Karen Buck and Comcare
[2012] AATA 327
•31 May 2012
[2012] AATA 327
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2940
Re
Karen Buck
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 31 May 2012 Place Perth The decision under review is affirmed.
....................[sgd]...........................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION - Commonwealth employees - applicant employed by Australian Broadcasting Corporation (ABC) - applicant suffered severe anxiety and clinical depression - applicant's mental ailment contributed to, to a significant degree, by employment by ABC - applicant's mental ailment a disease - applicant's disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of employment - applicant's disease not a compensable injury - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 5A, s 5B, s 7(4) and s 14(1)
CASES
Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181
REASONS FOR DECISION
S D Hotop, Deputy President
31 May 2012
Introduction
Karen Buck (“the applicant”), who was born in January 1953, is, and at all material times was, employed by the Australian Broadcasting Corporation (“ABC”) as a Radio Trainer.
On 22 November 2010 the applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of a mental illness described by her as “severe mixed anxiety and depression” and claimed by her to have been contracted in April 2010. In the claim form the applicant described the circumstances in which she contracted that illness as follows:
“ Returned from LSL to be presented with a new job/job plan that does not match my skills, competence or aptitude. Despite repeated requests no training or development plan for this new job has been provided. The entire Dept has been restructured with no consultation with me/colleagues. I cannot do the new job; I can get no training (despite asking continually since March).”
In answer to the question: “What actually… made you ill?” in the form, the applicant stated:
“ The ongoing situation – trying unsuccessfully to get a learning & development plan; trying to get someone in management to resolve the issue; my direct supervisor’s management style – ”.
On 12 April 2011 a delegate of Comcare (“the respondent”) made a determination under s 14 of the SRC Act disallowing the applicant’s claim for compensation.
Following a request by the applicant’s solicitors to the respondent for a reconsideration of the determination of 12 April 2011, a Review Officer of the respondent made a “reviewable decision”, dated 14 July 2011, under s 62 of the SRC Act affirming that determination.
On 22 July 2011 the applicant lodged with the Tribunal an application for review of the reviewable decision of 14 July 2011.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1−T66, pp 1−411) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1−A16 tendered by the applicant;
·Exhibits R1−R15 tendered by the respondent; and
·the oral evidence of the applicant and of the following witnesses:
−Graeme Thomson and Elizabeth Gray (who were called by the applicant); and
−Justine McSweeney and Vanessa MacBean (who were called by the respondent).
The Applicant’s Evidence
The applicant confirmed that she had made three statements for the purpose of this proceeding and that their contents are true and correct.
The applicant’s statement, dated 2 February 2012, is as follows:
“…
2.After I left high school I worked in the retail sector for a period and then on a Catholic mission in the North West of Western Australia for twelve months. I then returned to Perth and completed my matriculation and commenced studying for a Bachelor of Psychology at the University of Western Australia. I completed two years of that degree and left to commence work as a public servant in the WA Department of Corrections.
3.In 1977 I left that employment and began working for Channel Seven initially as a production assistant in the newsroom but within a short space of time became the sole researcher/associate producer in the station’s documentary unit. After a couple of years making documentaries both within Australia and overseas I then helped establish the station’s first five night (sic) a week current affairs program and continued as a researcher/associate producer for that program for about three years. Since 1977 I have been employed in the media either in commercial television, as a newspaper journalist or in radio broadcasting.
4.I was headhunted by ABC Radio in late 1989 to produce the then 6WF morning program.
5.For the next few years I produced across most dayparts (sic) for ABC 6WF in Perth (now 720) including the morning show, afternoon program, and also established a new evening program. During this time I was encouraged and asked by the ABC to take on an occasional role as a trainer for both internal groups (ie for other broadcasters) and external groups (ie for community service groups, Government departments and other agencies who came to the ABC for training in primarily how to handle the media skills). I was also asked to take on the role as Head of the Radio Broadcasting Department at Murdoch University for a period of six months while the usual Departmental Head took a sabbatical. This role included lecturing in radio broadcasting to a 1st year student intake of 96, supervising and assessing their student radio programs, plus lecturing in radio broadcasting to a post graduate group in the school of journalism. This was agreed to and supported by ABC management. I was also asked by the ABC to take on an occasional role as a trouble-shooter for regional program teams experiencing difficulties. I was also encouraged and urged to undertake an on-air role which I did somewhat reluctantly − initially co-hosting a one hour afternoon community talkback program called the Grapevine, and solo backfilling for the occasional Saturday morning breakfast program. I was given great support, encouragement and training in my transition to these new roles.
6.Until 1997 I continued in my primary role as producer of various ABC radio programs but I was then persuaded to take on a major on-air role – that of co-host of the ABC flagship breakfast program with Jim Gill. That was my last on air role and when that finished in 2001 I answered an expression of interest for radio trainers.
7.The ABC clearly thought I had some abilities as a classroom trainer because I was one of four people chosen out of a field of 50 applicants across Australia to take on a national training role.
8.When I went to work in the Albany office in 2001 initially I was going to continue to co-host the ABC Radio breakfast program. This was to become a state-wide program and my co-host in Perth and I would be broadcasting together via satellite. For reasons beyond my control that job fell through the week I was due to move South and I had at that stage no other substantive job. The ABC had given me a commitment that I could work in Albany (at my request as I wanted to live in Denmark).
9.In any event I took a period of leave due to the uncertainty and upheaval caused by the sudden and unexpected change in career path and ultimately I applied for a job as one of the national trainers in the new Accredited Training Project.
10.At the time I applied for a job as a trainer I was living in Denmark and working in Albany. The personal training that I had received to support and equip me for my various roles until that stage is set out below. Later (2001−2009) I was also to receive extensive training, support and encouragement to develop and extend my skills as a classroom trainer and workplace coach.
Training undertaken by me as a participant: 1989 to 2001
* Two week core skills training covering all aspects of basic radio broadcasting
* Writing for radio
* Interviewing
* Advanced Interviewing
* Advanced production skills
* Presentation skills
* Continuity skills
* Radio Documentary Making
* Operating studio technology
* Operating an on-air desk
* Presenting music to air effectively
* Communication skills
* Handling difficult interviewees on-air
* Train the Trainer certificate
* Using netia to broadcast on-air
* Conflict Resolution
* Making Powerful Radio
* Broadcast Law
* How to use your voice on-air.
11.I also was given many, many one on one training sessions with the then Senior Radio Trainer and a Technical Trainer firstly in my fledgling role as an occasional ABC trainer, and then later in my role as an on-air presenter.
12.From the end of 2001 until the beginning of 2010 I took on the full time job of a radio craft skills trainer employed by ABC. The form of the training that I delivered was in a number of components. From 2001 until 2006 I was primarily involved in delivering various components of the ABC’s newly established Certificate IV in Broadcasting. This included a two week residential course where twelve broadcasters would come to a capital city for a two week intensive course called ‘Basic Broadcasting Skills’. That course was delivered by me face to face with one other trainer plus occasional guest trainers (for highly specialised fields like technical areas or trainee trainers shadowing us and trying out their skills under our supervision).
13.I also travelled around the country assessing broadcasters enrolled for the Certificate IV – up to 35 of them at one time. My areas of assessment were Queensland, the Northern Territory and North Western WA. Sometimes this assessment role required me to be away from home for months at a time. I also often travelled, at the request of management, extensively throughout Australia and delivered short intensive courses, sometimes solo, sometimes with one other trainer in (sic). These covered such topics as ‘Writing for Radio’, and Interviewing Skills, Production Skills, Creativity, Choosing and Developing Good Stories, Airchecking and Teamwork.
14.The whole thrust of the Radio Training Department as directed by senior management at the time was that the training would be delivered hands on, in person around the country. It was to be interactive, experiential and classroom based.
15.Initially there were four people doing the training and assessment role because there was such a large number of people to deal with but Liz Gray and I were the only two full time trainers, the other assessors or trainers being seconded for short periods as required.
16.After the ABC decided to phase out the Certificate IV in Broadcasting in 2006 Liz and I were responsible for finalising any outstanding assessments and generally mopping up the program. We then continued designing, writing and delivering a wide range of other training workshops (some of which I’ve outlined above) across the country.
17.Liz and I also designed and delivered ‘Train the Trainer’ workshops for other would-be trainers who were seconded for short periods to train a few workshops. We also designed and delivered assessor training workshops during the Accredited Training years.
18.At that stage there was approximately 600 on-air radio presenters and producers located at 59 stations around the country. These were the people Liz and I (and the other short term seconded trainers) trained in all aspects of radio craft.
19.Liz and I also designed, wrote and delivered air checking workshops for managers around Australia to enable them to effectively air check (assess on air presentation and program production work) their staff. We also undertook air checking sessions for managers and individual broadcasters across the country.
20.I also designed and delivered workshops to senior broadcasters at the annual prestigious ABC Local Radio Awards and was a judge on both State and National panels involved in assessing entries to those Awards. I was also invited by ABC management to be a guest speaker on various panels at the Awards.
21.In 2003 Liz and I were fortunate enough to travel overseas to New York, London and Dublin to participate in International radio conferences, tour various radio stations and programs and participate and sit in on radio craft skills training.
22.We spent a week with the BBC in London and one of the ideas we picked up on while there was the idea of offering one on one coaching to broadcasters to help them develop their skills. This possibility had been talked about at the ABC as a kind of extension of our previous assessor role, especially once the Accredited Training was discontinued. The assessment role (which partially involved one on one training or ‘coaching’) we had undertaken throughout the country was seen as highly valuable and had resulted in many managers asking us to work both with them and their other non-Certificate IV staff in a similar way, which we did. No action to formalise or develop our expertise in this area beyond talking about it as a possibility had taken place at that stage but when we returned and delivered our report on the overseas trip it was decided that Liz and I should undertake an external three month training course to become certified coaches.
23.Once that training was completed I then over the next few years undertook hundreds of hours of formal one on one coaching around Australia with both regional and metro broadcasters and managers as directed by senior management.
24.Liz and I were also requested by senior management to co-write two definitive and highly well received radio craft skills books which were then delivered to staff around the country. These were the ‘Talk Radio: The ABC of Interviewing’ and ‘Talk Radio: The ABC of Writing Books’. I also wrote the ‘Talk Radio: The ABC of Presentation’ and wrote several Chapters of ‘Talk Radio: The ABC of Production’ books. I also re-wrote the Interviewing, Writing and Presentation books for external publication.
25.For all of the work that I did after 2003/4 I did not have an updated job plan setting out the nature of the tasks that I was doing even though my duties had broadened considerably. Once Accredited Training was discontinued in 2006 the scope of my work was way beyond my existing job plan. Despite repeated requests by me at no time did management provide me with an updated plan and ask me to sign it.
26.Post 2006 we expanded and continued with the wide diversity of training design and delivery as outlined above but there was no longer any Accredited Training aspect to it.
27.During all of that period I was travelling extensively from my home in Denmark. When I was not on the road I was working out of the Albany studio or from home and nobody raised with me that there was a problem or difficulty with me carrying out that work.
28.The work involved with the training I enjoyed immensely, although the travel was at times excessive.
29.I recall that I received 110 extra leave days at one stage to make up for the inordinate amount of overtime involving just weekend travel I had been doing. We did much more overtime than that working extremely long days but it would have been impossible to provide time off in lieu for all the extra hours we did. That travelling was not so much from Albany to Perth but from Perth travelling all around Australia.
30.In December 2008 a new manager, Justine McSweeney, was appointed to Radio Training as acting manager. I knew Justine from my time over the years working out of the ABC in Melbourne and my involvement in the Local Radio Awards. Justine had been co-coordinator of these awards and sat in on the National Judging panel which I had been a part of several times. We were not close friends but we were good working colleagues. I believed I had a reasonably friendly relationship with her.
31 In fact in the early stages of her appointment as manager to Radio Training (acting initially and then confirmed six months later) I was pleased that she had come on board as she was somebody that I knew and I thought she would be a good addition to the training team. At that stage there had been no talk so far as I was concerned about changing the method of training design and delivery and it was just going to be business as usual with the new manager. We were at that stage finalising the craft books, the Production Skills workshop national roll out and were, we believed as previously planned, about to design, write and deliver a Presentation Skills workshop for national roll out. This had been widely talked about to and by staff across the country. We also hoped to pick up and complete an Intermediate Broadcasting Skills Course, and a national package making course, both of which had had to be cancelled due to ill health, and to begin work on a series of Master Classes for senior metro broadcasters.
32.At that stage the trainers were me, Liz Gray and Pam Macintosh who had been seconded from her substantive position for some months to undertake some of the national roll out of the production skills workshop (she was one of the primary authors of the production skills book) and other training and coaching.
33.Initially things were fine and it was primarily business as usual with just some minor teething problems. Slowly however the relationship between Justine and her team – which included we three trainers and an administrative assistant − began to break down. From our point of view we found Justine to be inflexible, rigid, not open to discussion or suggestion (one of Liz’s and my roles as outlined in our previous job plan was to advise) overly bureaucratic, unrealistic in her expectations especially around workloads, and seemingly unable or unwilling to capitalise on our many years’ experience and knowledge. In fact she seemed to want to undermine that very thing and also seemed quite insecure about her position, which at that stage was merely an acting role.
34.It was especially difficult because Liz and I had been involved in training for a long period of time and had been highly regarded for our work. We were both promoted to band nine which is the highest point in our work standards grading system so we therefore had obviously been doing a good job. It felt like we were being micro managed and Justine was unnecessarily attempting to reinvent a wheel she had far less knowledge about than we did.
35.Liz, Pam and I all had strong and successful broadcast backgrounds which Justine did not. Her background has been in administration and event project coordination. Our very different work styles also clashed and the situation developed to the point where we felt we needed to request senior management to provide the team with mediation to help us resolve what felt like an unworkable situation.
36.I was at that stage committed to staying with the ABC. I enjoyed my job and wanted to persist with it. The letter that we wrote to the Head of People and Learning, Ursula Groves, on 24th of June 2009 sets out our concerns. Unfortunately our requests for help and mediation were refused so I decided to take six months long service leave. Liz also took some long service leave. Pam Macintosh went back to her substantive position and Ken Nevins, the administration assistant, resigned.
37.When Justine began as our manager I asked her to update my job plan which had not been updated since 2004. I had asked previous managers to do this because my duties had changed considerably since that job plan had been written. My requests were unsuccessful. I felt it was a highly unusual situation to have such an outdated job plan and one I believed needed to be attended to. I also thought that having regard to Justine’s desire for following process and conformity that would be something that she could easily do but by the time I left on long service leave some six months later this had still not happened
38.At that stage there was still no mention, to me at least, of any proposed change in the method of design or delivery of the training. I enjoyed my period of time off. I did not have any treatment, see any doctors and did not have any counselling and was otherwise well although I was in need of a holiday. I enjoyed my holiday.
39. I returned to work on 18 March 2010.
40.About two days later I was presented with a number of documents relating to the new Radio Training and Development Framework (it was described as ‘the new direction for radio training’) − which had all come into being during my leave period, and a new job plan which reflected these changes.
41.These documents and subsequent discussions with my manager Justine McSweeney outlined the new position for the Radio Training department, ie that it was moving away from the face to face classroom training and coaching I had been doing (due to budget restraints, lack of personnel, and a new philosophy and taking on a largely project management, support and liaison role. We were to create and design flexible delivery tools and training materials (ie online, e-learning and virtual classroom) and offer train the trainer workshops to, and support, senior radio staff across the country who would deliver any classroom training that may still be required in their locations.
42. The documents came to me by email from Justine McSweeney.
43.Prior to receiving the email there had been no discussion with me about any change in my role or in the way that training was to be delivered. After I read the documents it was clear that the Radio Training Department had undergone a major restructure whilst I was on my period of leave.
44.My role was no longer to be a craft skills coach or to design, write and deliver face to face, experiential, interactive classroom based training. My job was changed from delivering training one on one or in groups to largely a support, liaison and significant project management role. I was to focus on the design, writing and delivery of material for online and flexible remote learning modules.
45.The new Job Plan also required me to design training for content makers (as broadcasters were now called) in the broad range of radio craft skills.
46.These skills now include a range of multi platform and social media task. I had never trained in these areas before because these were not areas I had any knowledge or skill in. Prior to being presented with this job plan there had been no discussions with me about these proposed changes. My skills and competencies at that time did not meet those required for this new job.
47.My computer skills are, I admit, rudimentary but had been sufficient to adequately perform the usual tasks required of me at that time. I do not have skills or strengths in the highly technical computer field and these had not before been required of me. Any training around technical or multi platform aspects of the content maker’s role had always been previously handled by ABC specialists in that field. I am a traditional classroom trainer and the new flexible, online and remote methods of online workshop material design and delivery was not something I was either familiar or comfortable with. My new job plan required me to sign up to do a job which did not believe I was capable of doing and certainly not capable of attempting without extensive training. In my view I did not have the competencies to either design, write, deliver or project manage the online training the job plan was requiring.
48.I was extremely concerned as I knew the purpose of a job plan was to clearly reflect and outline the duties and tasks an employee was required to perform in the forthcoming year. It also outlines the work standard level the employee is to perform to. By signing this job plan as it stood I would have been agreeing I was capable to doing the job to the highest level – the band nine level I had been on for some years. I was not prepared to do so as I simply did not possess the skills.
49.I would have been very happy to agree to do a whole host of training to enable myself to become skilled to do the new job that I was being required to do but not to sign, in effect, something that I was never going to be able to do without that necessary training.
50.The document that I was asked to sign which is called the ‘Performance Agreement Administrative Sheet’ is clearly a document that if I had signed I would have been required to implement.
51.There were a whole host of things in that document that I did not feel that I was capable of doing. Part of the formal job plan document is the Learning and Development section which is meant to identify any areas in which the employee will be needing training over the next year. It is meant to outline in detail what training will be given, its objective, who is responsible for its implementation and a date for the Land D activities. Despite the fact that I needed extensive training to enable me to work to this new job my Learning and Development section was blank. Despite repeated requests by me to Justine she refused to change the job plan or to outline either to me verbally or in the Learning and Development section of the document any training I was to be given to equip me to undertake this new role.
52.The things that I did not think that I was capable of doing included:
On page two under the heading Job Purpose it stated:
‘ As part of the Radio Training and Development team, plan and implement best practice adult learning programs ……….. to assist radio content makers (presenters, producers, cross media reporters etc) across Australia to develop and hone their skills.’
53.Cross media reporters primarily use online multi platform content delivery systems for their stories and occasionally digitally record and edit packages for playing on-air during radio programs. During my time as a producer and presenter these were not tasks I ever undertook (the CMR jobs actually didn’t exist then) and as a trainer I have never trained in these areas because I have no skills or knowledge in how to perform the role of a cross media reporter.
54. Further on page 2 under the heading Training (b) it stated:
‘ Develop and deliver innovative cross divisional programs, events, systems and tools in relation to the broad range of radio craft skills while ensuring behavioural alignment with ABC Corporate Values.’
55.The only programs, events, systems and tools I have competence to develop would be those that are associated with classroom training and one on one coaching in traditional radio craft.
56.The term ‘broad range of craft skills’ as referred to in my new job plan and outlined in ABC job descriptions and job plans of content makers (previously known as broadcasters or program makers) across the country refers to both what some in management now refer to as heritage craft skills (that is interviewing, writing radio scripts, presentation skills, producing programs etc) and a wide range of multi platform skills, including, but not limited to – taking digital photos and publishing them to the web, shooting video stories and publishing them to the web, digital recording and editing of stories, audio and video and publishing them to the web, establishing and maintaining station and program websites, blogs and Facebook pages, using Twitter and Facebook to find content for ABC use and using Facebook and Twitter to promote ABC content to a social media audience, and podcasting. I was never required to perform any of the multi platform/online tasks either as a program maker/broadcaster (ie my job prior to 2001 – most of those tasks did not exist then) or as a trainer (ie my job since 2001). I would need extensive training to be able to perform these tasks at a content maker level and then further extensive training and practice before I could legitimately be expected to train these tasks at my band nine level.
57. Further on page two under the heading Training (c) it stated:
‘ Alignment with Best Practice - Ensure approaches to radio craft skill acquisition draws on best practice organisational learning and knowledge management theories and practices.’
While I obviously have knowledge in current theories and practices around classroom training and coaching I believe it would be necessary to undertake further personal training and development before I could adequately ensure our approaches matched best practice in any other organisational learning management theories and practices.
58. Further on page two under the heading Training (d)
‘ Develop flexible delivery options for training to allow content makers to access targeted craft training across the country’.
According to Australian and International learning institutions and learning experts the term ‘flexible delivery’ refers to the many ways in which training can be delivered via, but not confined to, online learning, toolboxes CD Rom, internet, online tutorials, virtual classroom, or virtual learning environments, discussion boards, chat rooms, and other various multi platform and e-learning methodologies as well as face to face.
59.I have absolutely no idea of how to design, develop or deliver any training using any of these methods. Justine explicitly explained to me during our job plan discussions that any face to face training would be delivered by other broadcasters and not me. The Radio Training Framework document also outlined this new way of doing things. She said I might have an opportunity to deliver some Train the Trainer sessions to the content makers (broadcasters) who would deliver any face to face sessions.
60. Further on page two under the heading Training (e)
‘ Project Management – Project manage significant training initiatives’.
Although I can manage my own workload I am not a person who is a project manager and I felt very uncomfortable about leading teams using methods that I had absolutely no knowledge of. I believed I would need a reasonably proficient practical understanding of e-learning principles and methods if I was to project manage, lead teams, advise and work within teams, or to be the person responsible for signing off on projects utilising these methods.
61.Further on in the job plan on page 4 under the heading Policies and Procedures (b and c)
‘ Understand and apply the law as it relates to broadcasting and publishing content, Adherence to the law as it relates to broadcasting and publishing content’.
I have undertaken extensive training to understand, apply and adhere to the law as it relates to broadcasting but I have no current knowledge or competence of the law as it relates to copyright and publishing content on multi platform systems.
62.Further on in the Job Plan on page five under the heading Competencies/sub heading Content
‘ Ensure content is contemporary, aligned with training needs and delivered in an interesting and informative manner’.
63.I have no current competence or knowledge of what is contemporary in relation to content regarding multi platform tasks or how to ensure e-learning delivery is (especially by others if I’m simply project managing or leading a team) is (sic) done in an interesting and informative manner.
‘ Creative leadership in realisation of craft training programs to an expert level’
64.Once again I was concerned that my current knowledge and competence allowed me to provide ‘creative leadership ... etc’ in either classroom training or coaching. I had no idea of how to provide this in relation to the new e-learning/flexible delivery approach.
65. Also on page 5 under the heading Key Performance Indicators/ Training
‘ Training
Variety and interactivity of content
Participant Feedback
No of training programs that are accessible across all networks
Feedback from network management’.
66.I was very concerned that this section appears to place me in the position of being appraised against other people’s traning performance. I don’t currently know how to design variety and interactivity in e-learning modules; so I would have to rely on others to do this. If I’m not competent to design these modules and I’m not competent to deliver them then it seemed to me that I would be agreeing to be held accountable against some other trainer’s work – and against the participant or management feedback of that other trainer’s work.
67.Also, as the manager is the person who decides what the training team did and didn’t do, I was also concerned about being held accountable against the number of training programs accessible acorss all networks. My manager would be the one deciding and directing this, not me.
68.Also on page 5 under Job Plan Competencies/ Sub heading Relationship Management (Team Work)
‘ work as an integral and positive member of a team to create training materials in a variety of delivery styles to a highly advanced level’.
69.Again, although I am happy to be a positive and integral team member I can’t create training materials in a variety of delivery styles to a highly advanced level. Justine explained to me that this meant using a variety of e-learning and online learning tools and methods.
70.When I was delivering face to face training I designed, wrote and delivered workshops and coaching in what some in senior management refer to as ‘Heritage Broadcasting skills’ (ie, the interviewing, script writing, presentation and production skills etc relating to a talk radio program). As the role of broadcasters begin (sic) to change (after I was no longer a broadcaster – post 2001) to incorporate training in those other fields which were slowly coming into play people, such as multi platform delivery, blogging, using Social Media etc , content makers (broadcasters) would get training in those fields from specialist trainers elsewhere in the ABC. I had no skills in those areas and was therefore not prepared to sign up at a level nine agreeing that I could be delivering that content in that way.
71.When I told Justine that I was not able in good conscience, to sign that document she said ‘this is the job now. You have to sign it. And a job plan is purely aspirational anyway’. I did not believe that that was correct. I believed that by signing it I was committing myself to agreeing that I could do the work set out in the job plan to a band nine level
72.I was very concerned that once I had signed up to that I would be held to account for any failures when it came time be appraised against the document at the end of the performance cycle. In view of the fact that I could not do a significant portion of that job plan, I was concerned that I was being set up to fail.
73.I was especially concerned as originally Justine did not seem to think that I needed any training for these areas.
74.After some discussion based around the points I’ve raised above she said I would be given training but I shouldn’t worry about the detail and that would be sorted as we went along provided I signed the job plan. She told me that I wouldn’t be appraised against the parts of the job plan I couldn’t do and that I was being untrusting by not accepting her assurance on this.
75.Justine was not prepared to put in writing what she was saying to me verbally which was that I would not be judged against the parts of the job plan I couldn’t do and that I would be getting training in the areas in which I had no current skills or competence. This should obviously have been written into the job plan (which is standard practice and required under our enterprise bargaining agreement) and I thought her refusal to change it in any way highly unusual given what she was saying.
76.Having regard to the state of the ABC at that time (ie a period of big change) I was not convinced in my own mind that Justine would be in the role 12-24 months going forward. It was not the case that I was prepared to sign a document which in black and white said that I could do a job that I was not able to do.” (Exhibit A1)
The applicant’s statement, dated 10 February 2012, is as follows:
“1. I, Karen Buck, provide this supplementary report in response to the Respondent’s correspondence to my solicitors dated 6 February 2012, a copy of which is annexed hereto and marked ‘A’.
2.On the 18th March 2010 I returned to work after a period of about six months Long Service Leave and was sent via email by my manager, Justine McSweeney, a bundle of documents which included an outline of the restructure of the ABC Radio Training and Development Department, a new Strategic Three Year Plan and a new personal job plan which reflected those changes and described the new duties I was to undertake.
Please see the following, which is one of several documents circulated throughout the ABC Radio Division outlining the ‘new direction’ and restructure of the Department I worked in. This is an excerpt from a Director of Radio, Kate Dundas, all-staff email dated February 12th 2010. (Emphasis hers)
‘Learning from each other
At the end of last year the Radio Executive endorsed a new model for training and development for the division: one that takes into account how your needs will change during your career in ABC Radio. The model was designed by our Radio Training & Development Team with input from key stakeholders within and outside of the division.
The first phase of implementation will involve the launch of a thorough induction and orientation program for new staff .This will be followed with a continuing program of training and development activities to match divisional priorities and staff experience and requirements. Ultimately throughout the lifecycle of your employment you will have access to a mix of professional development and, for our content makers, craft based activities − using a range of traditional and new delivery methods – elearning modules, webinars, face to face sessions and discussions groups to name a few. We want to develop a learning culture within Radio and part of this process will involve seeking input, material and advice from our innovative and experienced content makers − inviting them to share their knowledge and love of the craft with others.’
3.No discussion was held with me at any time, especially in the months prior to my LSL, or during it, about any change in either the skills I would be training or the methods I would be required to use in designing, writing and delivering training. I believe it was unreasonable of the ABC to alert me to the restructure of my department and my job in this way. I believe it is contrary to section 51 of the ABC’s Enterprise Bargaining Agreement which says (bolding emphasis mine):
51.2 Notification of Change
51.2.1 Where the ABC has developed a formal proposal to introduce changes in organisation structure(s), work practices and/or technology (including computer hardware or software) that is likely to have a significant effect on employees, the ABC will notify the affected employees and their representatives to initiate discussions before implementation of the proposed changes.
51.3 Significant Effect
51.3.1‘ Significant effect includes redundancy; major changes in the composition, operation or size of the ABC’s workforce or in the skills required; elimination or diminution of job or promotion opportunities; alteration of hours of work (excluding regular roster changes); need for retraining or transfer of employees to other work or locations; restructuring of jobs, or where there are occupational health or safety implications.
51.4 Discussion
51.4.1 Discussions with employees and their representatives referred to above will include but may not necessarily be limited to:
(a)reason(s) for the change from existing technology, system(s), practice or organisation;
(b) the measures taken (or to be taken) by the ABC to avert or mitigate the possible adverse effects the changes may have on employees;
(c) training, retraining, skill or qualification requirements;
(d) assessment of the availability of required skills;
(e) consideration of other alternatives, if any;
(f) occupational health and safety implications, if any;
(g) accommodation implications, if any;
(h)the capacity of any proposed technology or system to monitor employees' work performance, or to have an impact on an employee's privacy;
(i) job classification changes;
(j) trialling and evaluation procedures;
(k) schedule for implementation; and
(l)the impact, if any, on areas which may be indirectly affected by the change.
4.In response to my concerns that I did not at that time possess the skills or competence to do the new job my manager, Justine McSweeney, explained to me, via phone discussions, that my job had been changed. I would no longer be designing and delivering radio craft face to face workshops, writing radio craft resource materials, and coaching broadcasters and managers around radio craft. My new role would be largely that of a ‘project manager responsible for the design, rollout and management of a range of flexible, multi platform, remote delivery modules, systems and tools’.
Any face to face classroom training would be done by what she referred to as ‘other knowledge brokers, and senior and experienced content makers’ who would be seconded for short periods to deliver any classroom training.
I may be given an opportunity to deliver ‘some’ classroom based Train the Trainer sessions to these new trainers. She explained the reason I would no longer be performing the role I had been doing for the past 9 years was due to the lack of resources and budget. She said the restructure reflected the new needs, direction and philosophy of the Radio Training and Development Department.
5.I was dismayed with the new job plan as presented to me especially after I had pointed out that I did not possess the skills or competence to perform it and would require extensive training but my concerns were simply fobbed off. I said I couldn’t in all conscience sign something that, in effect, meant I was agreeing I could perform that job to the highest level. I am on a band nine which is the highest point in our current grading system. I pointed out to my manager that the learning and development section of the job plan – which should have outlined the training I needed and would receive, when I would receive it and by whom – was completely blank. I asked for the job plan to be changed and the new duties that I did not yet have competence or skills in be skills -assessed and then an appropriate learning and development plan drawn up. She refused. I do not believe it is a reasonable action to insist an employee sign and perform to a job plan they can’t do.
6.I also feared I had no aptitude for the new job as my computer/online skills are rudimentary, though sufficient to the tasks I had been required to perform up to this point. It is not a milieu which I find comfortable. I would have been happy to undergo training and, as with all my previous job transitions in the ABC, would have given the new job my best efforts.
For instance, I had initially been very nervous about becoming a trainer but with support, encouragement and training took on the job with great success. I had also been very reluctant to take an on-air role but once again great encouragement, support and training had allowed me to eventually take on and perform very well in the role. This time the situation was completely different. My manager refused to alter the plan in any way. She said it was non-negotiable. ‘This is the job now. You have to sign it’. She also added however that she ‘understood my reluctance to do so’, that in my position she wouldn’t want to either and that she could ‘understand if I wanted to leave’. Initially she said I wouldn’t need training, she was ‘confident’ I could do the job. After more discussion her position moved to: ‘Don’t worry about the training, don’t worry about the detail – we’ll sort that out later’.
7.She also told me I was being ‘untrusting’ fearing I would be appraised against the job plan and face the humiliation of being penalised if I was found to be underperforming against it. She said ‘Don’t worry. A job plan is merely aspirational anyway’. I believe this is an incorrect interpretation of a job plan, contrary to the ABC Enterprise Bargaining Agreement.
8.I contend these actions were unreasonable and are a breach of section 20 (especially section 20.4.3 d) of the ABC Enterprise Bargaining Agreement which says (bolding emphasis mine):
20.4.1The job plan will provide a clear description of the employee’s role and objectives for the forthcoming performance cycle.
The job plan will be based on the operational plans of the work area, the employee’s competencies, development needs and career aspirations, and will be consistent with the relevant Work Level Standards.
20.4.3 The job plan will:
(a) define the job’s role, key functions and required competencies;
(b) indicate the appropriate salary band or bands;
(c) identify key performance indicators; and
(d) identify any learning and development activities to be undertaken.
9.I believe the ABC’s action in regard to my job plan is also unreasonable in that it also breached section 12.2 of the Enterprise Bargaining Agreement which says:
Clause 12.2
Individual Learning and Development Plans:
Individual Learning and Development Plans will be prepared by managers, in discussion with employees, as part of the performance management process. The plans will be reviewed at least annually and will have regard to the ABC’s operational objectives, divisional training plans and the employees own development needs and aspirations.
10.In fact my development needs which should have been assessed and addressed in my Individual Learning and Development Plan, which is part of an employee’s Job Plan, were completely ignored and I was being pressured to sign a job plan that I couldn’t, with the best will in the world, perform to. At the end of that performance management cycle (a year) I would have been appraised against that job plan and if found wanting, (which I most certainly would have been – despite my manager’s suggestion I was being ‘untrusting’ to fear this) could face the humiliating prospect of being found ‘unsatisfactory’ in my performance which triggers a process that can end up in dismissal. By signing a job plan I could not perform to I would have been setting myself up to fail. I believe insisting I sign the job plan as it stood, in effect insisting I set myself up to fail, was an unreasonable action.
11.Both my original appeals to my manager, Justine McSweeney, and all my subsequent appeals to managers further up the line resulted in the same response. I was told to sign the job plan, I was told I could perform to the job plan and though promises were made of training none was ever detailed scheduled or delivered. In an email dated September 6th 2010 Director Radio, Kate Dundas, directed me to work to the disputed job plan. This direction was reiterated by Head of People and Learning Vanessa MacBean in an email dated 9th August 2011.
12.I contend this is an unreasonable action and in breach of section 16.3.1 of the Enterprise Bargaining Agreement which states (emphasis mine):
‘ An employee may be required to perform a broader range of functions and or move between functions and work areas within the limits of their competence, training and classification.’
13.As a certified Accredited Trainer and Workplace Assessor within the ABC with many years training and experience in the field I am very familiar with what the term ‘competence’ means in relation to an employee’s ability to perform their job. To be awarded a ‘competent’ rating an employee must be assessed and able to demonstrate in several ways that they can perform the task required of them to a benchmark standard. In my case signing the job plan as it stood would have meant I was agreeing I could perform all the duties it outlined to the band nine level, which is the highest in our award system. I simply could not do so – certainly not without extensive training and an opportunity to practice and integrate the new skills.
14.I also believe the way (sic) the direction by the ABC that I work to the disputed job plan was unreasonable in relation to section 20.4.4 of the ABC’s Enterprise Bargaining Agreement which states in part (bolding emphasis mine)
‘ The job plan will be developed by the manager with the participation of the employee and shall be mutually agreed in writing.......’
15.I was headhunted by ABC Radio in Perth in 1989 to become a producer of their then morning radio program on 6WF (now 720). Until 2001 I produced across all programs on the station, and was also encouraged to take on the role of occasional trainer, mentor and trouble shooter. I was also encouraged to take an on-air role which I eventually took on full time in 1997 as the co-host of the station’s flagship breakfast time slot. I was given extensive support, encouragement and training in all of the job transitions I undertook during this time. See outline below:
Training undertaken by me as a participant: 1989 to 2001.
*Two week core skills training covering all aspects of basic radio broadcasting.
*Writing for radio
* Interviewing
*Advanced Interviewing
*Advanced production skills
*Presentation skills
*Continuity skills
*Radio Documentary Making
*Operating studio technology
*Operating an on-air desk
*Presenting music to air effectively
*Communication skills
*Handling difficult interviewees on-air
*Train the Trainer certificate
*Using netia to broadcast on-air
*Conflict Resolution
*Making Powerful Radio
*Broadcast Law
*How to use your voice on-air.
I also was provided with many one on one training sessions with the then Senior Radio Trainer and a Technical Trainer firstly in my fledgling role as an occasional ABC trainer, and then later in my role as an on-air presenter.
16.In 2001 I moved into a full time national training role which was to design and deliver the ABC’s new Accredited Certificate IV in Broadcasting to broadcasters around the country. This required both the design and delivery of extensive face to face classroom sessions and then travelling the country and assessing the various broadcasters enrolled in the scheme.
After Accredited Training was phased out by the ABC in 2006 I continued along with my colleague Liz Gray ( we were the only two full time trainers) to create, write, and deliver face to face classroom based training around the country. These sessions were all in what is now referred to by senior management as ‘heritage radio craft’ ie such things as interviewing, writing scripts for radio, presentation skills, talkback skills, production skills etc. We also designed and delivered workshops for managers to assist them in their roles.
17.We were given nine years extensive support, encouragement and training (both internally and externally provided) to allow us to perform our jobs as trainers, assessors and coaches. Details of some of the training I required and was to receive for my ABC work prior to 2004 can be found in the learning and development sections of my job plans. Despite my duties having initially broadened and then changed considerably post-2004, and despite my repeated requests to subsequent managers, my job plan had not been updated since 2004.
18.In recent years (after I was no longer working as a broadcaster) the skills required of broadcasters (now designated as content makers) have broadened considerably to include a wide range of multi platform, social media tasks. These new tasks with the ‘heritage craft skills’ are what is meant when the’ broad range of craft skills’ in relation to content makers is mentioned .This new interpretation of ‘craft skills ‘is outlined in job plans and job descriptions of content makers around the country.
Part of my new plan requires me to ‘Develop and deliver innovative cross divisional programs, events, systems and tools in relation to the broad range of Radio craft skills.....’
19.I have no competence or skills in any multi platform or social media tasks as a practitioner and would find it impossible to train people to do them without first undertaking extensive personal training and development in these areas. Yet this is what the new job plan required of me. I do not consider this a reasonable action.
20.The job plan also required that I would develop, design and deliver training via on line, and e-learning flexible delivery systems. I do not possess the competence or skills to do this and all of the Australian and International e-learning experts I have read and consulted since this job plan dispute began indicate it is a specialised skill which requires specialised training and support.
21.I have been fruitlessly attempting to negotiate a resolution to this dispute since March 2010. It has been a stressful, depressing and incomprehensible situation for me. If I was not to be appraised against things in my job plan that I couldn’t do – as suggested at one time by my manager – why were these tasks in my job plan? If, however, as I was repeatedly assured by various managers, I was to be given training to allow me to attempt to perform the new job why was the learning and development section of my job plan blank, and why was none detailed, suggested, planned or delivered for the performance cycle of that job plan?(ie March 2010 – 2011).
22.I don’t believe the way this job plan was presented to me and the ongoing insistence and direction that I work to it was a reasonable action. And I do not believe the way the dispute has been handled by the ABC has been reasonable. I believe it is contrary to section 51.4.3 in relation to Managing Change in the Workplace, and section 57/ 58 which relates to Personal Grievances.
23.None of the Personal Grievance sections have been enacted by the ABC. In fact I believe a check of the varying lengths of time that the ABC has taken to reply to my various emails, or to act on the recommendations of either Comcare’s psychiatrist or their own workplace rehabilitation specialist is an unreasonable action. Especially in light of the sections dealing with ‘prompt consideration’ and the ‘timely resolution’ of a dispute.
…
22.(sic) On the 17th of March 2011 I received an email from ABC acting manager employee relations, Emma De Cean, which included an attached revised draft job plan complete with a proposed learning and development plan, and a draft document outlining how I would be involved in the process of adapting classroom training workshops to an elearning module. I was really pleased to see that some movement had happened but I still had some concerns with the draft job plan and outlined these in a reply to Emma De Cean, including attachments outlining my skills gap analysis for the new job (which I had earlier supplied to the ABC at their request). I included some e-learning experts' comments on training staff in these methods, which clearly underscored the unreasonableness of the ABC approach to ensuring my ability and competence to undertake my new job.
23.(sic) Emma de Cean replied to me saying she had received the documents and someone would be back in touch with me shortly to further the discussion. I have heard absolutely nothing from the ABC about this revised job plan since.
24.(sic) Some five months later, in August of 2011 I received a letter, via Graeme Thomson the CPSU secretary for the ABC, from the head of ABC People and Learning Vanessa MacBean, discussing my possible return to work at the end of August. At that point this was the date my doctor's certificate covered me to. Ms MacBean said I would be given a skills gap analysis and a training program worked out so I could acquire the necessary new skills but until that time I would be required to work to the disputed job plan as I had been previously directed. Ms MacBean also stated the ABC required me to be medically assessed by their rehabilitation specialist to ensure ‘I could be effectively rehabilitated back to my role in radio’. She did not mention in her letter anything at all about the revised draft document Ms De Cean had earlier sent me in March.
25.(sic)I attended the medical assessment with Dr Augustine Hwee of Medibank Health Solutions on 29th September 2011. He provided his report to the ABC a couple of weeks later and though I had been told by Dr Hwee and the ABC that I would be entitled to a copy of the report, and though I and my doctor have asked repeatedly for a copy (I have formally put in a FOI request) to date the ABC had failed to provide it to me or my doctor.
26.(sic) In response to yet another request from me for the report, Mr Luke Caruso the Head of ABC People and Learning Services, in an email dated December 22nd 2011 stated the ABC was seeking clarification on certain points in Dr Hwee's report and telling me that Mr Hwee had indicated that I was not fit for work pending resolution of the job plan dispute and the working relationship issue between myself and Ms McSweeney.
…” (Exhibit A2)
The applicant’s statement, dated 1 March 2012, is as follows:
“1. I, Karen Buck, have pursuant to a Summons issued to the ABC recently had access to my personnel file held by the ABC. I provide this statement to extract from my file documents relevant to my case.
2.Each of the documents below show the type of performance appraisals I had experiences (sic) at the ABC prior to 2010.
3.Annexed hereto and marked ‘A’ (at page 3) is a document titled ‘ABC Performance Agreement Form Administrative Sheet’.
4.Annexed hereto and marked ‘B’ (at page 38) is a document titled ‘ABC Performance Agreement Administrative Sheet’.
5.Annexed hereto and marked ‘C’ (at page 45) is a document titled ‘Broadcaster Assessment Report March 2001’.
6.These documents have not previously been provided in the T Documents.” (Exhibit A3)
In her oral examination-in-chief the applicant was referred to a statement of Vanessa MacBean, Head of People and Communications, ABC Radio, dated 9 February 2012, made for the purpose of this proceeding (see paragraph 25 below). She said that she had not had any discussions with Ms MacBean about the present matter.
In relation to Ms MacBean’s statement, the applicant gave (inter alia) the following evidence:
·in response to para 10, she said that the document comprising her 2010 job plan was not described as a “draft” job plan, and that she had made numerous suggestions to Ms McSweeney (her direct line manager at the ABC) about amendments to that job plan but that Ms McSweeney had refused to make any amendments to it;
·in response to paras 11−12, she said that her “job”, as it had existed for the previous 10 years, had ceased to exist and that what was proposed was a “new restructured job”;
·in response to para 15, she disagreed and added that the 2010 job plan did require her to deliver online training and that she was never offered or provided with training in online delivery;
·in response to para 19, she disagreed and added that, by signing the 2010 job plan, she would be committing herself to performing the duties outlined in that job plan, including e-learning.
The applicant was next referred to a statement of Justine McSweeney, Manager, Radio Training and Development in the ABC, dated 8 December 2011, made for the purpose of the proceeding (see paragraph 22 below). In relation to Ms McSweeney’s statement, the applicant gave (inter alia) the following evidence:
·in response to para 20, she agreed that Ms McSweeney had suggested to her in 2009 that she draft her own job plan but she added that she had never previously been asked to do that;
·in response to para 43, she denied that Ms McSweeney had referred to the job plan as a “draft job plan” and said that Ms Sweeney had then told her that “this is the job now”; she added that Ms McSweeney had told her that her colleague, Liz Gray, was happy with her job plan (which was in substantially the same terms as the applicant’s 2010 job plan) and was prepared to sign it;
·in response to para 53, she said that Ms McSweeney had never referred to the 2010 job plan as a “draft job plan” in any of their conversations about it.
In cross-examination the applicant gave (inter alia) evidence to the following effect:
·she was first made aware of the 2010 job plan in an email to her from Justine McSweeney on 18 March 2010 which contained an attachment comprising the job plan;
·the document comprised in that attachment was the 2010 job plan and that document did not include the word “draft”;
·in her conversations with Ms McSweeney about the 2010 job plan, it was never referred to as a “draft job plan”;
·she made numerous suggestions to Ms McSweeney about amendments to the job plan because she “could not work to it” in its original form;
·she asked for the job plan to be changed to include a Learning and Development section regarding e-learning;
·although an e-learning expert (Nicole Ralph) was ultimately hired by the ABC in September 2010 to provide training in e-learning, she did not know, at the time when the 2010 job plan was presented to her in March 2010, that this would occur;
·she did not take up Ms McSweeney’s suggestion that she draft her own job plan because she did not regard that as an appropriate task for her to do, she had never been asked to do that before, and she would not have known how to do it;
·as regards a learning and development plan, she did inform Ms McSweeney that she wanted such a plan to be included in her 2010 job plan and that she “indicated in broad brush strokes” what should be included in that learning and development plan;
·she did not know how to compose such a learning and development plan herself;
·she had been given “lots of promises” of training in e-learning but that had not been included in the job plan and “that’s where it has to be”;
·she was required by Ms McSweeney to sign the job plan, in March 2010 on the basis that training in e-learning would be provided to her later, and that was unacceptable to her;
·she was not prepared to sign the job plan without any reference to training in e-learning included in it;
·if the job plan had included provision for her to be given training in e-learning, that would have been acceptable to her.
The Evidence of the Witnesses Called by the Applicant
Graeme Thomson
Mr Thomson confirmed that he had signed a statement, dated 8 February 2012, for the purpose of this proceeding and that its contents are true and correct. Mr Thomson’s statement is as follows:
“1. I, Graeme Thomson, am the ABC Section Secretary of the Community and Public Sector Union (CPSU). I have held that position for the past 14 years. Prior to that I was the National Industrial Officer for the CPSU with responsibility for the ABC.
2.In my role I am responsible for the negotiation of the industrial instruments that that (sic) define the terms and condition of employment of ABC employees within our coverage.
3.I was responsible for the negotiation of the ABC Enterprise Agreement 2010-2012 and its predecessor, the ABC Employment Agreement 2006-2010. These two documents defined the working conditions and entitlements of Karen Buck in her employment at the Australian Broadcasting Corporation (ABC).
4.In early 2010 (possibly March, but it may have been early April) I was contacted by Karen Buck who sought advice from the CPSU about the changes to her duties. She advised me that on her return from Long Service Leave she had been asked to sign a Job Plan that recorded her duties as incorporating the performance of on-line training. In that initial conversation Ms Buck explained to me that she believed the re-designed job she was significantly different to the job she had been performing (sic). She further stated that she was concerned that she lacked the skills and competencies required to perform the varied role.
5.I advised Ms Buck that under the terms of the ABC Employment Agreement 2006-2010 ABC management were entitled to direct her to perform a broader range of duties or functions provided that she had the necessary skills to perform the work and that they did not deskill her of (sic) present a threat to occupational health and safety. I referred her attention to clause 16.3.1 of the ABC Employment Agreement.
6.I provided on-going advice to Ms Buck throughout her dispute with management. Through these conversations I formed a view that management had acted unreasonably in its treatment of Ms Buck.
7.I knew that Ms Buck was a senior and experienced trainer. I understood that through her role she had highly developed skills in training and adult learning and that she also had a clear understanding of the skills that she would need to perform effectively in both a classroom environment and in a blended environment that I understood to involve the delivery of training that comprised a mixture of face to face training and the delivery of training via the internet.
8.Ms Buck appeared to me to have a genuine apprehension about her lack of skills in the use of a computer beyond the software generally used in an office environment. Ms Buck had explained to me that she believed she needed to have a higher level of proficiency in computer based skills to be an effective trainer particularly if she was expected to train radio broadcasters in the use of on-line equipment and to use on-line tools to undertake that training of others. I had no direct knowledge of Ms Buck’s level of computer skills and took at face value her assurances to me that she only possessed rudimentary computer skills.
9.In discussions with Ms Buck I formed the view that she had been treated in a manner contrary to the terms of the Agreement because of management’s continued insistence that she perform duties that she lacked the necessary skills to perform. That insistence was contrary to the terms of cl 16.3.1 of the ABC Employment Agreement.
10.I also formed the view that the insistence by management was unreasonable because ABC management had not undertaken a full appraisal of Ms Buck’s skills. Rather, ABC management’s assessment was based on the informal assessment by her manager. Ms Buck as a senior trainer, a person I understood to have accredited skills in the recognition of skills and competencies of other employees, had alerted ABC management that she did not possess the necessary skills to perform the duties she had been directed to perform. I believe a reasonable employer would have taken these concerns seriously and have undertaken a genuine and formal assessment of her skills, and of the skills required to perform the job. I am aware from the correspondence between Ms Buck and the ABC that no formal appraisal of skills was undertaken and that Ms Buck had simply been advised that her manager, Justine Sweeney (sic), ‘felt strongly’ that she had the competence and skills to perform the new role. Ms Buck however expressed concerns to management that the disputed Job Plan required her to perform the revised role, including the delivery of on-line courses, at the highest level, ie consistent with Band 9. Ms Buck told me that she believed that she would not be able to deliver work at that level and sought training in these areas before she could be required to perform the revised role.
11.The Job Plan that Ms Buck was directed to perform was not agreed and the terms of the agreement that was in place at the time he (sic) direction to perform the duties of her Job Plan, ie September 2010 was the ABC Employment Agreement 2006-2010. That Agreement provided at clause 20.4.4 that all Job Plans had to be agreed. Despite this, ABC management directed her to perform the Job Plan.
12.Ms Buck had advised me that she had sought a variation to her Job Plan by the removal of those duties that required her to perform on-line work and with the inclusion in the Job Plan section dealing with her own learning and development, details of the courses and training that she would be provided to develop her skills to the required level.
13.On 17 February 2011 I met with Vanessa MacBean to discuss Ms Buck’s Job Plan.
14.At that meeting I discussed the need for the ABC to formally address the gaps in Ms Buck’s skills. At that meeting I undertook to ask Ms Buck to provide a description of the areas in which she had identified as gaps in her skills. I spoke to Ms Buck about the need to provide that list. Ms Buck advised me that the provision of the list would be delayed because she had to fly to Tasmania following the death of her brother.
15.I wrote to Ms MacBean on 14 March 2011 and provided her with the list of areas that Ms Buck had identified as areas where she lack skills ‘What I cannot do and will need training in: Content Making’.
16.On 18 March 2011 Ms MacBean replied to me and advised me that the ABC had sent a revised Job Plan to Ms Buck. The letter stated that the revised Job Plan made it clear that Ms Buck would not be required to train in on-line content creation and that the matters contained in Ms Buck (sic) list would therefore not be included in her Learning and Development Plan.
17.Notwithstanding the statement that Ms Buck would not be required to deliver on-line training, the Job Plan still contained provisions that required her to possess skills she did not have to complete core duties such as ‘create training materials in a variety of styles to an advanced level’. In the new training environment at the ABC where training was either on-line or mixed ie classroom backed up by on-line, Ms Buck explained to me, and wrote to management confirming that she would need training in the area of flexible delivery.
18.Given Ms Buck’s clear statement that she did not possess the necessary skills to fulfil the requirements of the initial and revised Job Plan, based on my experience in being involved in Job Plan processes I believe the ABC would usually have provided Ms Buck with training in areas where she stated she lacked the necessary skills or to undertake (sic) an independent analysis of her skills, ie use an external assessor to determine what gaps there were in Ms Buck’s skills.” (Exhibit A5)
It is unnecessary to refer in detail to Mr Thomson’s oral evidence in these reasons.
Elizabeth Gray
Ms Gray was formerly employed by the ABC as a Trainer in its Radio Division. She said that her employment by the ABC ceased in November 2011. She confirmed that she had previously made a statement in this matter on 14 January 2011 and that its contents are true and correct. Ms Gray’s statement is as follows:
“ I’ve worked closely with Karen Buck since we were both recruited to ABC Radio Training in 2001.
In all that time, through many challenges, frustrations and setbacks I have never seen Karen as anxious and distressed as she has become since engaging with her managers over the restructuring of our jobs and our new job plans for 2010-2011, an issue she has been trying to resolve since March.
To give the situation context …, Karen and I had extensive backgrounds in radio before we were recruited to Radio Training. Karen was a producer with the ABC in Perth and then co-presented a very successful local breakfast program. I made documentaries for Radio National then spent 10 years as a senior producer with Local Radio in Melbourne. Working in daily live radio confronts you with immense challenges. You cannot survive if you buckle easily under pressure or are unable or unwilling to adapt to change. You have to be flexible, resilient and a good team player to do the job well. Karen not only showed she possessed those qualities she thrived on the challenges and came to be highly valued both as a producer and presenter.
When Karen and I joined Radio Training part of our role was to assess program makers and regional managers for the Certificate IV in Broadcasting. This involved frenetic travel schedules, tight timelines, sometimes long periods away from home, very early starts and very late finishes (since candidates with a 24-hour broadcaster could be working on anything from breakfast programs to late afternoon to overnights). We had many stressful situations to face. I’ve seen Karen so tired she could hardly function, homesick, concerned about candidates who were distressed or angry, but however hard going an assessment round proved to be she showed an astounding ability to recharge and find the energy and enthusiasm to make the most of a new day and a fresh challenge.
I assumed that Karen’s spirit was indomitable and would remain so no matter what difficulties she faced.
I was therefore shocked when I got back from long service leave in July last year to see how much she had been affected, and continues to be affected, by the way she’s been treated since she raised concerns in March about her job plan and the restructuring of her job.
We’ve been presented with changes to our jobs as trainers before. Although we were recruited as Certificate IV trainers and assessors, Radio Division management decided after several years’ involvement that accredited training would no longer be offered. As senior trainers and assessors, Karen and I were consulted about the decision, involved in the process and we took an active part in designing the approach to training that followed the move away from Certificate IV.
Given this experience of a major change in our roles and responsibilities, when the Radio Training management team changed in 2009, we would have had reasonable expectations that, as senior staff and as the only two ongoing trainers in the unit (others are recruited from their substantive positions from anything from days to months, depending on how long they’re need (sic) for) we would be consulted about changes to our roles if there were to be any, there would be discussions about how they would impact on us and, if there were new areas of responsibility, what training we would require.
This did not happen, although under the ABC Enterprise Agreement it is the agreed process when jobs are changed, and it was the process followed by previous Radio Training management around the winding down of Certificate IV and again when the then Director of Radio, Sue Howard, asked us to take on a new and daunting task – writing a series of radio craft books to be made available to staff across the division.
Up until late 2009 we were absolutely clear about what the Radio Division expected of us as trainers. Any changes to our roles were discussed and provisions put in place to train us (such as enrolling us in one of the best training programs in the country to equip us as workplace coaches) and to provide support for new ventures, like the flexible work arrangements that were put in place to enable us to write the radio craft books.
However, since the Radio Training management team changed at the beginning of 2009 it’s been difficult to get clear responses from anyone about our responsibilities or to have any input into decisions about our roles. In 2009 the new Director of Radio, Kate Dundas, commissioned a number of reviews within the division, including a review of training and development. In late 2009 a new direction for Radio Training and a new Radio Training Framework were developed. Both have since been introduced and information about them is available to all staff on the ABC Intranet.
With all the published statements about new directions and a new framework, and a job plan that’s completely different from previous ones, it’s utterly confusing to find that arguments are being mounted that our jobs have not been affected. For me it has been like landing in Adelaide and having the flight crew insist we’re in Melbourne, despite the landmarks being all wrong.
The Radio Trainer 2010-11 job plan calls for us to ‘develop and deliver innovative cross divisional programs, events, systems and tools in relation to the broad range of Radio craft skills’ (which now include producing content for websites and attracting online audiences) and to developing (sic) ‘flexible delivery options’ for training (including online learning programs).
In all of our years with Radio Training Karen has only ever been required to train radio broadcasting craft skills. That’s where she has proven aptitude and expertise. Radio content makes are now required to write blogs and features, upload audio, take and post digital photographs, and in some cases, make videos. Karen has no experience in or proven aptitude for generating web content.
The new approach to Radio Training calls for blended training delivery and the incorporation of e-learning programs. Once again, Karen has no experience or skills in developing and delivering learning programs via the web. The work required of us as radio trainers has been to develop and deliver interactive, experiential, face-to-face courses and workshops and to design support materials in the form of handouts, manuals and craft books.
Not only is the job plan different, so are the tasks that Karen has been required to perform since she returned from long service leave.
Since 2007, as part of the divisional training strategy after Certificate IV was wound down, Karen has been involved in designing, developing and delivering radio craft skills professional development workshops for staff and managers around the country (interviewing skills 2007, writing for radio 2008, radio production 2009) and it was expected that in 2010 she would be designing a similar professional development rollout for presenters.
Radio Training management decided not to go ahead with a presentation skills workshop, or with any radio craft skills rollouts in the form they had previously taken. Individual workplace coaching has been cancelled and substantial changes are in the process of being made to the introductory craft skills course for new radio staff, which Karen has been involved with since 2001, and which is to be a shortened, integrated cross media course rather than a radio craft skills course.
Karen is an inspiring face-to-face trainer. The energy and enthusiasm in her training rooms is a joy to witness and her courses and workshops have been highly valued by participants. It’s also something she gets a great deal of work satisfaction from. Since she came back in March Karen has done no face-to-face training. It’s not that there hasn’t been training going on. Workshops have been delivered around the country in digital photography and writing for the web. Karen has not been involved in those because her expertise is in radio craft, not in web skills.
There have been also been (sic) train the trainer workshops, which Karen was not a part of, although she is qualified to train new trainers and has done so in the past.
Instead of training or coaching, at which she also excels, Karen was allocated a project which could not have been less suited to her talents and abilities, delivering information to managers and supervisors across the division via a very unsatisfactory online system she’d been instructed to use called NetMeeting (which she was later told was the wrong system for the task). Evaluations from project participants show they were very critical of the technology and that the message was met with considerable hostility in some quarters (although Karen’s delivery was not) because many managers and supervisors taking part in these sessions were hearing about their new responsibilities for the first time.
As always, Karen did the best she possibly could, but it was a project that sapped her spirit, as has the continuing lack of consultation about our jobs and our futures and the bewildering and destabilising exchange with our managers about the job plan and what it is exactly we’ll be expected to do.
Although I first saw the job plan at the end of 2009, and said then that I could not sign it, I only began trying to get my own answers about it when I arrived back from leave at the end of July, more than four months after Karen began the process. I am finding the situation increasingly stressful and have been on sick leave myself for over a month. There is constant pressure to sign the job plan, although there is still no clarity about what exactly it is we’ll be required to do or why there are such inconsistencies in management claims about what they expect from us.
Karen is not resistant to change or to taking on new challenges and responsibilities. She appreciates that we work in a constantly changing media environment and that the ABC has to adapt to remain relevant. She has accommodated considerable change in the past, both as a radio program maker and as a trainer, but this process of change has been very different from any we’ve experienced in our years with Radio Training. It’s extraordinarily difficult to know where you stand when your managers won’t consult or negotiate and when what they say about what’s expected of you is contradictory and confusing.
Our anxieties over the job restructuring and our new job plans have been exacerbated by an inflexible and unsupportive approach to managing us which has been causing difficulties since early 2009 and which there has been no attempt to address. After a positive start with our then acting manager, Justine McSweeney, we began to have problems as a team, but we couldn’t talk about our difficulties or ask questions without discussions deteriorating. The whole team, including Justine, requested mediation. Radio Division management refused, on the grounds that the training and development review hadn’t yet come up with recommendations and therefore it wasn’t clear what our roles would be in the future. This rejection was dismaying because the strain of not being able to function effectively as a team was affecting everyone. Since we clearly needed help we approached People and Learning. We wrote to Ursula Groves (head of People and Learning) and I subsequently had a meeting with her to explain why we needed assistance. We were told that mediation could only be approved by our divisional management. Since they would not approve it and People and Learning would not help we were effectively abandoned.
During my leave last year Justine McSweeney’s application for the position of Manager of Radio Training and Development was successful and she is now our ongoing line manager.
Although we are at a level in the organisation where we are expected to work under minimal supervision and have shown over the years that we can be trusted to do so, we are now allocated tasks, methodologies are imposed and our work is closely scrutinised (in some instances more closely than that of less experienced seconded staff). This is a very difficult and demoralising situation for senior staff to find themselves in after so many years in radio and in training where we have been consulted, respected and regularly asked for advice by our managers.
I have witnessed Karen being told, in front of others, that she’s ‘too expensive’ to train in the eastern states, although she has previously trained in every state. In those days her managers had such a respect for her work and appreciation of her skills that the cost of sending her around the country was not an issue. I’ve also noticed that she has becoming (sic) increasingly excluded and isolated. I am based in Melbourne, as were most team members during the second half of 2010, including our manager Justine McSweeney. There were a number of formal and informal catch-ups in which Karen, working in regional WA, was not included. A get-together for the whole training team which Karen was to attend was cancelled without explanation and nothing else to my knowledge has been planned. She has often had no information about what the Melbourne-based members of the team are doing, what projects they’re working on or when they’re taking breaks. She could not get approval to work occasionally from home, despite the fact that she lives a considerable distance from her office and previous managers encouraged flexible working arrangements. At the same time, a Melbourne-based member of the team was permitted to work from home 2 half days a week.
When I came back from leave last year it surprised me that after so many years of bouncing back from everything radio and training could serve up to her Karen should have become so distressed and debilitated by what has happened to her since March. After starting the process myself, experiencing the inflexibility in our workplace and seeing the responses Karen has had to the issues she’s raised around her job plan I am no longer surprised.
It’s extremely stressful to be in a position where you cannot get straight answers from managers about what they want from you, where they profess to have confidence in your abilities but don’t act in a way that supports that, where you are not shown the kind of consideration, not only that the ABC has signed up to in the Enterprise Agreement and claimed to espouse in its workplace values, but that you have demonstrated you’ve earned through years of dedication, hard work and commitment to high standards of performance and where you’re not sure whether your job is at risk.
I know Karen fears that agreeing to sign the 2010-11 Radio Trainer job plan will put her at risk of underperforming and possibly losing her job, but the only alternative, not agreeing to sign it and pursuing answers, has placed her under enormous pressure and exposed her to erroneous and hurtful claims, both from Radio management and representatives of People and Learning. In more than 9 years of working with Karen I have never seen her as anxious and stressed as she is now and I’m convinced it has been caused by the way she’s been treated since she raised concerns in March about the restructuring of her job and her 2010-11 job plan.” (T19, pp 163–167)
The Tribunal notes the applicant’s contention, in paras 4–8 of her statement of 10 February 2012 (Exhibit A2 – set out in paragraph 9 above), that Ms McSweeney’s abovementioned relevant actions on 18, 22 and 24 March 2010 in relation to the applicant’s 2010 job plan were in breach of clause 20.4 of the ABC Employment Agreement 2006–2010 (“the Employment Agreement”) (Exhibit R2). Clause 20.4 provides:
“ 20.4 Job Plan
20.4.1The job plan will provide a clear description of the employee’s role and objectives for the forthcoming performance cycle. The job plan will be based on the operational plans of the work area, the employee’s competencies, development needs and career aspirations, and will be consistent with the relevant Work Level Standards.
20.4.2Job planning may involve managers in designing new jobs to keep pace with changing operational requirements, or finetuning existing jobs around the range of functions appropriate to the employee’s classification. However in many cases, for example where a number of employees are performing similar work, job plans may be generic. Similarly, where the work of an employee does not markedly change from year to year, the previous year’s job plan may be rolled over to the next year.
20.4.3The job plan will:
(a)define the job’s role, key functions and required competencies;
(b)indicate the appropriate salary band or bands;
(c)identify key performance indicators; and
(d)identify any learning and development activities to be undertaken.
20.4.4The job plan will be developed by the manager with the participation of the employee and shall be mutually agreed in writing. In the case of disagreement at this stage, the employee or the manager may refer the matter to the manager’s manager and to the director in an attempt to have it resolved.”
The Tribunal does not accept the applicant’s contention. The Tribunal is satisfied that, as at 24 March 2010 (when the applicant had her final conversation with Ms McSweeney about her 2010 job plan), that job plan had not yet been settled, and that it remained open to negotiation and possible amendment. Indeed, in the applicant’s email of 20 April 2010 to Louise Hermann (whereby she sought Ms Hermann’s assistance in resolving her concerns about her 2010 job plan), the applicant herself appeared implicitly to acknowledge that this was still the case in that she (inter alia):
·disputed the description of her duties in the job plan;
·referred to the job plan as “the draft JP”; and
·stated that she did not believe it was appropriate “to finalise the current job plan until [her] previous outstanding job plans and appraisals have been completed”. (T19, pp 102–104)
Subsequently, the matter was, at the applicant’s request, referred to Kate Dundas, Director ABC Radio, in accordance with clause 20.4.4 of the Employment Agreement. In those circumstances it seems to the Tribunal to be inappropriate to contend that Ms McSweeney’s relevant actions on 18, 22 and 24 March 2010 – at such an early stage of the 2010 job plan settlement process – constituted a breach of clause 20.4 of the Employment Agreement. Any suggestion at that time that any of Ms McSweeney’s relevant actions on those dates might have constituted a breach of clause 20.4 would, in the Tribunal’s opinion, have been clearly premature.
In the Tribunal’s opinion, the applicant’s 2010 job plan could not reasonably be regarded by her as in final form from the ABC’s point of view until she received the letter, dated 6 September 2010, from Kate Dundas, Director ABC Radio, formally directing her “to perform the duties outlined in the proposed job plan” (part of Exhibit A4). It may be arguable that, given that that job plan did not include any provisions in its Learning and Development section, Ms Dundas’ direction of 6 September 2010 was inconsistent with clause 20.4.3(d) of the Employment Agreement, but that is not a matter which the Tribunal is presently required to determine and it makes no determination and expresses no opinion in relation to that matter.
Having regard to the matters discussed in paragraphs 47-56 above, the Tribunal is satisfied, and finds, that the actions of Justine McSweeney in her communications with the applicant on 18, 22 and 24 March 2010 regarding the applicant’s proposed 2010 job plan, referred to in paragraph 41 above, constituted “reasonable administrative action taken in a reasonable manner in respect of the [applicant’s] employment”, within the meaning of s 5A(1) of the SRC Act. For the sake of completeness, the Tribunal also finds that each of the other actions referred to in paragraph 41 above, namely, Ms McSweeney’s sending the email of 13 April 2010, and Ms Hermann’s sending the email of 14 May 2010, constituted “reasonable administrative action taken in a reasonable manner in respect of the [applicant’s] employment”, within the meaning of s 5A(1) of the SRC Act.
Finding
The Tribunal finds, therefore, that the relevant “disease” suffered by the applicant on 31 May 2010, namely, severe anxiety and clinical depression, was suffered by her “as a result of reasonable administrative action taken in a reasonable manner in respect of [her] employment”, within the meaning of s 5A(1) of the SRC Act. It follows from that finding that that “disease” is not an “injury”, as defined in s 5A(1), and, therefore, is not an “injury” within the meaning of s 14(1) of the SRC Act. Accordingly, compensation is not payable to the applicant, pursuant to s 14(1) of the SRC Act, in respect of that “disease”.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop .................[sgd D Brodie]...........................
Administrative Assistant
Dated 31 May 2012
Dates of hearing 6 - 9 March 2012 Representative of the Applicant Mr C Prast Solicitors for the Applicant Slater and Gordon Counsel for the Respondent Mr D Richards Solicitors for the Respondent Dibbs Barker
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