support his argument in the way that he contends.
[11] See [67] below.
Mr Haywood says that, on 15 February, Ms Beath told the weekly IWT section meeting that the work that he was doing was “not exactly rocket science”. At the hearing, Ms Beath did not recall having said this, and did not believe that she would have said this. If Ms Beath did use those words, then there are two possibilities: either she did not have a high opinion of the complexity of the work that Mr Haywood was doing, or she was joking. Mr Haywood did not think that she was joking. He says that her remark demonstrates that she had a low opinion of his work. As I have already noted,[12] Ms Beath denied, at the hearing, that she did not have a high opinion of that work. As I explain below,[13] I do not think that a finding that Ms Beath did say that Mr Haywood’s work was “not exactly rocket science” supports his argument in the way that he contends. In any event, I find, on the balance of probabilities, that either Ms Beath did not use those words at the meeting on 15 February, or (if she did use them) she did not use them seriously: this is not evidence that Ms Beath had a low opinion of Mr Haywood’s work or work capacity.
[12] See [50] above.
[13] See [67] below.
Mr Haywood says that, on 21 February, he and Ms Pearce met with Ms Beath to discuss concerns that he and Ms Pearce shared about Ms Beath’s leadership of the IWT. He says that he and Ms Pearce raised their concerns in a positive way, and focused on how staff of the section could all work better together. He says that he found Ms Beath reasonably receptive to the concerns raised. Ms Pearce generally corroborated Mr Haywood’s account of the meeting though, at the hearing, she agreed that there was nothing exceptional about the discussion “other than the fact that [they] were talking about work in play and work issues” (which I would have thought was also unexceptional). Ms Beath says that she does not recall this particular meeting, and that she does not remember any discussion with Mr Haywood or Ms Pearce in the first half of 2012 in which they were critical of her performance or behaviour. I find that the three of them did meet on 21 February: the evidence is that they met several times in this period. I also find that Mr Haywood and Ms Pearce raised concerns at that meeting. But I think it likely—and I find—that they raised their concerns in an oblique way, and that Ms Beath did not realise that they were being critical of her. In making that finding, I do not intend to criticize Mr Haywood, Ms Pearce or Ms Beath.
Mr Haywood says that, after the restructure of the IWT on 1 March, his workload greatly increased. Comcare denies this. I do not have to make a finding on this point: I do not think that Mr Haywood argues that the increase in his workload (if there was one) was a cause of his disease.[14]
[14] But see [118] below.
Mr Haywood says that the CITES enquiry (on 7 March) was a prank, perpetrated on the IWT by the EIU. He also says that Ms Beath took too long to raise the matter with the EIU. This, he says, was another example of Ms Beath not adequately supporting IWT staff. I am not convinced that the CITES enquiry was a prank, or that it required any response from Ms Beath. I think that her response (detailed at [22] above) was at least as much, and as timely, as the circumstances required. It follows that I do not think that Ms Beath’s response is evidence that she was not supportive of the work of Mr Haywood or of the IWT.
Ms Beath made a note in her diary about her meeting on 8 March with Mr Haywood. She noted that he “did not like that I raised this issue with him”. (The issue was the letter that had been sent without a deadline specified.) She wrote that Mr Haywood was:
… huffing and puffing—bad body language and stomping foot down, not happy. I said he needs to have a hol [holiday] and decide if he wants to work here—because he said last 2 directors were happy with him, I said he does a good job, he said he does an excellent job. … He was then rude. I asked him not to get snippy with me.
At the hearing, Mr Haywood denied that he huffed, puffed or stomped his foot. He did not recall Ms Beath having suggested that he take a holiday. He did recall Ms Beath asking him not to get snippy, or words to that effect. Mr Haywood says that Ms Beath told him that, if she had received a letter like the one they were discussing, “she would throw [it] straight in the bin”. He says that this was discourteous to him, and led him to believe that Ms Beath was “trying to identify some sort of incompetence in the compliance and enforcement regime that [he] was responsible for”. I do not need to make a finding about Mr Haywood’s behaviour at this meeting: it was not raised as an issue at the counselling session. I also do not need to make a finding about Ms Beath’s behaviour at this meeting: as I explain below,[15] I do not think that a finding that Ms Beath was looking for fault in how Mr Haywood performed his work supports his argument in the way that he contends.
[15] See [67] below.
Mr Haywood says that, at their 23 March meeting, Ms Callister told him that she had spoken to Ms Beath about the issues he and Ms Pearce had raised with Mr Monagle. Ms Callister says that she told Mr Haywood that she had not then spoken to Ms Beath about those issues, but that she would discuss them with her. Ms Callister says that she discussed those issues with Ms Beath sometime afterwards “as part of the standard informal performance management that is ongoing between supervisors and the employees they supervise”.
Ms Pearce says that Ms Beath came into her office on 20 March, to discuss the issues that she and Mr Haywood had raised with Mr Monagle. Ms Beath says that that conversation happened on 4 May. Ms Beath says that Ms Pearce told her that she regretted having gone with Mr Haywood to speak with Mr Monagle; Ms Pearce does not recall saying that. Ms Beath says that Ms Pearce told her that she was surprised by what Mr Haywood had said at the meeting with Mr Monagle; Ms Pearce denies having been surprised, and says that it is unlikely that she told Ms Beath that she was. I find, on the balance of probabilities, that this meeting happened on 4 May and not on 20 March: there is no evidence that Mr Monagle contacted Ms Beath before Ms Callister talked with Ms Beath about the issues raised, and Ms Callister says that that happened after 23 March. I make this finding, notwithstanding that there is a note in Ms Pearce’s diary dated 20 March. I think that that was dated in error. I make no finding about whether Ms Pearce had recanted from the complaints that she and Mr Haywood had made to Mr Monagle: the veracity of those complaints is not relevant to this review.
Mr Haywood and Ms Pearce each say that Ms Beath changed in the way that she behaved towards them after she learnt that they had complained about her to Mr Monagle. I think that is likely and, in the circumstances, understandable. I do not think it reflects badly on Ms Beath that she did so. I have made no finding about the veracity of their complaints. But I do not think it reflects badly on Mr Haywood or Ms Pearce that they raised their concerns with Mr Monagle.
There are differences of opinion between Mr Haywood and Ms Beath about what they discussed at their “clear the air” meeting on 30 March—or, more precisely, about how to best characterise their discussion. Mr Haywood says that they talked about Ms Beath’s management style; Ms Beath says they discussed their working relationship. I accept Ms Beath’s evidence on this point, though I note that there is only a slight difference between her account and Mr Haywood’s.
Mr Haywood says that the peer review process (about which Ms Beath sent him an e-mail on 3 April) was actually an internal audit of his work. Mr Haywood’s view is understandable, given that the peer review was to focus on work that was performed by him and people reporting to him. However, Ms Beath says that the review “was in no way aimed specifically at [Mr Haywood] and nor was there any intention for it to be viewed as being critical of his work”. Ms Callister agrees. Ms Beath also says that the review “was in no way related to [Mr Haywood’s] complaint about [her] behaviour” and that she had “scoped the peer review before [she] became aware that [Mr Haywood] had made a complaint”. I accept Ms Beath’s evidence on both of these points. A manager new to an area—Ms Beath had been managing the IWT for 4½ months by this stage—could be expected to have ideas about how things might be done more efficiently, and might sensibly seek advice about processes from another area of the Department. That is what Ms Beath says she was doing by instigating the peer review process. Ms Callister says that the peer review was initiated in March–April. It is certainly plausible that Ms Beath had started “scoping” the process a fortnight or more before she sent the e-mail to Mr Haywood on 3 April, and before she learnt of the complaint to Mr Monagle. In fact, I think it is highly likely that Mr Haywood’s reference to an “internal audit” of his cases, in the document that he gave to Mr Monagle[16] was a reference to the peer review. It follows from these findings that the peer review process is not evidence that Ms Beath had a low opinion of Mr Haywood’s work or work capacity, or that the peer review was initiated in response to the complaints made to Mr Monagle. In any event, as I explain below,[17] I do not think that a finding that the peer review was aimed specifically at Mr Haywood supports his argument in the way that he contends.
[16] See [25] above.
[17] See [67] below.
Mr Haywood says that, when they met on 20 April, Ms Beath suggested that he consider his future commitment to the IWT while he was on six weeks’ leave, starting the next day. Ms Beath denies having said that.[18] I make no finding on this point. But I accept Mr Haywood’s evidence that, when he went on leave, he was stressed. He was feeling anxious about his work, and undervalued as an employee of the Department. However, I do not think that Mr Haywood argues that the incidents leading up to his taking leave in April were a cause of his disease.[19]
[18] I note, however, that Ms Beath says that she did say something along those lines to Mr Haywood on 8 March: see [57] above.
[19] But see [118] below.
Mr Haywood says that, when Ms Beath confronted him on 5 June with allegations about his behaviour on 4 and 5 June, she had said that she would be referring the allegations to the PSS as a possible breach of the Code of Conduct. Ms Beath says that she told him that she would be seeking advice from the PSS about the allegations, and that she also told Mr Haywood that he should be mindful of the Code of Conduct. I think that there is only a slight difference between the two accounts of this conversation. I think that, by reminding Mr Haywood of his obligations under the Code of Conduct in this context, Ms Beath was effectively telling Mr Haywood that his alleged behaviour was possibly in breach of that Code. Accordingly, I find, on the balance of probabilities, that Ms Beath told Mr Haywood that she would be seeking the PSS’s advice about his alleged behaviour, and that his alleged behaviour was possibly in breach of the Code of Conduct.
Mr Haywood also says that, on several occasions (including at their meetings on 21 and 25 June), Ms Beath raised the possibility that he had breached the Code of Conduct by his behaviour. Ms Beath says that she did not. I do not make a finding on this point, noting that I have already found that Ms Beath had earlier (on 5 June) raised that possibility.
Mr Haywood says that, at the meeting on 22 June, which happened within the hearing of some other IWT staff, Ms Beath undermined him in front of his team. He says that he felt humiliated and embarrassed. Ms Beath says that Mr Haywood was condescending and rude—almost belligerent—to her during this meeting. He denies this. I do not need to make a finding about whose description of the meeting is the more accurate. What is clear is that each of them came away from the meeting feeling that they had been treated unprofessionally by the other.
I do not think that findings that Ms Beath or Mr Spencer had a low opinion of Mr Haywood or of his work—findings to the opposite effect to those I have made at [46], [50], [53] and [62] above—would have supported Mr Haywood’s argument in the way that he contends. I also do not think that his argument would have been supported if I had made findings—which I declined to make at [51], [52] and [57] above—that Ms Beath reacted negatively to Mr Haywood’s contribution to one meeting, did not adequately support him at another, and was looking for fault in how he was doing his work. Similarly, I do not think it matters whether Ms Beath believed (as she told Mr Haywood that she did) that he was performing at an appropriate level when they discussed a recruitment process on 29 March (see [28] above). Ms Beath and Mr Spencer were perfectly entitled to go into the counselling session with views about Mr Haywood’s work and how he was performing it. As his supervisor, Ms Beath could hardly have done otherwise. Even if she thought that Mr Haywood’s work was mundane (“base level”) and not especially challenging (“not exactly rocket science”), and that he was not performing at an appropriate level, and even if the peer review process that she instigated was aimed specifically at him, that does not mean that Ms Beath went into the counselling session biased against Mr Haywood.[20] The counselling session was not about the level of his work or how he was doing it. It was about his interactions with other staff.
[20] I discuss the general question of bias at [103]–[112] below.
The counselling session: findings about evidence generally not contested
I make the findings set out in [69]–[78] below, on the balance of probabilities. These findings are based on statements made by the four people who were at the counselling session, and evidence that they each gave at the hearing. These findings are generally not contested.
The counselling session started at about 9:30 am on 6 July. Mr Haywood, Ms Beath, Mr Spencer and Ms Oliver were present. Ms Oliver was a union delegate, and Mr Haywood’s support person.
Mr Spencer chaired the counselling session, though it was mainly conducted by Ms Beath. Mr Spencer explained that the counselling session was a formal process, to discuss Mr Haywood’s workplace behaviours. Ms Beath detailed the following events and allegations of Mr Haywood’s inappropriate behaviour in the workplace:
·Mr Haywood’s annual mid-cycle performance review on 12 January (see [18], [48] and [49] above) at which Ms Beath raised with him concerns she had about his body language;
·the way Mr Haywood had interacted with various staff members on 4 and 5 June (see [32] and [64]);
·meetings between Mr Haywood and Ms Beath on 18 and 25 June, and 5 July (see [34], [39], [40] and [43]);
·the IWT section meeting that Mr Haywood chaired on 21 June (see [35] and [40]);
·the discussion that Mr Haywood and Ms Beath had in the general IWT office area on 22 June (see [36], [39] and [66]);
·Mr Haywood’s reference to some members of the team by their surnames (see [37]) and [109]); and
·the meeting that Mr Haywood had with another IWT member on 4 July (see [41] and [43]).
In doing this, Ms Beath was reading from a five-page document, headed “counselling session record” (the record), which had been prepared by staff of the PSS. She referred to it as a “script” to assist her with the counselling session.
Mr Haywood was given an opportunity to respond to each point after it was raised at the counselling session. Several times, Ms Beath referred to previous conversations she had had with Mr Haywood during which, she said, she had raised her concerns about this behaviour.
Ms Oliver asked whether any investigations had been conducted to determine whether the allegations were true. Mr Spencer answered that no such investigations had been conducted.
Mr Spencer noted that many of the alleged incidents had occurred recently, and asked Mr Haywood whether he was experiencing any personal problems. Ms Beath said that she knew that Mr Haywood had been house-sitting recently, then said words to the following effect: “I hardly know anything about Greg except that he’s in his mid-forties and he’s a bachelor”.
Mr Spencer gave Mr Haywood a copy of the record, from which Ms Beath had been reading. He asked Mr Haywood to read the record and sign it. He said that Mr Haywood did not have to sign it, but that he (Mr Spencer) and Ms Beath would be signing it. Mr Haywood or Ms Oliver asked Mr Spencer whether, in being asked to sign the record, Mr Haywood was being asked to confirm that he had been told of the allegations or was being asked to accept the truth of the allegations. (I discuss Mr Spencer’s response below.[21])
[21] See [92] below.
Ms Oliver requested that the counselling session be adjourned until another day. Mr Spencer said that he wanted to resolve the matter that day. Ms Oliver said that it was inappropriate for Mr Haywood to be asked to sign the record without an opportunity to properly consider it. It was agreed that they would adjourn for a short time. There was some discussion about how long was required. Then the counselling session adjourned for about 25 minutes, during which Mr Haywood and Ms Oliver spoke together.
When the counselling session resumed, Mr Spencer asked Mr Haywood whether there was anything in the record that had not been discussed. Mr Haywood said that, as far as he could see, everything had been discussed. Nonetheless, he did not sign the record. Ms Oliver, too, declined to sign it. Mr Spencer and Ms Beath signed it, and gave Mr Haywood and Ms Oliver a copy of the signed record.
It was agreed that Mr Haywood would attend a course to improve his communications in the workplace. Mr Spencer told Mr Haywood that, if the alleged behaviours did not recur, no further action would be taken; if they did recur, Mr Haywood’s past behaviours would be taken into account. Mr Spencer said that the record would be put on file in the PSS, but not on Mr Haywood’s personnel file.
The counselling session finished at about 11:25 am, almost two hours after it had started. Mr Haywood was absent from work on sick leave from 9 July (the next working day after the counselling session) until 20 July.
The parties agree that the counselling session was a cause of Mr Haywood’s disease, and that (if his disease is an injury for the purposes of the SRC Act) the date of that injury is 24 July, when he first sought medical treatment for the disease.
The counselling session: findings about contested evidence
As noted above, the findings that I have made to this point, about what happened at the counselling session, are generally not contested. Other aspects of what happened at the counselling session are contested. I must make findings about some of the contested evidence before I can decide whether the counselling session was reasonable administrative action taken in a reasonable manner in respect of Mr Haywood’s employment.
There is some difference of opinion about the level of formality of the counselling session. I have already found that Mr Spencer explained, at the beginning of the counselling session, that it was a formal process.[22] And, when Ms Beath scheduled the counselling session, she had told Mr Haywood that “[m]anagement has decided to formally meet with you to discuss what is considered by management to be a pattern of inappropriate workplace behaviour”.[23] At the hearing, Mr Spencer said that a process that is documented (as the counselling session was) has an “aspect of formality”. He says that he explained at the counselling session that the session “was not formal in the sense that it was not part of a formal misconduct investigation process” and that Mr Haywood said that he understood the difference. Ms Beath says that:
Mr Spencer advised [Mr Haywood] that the counselling process was not considered to be formal in the sense that the concerns were being addressed with him in a meeting setting to remind him of his obligations and responsibilities as opposed to a misconduct disciplinary process conducted under section 15(3) of the Public Service Act. [Mr Haywood] indicated that he understood the difference.
Mr Haywood agrees that Mr Spencer did say words to that effect—though he says there was no reference to the Public Service Act—but he denies that he said that he understood the difference. I think that that difference, as it was explained at the counselling session, may well have been a little elusive. I accept that, whatever Mr Haywood may have said at the counselling session, he did not understand the distinction that Mr Spencer was making. However, I find, on the balance of probabilities, that Mr Spencer (and Ms Beath) did adequately explain to Mr Haywood that the counselling session was a formal process, though not as formal—or as serious—as a disciplinary process.
[22] See [70] above.
[23] Emphasis added. See [44] above.
Mr Haywood and Ms Oliver say that an agreed outcome of the counselling session was that Ms Beath (as well as Mr Haywood) could benefit from some further training, on the basis that them both having further training might improve their interactions. I do not have to make a finding about this: I have already found that it was agreed that Mr Haywood would attend communications training.[24]
[24] See [77] above.
Mr Spencer and Ms Beath say that, each time that Ms Beath referred to having previously raised concerns with Mr Haywood, he said that he had no recollection of her saying that to him, and that he could not confirm that she had done so without first checking his diary. Ms Oliver generally corroborates their account. Mr Haywood says that, each time he was asked to respond to an allegation raised at the counselling session, he said that he did not feel that he was in a position to respond. Mr Haywood says that he may have said that he would have to check his records. Mr Spencer and Ms Beath say that they suggested several times that Mr Haywood could leave the counselling session to fetch his diary from his desk. Mr Haywood and Ms Oliver deny this.
Mr Haywood denies saying repeatedly that he would have to check his diary. He says he said this once, in relation to a conversation that Ms Beath said that they had had the day before. Comcare suggests that Mr Haywood was being disingenuous at this point: that he must have remembered the conversation that he and Ms Beath had had the day before, and that he would not have needed his diary to refresh his memory.
I do not need to make a finding about whether Mr Haywood repeatedly said that he would have to check his diary, or about whether he was being disingenuous if he did. It is common ground that he did not respond to the substance of the allegations when each was put to him at the counselling session.[25] There is nothing untoward about that: he was under no compulsion to respond to the allegations at that time, and I do not think that he was being pressured to do so.
[25] However, see [92] below.
I also do not need to make a finding about whether Mr Haywood was given an opportunity to fetch his diary. If he had been pressured to respond to the allegations at that time, it would be of some importance whether he was offered the opportunity to refer to his diary or other notes. But, as I have said, I do not think that Mr Haywood was pressured to respond to the allegations at the counselling session.
It is clear that the counselling session was action in respect of Mr Haywood’s employment. Before I consider whether the counselling session was reasonable administrative action taken in a reasonable manner, I will consider the reasonableness of two specific aspects of the counselling session: Mr Haywood being asked—or, as he contends, pressured—to sign the record; and the references to his personal life.
Signing the record
I have already found that Mr Spencer asked Mr Haywood at the counselling session to read the record and sign it, and that Mr Spencer told Mr Haywood that he did not have to sign it. Mr Spencer also says that he explained to Mr Haywood that “it was of no consequence to the outcome of the [counselling session] if he chose not to sign [it]”. Mr Haywood agrees that Mr Spencer did say this, but he says that Mr Spencer said it only once and towards the end of the counselling session. Before that, according to Mr Haywood and Ms Oliver, Mr Spencer pressured Mr Haywood to sign the record in circumstances in which it was not clear to him what signing would mean.
It is not clear to me, either, what would have been the effect of Mr Haywood signing the record. I think that Mr Spencer may have been mistaken when he told Mr Haywood that signing would have had no consequence to the outcome of the counselling session. The record details the events and allegations set out at [70] above. It summarizes what are said to be shortcomings in Mr Haywood’s communication style, including his body language. It sets out “agreed upon action”. It says that “Mr Haywood acknowledges and fully understands”:
·that the Department “will not further tolerate any instances of him behaving inappropriately”;
·“that this counselling session can be considered to constitute a final warning to him about his inappropriate workplace behaviour”; and
·“that any further incidents of inappropriate workplace behaviour and/or failures by [Mr Haywood] to treat others with respect and courtesy will immediately be referred to the Director of the [PSS] for consideration of formal disciplinary action being taken for potential breaches of the APS Code of Conduct”.
The record sets out possible sanctions applicable in the event of a finding that the Code of Conduct has been breached. It then says that Mr Haywood acknowledges that a copy of the record has been provided to him, and will be kept by the PSS.
If Mr Haywood had signed the record, he would have been acknowledging that the Department had raised the allegations with him; that the Department considered the alleged behaviour unacceptable; that he and the Department had agreed on action to be taken; that further instances of the alleged behaviour might result in disciplinary action under the Code of Conduct; and that a copy of the record had been provided to him, and would be kept with the PSS. I do not think it would have been unreasonable for the Department to have required Mr Haywood to acknowledge these facts by signing the record: none of them is in dispute.
But the record also includes the following, under the heading “Acceptance of the issues”:
Mr Haywood acknowledges his shortcomings in relation to managements [sic] concerns about his inappropriate workplace behaviour and conduct. He also acknowledges that his conduct has fallen far short of that expected of an Executive Level 1 employee in the Department.
Mr Haywood acknowledges that he has failed to treat his manager and colleagues with an appropriate level of respect and courtesy on a number of occasions as have been briefly summarised and outlined in the examples above.
Mr Haywood also acknowledges that his conduct as discussed and briefly summarised and outlined above potentially constitutes breaches of section 13(3) of the Public Service Act 1999—the APS Code of Conduct …
As noted above, Mr Haywood was not obliged to respond to the substance of the allegations at the counselling session, and it is common ground that he did not accept the truth of those allegations when each was put to him.[26] He maintains that his behaviour was not inappropriate. But the first two paragraphs quoted above (and, maybe, the third) assert more than just that Mr Haywood was told of the allegations: they assert that he accepted them.
[26] See [85] above.
At the counselling session, Mr Spencer was specifically asked whether Mr Haywood signing the record would mean that he was confirming that he had been told of the allegations or accepting their truth.[27] Mr Spencer says that he explained that Mr Haywood “was only being asked to read the document to ensure its contents accurately reflected each of the key issues that had been raised with him during the [counselling session]”. At the hearing, Mr Spencer said that he thought that Mr Haywood had sufficiently accepted the issues set out in the three paragraphs quoted above. I asked him why that was, and he replied:
Mr Spencer: When I said that Mr Haywood had answered sufficiently, I did mean for the purposes of the counselling session meeting and the reason I said that was because when we got to that part of the counselling session and I was speaking to Mr Haywood at that point and I informed him that the next part of this process was an acceptance of certain things. I don’t think I read it out verbatim as it appears in the document, but I would have paraphrased that first paragraph. I went through each of the three paragraphs and when I said, “Part of this process is some acknowledgment and agreement that your behaviour hasn’t met the correct standards”, Mr Haywood’s response as I recall it was—at the time was, “I think we can all improve in certain areas can’t we, Wes?” He made the same similar comment along those lines to the second paragraph which I also paraphrased and in the third paragraph when I explained to him that this type of conduct if a formal misconduct process was undertaken could potentially lead to breaches of the APS code of conduct being determined by an authorised delegate and did he understand that. He said, “Yes, he did understand.” So—
Senior Member: So in summary you say that in fact Mr Haywood did acknowledge his shortcomings, he did acknowledge that he’d failed to treat his manager and colleagues with an appropriate level of respect, and he did acknowledge his conduct as discussed potentially constituted breaches of section 13(3)?
Mr Spencer: I considered that those answers were sufficient that no alteration needed to be made to that and having given Mr Haywood the opportunity to read that document, he certainly didn’t raise any issues with me that, “No, I don’t agree that that happened or that was said.”
I do not agree with Mr Spencer that Mr Haywood’s statement that “we can all improve in certain areas”, or the fact that Mr Haywood did not dispute the contents of the three paragraphs quoted above, amounted to an acceptance of the truth of the allegations.
[27] See [74] above.
If Mr Haywood had signed the record, it is at least arguable that he would have been acknowledging the truth of the allegations. But the truth of the allegations was in dispute. It follows that it would have been unreasonable for the Department to have required Mr Haywood to sign the record.
But Mr Haywood agrees that, by the end of the counselling session, he understood that he was not required to sign the record. I think it is likely that, earlier in the counselling session, he thought that he was required to sign. However, taking the counselling session as a whole, I have already found that Mr Spencer and Ms Beath did not require that Mr Haywood sign the record.[28] To the extent that Mr Spencer and Ms Beath may have pressured Mr Haywood to sign the record—about which I make no finding—it was clear to Mr Haywood before the counselling session ended that he was not required to sign. On balance, I do not think either Mr Spencer or Ms Beath acted unreasonably in relation to the signing of the record.
[28] See [74] above.
References to personal life
At the counselling session, Mr Spencer asked Mr Haywood whether he had any personal problems. At the hearing, Mr Spencer explained that he did this because, in his experience, it is frequently the case that people who behave in an inappropriate manner at their work are affected by personal issues. On the basis of this explanation, I think that that was a reasonable question to ask. Mr Haywood said that he had been house-sitting, and had a head cold, but that there were no other personal issues affecting his work. I think it would have been unreasonable if Mr Spencer had pressed Mr Haywood for more information about his personal life, but no-one suggests that he did.
At the counselling session, Ms Beath said that she hardly knew anything about Mr Haywood except that he was a bachelor in his mid-forties. Without context this comment is at best irrelevant and puzzling, at worst inappropriate and hurtful. However, I find, on the balance of probabilities, that Ms Beath made this comment in the context of Mr Spencer’s question about Mr Haywood’s personal life. I think it was an inapt thing to say, but I do not think it was unreasonable.
On balance, I do not think either Mr Spencer or Ms Beath acted unreasonably in their references to Mr Haywood’s personal life.
The counselling session generally
Mr Haywood says that Ms Beath told him (before the counselling session) that she would be referring the complaints made about his behaviour to the PSS as a possible breach of the Code of Conduct. I have found, instead, that she told him that she would be seeking the PSS’s advice about his alleged behaviour, and that his alleged behaviour was possibly in breach of the Code of Conduct.[29] There is only a slight difference between their respective accounts. But, even if Ms Beath had told Mr Haywood that she had referred the allegations to the PSS as a possible breach of the Code of Conduct, I do not think that that would have made the counselling session unreasonable. Before the counselling session was scheduled, Mr Haywood may have thought that he could become subject to a Code of Conduct disciplinary process. But, the electronic meeting request he was sent the day before the counselling session did not suggest that such a process had been instigated,[30] and I have already found that it was adequately explained to him at the counselling session that the session was not such a process.[31]
[29] See [64] above.
[30] See [44] above.
[31] See [81] above.
Mr Haywood says that some of the complaints were not raised with him before the counselling session. I have found that they were.[32] But, even if they had not been, that would not have made the counselling session unreasonable. Each complaint had to be raised with Mr Haywood for a first time: there is no reason why that first time could not be at the counselling session.
[32] See [49] above.
Ms Beath and Mr Spencer used the record as a “script” (as Ms Beath called it) for the counselling session. Mr Haywood says that this means that the progress and the outcome of the counselling session had been decided before the session happened. The counselling session did not go entirely “to script”, at least to the extent that Mr Haywood did not accept the truth of the allegations that were put to him.[33] But it is clear that Mr Spencer and Ms Beath went into the counselling session with a detailed plan about what they would say, and what outcomes they expected. If I understand his argument correctly,[34] Mr Haywood says that this demonstrates that they were biased against him. I discuss the general question of bias below.[35] But I do not think that it was unreasonable for Mr Spencer and Ms Beath to have prepared for the counselling session in the way that they did. On the contrary, it would have been remiss of them to have gone into the counselling session without details of Mr Haywood’s alleged inappropriate behaviour, and some proposals for future action.
[33] See [92] above.
[34] See [118] below.
[35] See [103]–[112] below.
Mr Spencer says that, during the counselling session, Mr Haywood “did not appear to care much about what was being discussed with him at all”. Ms Beath says that his “demeanour and body language … was one of indifference” and that he “came across as though he really did not care about what we were discussing or that there were serious concerns being raised with him about his behaviour”. Mr Haywood says that he was stressed and confused, and found Mr Spencer intimidating. Ms Oliver says that Mr Haywood was visibly upset and, at one stage during the counselling session, she asked him if he needed to take a break, but he said that he preferred to continue. It is entirely understandable that Mr Haywood would be stressed by the counselling session, and I find that he was. But, I also find that Mr Spencer and Ms Beath were not aware of the level of his stress. If they had been aware, it might have been unreasonable for them to continue the counselling session without at least giving Mr Haywood the opportunity to take a break. But they were not aware, and I do not think that it was unreasonable that they did not offer him a break, especially given that Mr Haywood chose to continue when Ms Oliver suggested that he take a break.
Mr Haywood says that the counselling session was premature and disproportionate given that the complaints had not been investigated—and (if I understand his argument correctly[36]) even if the allegations were true. I disagree. I make no findings about the veracity of the complaints, but I think that the Department accurately characterised the complaints as allegations of “a pattern of inappropriate workplace behaviour—specifically a lack of respect and courtesy towards [Mr Haywood’s] colleagues”.[37] I think that the behaviour complained of was of mid-level seriousness. The complaints could not be ignored: it was incumbent upon the Department to take some action. It could have investigated the complaints, and taken further action (or none) depending on the outcome of that investigation. Instead, it chose to discuss the complaints with Mr Haywood in a formal setting, and agree on future action. That future action was essentially that Mr Haywood would attend a communications course; and that the Department would take no further action in relation to the alleged behaviour unless there were further complaints. That agreed action did not imply that the complaints had been upheld. In fact, the Department made it clear that it would not be investigating the complaints unless and until there were further complaints. In this context, I do not think that the counselling session was premature or disproportionate.
[36] See [118] below.
[37] These were the words that Ms Beath used in the electronic meeting request that she sent to Mr Haywood when scheduling the counselling session: see [44] above.
Bias
Mr Haywood argues that even an administrative action that is (objectively) reasonable and taken in an (objectively) reasonable manner is, nonetheless, unreasonable or taken in an unreasonable manner if it is tainted by bias. He says that the counselling session was tainted by bias—actual or apprehended—on the part of Mr Spencer or Ms Beath, or both. Mr Spencer, he says, was biased against him following interactions they had in 2009. Ms Beath, he says, was biased against him following the complaints that he (and Ms Pearce) made about her in 2012. He says that they each had a low opinion of him and the work that he did. He says that Ms Beath’s bias against him was demonstrated by her behaviour towards him in the weeks leading up to the counselling session.
Actual bias
I have made findings that contradict, or do not support, Mr Haywood’s assertions about Mr Spencer’s views and Ms Beath’s views and behaviour before the counselling session.[38] It follows that there was no actual bias against Mr Haywood.
[38] See [67] above.
Apprehended bias
In Ebner v Official Trustee in Bankruptcy, the High Court explained that:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[39]
In Isbester v Knox City Council, the High Court further explained that:[40]
The principle governing cases of possible bias was said in Ebner[41] to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an “interest” in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng,[42] essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.
It was observed in Ebner[43] that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm.[44] The content of the test for the decision in question may be different.[45]
How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised.[46] The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made[47] as well as to have knowledge of the circumstances leading to the decision.[48]
Before I can apply the test that the High Court has enunciated, I must first identify the decision or decision that could be said to have been tainted by bias.
[39] (2000) 205 CLR 337 at 344 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[40] (2015) 255 CLR 135 at 146 [21]–[23] per Kiefel, Bell, Keane and Nettle JJ.
[41] (2000) 205 CLR 337 at 345 [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[42] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 563 [183] per Hayne J.
[43] (2000) 205 CLR 337 at 343–344 [4] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[44] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 563 [181] per Hayne J.
[45] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 460 [70] per McHugh J.
[46] Kioa v West (1985) 159 CLR 550 at 612 per Brennan J.
[47] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 459 [68] per McHugh J.
[48] Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 519 per Barwick CJ.
Two of the statements made by the Department at the counselling session were not decisions:
·the Department considered the alleged behaviour unacceptable; and
·further instances of the alleged behaviour might result in disciplinary action under the Code of Conduct.
The first was not a decision—at least, not a decision affecting Mr Haywood—because the complaints about Mr Haywood had not been investigated or upheld. It was advice about behaviour that the Department considered unacceptable. The second was the “final warning”. Mr Haywood says that the final warning was very serious. It was, but it was also advice. It was not a decision to take disciplinary action. It was not even a conditional decision to take disciplinary action: future behaviour might result in disciplinary action. And, it was not a precondition to disciplinary action: further instances of the alleged behaviour could still have resulted in disciplinary action if the final warning had not been given—in fact, even if there had been no counselling session.
Mr Spencer and Ms Beath made only three decisions at the counselling session:
·Mr Haywood would attend a communications course;
·the Department would take no further action in relation to the alleged behaviour unless there were further complaints; and
·the record would be put on file in the PSS, but not on Mr Haywood’s personnel file.
The first of these was agreed with Mr Haywood; the second and third were favourable to him. It is hard to see how the question of apprehended bias could arise in relation to such decisions.
There is only one other decision related to the counselling session: the decision to conduct the counselling session in the first place. That decision was made by Mr Spencer, on the advice of PSS staff. As the High Court explained in Isbester, “the application of the principle [enunciated in Ebner] to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making”.[49] So, it is important to consider the nature of Mr Spencer’s decision to conduct the counselling session.
[49] (2015) 255 CLR 135 at 146 [22] per Kiefel, Bell, Keane and Nettle JJ. See [105] above.
In its submissions, Comcare sets out what it says is “the precise nature of the workplace issue which had arisen”:
All that [Mr Haywood] was being asked to consider was that aspects of his workplace behaviour in respect of body language and manner were having an adverse effect on his fellow staff. It was not alleged that he was intentionally creating these problems. Moreover, there has never been any question raised about [Mr Haywood’s] work competencies which may have provoked performance management processes. It was simply a question of his manner of personal interaction with staff.
I agree with Comcare’s characterisation of the issue which prompted the counselling session. It was a formal process; it caused Mr Haywood stress; the allegations made were of some seriousness (with the exception of the allegation that Mr Haywood had referred to his colleagues by their surnames);[50] and the consequences of further instances of the alleged conduct were very serious. But the counselling session itself was just that: counselling. It was not disciplinary action. It was not even part of a Code of Conduct investigation.[51] No significant decisions were made.[52]
[50] See [37] above. Mr Haywood says that he was also accused of clicking his pen at meetings. This would also not have been a serious allegation, but it appears not to have been raised at the counselling session.
[51] See [42] and [98] above.
[52] See [107] above.
In Minister for Immigration and Multicultural Affairs v Jia, Hayne J explained that:
The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm. It is trite to say that the content of the rules of procedural fairness must be “appropriate and adapted to the circumstances of the particular case”.[53]
Or, as McHugh J put it in Hot Holdings Pty Ltd v Creasy:
What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision.[54]
Clearly, a decision to conduct a counselling session diverges very considerably from the judicial paradigm. The content of the rules of procedural fairness that applied to Mr Spencer’s decision must be adapted accordingly.
[53] (2001) 205 CLR 507 at 563 [181] per Hayne J.
[54] (2002) 210 CLR 438 at 460 [70] per McHugh J.
The first part of the test enunciated in Isbester is to identify the nature of the interest that might lead a decision maker to make a decision other than on its merits. The second part involves articulating a logical connection between that interest and the feared deviation from the course of making the decision on its merits. Mr Haywood has asserted that Mr Spencer had a low opinion of him from their interactions three years earlier. I have found that Mr Spencer had no such opinion.[55] But, even if he had, and having regard to the nature of the decision, I do not think that that could be an interest that might have led him to decide to conduct a counselling session. And I can see no logical connection between that interest (if he had had one) and any potential deviation from the course of making that decision on its merits.
[55] See [46] above.
In short, I do not think that a fair-minded observer could reasonably apprehend that Mr Spencer did not bring an impartial mind to the decision to counsel Mr Haywood.
Conclusion
The counselling session was a cause of Mr Haywood’s disease. The counselling session was reasonable administrative action taken in a reasonable manner in respect of his employment. Accordingly, his disease is excluded from the definition of “injury” in s 5A of the SRC Act. Comcare is not liable to pay him compensation.
The conduct of this matter
The review of this matter by the Tribunal has taken more than 21 months. There were 1003 pages of “T-documents”.[56] Mr Haywood’s counsel made six separate written submissions (five after the hearing) totalling 78 pages; Comcare’s counsel made two separate submissions (one after the hearing) totalling 45 pages. The matter was heard on seven days, spanning over four months and yielding 664 pages of transcript.
[56] Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. More than 200 further pages of documents were lodged having been provided by the Department pursuant to a notice issued under s 71 of the SRC Act.
The main reason for the long delay between the first and the last day of hearing was the availability of witnesses and the Tribunal. But the main reason for the large number of days of hearing, and for the inordinately long submissions, was the conduct of this matter by Mr Haywood’s legal representatives.
Mr Haywood’s counsel spent a great deal of his examination and cross-examination of witnesses, and a great deal of his submissions, focussed on issues that I think had no relevance to this review. He asked questions of several witnesses about whether there were other actions that they could have taken rather than the actions that they took. But the fact that an administrative action could have been conducted more reasonably does not make it unreasonable.[57] He asked some witnesses whether they stood by the actions they had chosen to take. For example, he asked questions of Mr Spencer about his policing background, and (notwithstanding that the decision to counsel Mr Haywood was nothing at all like a decision to undertake a criminal investigation) suggested that his background should have led Mr Spencer to make some other decision entirely. None of the witnesses recanted. But, even if one of them had, that would not have been relevant to the decision that I had to make about their actions: whether they were reasonable administrative actions taken in a reasonable manner.
[57] Comcare v Martinez (No 2) (2013) 212 FCR 272 at 293 [82] per Robertson J. Mr Haywood’s counsel says that Martinez has been effectively overruled by the High Court in Deal v Kodakkathanath [2016] HCA 31 at [53] per French CJ, Kiefel, Bell and Nettle JJ. I disagree. Kodakkathanath is about an employer’s obligation, under occupational health and safety regulations, to do what is reasonably practicable to prevent employees performing a task other than in the safest way. Kodakkathanath is not analogous to cases (like Martinez and this review) about the exclusion in s 5A(1) of the SRC Act.
Mr Haywood’s counsel spent some time trying to show that Mr Haywood was good at his job. It appears to me that he was. No-one has suggested that he was not. I have made no findings about his competence because it is not relevant to the question that I have had to decide in this review. Similarly, Mr Haywood’s counsel spent some time trying to show that Ms Beath was not good at her job and demonstrated bad judgment. Again, it appears to me that she, too, was good at her job. And, apart from the comment that she made at the counselling session about Mr Haywood’s personal life,[58] I am aware of nothing that reflects badly on her judgment.[59] I have made no findings about Ms Beath’s competence or judgment because they are not relevant to the question that I have had to decide in this review.
[58] See [73] and [96]–[97] above.
[59] Mr Haywood’s counsel made much at the hearing about the joke that Ms Beath told at the beginning of the 31 January meeting: see [19] above. Comcare concedes that it was inappropriate. I do not think this necessarily reflects badly on Ms Beath’s judgment. In any event, it is irrelevant to this review.
At the hearing, I raised with Mr Haywood’s counsel my concerns that his questions on these and other matters were not relevant to the review. I generally allowed him to ask those questions, in case I am wrong about their relevance. However, I stopped him when he was rude and sarcastic to witnesses. I allowed him to make submissions (and allowed Comcare to make submissions in reply) after the hearing. However, I was not greatly assisted by those submissions: I have done my best to discern the arguments made, but the submissions on behalf of Mr Haywood are, in places, incoherent. In these reasons for decision, I have considered events, and made findings of fact, even when (in my view) it was not strictly necessary for me to do so. Again, I have done this in case I am wrong about the need to do so.
Because of the breadth of Mr Haywood’s counsel’s arguments, the hearing of this matter was—and these reasons for decision are—much longer than should have been necessary.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple .................................[sgd].......................................
Associate
Dated 31 August 2016
Dates of hearing 2–5 February, 23 March and 7–8 June 2016 Date final submissions received 24 August 2016 Counsel for the Applicant Mr Christopher Ryan Solicitors for the Applicant Lander and Co, Solicitors Counsel for the Respondent Mr Charles Clark Solicitors for the Respondent Sparke Helmore Lawyers
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