Keillor and Comcare (Compensation) - [2022] AATA 228

Keillor and Comcare (Compensation) [2022] AATA 228 (15 February 2022)
Division:GENERAL DIVISION
File Number: 2019/7158
Re:Kevin Keillor
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:15/02/2022
Place:Brisbane

The Tribunal sets aside the decision under review and, in substitution, decides that Comcare is liable to pay compensation to the Applicant pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the claimed psychological injury of “anxiety/depression”.
.............[SGD]...........................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION - Whether Comcare is liable to compensate the Applicant pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 - Whether the performance management process contributed, in a significant degree, to the Applicant’s disease - Whether the performance management process was a reasonable administrative action - decision under review set aside
LEGISLATION
Public Service Act 1999 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Chenhall (1992) 37 FCA 75
Comcare v Martin (2016) 258 CLR 467
Comcare v Martinez (No 2) (2013) 212 FCR 272
Lee and Comcare [2012] AATA 867
Lynch and Comcare (2010) 114 ALD 394
Melder and Comcare [2013] AATA 534
Wieczorek and Comcare [2017] AATA 994
REASONS FOR DECISION
Deputy President J Sosso
15/02/2022
INTRODUCTION

Mr Kevin Keillor (the Applicant) seeks a review of a decision of Comcare of 4 September 2019 that affirmed a determination of 10 July 2019 rejecting liability under s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for “Anxiety/Depression” – Exhibit 1 T13 pp. 121 – 123, Exhibit 1 T17 pp. 147 – 153.
From January 1975 until May 2013, the Applicant served as a Police Officer in the Queensland Police Service, ultimately attaining the rank of Inspector – Exhibit 12 para 4.
After leaving the Queensland Police Service, the Applicant had a number of different jobs; however, his longest period of service was with the Department of Immigration and Border Protection (DIBP), between December 2014 and December 2017, where he was employed as a Senior Investigations Officer – Exhibit 12 paras 2 – 3.
On 8 January 2018, the Applicant commenced employment with the Australian Building and Construction Commission (ABCC). The Applicant was employed as an APS Level 6 – Senior Investigator – Exhibit 1 T11 p. 57.
The Applicant’s 2018/2019 Performance Agreement provided that he had the following duties – Exhibit 1 T11 p. 57:
“(a)      meeting KPI’s in accordance with the Northern Regional Business Plan;
(b)       producing work requiring little or no revision before finalisation;
(c)       completing tasks within a set timeframe;
(d) under minimal supervision and to a high standard, completing investigations and compliance with activities; and
(e)demonstrating leadership and accountability within the Northern Regional Operations Team and actively working with the team to achieve the team’s objectives and to foster a strong and positive corporate culture.”
The Applicant had a number of responsibilities, including conducting site visits, conducting code inspections and code audits, and investigating alleged breaches of the Fair Work Act 2009, the Building and Construction Industry (Improving Productivity) Act 2016 and a number of Building Codes – Exhibit 1 T7 p. 25.
The Applicant had three different supervisors after commencing employment with the ABCC – Exhibit 3 ST52 p. 114 para 11:
(a)Mr Wayne Jenkinson - 8 January 2018 – 15 October 2018;
(b)Ms Catherine Gablonski – 16 October 2018 – 9 April 2019; and
(c)Ms Sharon Wolff - 10 April 2019 onwards.
As noted above, from the time the Applicant commenced employment with the ABCC in January 2018 until October 2018, he was supervised by Mr Jenkinson, who was his Team Leader. During this time, the Applicant completed the ABCC’s induction and orientation. The Applicant formed the view that the education and training he had received was “at best ad hoc”. He came to “rely on the asking of fellow investigators and senior managers as to practices and procedures for: logging onto and answering the 1800 telephone to provide advice and guidance to the telephone enquirer, and directing their enquiries to other investigators; use of the investigation database to record these interactions; and compliance/investigation management” – Exhibit 12 paras 7 – 8.
On commencing employment, the Applicant was placed on probation for six months. In July 2018, the Applicant finalised his probationary Performance Development Agreement with Mr Jenkinson and was deemed suitable. It was agreed that the Applicant required further training in the use and application of the ABCC investigator database, complaints management procedures and practices – Exhibit 12 para 12.
A key document in this matter is the Performance Agreement, for the period 8 January 2018 to 30 June 2018, between the Applicant and his then manager, Mr Jenkinson – Exhibit 3 ST8 pp. 2 – 9. The document is undated but, presumably, was completed at the expiration of the Agreement, which was on 30 June 2018.
In response to Outcome 1, “Respond to enquiries via hotline and web channels”, Mr Jenkinson noted – Exhibit 3 ST8 p. 3:
“Kevin has promptly and efficiently handled hotline and web inquiries that have been referred to him for attention.”
In response to Outcome 2, “Provide ongoing education and assistance to industry”, the Applicant provided these comments – Exhibit 2 ST8 p. 3:
“I have now undertaken, participated in or assisted fellow ABCC employees in site visits, Code Inspections and Code Audits where we have provided education, advice and guidance in working with Building Code 2016 and previous 2013. To this is gaining working knowledge of the BCIIP Act and FW Act to be confident in responding to Building Industry participants questions. Through this work I have liaised with both Federal and State Departments and Agencies to investigate and regulate industry participants…”
Mr Jenkinson’s response was as follows – Exhibit 3 ST8 p. 3:
“I concur with Kevin’s comments. He has applied learnings from internal training course and on the job training to enable him to properly assist in ABCC activities, including providing advice and education to industry.”
In response to Outcome 3, “Undertake Building Code Inspections/audits”, Mr Jenkinson noted – Exhibit 3 ST8 p. 4:
“Kevin has readily assisted in several Code inspections and audits including assisting interstate staff with an audit on the [redacted] project. Kevin added value to the process and performed his duties satisfactorily.”
Mr Jenkinson also gave a favourable response to the Applicant’s performance for Outcome 4, “Investigate suspected breaches of designated building laws” – Exhibit 3 ST8 p. 5:
“Kevin has taken carriage of several SOP enquiries and responded appropriately. He has assisted other staff with investigations in addition to taking carriage of his own complex investigations.”
Of importance, having regard to what subsequently transpired, is Outcome 5, “Keep essential and accurate records and capture this information in the agency case management system”. This Outcome refers, particularly, to the inCase database. Mr Jenkinson made these observations – Exhibit 3 ST8 p. 5:
“Kevin has met this outcome. He generally has a clear understanding for the InCase system and uses it to record information and manage his investigations accordingly. I reminded Kevin of the need for concise and up to date status comments on cases, and the need to ensure his time is accurately and fully recorded each day.”
Outcome 6, “Foster a strong and positive corporate culture”, also received positive feedback from Mr Jenkinson – Exhibit 3 ST8 p. 6:
“Kevin contributes to a positive culture in the Brisbane office by readily agreeing to work with more junior colleagues and new starters to pass on his knowledge and experience. Kevin drove a training session for junior staff re statement taking which identified typical deficiencies and ‘tips and traps’. He used examples from his own early ABCC statements to highlight some deficiencies.”
The Applicant made these comments in relation to Outcome 7, “Uphold Health and Safety in the Workplace” – Exhibit 3 ST8 p. 7:
“I am aware of the ABCC’s Operations Guide on the Intranet and its application to my work in investigations as a senior investigator I consider ‘risk’ as an ongoing requirement in planning, executing and finalising each and every assigned case…”
The Applicant then outlined examples of how he had met this Outcome. Mr Jenkinson made these comments – Exhibit 3 ST8 p. 7:
“I concur with Kevin’s comments. Kevin has achieved this outcome.”
After dealing with the sections concerning Key Behaviours and Learning and Development Priorities, Mr Jenkinson gave this overall assessment of the Applicant’s performance during the term of the Performance Agreement – Exhibit 3 ST8 pp. 8 – 9:
“Kevin arrived during the second half of the assessment period and has spent some time becoming familiar with the agency’s processes and systems. As a senior investigator Kevin has brought much experience to the agency and has demonstrated his preparedness to pass on same to the more junior staff. Kevin is a team player who readily makes himself available to assist his colleagues, both in Brisbane and interstate. He has agreed to take on any inquiry or investigation asked of him and is prepared to ask questions when he is uncertain of procedures or the way forward. I have spoken to Kevin about the importance of keeping InCase up to date and I am confident in his ability to do so. I look forward to working with Kevin during the next period. I am confident that as he becomes more familiar with the agency’s procedures he will play an invaluable role in the operations of the Brisbane office, including mentoring his more junior colleagues.”
It is abundantly clear from reading Mr Jenkinson’s comments that the Applicant, despite requiring more time and training to become totally au fait with the ABCC’s mode of operations, was performing satisfactorily and meeting all expectations. The Tribunal specifically notes Mr Jenkinson’s expectation that the Applicant, in due course, would play an “invaluable role in the operations of the Brisbane office…” These are not the observations of a manager who assessed the Applicant as a chronic underperformer and whose employment should be terminated. Indeed, it would appear that, following the completion of the Performance Agreement, the Applicant was successful in obtaining a pay point progression – Exhibit 1 T7 p. 26.
On 4 September 2018, the Applicant met Ms Gablonski who returned to work after a leave of absence.
On 16 October 2018, Ms Gablonski became the Team Leader responsible for supervising the Applicant. From that time until March 2019, Ms Gablonski told the Applicant that his work was below standard – Exhibit 11 para 9.
The Applicant, in a statement dated 12 April 2021, gives the following account of the events of 3 and 18 January 2019 – Exhibit 12 paras 21 – 32:
“21.I recall Tuesday 3 January 2019. I returned to the office. Gablonski had returned from leave and from there I was then the subject of ongoing discussions on completing my investigations to a required standard of my investigations.
22. Gablonski advised me that prior to and during the absence a decision was made by the Team Leaders that all staff would be moving desks as part of an office reshuffle. I was surprised I had to move from one workstation of my “POD” and move to the other side (mirror). So I moved.
23.Van Tooren was moved to my workstation. Van Tooren was under the supervision of Wolff rather than Gablonski.
24. I spoke with Gablonski regarding this decision to move me from one workstation to another within the same POD but this was shut down with no further discussion taking place.
25. I recall Friday 18 January 2019. On that date I was seated at my workstation when Gablonski walked past and said, ‘Come on we’ve got a meeting with John’. This was John Copeland…who was the Acting Regional Manager, Brisbane office, as Hooker was on leave.
26. I didn’t know I had a meeting but attended assuming it was about one of my investigations. I sat at a round table in the regional Manager’s office with Copeland and Gablonski.
27. I recall that Copeland led off the discussion. I do not recall the exact conversation that took place. I do recall we spoke on Van Tooren and Crawford, two other APS6s, leaving and how I will need to ‘step up to the mark’ and meet the requirements as spelt out in the APS6 role description and standards that was done through a review some time ago. This involved being more involved with the four APS4s in the office and assisting them in their work. I agreed.
28. There was no talk on my investigations.
29. I was surprised that Copeland was speaking to me about this and not Gablonski.
30. In my response to this I spoke about a colleague from DIBP contacting me and advising she was considering taking her boss to the Administrative Appeals Tribunal (AAT). Gablonski chimed in and said, ‘it’s not like John and I haven’t experienced that before’.
31. I left the meeting confused and angered as to how things had gone in the office meeting. I was in shock that having Copeland talk to me about stepping up to the APS6 requirements.
32. I returned to my desk and continued to work. I interpreted this meeting as a formal warning.”
Ms Gablonski prepared a note of the 18 January 2019 meeting, and the subject is stated as “Informal Performance Management discussion with Kevin Keillor” – Exhibit 3 ST16 pp. 26 – 27. According to this note, the meeting went from 10:00 – 10:45 am, and Ms Gablonski stated that the Applicant was informed that concerns were held about his performance and the purpose of the meeting was to discuss those concerns and management’s expectations going forward. Ms Gablonski stated that the Applicant was informed that this was not the start of a formal underperformance plan but, rather, was a preliminary discussion. The areas of concern that were raised with the Applicant were as follows – Exhibit 3 ST16 p. 26:
(a)lack of attention to detail in recording information into inCase;
(b)inaccurate advice provided on site to building industry participants;
(c)further work required in taking and completing accurate and appropriate witness statements; and
(d)expectations of the Applicant providing a mentoring role to junior team members.
Ms Gablonski stated the Applicant “was receptive to the feedback” and “agreed with all the concerns that had been raised.” Ms Gablonski’s file note concluded as follows – Exhibit 3 ST16 p. 27:
“Kevin said he appreciated having a discussion such as this and confirmed he understood that he was not currently meeting expectations and he undertook to improve his performance and engagement within the office.”
The Tribunal has also been provided a Statement of Mr John Copeland, dated 20 July 2021. Mr Copeland, who was employed as Acting Regional Manager Northern from 2 – 25 January 2019, is now retired – Exhibit 9.
Mr Copeland stated that, on 17 January 2019 , he met with Ms Gablonski and Ms Sharon Wolff, both of whom were Team Leaders. The purpose of the meeting was to discuss staffing issues at the APS6 level in the Brisbane office. Specifically, it concerned the implications of the departure of two of the three APS6 Senior Investigators from the Brisbane office and the need for the Applicant, who was the only APS6 Senior Investigator, to meet the expectations of the role. The subject of the Applicant’s overall performance was raised, and it was agreed to have a preliminary discussion with him. Mr Copeland stated (Exhibit 9 para 11) that Ms Gablonski’s file note was an accurate account of the meeting, and attached to his Statement, a contemporaneous file note of that meeting which is set out below – Exhibit 9 Attachment “B”:
“With Cath Gablonski + Kevin Keillor.
Advise Kevin he is not performing to the level expected of an APS6.
[The Applicant] needs to improve performance. I have instructed [Ms Gablonski] to follow up: weekly or fortnightly sessions - Report progress back to RM [Regional Manager]. [The Applicant] accepts issues to resolve.
[Ms Gablonski] will draft report + liaise with HR [Human Resources].”
In line with Mr Copeland’s directive that regular follow-up meetings take place, the Tribunal has been provided with file notes prepared by Ms Gablonski for 1, 8, 12 and 25 February 2019 – Exhibit 3 ST17 pp. 28 – 29; ST20 pp. 32 – 34; ST21 pp. 35 – 36; ST24 pp. 39 – 42.
The file note of 25 February 2019 contains the following information – Exhibit 3 ST24 pp. 39 – 42:
“On 25 February 2019, as previously arranged, I met with Kevin Keillor to discuss his performance over the five week assessment period for his informal performance management.
At this meeting I advised Kevin that I had assessed his performance as being unsatisfactory. I explained to him how I had come to that assessment and used a number of examples including:
·     The ongoing work required for FV1 investigation and the numerous reviews we have undertaken, particularly in regard to the brief of evidence and evidence matrix being unsatisfactory in terms of lack of evidentiary material included and presented;
·     The lengthy period we went through to close off the [redacted] investigation which should have been a simple and relatively straightforward task; and
·     The ongoing review needed on his inCase entries across investigations and enquiries.
·     I also discussed with Kevin that as an APS6 senior investigator it is expected that he would be able to work with a high degree of autonomy and self-direction, however that has not been demonstrated and his work still requires a significant amount of review, editing and input and direction from me.
I asked Kevin if he thought this was a fair assessment of his performance and he agreed that it was and he understood that his work performance was not up to the required standard. At this stage Kevin did not offer up an explanation or reasoning for why his performance was not satisfactory other than agreeing with the assessment.
I explained to Kevin that given my assessment of his work performance being unsatisfactory, he was now being moved onto a formal underperformance management plan. Kevin said he understood why this was necessary….
I asked if there were any issues causing or contributing to his performance and he only referred to his on-boarding at the ABCC and that he believes there was inadequate training in policies and procedures and that he was unfamiliar with the format and style of ABCC investigations…
I explained to Kevin, as I have in all our feedback sessions to date, that the main concern with his performance was around investigative rigour and competency, as opposed to the format/style he has used to present his work. I explained to Kevin that style is of less consequence than evidentiary thoroughness, which is what’s missing in his work…
I encouraged Kevin…to give thought to a support person that he could consult during the process…Kevin was adamant that the did not want or need a support person, however I encouraged him to take some time to think about it, and that given the option was there for him, he could reconsider at any stage…
I reminded Kevin that I would be giving him formal written notice about the decision to place him on underperformance management and that we would be meeting regularly to discuss and assess his performance.
The meeting was relatively straightforward and at no point did Kevin voice any disagreement with my assessment regarding his performance or the process moving forward. I asked Kevin how he felt about the assessment of his work and embarking on the formal underperformance process and he appeared somewhat flippant about it and said it ‘wasn’t a problem’ and he ‘appreciated the feedback…because this is what I need to do better.’ I reiterated that this wasn’t a small problem and that it was a serious process that could have very serious consequences and encouraged him to take some time to absorb what we were discussing and get back to me if he would like to voice any concerns. I made it very clear to Kevin that both the informal and formal underperformance management processes are very different to regular feedback we do as a team, and that he needed to understand this process and what it means. Kevin indicated that he did know exactly what it meant and that he was okay with going through the process and that he wanted to improve.”

Later that day, Ms Gablonski emailed the Applicant outlining what had been discussed at the meeting – Exhibit 3 ST25 pp. 43 – 44.
The following day, the Applicant responded and specifically agreed with Ms Gablonski’s statement that she had made a fair assessment of his performance and that his work was not up to the expected standard – Exhibit 3 ST26 p. 45 – 47.
Although the Applicant, according to Ms Gablonski, gave no explanation for his claimed underperformance other than lack of training, in his Statement of 12 April 2021, he refers to a number of family events which caused him distress – Exhibit 12 para 43:
“43.      Around this time a number of serious health crises arose in my family:
a)    As stated above, my nephew Joshua had died of brain cancer in November 2018.
b)    In January 2019 I was informed that another nephew, Glenn, had been diagnosed with Brain cancer as well and given only a short time to live. He died six months later.
c)    Another member of my family, Chris, has been diagnosed with brain cancer in 2017 and was living with the condition. He died in April 2019.
d)    Another member of my family, Malcolm, was diagnosed with the same condition in March or April 2019 and it [sic] currently living with the condition.
e)    Another newphew [sic], Henry, attempted suicide in February 2019.
f)     In addition to the above, my father had died in January 2018.”
In a file note of 4 March 2019, Mr Jenkinson reported a conversation he had with the Applicant in the meal room, where the Application informed him of his family health crises. Mr Jenkinson reports the Applicant saying to him – Exhibit 3 ST29 p. 64:
“What a year. I can’t believe it. Uncles and nephews…I just want the year to start again. Can we go back to the start of 2019 and just start again?”
On 5 March 2019, the Applicant commenced the Formal Underperformance Management Process (FUMP). He attended a meeting with Ms Gablonski, with Ms Wolff also attending as an independent witness and note taker.
In a file note prepared by Ms Gablonski, dated 5 March 2019, she stated that the Applicant was informed that the purpose of the meeting was to go through the draft Underperformance Action Plan and he confirmed that he had chosen not to bring a support person. According to Ms Gablonski, the Applicant stated that his performance had “not been up to scratch and that is due to personal reasons that have been affecting me.” He then outlined the family members (on his ex-wife’s side of the family) who had been diagnosed (or died) of cancer, as well as an attempted suicide by one member of his ex-wife’s family – Exhibit 3 ST31 pp. 66 – 68.
Ms Gablonski suggested the Applicant use the agency EAP service (Employee Assistance Program) or discuss it with his Doctor. The Applicant said he was not interested in using the EAP, but would consider speaking to his General Practitioner if he felt the need. In addition, the Applicant stated that he did not want time off work and was happy to go through the performance management process – Exhibit 3 ST31 p. 67.
For the remainder of the meeting, the Applicant and Ms Gablonski went through the Underperformance Action Plan, with no changes being made to the draft document and it was then executed - Exhibit 3 ST31 p. 67.
Ms Wolff also made notes of the meeting which are broadly consistent with the file note of Ms Gablonksi. However, Ms Wolff did make the following observation – Exhibit 3 ST32 p. 69:
“Gablonski then discussed each section of the plan. Keillor raised concerns about potentially not being able to meet point 2 of KPI 4 (provide accurate and specialised advice). There was some discussion around this issue.”
The Applicant emailed Ms Gablonski at 11:34am on 5 March 2019, stating that he accepted the Performance Management Plan and set out what he gained from the meeting, namely – Exhibit 3 ST35 p. 79:
“I will aim to achieve four key objectives during the next six weeks to demonstrate that I am performing my role as an APS6 within this Agency.
I will ensure that work undertaken is complete in line with the Agency’s requirements.
I will seek guidance and advice from my Team Leader on how to improve my performance in any areas of work which will include identifying areas of my work that further education and training or guidance will be of assistance.
I will provide constructive advice and guidance to fellow investigators in their work, where identified.
I will also adhere to the Agency’s KPI 7 of finalising investigations within a six month timeframe that includes the conducting of interviews and taking statements that are to a high standard.
I will be open and willing to accept and act on feedback in a timely manner.
I am to ensure that I engage constructively with my Team Leader and fellow investigators in the work I do.”
Also on that day, Ms Gablonski wrote a letter to the Applicant. The letter was headed “Written Notice”. After setting out, albeit very briefly, the events up to that point, Ms Gablonski stated – Exhibit 3 ST34 p. 78:
“This is formal written notice. If significant improvement in your performance is not achieved by Friday 16 April 2019 a report will be submitted to the Manager – HR for further action. As outlined in the Managing Underperformance Guidelines, this could include;
·reassignment of duties, either permanently or temporarily;
·reduction in classification – including a reduction in classification without employee consent, consistent with section 23(4)(e) of the Public Service Act 1999;
·termination of employment; or
·other appropriate action.”
FUMP meetings between the Applicant and Ms Gablonski were held on 12, 19 and 26 March 2019.
The 12 March 2019 meeting consisted of the Applicant, Ms Gablonski and Mr Sam Prain, Regional Legal Manager, who was the independent witness and note taker as Ms Wolff was unable to attend. The Applicant did not bring a support person. Ms Gablonski advised that she had assessed the Applicant’s week one performance as not satisfactory. The Applicant was assessed as not satisfactory for each of the four performance improvement objectives – Exhibit 3 ST38 pp. 83 – 84, Exhibit 12 para 59.
The Applicant provided the following version of this meeting – Exhibit 12 paras 59 – 63:
“59. I recall Tuesday 12 March 2019. On that date I met with Gablonski on what I believed was my first meeting on my Underperformance Management Plan. Sam Prain (EL2 – Legal)…was present to take notes as Wolff was not available. I did not object and acknowledged Sam Prain’s presence throughout the meeting.
60. I responded that I was meeting Australian Government Investigation Standards (AGIS) and had followed the previous work that I had done for Right of Entry Investigations which had been successful in going to Legal for consideration and none were rejected. Gablonski made comment that they are different, in the past and not relevant to what we are discussing now.
61. Gablonski told me, I am now to focus on my new investigations to demonstrate that I can do my job at the APS6 level standards.
62. I was not asked about my personal issues and how I was going with that. I still had not gone to my Doctor.
63.I signed the updated Underperformance Management Plan in front of Gablonski. I returned to my workstation where I made notes of the meeting.”
The next meeting took place on 19 March 2019. The Applicant did not seek the assistance of a support person. According to Ms Wolff, who attended the meeting and took notes, Ms Gablonski informed the Applicant that, in her opinion, the Applicant’s performance was not satisfactory for key performance outcomes 1, 3 and 4 – Exhibit 3 ST43 pp. 98 – 99.
The final meeting took place on 26 March 2019 and again, Ms Wolff took notes. As with the 12 and 19 March 2019 meetings, the Applicant did not seek the assistance of a support person. According to Ms Wolff’s notes, Ms Gablonski informed the Applicant that, in her opinion, his performance was not satisfactory for all four key performance outcomes – Exhibit 3 ST45 pp. 101 – 102.
On 18 and 28 March 2019, the Applicant was examined and assessed by his treating General Practitioner, Dr Curtis Staunton. At the 18 March 2019 assessment, the Applicant informed Dr Staunton of his family’s health problems and work issues. Dr Staunton reported that the Applicant informed him that he was struggling at work and would benefit from seeing a psychologist – Exhibit 1 T18 p. 154. At the 28 March 2019 assessment, the Applicant informed Dr Staunton that he “Doesn’t feel like he is being given a fair chance to voice his concerns with the [underperformance] process” and was experiencing “Anxiety symptoms causing issues” – Exhibit 1 T18 p. 155.
On 29 March 2019, the Applicant met with Ms Gablonski and informed her that he was suffering from mental health and personal issues and need to take time off work. Ms Gablonski’s notes of this meeting include the following information – Exhibit 3 ST48 p. 106:
“Kevin and I went into Wayne’s office…and Kevin said the following:
·He was not in a good place mentally and has lots of personal things that are impacting on his work. He said he had been snappy with me during the performance process and given that is not in his nature he realised that he needed to do something about it. He had visited his GP yesterday and spoken to EAP over the phone, and has an appointment with a psychologist this Saturday 30 March. Kevin said EAP were no good and he wouldn’t be going back to them.
·Kevin said he was going to need some time off work to deal with his issues because he needs to ‘get his head right’ and it’s impacting on his work. He said that he was putting his hand up to say that he was not in a good place with work, he knew he was not performing and that he had not improved throughout the performance process. He said he wasn’t doing well on the Bedano statement and he knew it.
·He said he should have taken time off earlier this year but with all the staffing changes and busy workload of the office, he didn’t want to let the team down…”
The Applicant left work at approximately 11:30am and informed Ms Gablonski that he would not be returning to work that day – Exhibit 3 ST48 p. 108.
On 30 March 2019, the Applicant was assessed by Dr Wei Wang, Psychologist – Exhibit 1 T10 p. 54 – 56. Dr Wang, at the request of Comcare, prepared a report dated 2 June 2019. The contents of that report are dealt with below.
Dr Staunton issued two Medical Certificates for the Applicant certifying that he was unfit for work between 29 March 2019 and 29 April 2019 – Exhibit 1 T19 pp. 161 – 162. The Applicant returned to work on 30 April 2019.
Whilst on leave, the Applicant was treated by Dr Staunton. Dr Staunton assessed the Applicant on 15 April 2019 and noted that “Psychology going well” but that the Applicant doesn’t “know if he can return to work without dramatically worsening anxiety symptoms” and noted that he was lacking confidence – Exhibit 1 T18 p. 157.
Whilst the Applicant was on sick leave, Ms Gablonski resigned from the ABCC and Ms Wolff managed the FUMP from 10 April 2019 onwards – Exhibit 3 ST53 p. 113.
On 9 April 2019, Ms Gablonski prepared a Formal Underperformance Management Report. The Report was co-signed by Mr Jenkinson. The document is 33 pages long and deals, at great length, with the Applicant’s performance. Ms Gablonski assessed the Applicant’s performance during the period of the FUMP she was responsible for as being unsuccessful, and she recommended that his employment with the ABCC be terminated.
Ms Gablonski made the following observations – Exhibit 3 ST52 p. 144:
“109. Termination of employment is provided for in section 29(3)(c) of the Public Service Act 1999 where an employee has unsatisfactory performance of duties. Given the significant, serious and pervasive concerns regarding Kevin’s performance across all key improvement objectives and no discernible improvement over the eleven week review period, my assessment is that termination of Kevin’s employment with the ABCC is the most appropriate course of action. I do not believe that Kevin has the ability to perform the role of an Inspector at the ABCC to the expected standards. It should be noted that this assessment is based on the incomplete review period that I have managed and I acknowledge that Kevin still has a remaining period of his FUMP to which to demonstrate improvement upon his return from personal leave.”
Between 30 April and 9 May 2019, the Applicant attended work and reported to Ms Wolff. During that period, they had a number of meetings about his performance – Exhibit 3 ST54 – ST57 pp. 147 – 151.
Of significance was the Applicant’s discussion with Ms Lorraine Heidke from Human Resources. On 9 April 2019, Ms Gablonski emailed the Applicant informing him that it was her last day at work and he could liaise with Team Leaders, Mr Jenkinson and Ms Wolff, or Ms Heidke – Exhibit 1 T7 p. 40.
On 30 April 2019, the Applicant received an email from Ms Heidke requesting an informal chat. At approximately 10:00am that day, the Applicant and Ms Heidke commenced a meeting which, according to the Applicant, was unhelpful and stressful.
The following is the Applicant’s account of the meeting – Exhibit 1 T7 pp. 41 – 42:
“I openly discussed my time off work and how the under performance had gone. I had nothing to hide.
Basically, I went back through what had occurred in the past four months. Heidke was a very good listener.
Heidke did not agree with everything I had raised. For example, on my Underperformance Plan she advised that she had read all of the materials relating to the performance plan and Gablonski had followed ABCC policy and it was correct. Also advised that Gablonski had submitted her report before leaving.
I restated that I will be responding to the Performance Report when it is finished.
I agin [sic] asked if I could see and read the notes taken during the meetings. Heidke said no. I asked when I will get to see them and Heidke said that they would be provided with the report. I asked how do I know that the notes are correct record of what was said. Heidke said that they were.
This informal meeting ended with Heidke saying she had another meeting to go to.
I agreed to meet with her later after her next meeting.
I was not happy with this informal meeting. Felt like I was being assessed for my suitability to be at work.
I did not receive any support or advice from Heidke.
Again met with Heidke in another room but not feeling comfortable in talking to her so I cut the meeting short.”
Also on 30 April 2019, the Applicant was assessed by Dr Staunton. In his clinical notes, Dr Staunton reported that the Applicant “Discussed with HR”, felt “very unsupported”, and believed “he has been set up to fail” – Exhibit 1 T18 p. 158. The reference in Dr Staunton’s notes to the meeting with HR, is the meeting the Applicant had with Ms Heidke.
On 13 May 2019, the Applicant submitted a Workers’ Compensation Claim for “Anxiety/Depression”, which, it was claimed, first manifested itself on 18 January 2019 – Exhibit 1 T4 pp. 9 – 15.
On 22 May 2019, a Comcare Delegate wrote to Dr Staunton and Dr Wang seeking information on the Applicant’s medical condition – Exhibit 1 T5 pp. 16 – 18, T6 pp. 19 – 21.
Dr Staunton provided a written report, dated 28 May 2019, in which he responded to the nine questions posed by the Comcare Delegate – Exhibit 1 T8 pp. 49 – 50.
In response to Question 2, as to the history of the Applicant’s claimed condition, specifically a description of it, including clinical signs and symptoms, Dr Staunton opined – Exhibit 1 T8 p. 49:
“Kevin was fist [sic] reviewed with regards his condition on the 18/03/19. He reported a history of several difficult and confronting interactions with other staff members, primarily HR and managers. Reported being put on a performance review program, but feels that he was never ‘given a fair chance’ in terms of the way he was dealt with. He developed depressive and anxiety related symptoms as a result, and had to take time off work. He completed DASS21 score at the time of first review.
On the 13/05/19 I examined Kevin with regards to complaints of chest discomfort that occurred whilst feeling anxious after a discussion with his HR officer.”
Dr Staunton opined that the Applicant’s anxiety “does appear to primarily relate to the employment-related factors.” He also opined that the Applicant’s anxiety “likely would not be present if not for the employment contribution.” – Exhibit 1 T8 p. 49.
Dr Wang was asked the same questions as Dr Staunton.
In response to Question 2, in a written report dated 2 June 2019, Dr Wang provided this response – Exhibit 1 T10 pp. 54 – 55:
“Mr Keillor reported that he was under a performance review. The process did not seem to go well and the relationship with the acting team leader who was conducting the review became uncomfortable. Mr Keillor felt that he was misunderstood or mistreated. Mr Keillor was experiencing loss/sickness of his family member and relatives prior and he was trying to cope the best he could. Mr Keillor felt no compassion or considerations were shown to him, which distressed him. He visited his treating doctor on 28^th March and took some sick leaves, he reported. Mr Keillor reported that he went back to work on 30^th April. There were some changes in the workplace with a new team leader whom Mr Keillor felt comfortable with. Nonetheless, a more recent conversation with HR officer triggered his emotional distresses again with a feeling of being mistreated or questioned about his integrity and ethics. Mr Keillor reported that he had experienced a panic attack on 12^th May.
Depression, Anxiety and Stress Scale (DASS-21) and Kessler Psychological Distress Scale (K10) were used for the assessment of Mr Keillor’s mental status. At Dr Staunton’s clinic on 18^th March 2019, DASS-21 results showed that Mr Keillor’s symptoms of anxiety were at an extremely severe level and that of his depression and stress were at a moderate level. At his first session with me, the severity level of his symptoms seemed to be reduced with only a mild level of depressive symptoms and his K10 result was at a mild level. However, it appeared that Mr Keillor’s level of distresses went up slightly when he was assessed on 18^th May 2019. Mr Keillor’s symptoms of anxiety and stress were at a mild level and his K10 score was at a severe level, however. The severity level of Mr Keillor’s symptoms of depression and anxiety were increased for a mild to moderate level based on his DASS results on 1^st June 2019.
According to what had been reported, it was clear that Mr Keillor’s emotional distresses were work-related and he felt that he was not heard or cared for at his current workplace or working environment. I believe that Mr Keillor’s conditions meet the criteria of Adjustment disorder with mixed anxiety and depressed mood.”
Dr Wang, in response to Question 5, about specific work and non-work incidents that caused or aggravated the Applicant’s condition, opined as follows – Exhibit 1 T10 p. 56:
“In my opinion, Mr Keillor’s claimed condition was caused/aggravated by employment factors. It was not just one single incident, rather, it was the process of the review that contributed to how Mr Keillor felt. There appeared to be several factors that would have become ‘triggers’.
a)    Mr Keillor reported that when he told the acting team leader what happened, he felt that he was not listened or the team leader did not care about his circumstance.
b)    Mr Keillor reported that he felt confused when there were no clear instructions or standard/protocols about certain investigative procedures as he did what he believed to be right based on his own experiences and only ended up being told wrong.
c)    In relation to b) above, Mr Keillor reported that was no adequate training provided for what he was deemed to be underperformed.
d)    Mr Keillor felt that his integrity and ethics were questioned, which are the two ‘keys’ for him not to be threatened.”

Finally, Dr Wang opined that the Applicant’s claimed medical condition would not be present irrespective of the employment contribution – Exhibit 1 T10 p. 56.
On 10 July 2019, a Comcare delegate declined the Applicant’s claim under s. 14 of the Act on the basis that his employment “was not significant in the causation of your condition” – Exhibit 1 T13 p. 121.
In reaching this conclusion, the Comcare Delegate gave the following reasons – Exhibit 1 T13 pp. 122 – 123:
“The available evidence demonstrates a clear evidence of performance management process has been initiated on 18 January 2019. While you opine that your condition was caused by a number of interactions with the management staff during the performance management process. Rather, it seems that you have formed a perception arising from reasonable administrative action undertaken in a reasonable manner.
Having regard to the chronology of events, I find that your employer followed the relevant policies and procedures during the meetings and providing your annual performance rating scores in a reasonable manner. I do not have any evidence to conclude that your underperformance process was unreasonable, or the manner in which you were informed was unreasonable.
On 18 January 2019, whilst recognising you sustained an ailment, namely an adjustment reaction with mixed emotional features, and the degree of employment contribution was significant, your claim for compensation was declined due to the circumstances resulting in your condition falling within the exclusionary provisions of the SRC Act.”
On 9 August 2019, the Applicant sought reconsideration of this decision. The Applicant’s legal representatives provided a very detailed letter of 13 pages in support of this request – Exhibit 1 T14 pp. 124 – 137.
On 4 September 2019, a Comcare Review Officer affirmed the Determination of 10 July 2019 – Exhibit 1 T17 pp. 147 – 153.
The Comcare Review Officer accepted that the Applicant had sustained an ailment, namely, an adjustment disorder with mixed depression and anxiety – Exhibit 1 T17 p. 148.
It was also found that this condition was significantly contributed to by the Applicant’s employment. Specifically, the Review Officer found that, in the absence of employment events, the Applicant would not have sustained a psychological condition – Exhibit 1 T17 p. 148.
The Review Officer found that a significant factor in the Applicant’s psychological condition was the informal and formal performance management processes. Further, it was determined that these processes constituted administrative actions – Exhibit 1 T17 p. 148.
However, the Review Officer concluded that the administrative actions were reasonable to have been undertaken and were undertaken in a reasonable manner – Exhibit 1 T17 p. 149.
REPORT OF DR RICHARDSON
The Applicant was assessed by Dr Greig Richardson, Consultant Psychiatrist, on 9 March 2020, and Dr Richardson subsequently prepared a detailed report dated 30 March 2020 – Exhibit 13.
Dr Richardson opined that the Applicant was suffering from an adjustment disorder with depressed and anxious mood – Exhibit 13 p. 17.
In response to the Question of the likely date the Applicant suffered his “injury”, Dr Richardson stated – Exhibit 13 p. 18:
“To this end it is my opinion that Mr Keillor has suffered from adjustment issues with anxiety from late November 2018 which have progressed up to this present time on an ongoing basis with him continuing to feel aggrieved as to the manner of his treatment.”
Dr Richardson was next asked whether the actions taken by the Applicant’s employer contributed significantly to the development of his injury. Dr Richardson answered in the affirmative – Exhibit 13 p. 19:
“Nevertheless, work has been an extremely important part of Mr Keillor’s life with him having an exemplary past work history and significant job satisfaction working for the ABCC, given he was working to an optimal level under manager Mr Jenkinson.
Mr Keillor has experienced loss of confidence associated with his work with a sense of demoralisation and distress given that he has taken great pride in his work achievements. I believe that the stressors in the workplace are the major contributing factor to his psychological injury.”
Finally, Dr Richardson noted that the Applicant reported no significant past psychiatric history and had never previously been placed on any anti-depressant or psychotropic medications – Exhibit 13 p. 19.
REPORT OF DR F T VARGHESE
The Applicant was also referred to Dr Frank Varghese, Consultant Psychiatrist, for a psychiatric evaluation, which was conducted on 30 June 2020. Dr Varghese subsequently prepared an extremely detailed report dated 28 August 2020 – Exhibit 8.
Dr Varghese opined that the Applicant first developed clinically identifiable symptoms of a psychiatric condition in the latter half of 2018 in relation to significant adverse events involving family members which has been discussed earlier. In Dr Varghese’s opinion, this constituted an adjustment disorder – Exhibit 8 p. 17 para 3.4.
Next, Dr Varghese opined that the Applicant suffered an aggravation of his pre-existing condition after Ms Gablonski became his Team Leader and commenced to performance manage him – Exhibit 8 p. 17 para 3.5:
“On the data available I consider Mr Keillor suffered an aggravation of the pre-existing Adjustment Disorder. It was more than a continuation.
From my point of view, the aggravation was not a result of the appointment of a new manager as such but occurred when he was placed on a performance management regime first informally and then formally and was further aggravated by the performance management process itself…”
Dr Varghese, then, formally diagnosed the Applicant as has having suffered the aggravation of an adjustment disorder and noted – Exhibit 8 p. 18:
“In a person with obsessional personality traits and with an apparently unblemished work record including in a senior role, being placed on performance management would have been a major psychological adversity.”
In response to the Question whether this condition had been contributed to, to a significant degree by his employment, Dr Varghese opined – Exhibit 8 p. 18 para 3.7:
“The diagnosed condition of aggravation of the pre-existing Adjustment Disorder has been contributed to to a significant degree by employment namely being placed on performance management regime and the performance process. By ‘significant’ I mean substantially more than material on the balance of probabilities…”
THE HEARING
A Hearing was convened in Brisbane on 28 July 2021.
The Applicant was represented by Ms Darlene Skennar QC, instructed by Australian Property Lawyers.
Comcare was represented by Mr Charles Clark of Counsel, instructed by Sparke Helmore Lawyers.
The Applicant appeared in person and was cross-examined by Mr Clark.
Mr Copeland and Ms Wolff gave evidence and were cross-examined by Ms Skennar QC.
At the conclusion of the Hearing, the parties were given the opportunity to provide written submissions.
Ms Skennar QC subsequent filed Applicant’s Submissions (AS) and Applicant’s Submissions in Reply (ASR).
After receiving the AS, Mr Clark filed Submissions on Behalf of the Respondent (SBR).
The Tribunal takes the opportunity of thanking Counsel and their instructing Solicitors for the assistance they provided to the Tribunal and for the quality of the written submissions.
THE LAW
Subsection 14(1) of the Act provides that 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.
“Injury” is defined by s. 5A(1) as follows:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
The term “reasonable administrative action” is defined in s. 5A(2) to include the following:
“(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.”
“Disease” is defined by s. 5B(1) to mean:
“(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.”
“Significant degree” is defined by s. 5B(3) to mean “a degree that is substantially more than material.”
“Aggravation” is defined in. s 4(1) to include “acceleration or recurrence.”
Finally, “ailment” is defined in s. 4(1) to mean:
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
The key issue in this matter concerns reasonable administrative action. As set out above, this term is not defined in the Act, but instead, examples of reasonable administrative action are set out in s. 5A(2). What constitutes administrative action was helpfully explained by the Tribunal in Lynch and Comcare (2010) 114 ALD 394 at [98] as follows:
What amounts to ‘administrative action’ is defined only to the extent of the examples given in section 5A(2). These refer to performance appraisal, counselling, suspension or disciplinary action and 'anything done in connection with' any of these examples. The examples are not exhaustive and the words 'in connection with' have been interpreted as words which 'have an ambulatory significance capable of a wide range of applications.’ These indications imply that ‘administrative action’ is capable of having a broad meaning.
To date, the case law has largely been based on cases arising under the expression ‘administrative action’ in comparable legislation, in particular in South Australia, the Northern Territory and in Tasmania. In summary, the cases establish that administrative action can be constituted by a series of actions as opposed to merely one action. But if the injury arises from the worker’s inability to comply with the ordinary demands of the workplace – for example, the nature of the work causes stress - rather than from some specific instruction or demand of the employment, the expression has no application. As Doyle CJ said in [Workcover Corporation of SA v] Summers:
[T]he words … “administrative action” do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties….
[S]tress caused by an inability to cope with the job itself … is not stress which arises wholly or predominantly from administrative action taken by the employer in connection with the worker’s employment.
In other words, ‘administrative action’ must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer. Applying these principles to the circumstances faced by Mr Lynch, the tribunal finds that not only action by management itself in instituting disciplinary procedures, but also the action of Mr Lynch's fellow employees which set in train the management action, that is, something done ‘in connection with’ disciplinary action, are capable of being categorised as 'administrative action' for the purposes of the Act. “
(footnotes omitted)
Ms Skennar QC set out the following principles to be applied when considering the exclusionary provision – AS para 79:
(a)The Tribunal must apply an objective test – Comcare v Martinez (No 2) (2013) 212 FCR 272;
(b)The administrative action does not have to be perfect – Melder and Comcare [2013] AATA 534;
(c)As a minimum, the administrative action must be lawful – Comcare v Chenhall (1992) 37 FCA 75;
(d)The notion of administrative action being taken in a reasonable manner does not require an employer to act impeccably with respect to the employee – Comcare v Martinez (No 2) (2013) 212 FCR 272;
(e)A failure to observe written policies for managing an employee’s conduct is prima facie evidence of a failure to execute action in a reasonable manner – Wieczorek and Comcare [2017] AATA 994; and
(f)The action is not unreasonable or taken unreasonably merely because an issue could have been handled differently, or better – Lee and Comcare [2012] AATA 867.
Both Ms Skennar QC and Mr Clark (SBR at para 15) drew the Tribunal’s attention to the High Court decision of Comcare v Martin (2016) 258 CLR 467, and, in particular to the following paragraphs:
“44. The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee's employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee ‘as a result of’ reasonable administrative action taken in a reasonable manner in respect of the employee's employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee's employment which answers that description of reasonable administrative action.
45. When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease ‘as a result of’ administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.
46. That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to ‘ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers' compensation’ and as including, in particular, to prevent claims ‘being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of’ such action. The taking of administrative action in respect of an employee's employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee's reaction.
47.Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.”
(footnotes omitted)
CONSIDERATION
Issue for determination
Comcare does not dispute that the Applicant suffered a disease, namely, an aggravation of an Adjustment Disorder, to which his employment, namely, the performance management processes, contributed to in a significant degree – SBR para 12.
The only issue in contention between the parties, and for the Tribunal to determine, is whether those performance management processes constituted reasonable administrative action taken in a reasonable manner.
Credibility and reliability
Mr Clark submitted (SBR para 18), on behalf of Comcare, that the Tribunal would have “immense problems” accepting any evidence from the Applicant unless supported from an independent source. In support of this submission, Mr Clark contended that a recurring theme of the Applicant’s evidence during the Hearing when confronted with an unfavourable fact was to assert, “I don’t recall”.
Mr Clark outlined (SBR paras 19 - 21) examples of what he submitted was unsatisfactory, contradictory and even “farcical” evidence of the Applicant. It is not necessary for the disposition to set out in detail these submissions.
Appropriately, Mr Clark referred to the following observation of Dr Varghese – SBR para 22; Exhibit 8 p. 6:
“Interviewing Mr Keillor was a challenge. He is a highly obsessional man with a need to describe things in great detail and with significant circumstantiality.”
Later in his report, Dr Varghese opined about the Applicant’s obsessional personality - Exhibit 8 p. 17 para 3.2:
“The only issue here is with respect to obsessional aspects of personality which can be regarded as underlying, pre-existing and also constitutional…”
As this was an in-person Hearing and not conducted remotely, the Tribunal was in a position to closely observe the Applicant give his evidence.
As the transcript of the Hearing discloses, the Applicant’s testimony was less than ideal. At times, the Applicant appeared to be hesitant and, at other times, pedantic. However, when assessed through the prism of Dr Varghese’s diagnosis of his obsessional personality, it is readily understandable.
Despite these drawbacks, the Tribunal did not observe any attempt by the Applicant to be dishonest, misleading or evasive. Instead, the Applicant would give highly particular and very concise answers that, from the viewpoint of Mr Clark, were obviously frustrating.
Ms Skennar QC carefully, and appropriately, responded to each of Mr Clark’s criticisms of the Applicant’s evidence – ASR paras 3a – 3d. The Tribunal prefers Ms Skennar QC’s interpretation and explanation of the Applicant’s evidence, as it better accords with the Tribunal’s observations of what transpired at the Hearing.
In short, the Tribunal formed the view that the Applicant was a witness of credit. There were obvious shortcomings with certain aspects of his evidence; however, the Tribunal finds that he was a honest person, who gave evidence to the best of his ability.
Next, is the absence of any oral testimony from Ms Gablonski.
At the commencement of the Hearing, Mr Clark made the following statement – Transcript (Tr.) 28.7.2021 pp. 3 – 4:
“There’s no witness statement from Ms Globonski [sic]. There’s plenty of writing by her, written statements, there’s written statement and all her contemporaneous documents are within the T documents. Mr Hawker and I conferred with her as long ago as 11 May. There was initial hesitancy about, you know, appearing as a witness, that’s not uncommon. She was cooperative at that stage. Attempts to secure her cooperation and assistance since have come to nought. In a nutshell she says she is too stressed by the experience and then more lately she said that she’d be interstate at this present time.”

Ms Skennar QC made the following submissions regarding the weight that should be placed on Ms Gablonski’s various written notes – AS para 74:
“74Having failed to call Ms Gablonski to give evidence, and noting that she could have been forced to give evidence by serving her with a summons, the Tribunal should find that;
a.she would not have assisted the respondent;
b.where her evidence differs from that of the Applicant, the Applicant’s evidence should be preferred. Where the Applicant had indicated that he cannot recall if a particular matter as discussed by Ms Gablonski, Ms Gablonski’s note or email of that conversation should be given no weight;
c.it should be inferred that she did not comply with the relevant ABCC Guidelines and Checklists and that she did not inform the Applicant of the commencement of the Informal Underperformance Management Process.”
In response, Mr Clark made these submissions – SBR para 27:
“These submissions are simply without any foundation. An explanation was provided for the non-appearance of Gablonski. Further, it is not as if the Tribunal has simply no evidence before it from Ms Gablonksi. Within the various documents set out in the chronology, there is both a comprehensive and contemporaneous account of her interactions with the Applicant. The further more important point which cannot be ignored, and which the Applicant’s submissions overlook, is that each and every interaction she had with the Applicant was not only recorded but put to the Applicant in writing for response. Without any real exception, on each of those occasions, the Applicant accepted in writing Gablonski’s account of their interactions.”
Mr Clark, correctly, notes that the Tribunal is entitled (and, in fact, obliged) to take into account the fact that a person has not been cross-examined on written material which has been placed into evidence.
It is clear from Mr Clark’s explanation during the Hearing that Ms Gablonski did not cooperate with Comcare, and all attempts by Mr Clark and his instructing solicitor, Mr Matthew Hawker, to seek her cooperation and assistance “came to nought”. Whilst it is not uncommon for a person to be hesitant about being called as a witness, it is uncommon for a person with the leadership background of Ms Gablonski to decline the opportunity to give evidence about her performance management of the Applicant. A reading of the documentation before the Tribunal suggests that she took a proactive and vigorous approach to the performance management process. Indeed, her approach is in stark contrast to that of Mr Jenkinson when he was managing the Applicant.
The Tribunal does not accept Ms Skennar QC’s submissions that Ms Gablonski’s evidence would not have assisted Comcare. Neither the Tribunal, nor any other person, could make such a broad proposition. Nor does the Tribunal accept that, where Ms Gablonski’s account differs from the Applicant that, in each and every instance, the Applicant’s should be preferred. On numerous occasions, Ms Gablonski’s account of meetings is mirrored from documentation from other persons who were present and support her version of events.
However, the Tribunal was concerned that Ms Gablonski not only failed to give evidence, but also resisted the requests of Comcare’s legal advisors to cooperate. It may be that she was stressed, but this seems to be at odds with her background in management and in handling investigations that could lead to legal action. A person of the experience of Ms Gablonski should not have been “stressed” by giving evidence before a Tribunal, especially as that evidence could have been given remotely, by either telephone or by Microsoft Teams.
The weight that can be given to Ms Gablonski’s evidence is less than it otherwise would have been, having regard to the fact that her numerous written statements and notes were not able to be tested by cross-examination.
Was the commencement of performance management a reasonable administrative action?
At the outset, Ms Skennar QC contends that it was unreasonable to commence performance management of the Applicant, having regard to the terms of his Performance Agreement – AS para 82.
Ms Skennar QC drew a distinction between the terms of the Applicant’s Performance Agreement and the APS Level Work Standard – AS para 82a - c:
“a.His performance agreement (PT11) required him to meet certain criteria. That agreement differs from the APS Level Work Standard (PT11) in that it is not as rigorous. For example, the requirement to ‘produce work requiring little or no revision’ is not in the Performance Agreement. The Applicant’s ‘learning and development needs’ were identified as a goal in the Performance Agreement. The Performance Agreement appears to have been rightly tailored for a recent recruit, with an understanding that there is a learning curve in relation to the specific practices of the employer.
b.A review of the Applicant’s performance as against the Performance Agreement on 30 June 2018 indicated that the Applicant was in fact performing well (ST8)…
c. The Applicant achieved a pay band rise as a result of this review…”
The Tribunal set out above the conclusions drawn by Mr Jenkinson about the Applicant’s performance during the first half of 2018. As previously noted, Mr Jenkinson appeared to be more than satisfied by the Applicant’s performance. Further, there is a paucity of material before the Tribunal about the events during the second half of 2018 that would have warranted the type of performance review initiated by Ms Gablonski in 2019. It may be that the tragic circumstances of the Applicant’s family had the effect, incrementally, of diminishing his work performance. That scenario is consistent with the observations of Dr Varghese; however, it is only conjecture. What is not conjecture, is that, prima facie, the Applicant’s work performance in the first half of 2018 was judged by his manager and experienced Team Leader, Mr Jenkinson, as meeting all of the key performance criteria. The events of early 2019 are in stark contrast to what appeared, only six months earlier, to have been the successful recruitment of the Applicant into the position he held.
Ms Skennar QC was highly critical of both the skill base and modus operandi of Ms Gablonski. The Tribunal, as noted, did not have benefit of observing Ms Gablonski give evidence, nor were her views tested by cross-examination. The Tribunal is not in a position to judge whether Ms Gablonski was “inexperienced”, although it is open for the Tribunal to infer that she would not have been appointed Acting Team Leader unless she had the requisite experience to do her job. It is, however, open to the Tribunal, on the evidence presented, to infer that Mr Jenkinson was an experienced Team Leader, and would have been in a superior position to judge the work performance of the Applicant.
Again, the Tribunal was not assisted by the absence of Comcare calling Mr Jenkinson to give evidence.
The Tribunal, however, was assisted by the statement and testimony of Mr Copeland.
As previously noted, Mr Copeland kept contemporaneous notes of the meetings he convened while he was Acting Regional Manager Northern from 2 January to 25 January 2019.
It would appear that the first time that performance issues regarding the Applicant were raised with him was on 17 January 2019. According to Mr Copeland, he met with Ms Gablonski and Ms Wolff to discuss staffing issues at the APS6 level, after the departure of two of the three Senior Investigators – Exhibit 9 para 8.
It should be noted, then, that the trigger for this meeting was, apparently, not the Applicant’s performance per se, but the implications of the departure of two of the three Senior Investigators.
In his contemporaneous notes, Mr Copeland stated that Mr Jenkinson had already spoken to the Applicant about “a number of issues” but he had “not been addressed about his overall performance” – Exhibit 9 Attachment A.
The material before the Tribunal indicates that Mr Jenkinson had indeed spoken to the Applicant about his overall performance and, as noted, judged it as satisfactory. As Mr Copeland only came to the Brisbane office on 2 January 2019, and was only at the office for four weeks, it is open for the Tribunal to assume that he had an inadequate knowledge of the manner in which the Applicant’s performance was being managed before he came to Brisbane.
That assumption was confirmed by Mr Copeland’s testimony. The following exchange occurred between Ms Skennar QC and Mr Copeland – Tr. 28.7.2021 pp. 73 – 74:
“When you went to the meeting on 18 January 2019 what evidence did you have that Mr Keillor had failed to attain and sustain a performance that meets expectations standard?---I was relying on the discussion I had the previous days with both team leaders about Mr Keillor’s performance.
So prior to Ms Globonski [sic] being Mr Keillor’s team leader he worked under Mr Jenkinson?---Yes, I believe so.
Are you aware that he satisfied a performance assessment in mid-2018?---That could well be the case.
And that he received a pay rise?---That would usually be the case if he’d had one of those assessments. What’s that? Six months into his time there?....
You didn’t review that performance assessment before you went into this meeting?---No.
So you don’t know whether it was good or bad?---No, I don’t think I would have asked about it. The actions I took were based on the verbal reports I received while I was there from the two team leaders…”
Accordingly, Mr Copeland proceeded purely on the basis of verbal reports from Ms Wolff and Ms Gablonski, and in ignorance of the Performance Agreement completed by Mr Jenkinson only six months prior. In short, Mr Copeland started a performance management process in ignorance of the Applicant’s performance whilst being managed by Mr Jenkinson, and in sole reliance of verbal reports, presumably, from Ms Gablonski whose experience of managing the Applicant was of only very short duration.
When Mr Copeland testified, he agreed that his memory of this meeting was limited and had been “refreshed” by reading Ms Gablonski’s notes – Tr. 28.7.2021 pp. 63 – 64.
It is tolerably clear then, that the meeting between Mr Copeland, Ms Wolff and Ms Gablonski was focused on staffing at the APS6 level and, although performance issues concerning the Applicant were raised (presumably by Ms Gablonski), it was noted by Mr Copeland that the Applicant’s overall performance had not been addressed. The Tribunal infers that the Applicant’s overall performance had not been raised up to that point in time by either Ms Gablonski or Mr Copeland.
Attention now must be given to the 18 January 2019 meeting which was attended by the Applicant, Mr Copeland and Ms Gablonski. Mr Copeland’s handwritten contemporaneous notes indicate that the Applicant was informed that he was not performing to the level of an APS6 officer and he needed to improve his performance – Exhibit 9 Attachment B. This is in accord with Ms Gablonski’s notes of the meeting – Exhibit 3 ST16 pp. 26 – 27.
As previously noted, the specific areas of concern raised with the Applicant were – Exhibit 3 ST16 p. 26:
(a)lack of attention to detail in recording information into inCase;
(b)inaccurate advice provided on site to building industry participants;
(c)further work required in taking and completing accurate and appropriate witness statements; and
(d)expectations of the Applicant providing a mentoring role.
It needs to be noted that the ABCC Brisbane office is an extremely small organisation. Mr Copeland testified that when he was in Brisbane, the office only comprised 12 staff – Tr. 28.7.2021 p. 75. It is inconceivable that in an office as small as this, that if there was a performance issue, that it would not have been raised relatively quickly. The operational efficiency of the office and all involved would have required some form of action. Inertia, inactivity or lack of communication would not have been an option unless management itself was an issue.
This, in turn, puts a proper perspective on the areas of concern raised by Ms Gablonski at the 18 January 2019 meeting.
It became clear from Mr Copeland’s evidence that he had made no enquiries about the training provided to the Applicant before the 18 January 2019 meeting – Tr. 28.7.2021 p. 71:
“But you didn’t regard it as necessary to find out what training he’d had and whether that was affecting his performance?---I expected that would have been taken up by Cath Globonski [sic] in their further discussions.”
It also became clear that the training provided to staff by the ABCC was ad hoc and incremental – Tr. 28.7.2021 p. 70:
“….Training at the ABCC is incremental and works on a stage process where regardless of the level you come out at, you go through a process of on-the-job training with – I think the term they use is a ‘buddy’ to start off with. And as you – the longer you’re there the more training you receive. You know, we’re a small agency, we don’t have a fulltime training unit there. We deal with it as we go.”
At the Hearing, I asked Mr Copeland the following questions – Tr. 28.7.2021 p. 75:
“And the training is incremental and training is – what did you say – a buddy system?---Usually what happens, sir, is when an officer starts they’re giving what’s called a buddy to assist them in those first, you know, month or so as far as understanding what processes and procedures are in place. There’s ongoing incremental training about various issues that come along and then there is, I suppose, regular training that takes place when we get outside consultants in….”
It is tolerably clear to the Tribunal that the Applicant commenced duties with a very small organisation. The training and other operations of that office were what would be expected of such an organisation.
The training given to staff was mostly incremental, practical and personal. This training was supplemented by e-learning courses – Exhibit 3 ST47 p. 104. The Tribunal is no way critical of this, as it may have been entirely appropriate, practical, cost-effective, and suited for the Brisbane office. What is not appropriate, practical and effective, is the manner in which the Applicant was dealt with.
When Ms Skennar QC cross-examined Mr Copeland about the Applicant’s mentoring role, the following exchange occurred – Tr. 28.7.2021 p. 76:
“No. You also didn’t ask him before that meeting, did you, whether or not he had been mentoring any staff?---I was aware he was. In reports I’d received from the team leaders, he was mentoring a staff member who name was Chai, was it? An APS 4….”
It is telling that one of the four matters that commenced the performance management process was the mentoring role that the Applicant was performing for one employee, with no evidence that his mentoring was substandard. Indeed, with next to little evidence about the nature of his mentoring in the period between 1 July 2018 and 18 January 2019.
The first issue, lack of attention to detail in recording information into inCase, is one of the Outcomes dealt with in the Performance Agreement completed by Mr Jenkinson, and it was noted by Mr Jenkinson that the Applicant had “a clear understanding for the InCase system and uses it to record information…I reminded Kevin of the need for concise and up to date status comments on cases, and the need to ensure his time is accurately and fully recorded each day” – Exhibit 3 ST8 p. 5.
It is tolerably clear that, from Mr Jenkinson’s perspective, the Applicant had met this Outcome but needed some improvement. Mr Copeland testified that lack of attention to detail etc. were perennial problems and were not unique – Tr. 28.7.2021 p. 74. Clearly, as Mr Copeland testified, a higher standard was expected for a APS 6 officer in comparison with a APS 4 officer. However, attention should be given to the following exchange between the Tribunal and Mr Copeland – Tr. 28.7.2021 p. 75:
“What I was going to ask you, then, Mr Copeland, is in the ABCC and as you indicated there could be a series of issues with officers when they commence or into their employment because it’s not like other organisations…where new people then coming in get comprehensive training and then at the end of that training operate in a uniformly good way. It’s a case of an incremental training process, so in the case of Mr Keillor one would have expected some problems along the way that would have been dealt with and incrementally things might have gotten better. It wasn’t as if it was a 100 per cent he’s doing a good job or not. Is that correct?---That would be the expectation, yes, that would be the expectation.
You would know that because in terms of professional standards you would see that all the time?---Indeed.”
The Tribunal accepts from the evidence presented that the Applicant had difficulties with the inCase database. As Ms Gablonski noted of the 18 January 2019 meeting, the Applicant “found it difficult adjusting his mindset from the way he did things as a police officer to how ABCC runs investigations, and the way our case management system works.” – Exhibit 3 ST16 p. 27. However, as Mr Copeland testified, incremental training was the norm and, instead of data inputting being the trigger for performance management, it should have been the catalyst for more proactive and practical training by the Applicant’s managing co-workers. Certainly, if, over a longer period, the Applicant had failed to improve, then performance management would have been appropriate.
Ms Skennar QC made the following submissions - AS paras 83 - 85:
“83The Applicant contends he was performing to his supervisor’s satisfaction in circumstances where there were few guidelines and inadequate training in his ABCC responsibilities such that he was almost totally reliant on his own extensive experience until his supervision come [sic] under the responsibility of Ms Gablonski.
84Given the reference by Mr Copeland to a ‘preliminary discussion’ or ‘starting a conversation’, it could not be said that the Applicant had underperformed as at 18 January 2019. Starting a conversation does not indicate that a supervisor has concluded that an employee’s performance has been ‘unsatisfactory’ or that he was being ‘notified’ of his underperformance as required by clause 8 of the ABCC Guideline ‘Managing Underperformance’.
85There is nothing to suggest that the Applicant was advised on 18 January 2019 that his performance had been determined to be ‘unsatisfactory’ within the meaning of the ABCC Guideline ‘Managing Underperformance’. As such, there was no basis to commence an informal management process, if that was indeed occurred. In reality, all that occurred was that a potential issue in relation to the Applicant’s performance was flagged to him that he had the impression that he might have been formally warned.”
There is considerable force in these submissions. The material before the Tribunal establishes that Mr Copeland was only in the Brisbane office for four weeks in January 2019 and relied entirely on the information provided to him by Ms Gablonski. He was unaware of the Performance Agreement completed by Mr Jenkinson, the training provided to the Applicant, or any other pertinent information.
In these circumstances, the whole weight of the concerns about the Applicant’s performance lay with the perceptions and evaluation of Ms Gablonski. As noted previously, Ms Gablonski chose not to cooperate with Mr Clark and Mr Hawker and did not give evidence. Nor did she provide a written statement.
The Tribunal, then, is confronted with two contradictory assessments of the Applicant’s performance. The first by Mr Jenkinson, at least until 30 June 2018, and then of Ms Gablonski, for the short period following her return to work in late 2018 until her meeting with Mr Copeland on 17 January 2019.
In these circumstances, the Tribunal is not satisfied that the commencement of performance management of the Applicant was reasonable management action, and finds accordingly.

The commencement of the process was ad hoc and confused. It was not based on careful and well documented consideration, but on the perceptions of an Acting Team Leader who failed to brief Mr Copeland on the Applicant’s overall performance or the level and nature of training provided. To the extent that Mr Copeland, who had no background knowledge of the Applicant’s performance and relied totally on the perceptions of Ms Gablonski, proceeded on such a fragile and incomplete basis, the process was flawed from the outset.
Was performance management carried out in a reasonable way?
Even though the above finding disposes of the matter, if, in the event the Tribunal is in error with this finding, consideration will now be given to the question whether performance management was taken in a reasonable manner.
Firstly, Ms Skennar QC submitted that the absence of any warning or explanation of the purpose of the 18 January 2019 meeting combined with the failure to give the Applicant an opportunity to bring a support person, rendered it action taken in an unreasonable manner – AS para 87.
Dealing with the submission concerning the failure to give the Applicant an opportunity to bring a support person to the 18 January 2019 meeting, this omission has to be evaluated in the context of what subsequently occurred. It is not disputed that, in the meetings following the 18 January 2019, the Applicant was not only given the opportunity to bring a support person, but was encouraged to do so. Despite being given multiple opportunities, the Applicant declined to have a support person accompany him. Realistically, it cannot be said that the Applicant was disadvantaged by not being given the opportunity of having a support person accompany him at the 18 January 2019 meeting as the Applicant subsequently, to his ostensibly disadvantage, stubbornly refused multiple opportunities to avail himself of this option.
The Tribunal was provided with a document titled “Managing underperformance – the ‘informal steps’ checklist” – Exhibit 1 T11 p. 96.
Step 3 deals with meeting with the employee and the third dot point is as follows:
“Let your employee know in advance what the discussion will be about so they don’t feel ambushed.”
One problem in this matter is how the 18 January 2019 meeting should be categorised. Mr Clark made the following submission – SBR para 35:
“…What should not be overlooked is that the meeting of 18^th January 2019 was only the starting point for any possible further informal performance management. To adopt the word accepted by Copeland in answer to a question from the Tribunal, the meeting was the ‘precursor’ to the further informal process. Elsewhere in the evidence, on numerous occasions, Copeland characterized the meeting of the 18^th January 2019 as the ‘start of the process’ and considered what occurred was a ‘soft approach’ which was adopted to potentially deliver the best outcome.”
Whilst Mr Clark is technically correct in how he describes the meeting, it is also clear that the purpose of the meeting was to discuss management’s “concerns” about the Applicant’s performance with management’s “expectations going forward” – Exhibit 3 ST16 p. 26. In short, the purpose of the meeting was to discuss Ms Gablonski’s perception that the Applicant was underperforming. In these circumstances, it is clear that management failed to abide by Managing Performance checklist, and the Applicant was, in fact, ambushed.
Again, there appears to be some confusion about whether this meeting initiated a process, or was a “preliminary discussion”. The Applicant was confused about the purpose of the meeting, and the Tribunal agrees with Ms Skennar QC who suggested that “any reasonable person” would also have been confused, “given the manner in which it was conducted” – AS para 91.
Ms Gablonski, in her notes of the 18 January 2019 meeting, stated that the Applicant was informed “that this was not the start of a formal underperformance plan”. Instead, it was “a preliminary discussion” – Exhibit 3 ST16 p. 26. If that was, indeed, the purpose of the meeting, then subsequent process went in the contrary direction.
The Tribunal agrees with the following submission of Ms Skennar QC – AS paras 92 – 98:
“92When the Applicant asked Mr Copeland if the 18 January meeting was a formal warning, he was told it was not and they just wanted to ‘start a conversation’. Given that the ABCC Framework ‘Performance and Development’ (clause 26) describes underperformance as ‘a serious matter’ (clause 26) and the ABCC Guideline ‘Managing underperformance’ insists upon ‘natural justice and fairness’ (clause 9.3), to suggest that the Applicant was aware of the process from a ‘preliminary discussion’ or ‘starting a conversation’ is simply misleading.
93Somehow from a casual request to attend a meeting on 18 January, a discussion of what appears to be some minor errors and oversights in work performance (which were systemic in the organization) the Applicant was meant to discern that an informal underperformance management process had, or would, commence. Even the persons allegedly responsible for the commencement of that process (Mr Copeland and Ms Gablonski) were not aligned as to when the process had, or would commence.
94On 18 January 2019, no policy was provided to the Applicant, nor was he directed to any applicable policy for guidance.
95In her 18 January 2019 email, Ms Gablonski states she is meeting with all investigators to discuss ‘their workloads/priorities also’. It is not clear that the Applicant is being treated differently from other staff. While the Applicant understood he was being counselled as to his performance, it is certainly not clear that a performance management process of any kind has been instituted from that email.
96The Applicant was not told that an informal underperformance management process had commenced. For all his previous experience, he says that he was not aware of it. That evidence must be accepted given that Mr Copeland describes the 18 January meeting as a conversation. At best for the respondent, the Applicant was left to guess about what was going on. When he attempted to clarify that, he was told that there had been no formal warning – after he received an email from Ms Gablonski referring to ‘informal performance discussion’. There is no reference to ‘underperformance’ or to an ‘informal underperformance management process’.
97Based on what he was told, it is hardly surprising that the Applicant did not understand that he was, from 18 January, undergoing assessment.
98 That is not reasonable management action taken in a reasonable way.”
(emphasis in the original)
In response, Mr Clark points out that the Applicant, at the time, was 61 years old, had a lengthy career in the Queensland Police Service and had conducted performance reviews himself – SBR para 37(1). Mr Clark also outlines the events subsequent to 18 January 2019, and the thrust of his contentions are that the Applicant should have known what was occurring, could have asked for relevant documentation, and did not raise objections or concerns when he should have.
Whilst the Applicant was an experienced Police Officer, this does not absolve his managers from giving him key information about informal performance management and does not impute to the Applicant knowledge and perception about a confused and flawed performance management process. The Tribunal does not agree that the Applicant should have understood what was occurring when it is tolerably clear that the performance management process that unfolded was ad hoc and did not follow the ABCC Guidelines on managing underperformance.
There is a further matter of concern in this matter. The evidence suggests that the Applicant was in a distressed state for much of the relevant time. This mental state would have had an impact on his ability not only to perform his duties but also to approach and appreciate the performance management process with the clarity and objectivity that would have normally been the case. In short, if the Applicant’s appreciation of the nuances of the performance management process that unfolded was less than ideal, then his state of mental health would, no doubt, have been a factor.
Mr Clark refers to the fact that Ms Gablonski failed to provide the Applicant with a copy of the relevant policy for informal performance management and noted that the Applicant did not ask for a copy and it was reasonable to infer that such a document would have been readily available should he had sought it.
Whilst Mr Clark is correct with both of the points he makes, his submission highlights the problems faced by Comcare in this matter. It is clear that Ms Gablonski was economical with the information and assistance she provided to the Applicant. Mr Clark, who it should be noted, advanced Comcare’s case in an exemplary manner despite its limitations, is forced to try and subcontract out solutions to the defects in the ABCC’s management process to the Applicant.
Ms Skennar QC submits that the ABCC officers failed to follow ABCC Guidelines, and that the requirements of natural justice and fairness did not feature in the process adopted. She goes on to contend – AS para 100:
“An employee with an exemplary work history prior to commencing work for the ABCC was left confused, stressed and suffered major depression, all because the ABCC was not concerned to ensure its guidelines were followed.”
Whilst the Tribunal concurs that, in this instance, relevant ABCC officers failed to follow the Guidelines and the performance management process was flawed from the outset, the Tribunal does not agree that the process lacked elements of natural justice and fairness. It is going too far to impute bad motives or incompetence to any of the parties involved. Rather, it would appear that the process commenced in a confused way, and the inherent flaws in the process were compounded as the process unfolded.
The final matter raised by Ms Skennar QC concerned the Applicant’s health issues and whether, in that context, management action was carried out in an unreasonable way.
Ms Skennar QC submits that it was unreasonable for the ABCC to fail to enquire into whether there were non-work related factors impacting on his performance. Reference was made to the “Managing underperformance….checklist” where a supervisor is required to “explore the issues and possible causes by asking open questions” – AS paras 102 – 104. Ms Skennar QC also made reference to other matters in the checklist and Guidelines.
The Tribunal does not agree with these submissions. As Mr Clark points out – SBR para 41:
“…In the absence of some disclosure by the Applicant, it is reasonable to conclude that a person such as a work supervisor would have no knowledge or suspicion of such a factor. In regards to the evidence, it was the Applicant’s evidence that he only became aware of the impact of these personal factors after the 25^th February 2019, after he became aware that the formal process would commence.”
The evidence does not suggest that Ms Gablonski failed to make appropriate enquiries or ignored objective signs and symptoms that should have alerted her that the Applicant was experiencing distress. It is open from the evidence to note that Ms Gablonski could have asked more open-ended questions or framed questions so that possible factors impacting performance might have been raised. However, in life, the only clear vision is rear vision, and the Tribunal does not agree that the failure by Ms Gablonski to have “discovered” the Applicant’s mental health issues before he raised them is indicative of unreasonable management action. To find otherwise would be to impose on management an unrealistic standard which, in most instances, would be impossible to meet.
It is unnecessary to deal with the following issue, namely, whether the performance management process should have continued after the Applicant disclosed his external stressors. The Tribunal notes that it would have been appropriate, once the Applicant made his disclosure, for the process to have been immediately paused whilst he sought medical assistance, the nature of his condition was diagnosed, appropriate medication prescribed and time was taken to see if his condition had stabilised or improved. In the event, the process was eventually paused for four weeks whilst the Applicant obtained medical intervention and had time off work.
For the reasons given above, the Tribunal finds that the administrative action undertaken by the ABCC was carried out in an unreasonable way.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that Comcare is liable to pay compensation to the Applicant pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the claimed psychological injury of “anxiety/depression”.

I certify that the preceding 185 (one hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

................[SGD]........................................................
Associate
Dated: 15/02/2022

Date of hearing: 28 July 2021

Applicant:
In person

Date final submission received:
20 September 2021

Counsel for the Applicant:
Ms Darlene Skennar QC

Counsel for the Respondent:
Mr Charles Clark

Solicitors for the Applicant:
Mr Timothy Knox
Australian Property Lawyers

Solicitors for the Respondent: Mr Matthew Hawker
Sparke Helmore Lawyers

Date of hearing:	28 July 2021
Applicant:	In person
Date final submission received:	20 September 2021
Counsel for the Applicant:	Ms Darlene Skennar QC
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Applicant:	Mr Timothy Knox Australian Property Lawyers
Solicitors for the Respondent:	Mr Matthew Hawker Sparke Helmore Lawyers