Khan v Workers' Compensation Regulator
[2020] QIRC 95
•24 June 2020
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Khan v Workers' Compensation Regulator [2020] QIRC 095 |
PARTIES: | Khan, Colleen Kay v Workers' Compensation Regulator |
CASE NO: | WC/2017/116 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 24 June 2020 |
HEARING DATES: WRITTEN SUBMISSIONS: | 26, 27, 28 and 29 August 2019 20 April 2020 (Appellant) |
MEMBER: HEARD AT: | Thompson IC Townsville |
ORDERS: | 1. The appeal is dismissed. 2. The decision of the respondent of 6 June 2017 is confirmed. 3. The appellant is to pay the respondent's costs of and incidental to the appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - where appellant bears onus of proof - where standard of proof on balance of probabilities - whether appellant sustained a psychological injury in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 - whether employment is the major significant contributing factor to the injury - whether reasonable management action taken in a reasonable way - whether implementation of the performance management plan was reasonable management action - whether the performance management plan was managed in a reasonable way. |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 548A, s 549, s 550 Eric Martin Rossmuller AND Q-COMP - (C/2009/36) - Decision < MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101 Read v Workers' Compensation Regulator [2017] QIRC 072 Cowen v Bunnings Group Ltd [2014] QSC 301 Gilmour v Workers' Compensation Regulator [2019] QIRC 022 Delaney v Q-COMP [2005] QIC 11; 178 QGIG 197 |
| APPEARANCES: | Mr J. Greggery, QC and Mr R. Armstrong, Counsel instructed by Ms T. Cox, Organic Legal for the Appellant. |
Reasons for Decision
A notice of appeal was lodged with the Industrial Registry on 29 June 2017 by Colleen Kay Khan (the appellant/Khan) pursuant to s 550(4) of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act) against a decision of the Workers' Compensation Regulator (the respondent/Regulator) dated 6 June 2017.
The decision of the respondent was to confirm the decision of WorkCover Queensland to reject the appellant's application for compensation in accordance with s 32 of the WCR Act.
Relevant Legislation
The legislation pertinent to this appeal is as follows:
32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if ‑
(a)for an injury other than a psychiatric or psychological disorder ‑ the employment is a significant contributing factor to the injury; or
(b)for a psychiatric or psychological disorder ‑ the employment is the major significant contributing factor to the injury.
…
(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances ‑
(a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)the worker's expectation or perception of reasonable management action being taken against the worker;
(c)action by the Regulator or an insurer in connection with the worker's application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way ‑
•action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
•a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.
Nature of Appeal
The appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the appellant.[1]
[1] Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision < [2].
Standard of Proof
The standard of proof upon which appeals of this nature must be determined is that of "on the balance of probabilities".[2]
[2] MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101.
Evidence
In the course of the proceedings, evidence was provided by seven witnesses.
The Commission, in deciding to précis the evidence of the witnesses and submissions notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witnesses
The witnesses for the appellant were:
· Colleen Kay Khan; and
· Dr Michael Likely, Psychiatrist (Dr Likely).
The witnesses for the respondent were:
· Melissa O'Brien (O'Brien);
· Allison Perry (Perry);
· Aubrey Murakami (Murakami);
· Chris Pittard (Pittard); and
· Kasey Tauti (Tauti).
Appellant
Khan
Khan first commenced employment with the Oral Health Services, Townsville Hospital in 1991. She gave evidence of her previous employment history that included:
· school dental service;
· dental nurse, Palm Island;
· women's fashion - manufacturing and retail; and
· Telstra.
Khan returned to the Townsville Hospital in 1993 as a casual dental assistant and remained there employed in various capacities. The re-engagement saw her located at North Ward with a relocation to new premises in Douglas occurring in 2000.
Khan's initial role was that of a dental assistant but she later acted in the role of senior dental assistant which included a 12 months' secondment to Mt Isa as the regional district senior dental assistant. After acting in the role of a Team Leader in 2007 she was appointed to the position permanently in 2010 as "administration team leader (ATL) for Oral Health Services".[3] Since the appointment the area of work significantly expanded with coverage now including prisons and nursing homes.
[3] TR2-20, L25.
The role included the co-ordination of staff as well as recruitment and selection of staff which required her direct participation in the recruitment process for administrative positions in her team with the final approval being made by the service group. In May 2014 there was a change of manager when O'Brien took over that role and she remained in the position permanently except for two periods of maternity leave.
The administrative staff under Khan comprised booking officers, billing officers and records staff who serviced Kirwan and North Ward dental facilities with eight and five dental chairs respectively. Kirwan was the central hub with two staff on reception taking enquiries from the hospital system, external and internal clients, patients and call centre staff. Khan's responsibilities also encompassed undertaking administrative functions for dental work done throughout the district which included generating rosters for the clinicians, organising and completing all paperwork, records and consent forms as well as filling any cancellations.
Khan described the nature of work undertaken on a daily basis on the front desk at the Kirwan facility being at times "just mayhem".[4] On the issue of telephone calls there were often over 100 phone calls per day and at one point in 2014 there were over 250 calls in a day. Appointments were required to be managed and in particular when someone didn't turn up they needed to try and fill that spot. The failure to attend rate had been an issue because it would leave a dentist and dental assistant without work for that period.[5]
[4] TR2-31, L19.
[5] TR2-32, LL15-18.
Khan gave evidence about experiencing difficulties managing staff at times, of staff shortages and of engaging with O'Brien regarding the recruitment of more staff. In August 2013 there was dialogue with O'Brien in which Khan informed her of concerns regarding her workload in the following terms:
Thank you for showing concern re: my wellbeing. I have on many occasions expressed to you my concerns re: work priorities etc., and I have also advised my work priorities would not be a concern should I be able to work in my own role. A huge percentage of my last 8 months has been covering reception whilst still trying to complete my own duties. The main priority which was continually advised by my previous Manager was manning reception. I have not had the manpower to do this without backfilling myself. I am aware of the EAP program, thank you and will certainly be following this up should the current trend continue. I also have medical conditions which are being maintained. An example of how frustrating it is to be able to fulfil my requirements to even my expectations is I have now spent 1 hour of the 2 hours I have had available today writing this email … to be followed by a meeting with yourself.[6]
[6] Exhibit 4.
On 5 November 2013 Khan attended a Performance Appraisal and Development Plan (PAD) meeting with O'Brien at which she recalled feeling that she was belittled and intimidated by O'Brien.[7] In an email (dated 5 November 2013) O'Brien informed Pittard that:
Colleen's PAD declined fairly quickly. The outcome of the PAD was that Colleen became verbally aggressive and that Colleen alleged that I belittle and intimidate her. As a result the PAD was terminated by me and Col when home sick.
Could you please have a look over before I send and make any comments? I am unsure about who Col should escalate and (sic) bullying and harassment concerns to. Advice would be appreciated.[8]
[7] Exhibit 5.
[8] Ibid
In providing Khan with an overview of the PAD meeting on 5 November 2013, O'Brien also made the following comments:
During this meeting there were some issues raised by you which included:
· Dramatic increase in workloads for yourself and the Booking Officer team;
· Lack of support and refusal of backfill;
· Withholding of information from yourself and your team particularly relating to waitlists.
I am concerned about the issues which you have reported and the impact they are having on service delivery. As noted in this meeting, I agreed that there are some issues that are occurring regarding bookings and waitlist management and I would like to formally review these issues so that we can work towards achieving improved outcomes. I am also concerned that there is a significant difference in perception between your understanding of the role and what Sarah and I believe is required from the Administration Team Leader role.
As a result I would like you to complete the attached priority list and return it to me by the end of this week. I will schedule another meeting to complete you (sic) PAD and as suggested, you might like to bring a support person.
In addition I would like to provide an opportunity for the administration team to provide input into the workload issues which you have outlined. I will send out a workload review tool in the very near future for completion by all members of your team and we will likely need to undertake a meeting to discuss any identified issues, causes and resolutions.
During this meeting there were also some serious allegations made by you in relation to my behaviour towards you and that you felt intimated (sic) and belittled on an ongoing basis by my management style. I am completely unaware of any occasion where I have demonstrated behaviour that could be identified as intimidating or belittling towards you. As noted at the time of our discussion, I would recommend that if you have legitimate concerns of this nature, that you escalate these by documenting these concerns and submitting these to ?? for review.
I have noted that the PAD was terminated by me at approximately 12.00 pm as a result of the allegations that you had made and the aggressive communication style and behaviour that you were demonstrating towards me and particularly at the end of the meeting.[9]
[9] Exhibit 5.
Khan gave evidence that for some time there had been ongoing discussions with O'Brien about workload which were reflected in email exchanges between the two in November 2013. The effect of having insufficient staffing numbers in the reception posed a significant barrier to her completing the Team Leader role. The staff shortages continued up to and including when she left work in June 2016.
A number of meetings were held in December 2013 and January 2014 to deal with roster and back filling arrangements for the receptions at both North Ward and Kirwan health campuses. A meeting held on 6 February 2014 generated a file note by O'Brien that recorded:
· Operational issues had been identified by both myself and Colleen Khan which indicated that there were some unaddressed factors which were impacting on the ability for Colleen Khan to undertake core responsibilities of the Administration Team Leader role likely due to the amount of time that she was rostered on reception.
· Several attempts to address the issues internally were not successful and the involvement of Allison Perry and Chris Pittard occurred in an attempt to move forward with resolution of issues.[10]
[10] Exhibit 14.
Khan met with O'Brien on 1 April 2014, which was a vehicle for identifying "some of the technical administration functions"[11] that were impacting on the scope of her role as Team Leader. In correspondence (dated 2 April 2014) O'Brien advised Khan that:
We determined that your role has been impacted by the movement or increase in amount of several activities which is interfering with your capacity to undertake the Administration Team Leader accountabilities. The impacts and agreed solutions are outlined below. We will use these over the coming weeks and months to monitor progress (and should free you up …).[12]
[11] Exhibit 21.
[12] Ibid.
On 3 April 2014 Khan emailed O'Brien stating:
Thank you … I am appreciative of your support with these issues and your acknowledgement of the impact on my role.[13]
[13] Ibid.
Prior to commencing 12 months' maternity leave in June 2014, O'Brien sent an email to Khan regarding the Team Leader role which informed:
Please see attached the document which we populated to assist in clarifying the roles and accountabilities for the Administration Team Leader position. It was a pleasure working with you to develop this document.
As discussed in our final catch up I am handing this over to Chris and yourself to undertake the final sign off. As Chris has insight into your role I have also suggested that she undertake your PAD as soon as practical when you return to work. The PAD will assist in consolidating the planning and actions we have undertaken over the past 6 months to address some of the rostering and workload issues that have been experienced. It will also assist in further developing goals and future outcomes for your role and the role of your team.[14]
[14] Exhibit 25.
On 2 February 2015 Khan forwarded an email to Karen Pardon (Pardon) who had acted as Team Leader in Khan's absence over the Christmas break in which she made the following comments:
I am really sorry things were so tough initially, however I did flag a lot of these issues at management meetings leading up to Christmas, and when I was told to take leave.
I am not sure if management truly know what is undertaken in my role and how hands on it really is, it is just so constant, and I am pleased to receive your input. Have you sent it on?[15]
[15] Exhibit 26.
Khan gave evidence that in the period of the mid-year in 2015 there were numerous issues where backfilling was required, resulting in Khan having to undertake those backfilling arrangements and despite the disruption that occurred in this time, O'Brien sent an email to Khan on 7 September 2015 acknowledging the efforts of the administration team:
I think it is fantastic to acknowledge that the FTA rate has dropped. I am confident that this is directly attributed to the admin team efforts to confirm patients and this is very much a positive.
I think it is also important to acknowledge the success against the original KPI as well. It is important for staff to know that they will need to maintain current confirmation efforts and continue to strive towards the 80% confirmation as well. If 80% confirmation is consistently not being met then clear management and direction from yourself will be necessary until the behaviour is embedded within the team. You may then be able to ease back into weekly or fortnightly monitoring.[16]
[16] Exhibit 49.
On 10 September 2015 Khan sent an email to O'Brien at 8.48 am in which she advised that:
· she was currently working on reception to cover for another staff member;
· there were backlogs of work; and
· there wasn't enough staff to cover reception the next day.[17]
[17] Exhibit 54.
At 9.00 am the same day, O'Brien responded in an email:
Happy to discuss. When we do can you please advise your current arrangements and what additional support that you require.[18]
[18] Exhibit 54.
On 14 September 2015 O'Brien informed Khan of requests she was making in regard to the recruitment plan. She was confident that the positions would be approved in three days' time so that Khan could ". . . work to these dates when undertaking your planning for staffing".[19] This prompted a response from Khan in an email forwarded to O'Brien some 32 minutes later:
· My main concerns with employing new staff to reception is the amount of training required and the impact on my own role and TL priorities. The internal Oral health processes and unique data system make it extremely difficult to become proficient and autonomous in this role quickly, and ongoing support is required.
· I am also extremely upset at losing Fiona after investing so much time and training into her skill base. She has been an asset to my team.
· Should a thoughtful and successful recruitment process provide suitable candidates I am sure I can provide enough support to uphold reception functions.[20]
[19] Exhibit 55.
[20] Ibid.
A meeting of the administration team was held on 9 September 2015 following which O'Brien generated a File Note (dated 18 September 2015) and referenced her disappointment to "workload review" not being on the agenda, given that it was a priority of Khan's role. At the end of the meeting she noted that Khan had burst into tears. She further recorded that:
The next day I asked how she was after the meeting. She said she was well but felt that the meeting was mostly about 'shifting blame' and the (sic) she 'knows where this is going' and that she would 'ride it out'. It was further raised by Colleen that she felt that the reception desk had unfair workloads, did not receive assistance from other administration staff and it was unfair that other administration staff could take breaks as they wished. I noted that addressing these areas were all within the scope of her role and before any further resources are shifted to provide further support to reception that she would need to undertake an administrative review as originally requested.
I suggested that we should put a plan in place and she was agreeable to organising a performance appraisal so that a plan could be implemented to address the issues of the administration team.[21]
[21] Exhibit 58.
In the month of September 2015 Khan was experiencing some difficulties with a subordinate employee, Fiona Schmidt (Schmidt) who had become difficult to manage, prompting Khan to generate an email to O'Brien on 29 September 2015 at 12.35 pm which stated:
Between you and me.
Fiona is extremely hard to manage at the moment. I am in for a hell of a couple of weeks … and then new staff.
She is so critical, negative, upsetting Kym and Bernie etc.
I am not sure if she will continue to her end date even.
Anyway.
Just venting.[22]
Later that day at approximately 3.30 pm Khan held (at the suggestion of O'Brien) an impromptu meeting with Schmidt where the following outcome was recorded by Khan in a file note:
I believe Fiona to be a valuable and skilled member of the Oral Health admin team.
Movement form to be submitted for contract extension to 25 January 2016.
Fiona was advised of Open door policy for future discussions with Team Leader, and confirmation of ongoing mentoring and support.[23][22] Exhibit 62.
[23] Exbibit 63.
Subsequently, the employment of Schmidt was terminated on or around 9 October 2015 in circumstances where O'Brien would not endorse a follow-up contract.
At 7.58 am on 30 September 2015, Khan emailed O'Brien about the need to obtain backfill for reception coverage that day due to staff being off sick. O'Brien replied at 8.04 am stating:
Can you please consider your urgent priorities and those of yourself and your team and determine your preferred backfill based on workloads, deadlines etc.? If you cannot meet the requirements within your team or you have urgent workload that is required and are requesting additional resources let me know what you are requesting to support coverage.[24]
[24] Exhibit 64.
On 9 October 2015 O'Brien sent an email to Khan requesting the provision of information by close of business on 14 October 2015 that related to "Urgent Attention: Administration Outcomes" and that the information "should be concise and provide a summary of events". Khan responded to the email on 12 October 2015 in the following terms:
I am required to backfill reception at present and don't feel I will be able to submit a comprehensive response within the timeframe requested. These issues have been ongoing for a long time and I would like to ensure all relevant information is provided.
I should be able to have this completed by Friday this week.
Is that ok?[25]
[25] Exhibit 72.
O'Brien informed Khan on 13 October 2015 that an appointment would be made shortly for the purposes of discussing topics that included:
· My decision to not support the recent request to extend Ms Schmidt;
· Administration staffing, recruitment and workload management;
· Performance issues raised recently yourself and staff within the administration team;
· Confidentially (sic) relating to staff recruitment and line management functions; and
· Feedback on communication including issue escalation.[26]
[26] Exhibit 73.
Khan provided the following response later that day:
I will endeavour to be prepared for Thursday's meeting. Unfortunately I will be rostered on the desk again tomorrow which means I have barely had 1 day to prepare months and months of meeting notes, times, dates etc. for one of the topics you wish to discuss. I also have topics to discuss with you and would like to have suitable preparation for those and the other topics you have raised. I would also like to take you up on your offer of discussion notes re …
I would appreciate some time with you today to discuss reception coverage to allow for some time for meeting preparation and other priority tasks please.[27]
[27] Ibid.
The meeting between O'Brien and Khan was held on 15 October 2015 with meeting notes recording that discussion occurred about:
· recruitment paperwork - Schmidt - reasons considered regarding proposed extension of her employment;
· administration staffing and workload issues;
· performance issues - booking officer;
· recruitment and line management;
· issue escalation; and
· communication feedback - reports and informal feedback relating to Khan's communication style.[28]
[28] Exhibit 75.
On 27 October 2015 Khan completed a workplace incident report as a result of having attended the North Ward Campus on a Saturday to retrieve a recruitment package where she stepped in a hole that she "couldn't see" and broke her ankle. The incident occurred after she had made an unsuccessful attempt to enter a building on campus. A claim for workers' compensation was not accepted which meant that Khan had to apply for sick leave and then recreation leave for the time she was absent from the workplace. The absence was for just over six and a-half weeks in duration. Khan was placed on a suitable duties program upon her return to work which was scheduled to run from 14 December 2015 to 14 January 2016.
An email was forwarded to Khan on 11 December 2015 from O'Brien advising of a PAD meeting to be held on 13 January 2016 which contained the following advice:
I have also attached the Team Leader Success Profile that we had a quick look at during our discussion. As requested I would really like you to have a look at the different indicators across vision, results and accountability and highlight your strengths and areas where you feel you would benefit from additional development and support. This will form the foundation of your PAD plan.
Please also continue to have a think about what supports and training that you feel would benefit you in your role so we can also incorporate these into you (sic) development plan.
I have spoken briefly with Jean Rogers about looking at creating a link for you with the other Team Leaders in H&WBSG to grow your peer support networks and also provide some additional professional support. If you would like to touch base with Jean before your PAD I am confident that she would be able to have an appointment with you.[29]
[29] Exhibit 83.
An administration meeting was held around January 2016 at which handwritten notes taken by O'Brien recorded:
· CK 'flagged' concerns over admin resourcing;
· full capacity;
· less admin than 5 years ago;
· been asking for increased admin for years;
· MOB asked for clarification of what 'flagging' means;
· CK asked what do you do about it - MOB referred to Jean Rogers for further support.[30]
[30] Exhibit 84.
On 14 January 2016 Khan attended a PAD with O'Brien where Khan interpreted a reference by O'Brien to a "performance management plan" to be that her "work was being managed, that I wasn't performing up to their - up to her expectations".[31] O'Brien, according to the meeting notes, had "noted it did not but a management plan within the PAD".[32]
[31] TR3-50, LL43-44.
[32] Exhibit 87.
In January 2016 the limited staffing in the administration area was impacting on Khan's performance of her functions having to constantly backfill and mentor staff. The front reception staff at that time were basically copping a lot of aggressive patients which required Khan as the Team Leader to de-escalate the situation. This caused Khan to become distressed with the "pressure parts of the role were ten times - tenfold harder, because we were all so under the pump all the time".[33] It was said to be "upsetting, it was soul destroying".[34] A recruitment exercise at that time for an EO1 Booking Officer was unsuccessful which placed more work on the staff causing further stress for Khan.
[33] TR3-52, LL37-38.
[34] TR3-52, L46.
An administration team discussion held on 11 February 2016 was attended by O'Brien and Khan with the purpose of the meeting to provide Khan an opportunity to:
· seek advice relating to administration matters; and
· enable opportunity for Khan to receive feedback relevant to her role and the outcomes of the administration team.[35]
O'Brien in the course of the meeting raised with Khan a "potential incident" that may have occurred on 9 February 2016. The meeting notes recorded that:
· Khan became very emotional and broke down in tears;
· language was perceived by O'Brien as aggressive, particularly towards other staff within the administration team;
· Khan was upset that she was working hard without staff;
· Khan informed O'Brien at 3.15 pm she was going home sick however she re-entered the office at approximately 3.20 pm and informed O'Brien she had rang another staff member about the incident then left the office at 3.24 pm; and
· ultimately, Khan chose not to take sick leave.[36]
[35] Exhibit 97.
[36] Exhibit 97.
Khan recalled being upset in the meeting of 9 February 2016 and of contacting the other staff member involved in the incident and then informing O'Brien that the incident had been resolved. The meeting notes also recorded that Khan:
· noted dissatisfaction that training had been allocated to her without support;
· expressed dissatisfaction about being required to perform functions that should have been carried out by the Principal Dental Officer; and
· noted workloads were extremely busy and the team was short staffed.[37]
[37] Ibid.
Khan forwarded an email to O'Brien on 19 February 2016 which stated:
I have just attended my doctor to assess the increased pain and aggravation to my ankle injury due to the constant demands of the reception functions. An x-ray taken two weeks ago confirmed healing was ongoing. I can no longer continue carrying out backfilling reception for long periods and during high impact periods.
. . .
I am always fully committed to Oral Health's Business needs, however, I need to firstly consider my physical health. My mental wellbeing is being affected, and my stress levels are also at an increased level due to the impact carrying out two roles has on my Team Leader role's functions and requirements.[38]
In evidence, Khan confirmed the two roles referred to in the email were that of Booking Officer and ATL.[39]
[38] Exhibit 99.
[39] TR3-68, LL28-29.
O'Brien responded later on 19 February 2016 to Khan's email which informed:
Thank you for raising your concerns with me about you (sic) pain levels. I agree that if you are experiencing pain then options will need to be considered in relation to appropriate coverage of reception and also the priorities of roles within the administration team that do not provide direct patient support.
My recommendation is to consider your rosters over the next four weeks, taking into consideration booked leave, organisational priorities within your team and the possibility of emergent leave and identify any gaps that might cause some issues with coverage on reception. The expected outcome will be to ensure coverage is achieved and also minimise rostered or emergent coverage for you.
Firstly consider coverage within your delegation to see what strategies can be considered. You might like to consider RDO swaps, additional shifts for part-time staff, renegotiating booked leave and other non-frontline positions in the team.
If you find there are still gaps I would recommend you consider liaising with other seniors regarding any support that might be available for the days of concern. It might also be worth getting in contact with Jean or Leila (not sure who is in the role at this moment) to see if there is any possibility of support.[40]
[40] Exhibit 100.
On 23 February 2016 an envelope was placed on Khan's desk whilst she was absent which contained a Performance Management Plan (PMP). The plan commenced with reference to ongoing discussions regarding concerns about Khan's performance during the period from 15 October 2015 to 23 February 2016. Several informal discussions were said to have occurred as follows:
· 15 October 2015 - Performance Discussion;
· 14 January 2016 - PA&D Discussion;
· 4 February 2016 - PA&D Formalised and Signed; and
· 11 February 2016 - Scheduled Support Meeting.[41]
Khan gave evidence that meetings were not performance appraisals and development discussions, but had been scheduled as monthly meetings.
[41] Exhibit 101.
Upon opening the PMP letter she was devastated and confused because she had previously received "some quite good feedback from her in the last six or eight months".[42] She understood the consequences of the implementation and the failure to comply with the plan which could have included the termination of the employment. Khan thought she was in a "lot of trouble"[43] and decided to contact the union.
[42] TR3-74, L19.
[43] TR3-76, L45.
A meeting was scheduled on 25 February 2016 for the purpose of concerns O'Brien had about the standard of performance not improving after previous ongoing discussions. The correspondence stated:
To provide further ongoing support to you, a Performance Management Plan (PMP) is to be implemented. I wish to meet with you to discuss and develop this plan with you.[44]
[44] Exhibit 101.
On 25 February 2016 at 10.55 am Khan forwarded an email to O'Brien in which she referred to a verbal complaint made against Kathren Stanley (Stanley), a fellow employee on 18 February 2016. The purpose of the email was to seek feedback. Later that day at 12.45 pm O'Brien responded to Khan suggesting she had no recall that the matter had been escalated to her as a complaint and thought the discussion "was more informal".[45] O'Brien apologised if Khan had a different perception. O'Brien offered the following advice to Khan:
My first piece of advice for any situation involving staff is to encourage involved parties to resolve the situation at the most local and informal level. In this situation I would encourage you to speak with the staff member involved (Kath) to see if a resolution can be achieved between the two of you.[46]
Khan was dismayed with the response provided by O'Brien.
[45] Exhibit 103.
[46] Ibid.
A copy of the PMP was provided by O'Brien on 14 March 2016 accompanied by an email that included the following:
Please see attached the final Performance Management Plan. I have incorporated the areas of support requested in today's meeting in relation to meeting support and issue escalation.
I have considered the feedback relating to the timeframes of the period outlined in the plan which have included the timeframe that you were on emergent leave. The decision has been to proceed with the document as it has been outlined. This is because the expectations relating to communication had been clearly outlined during the informal meeting on 15th October 2015 and formally in your PAD. The decision to consider and then proceed with the Performance Management Plan related to a communication incident which occurred on 11th February 2016. This incident highlighted the need to consider formal support and was the foundation of the decision to proceed with the plan.[47]
[47] Exhibit 109.
A PMP was agreed by O'Brien and Khan on 16 March 2016. The plan identified the review period being from 14 March 2016 to 3 June 2016 with meetings to occur on a weekly basis. The aim and the process of the plan were also identified which included three possible outcomes of the process being:
1. The PMP objectives are met within the review period and the performance management process is finalised. Employees are expected to maintain the required performance level. If this does not occur, the PMP may be reinstated or the matter referred to the Health Service Chief Executive for consideration of discipline action.
2. The PMP is extended for a further period to ensure performance is managed and maintained over a greater period of time.
3. The objectives are not met and the matter is referred to the Health Service Chief Executive (through the reviewing officer and Human Resources) for consideration of possible discipline action.[48]
[48] Exhibit 110.
In a section titled "Employee Comments" on the plan, Khan wrote the following:
I have read and understood this document. However, I have concerns with the process.[49]
The concerns held by Khan regarding the process included:
· she may not be able to achieve the requirements of the plan;
· the length of the plan;
· the impact the plan would have on her role as Team Leader;
· having to undertake the plan in her own time as she would not have enough time at work; and
· there wasn't confidentiality.[50]
[49] Exhibit 110.
[50] TR3-12, LL7-15.
A PMP review meeting outcome was documented and signed off by O'Brien and Khan on 1 April 2016. Under the title "Employee Comments" Khan recorded:
I have read and understood however I do not agree.[51]
O'Brien also added the following handwritten notation:
Colleen declined to elaborate on her concerns relating to this process.[52]
[51] Exhibit 117.
[52] Ibid.
A second document was signed by Khan and O'Brien on 1 April 2016. Khan recorded identical comments in the Employee Comments section but there were changes to the comments of O'Brien that now read:
Colleen was offered an opportunity to discuss her further concerns and it was declined.[53]
[53] Exhibit 118.
A further document relating to the PMP review also signed by O'Brien and Khan on 1 April 2016, recorded O'Brien's comments that were again different, as follows:
I provided Colleen with an opportunity to elaborate on what aspects she did not agree with and Colleen declined.[54]
[54] Exhibit 120.
On 22 March 2016 O'Brien sent an email to Khan which identified a "training course that I thought might support you to continue to build skills required for some of the more complex human resource management and communication issues".[55] O'Brien identified dates available in Cairns during April 2016 for the "Leading with Emotional Intelligence" course.[56]
[55] Ibid.
[56] Ibid.
O'Brien forwarded another email to Khan on 22 March 2016 which identified additional information about assisting Khan with her Team Leader role:
This expands a little on the document I provided during your PAD and provides a bit more information that might offer some assistance in clarifying some of the leadership and communication issues we have been discussing. I think this format is good as it states the attributes of the level, and also describes quite well what those statements mean in the normal operational work environment. I am keen for you to understand that there are a number of attributes associated with achieving success in the team leader role that we can work on to improve, and I am doing this based on a framework, and not to make your life difficult.
Have a read of the document and maybe use it as a self-reflection tool for you to think about how you can use and adopt this framework throughout the improvement plan. We can discuss the (sic) your thoughts on how to integrate this into your management practice during your next review meeting, as I think this will be a useful tool to assist us in moving forward.[57]
[57] Exhibit 120.
Khan recalled an exchange with O'Brien that was recorded in handwritten notes signed on 1 April 2016:
Colleen said that she felt she could prepare everything in the world and it wouldn't matter. This process was about managing her out of a job. I assured her that that was not the goal of the process.[58]
[58] Exhibit 121.
It was further recorded by O'Brien in the same document that Khan said:
She said that she was upset about the whole process and that she had told me that. That she felt it was completely detrimental to her and she would never recover. I reminded her of EAP.[59]
[59] Ibid.
Having attended meetings associated with the performance management on 16, 22 and 29 March 2016 and the signing of the file note on 1 April 2016, Khan felt she was meeting the action plan yet there was nothing removed from the plan.
On 5 April 2016 Khan generated a Grievance pursuant to the Queensland Health Grievance Policy E12 against the decision to initiate a performance management process with her that was said to "adversely" affect her, causing her a detriment. The correspondence identified a range of concerns that included:
· the timeframe used to inform and initiate the process;
· the inclusion of a period of time from 23 October 2015 to 14 December 2015 when she was on emergent leave;
· the failure to provide training and support requirements to her pursuant to s 2, Queensland Health Policy - Performance Improvement; and
· conduct of the performance management review meetings:
-sole onus placed on Khan to provide explanations around meeting the performance criteria;
-issues with meeting notes provided by O'Brien; and
-lack of opportunity to provide comments on the review minutes.[60]
[60] Exhibit 122.
Khan sought to have the following implemented:
I request that this process be continued to be managed through the Performance Appraisal and Development Plan (PAD) processes and that I be provided with adequate and appropriate training and associated resources provided to me pursuant to section 2 of the Queensland Health Policy - Performance Improvement G11 (QH-POL-190) in order to support me to improve in regard to these issues that have been raised with regard to my performance.[61]
[61] Exhibit 122.
Khan tendered numerous documentation which were accepted as having been taken by her to the PMP meetings and presented to O'Brien in those meetings. The material referenced issues including:
· Escalation Framework;
· Management and Leadership;
· Incident at Kirwan reception;
· Mandatory training;
· Rosters;
· Emotional Intelligence training;
· Queensland Public Sector Capability and Leadership Framework; and
· Organisational Capability and Learning Course.[62]
[62] Exhibit 123.
PMP Review notes for a meeting held on 5 April 2016 were tendered in the proceedings which included handwriting on the notes, stated in evidence by Khan to have been written by her in the meeting.
A response to Khan's grievance in respect of the decision to initiate a Performance Improvement Plan (PIP) was generated by the Service Group Director, Health and Wellbeing (dated 26 April 2016) and dealt with the concerns raised by Khan in her decision on the grievance:
From the information you have provided, I am confident the above aspects and expectations have been appropriately met as part of the informal and PAD process, and the subsequent implementation of the PIP process.
As I have stated earlier, you had been provided with an opportunity to participate and note your concerns regarding your recent absence in the draft PIP plan (sic); and if that has not been done already, then you may add that comment as an addendum. I also note that your participation and ability to raise concerns and suggestions to assist your successful completion in meeting the objectives of the PIP is ongoing as part of your regular review meetings as per the guidelines of HR Policy G11. If you believe that you need a change of seating arrangement to successfully complete the requirements, then you have the opportunity to clearly articulate how that will positively benefit yourself and the team, and bring it forward for consideration in your review meeting.
I am therefore satisfied the current formal PIP process is appropriate to continue and I now consider this grievance closed.[63]
[63] Exhibit 129.
On 13 May 2016 Khan attended a meeting with other participants including Tauti (Manager, Oral Health). The file notes of this meeting were written by Tauti on 18 May 2016 and recorded the following issues raised about Khan:
· communication with the team not adequate; and
· aggressive manner when issues were raised.[64]
[64] Exhibit 137.
In the file notes of the 17 May 2016 meeting it was recorded by Tauti that:
'There is further work required from you in relation to the Code of Conduct. Under 1.5 Demonstrate a high standard of workplace behaviour and personal conduct. The behaviour demonstrated by you in the meeting with Kathren on Friday was not appropriate'. CK became visibly upset and asked, 'Why does that form part of my PMP?' KT advised, 'These meetings are a reflection of the past week's activities. Your responses and attitude towards Kathren in the meeting were inappropriate responses from a team leader'.[65]
[65] Exhibit 138.
Khan recalled becoming visibly upset during an exchange with Tauti at the meeting.
At a scheduled meeting on 6 June 2016 with Tauti, the file note recorded Khan being advised the following:
Given that you attended the Emotional Intelligence Course only recently and there are further items for you to work on, I would like to extend this process by 6 weeks to allow you time to meet the requirements of the plan. At this time if the requirements of the plan are not met, at that point I will have to refer the matter to the appropriate delegate for consideration.[66]
[66] Exhibit 144.
Khan gave evidence that she was "devasted" at the proposed extension because she had "done absolutely everything in my power to commit to meeting the expectations".[67]
[67] TR4-57, LL1-2.
Also, in the course of the meeting of 6 June 2016, issues were raised with Khan in relation to a letter of concern with the conduct of Khan in the workplace. Khan found this topic distressing and felt a "little bit ambushed".[68]
[68] TR4-60, L14.
Khan attended a meeting on 24 June 2016 with Tauti, Rowena Wichman (Wichman) and Murakami which was also the last day she attended work. At the conclusion of the meeting her understanding was that she "didn't believe I'd met the plan and that it would be forwarded to a delegate".[69]
[69] TR4-64, LL15-16.
A claim for compensation was lodged by Khan with WorkCover (dated 8 August 2016) which identified that Khan had suffered a Post-Traumatic Stress Disorder over a period of time.[70]
[70] Exhibit 149.
Following the meeting of 24 June 2016, Khan attended a medical appointment with a general practitioner. There was also evidence that she engaged in counselling on 18 May 2016, 21 June 2016 and 1 July 2016.
Under cross-examination, it was accepted that workload issues had caused Khan stress since late 2013 and also interactions with O'Brien in the same time period attributed to her stress. Khan conceded that being placed on the PMP on 23 February 2016 and suffering an ankle injury on 24 October 2015, for which a claim for workers' compensation was rejected, had also been stressful. A review of the decision to reject the claim for workers' compensation occurred whilst the performance management was being undertaken and this added to the stress. It was not accepted by her that performance management was needed in the first place and when the plan was extended by Tauti this caused her stress. Khan experienced problems with staff members (Stanley and Thew) and acknowledged these incidents contributed to the decision by Tauti to extend the plan. Khan refused to accept that O'Brien had been raising issues with her performance as far back as 2013, although there was evidence of O'Brien raising issues with Khan in August 2013 about rostering, staff coverage and emergent leave.
Khan didn't accept that at a meeting on 2 September 2015, O'Brien raised concern with some of her work duties however suggested they were just routine points discussed on a monthly basis. It was conceded that on some occasions when issues were raised with her by management she would get defensive and challenge the manager's right to raise such issues and would claim persecution. Khan was taken to an email from O'Brien to Pittard on 5 November 2013, which contained a draft email for Khan stating:
During this meeting there were also some serious allegations made by you in relation to my behaviour towards you and that you felt intimated (sic) and belittled on an ongoing basis by my management style. I am completely unaware of any occasion where I have demonstrated behaviour that could be identified as intimidating or belittling towards you. As noted at the time of our discussion, I would recommend that if you have legitimate concerns of this nature, that you escalate these by documenting these concerns and submitting these to ?? for review.[71]
Khan was able to recall making the allegations but could not recall the comments attributed to O'Brien. Khan accepted she attended a general practitioner on that day where she complained of being threatened by a manager which had been going on for some time.[72]
[71] Exhibit 5.
[72] TR5-23, LL46-47; TR5-24, LL1-15.
Khan conceded that there had been attempts made to assist her fulfil her duties and ensure she wasn't overburdened by work for the period from November 2013 to February 2014 when O'Brien commenced a period of maternity leave. Pittard replaced O'Brien as Khan's report with the evidence being that Khan had a meaningful relationship with Pittard. Khan was taken to a report prepared by Dr Likely where she was recorded as saying on 19 June 2017 that in respect of Pittard:
. . . the two never had a meaningful working relationship for reasons which she was unclear. She told me she was not allowed access to the Medicare machine, that she felt that her acting manager was, 'Acting like she was told to watch me.'[73]
Khan's evidence was "I wouldn't call the whole relationship - our time together not meaningful the entire time."[74]
[73] TR5-33, LL15-20.
[74] TR5-33, LL44-45.
Khan denied that in mid-July/August 2015 O'Brien was providing assistance in respect of rostering arrangements. Khan was taken to correspondence from O'Brien (dated 29 July 2015) which referenced an incident involving her and Stanley and in particular Khan's conduct:
Colleen immediately became aggressive & defensive stating that it was not her fault Chris Pittard had not communicated this with Melissa. The conversation started to escalate as Colleen became more aggressive towards myself. I asked her three times to settle down at this point she had raised her voice stating 'I am sick of you putting shit on me Kath'. It was at that this (sic) point I ended the conversation, saying we are done.[75]
[75] Exhibit 165.
Khan claimed that the incident did not occur as per the extract however an email from Khan to O'Brien (dated 5 August 2015) appears to contain a draft response to Stanley that was said by Khan to be unwarranted:
Hi Kathren
I wish to be entirely honest and truly cannot recall every detail of what was said during our discussion re: W H & Safety officer role at the printer last week.
What I can say is I always follow up on all responsibilities of my role and this issue is no different.
It is out of character for me to use "shit", "shits" in discussion with a staff member, however there may have been a slip of the tongue.
I will endeavour to continue to maintain professionalism in any future conversations we may have.
Thanks Kathren.[76]
[76] Ibid.
Khan was taken to an email (dated 7 September 2015) from Gabriello Tito (Tito) to O'Brien which included the following statement "I'm finding it difficult to talk to Colleen at the moment without her jumping down my throat".[77] Khan evidenced that it would have been "highly unlikely" she behaved inappropriately towards Tito.[78]
[77] Exhibit 51.
[78] Ibid; TR5-42, L22.
A number of issues were raised with her about the non-renewal of Stanley's employment contract where she recalled that Stanley's attitude was in decline. During or around October 2015 there were discussions about Khan's communication style, accompanied by "some complaints" from Stanley and another person, Michelle Maxy (Maxy) who had observed something.
Khan was taken to a "Communication Report" compiled by WorkCover regarding an ankle injury suffered on 24 October 2015, where it was recorded that Khan visited the worksite on the Saturday for ten minutes to upload information on a memory stick for the purpose of completing a reference for a former staff member. Khan denied telling WorkCover that was the reason for attendance but claimed she had gone there to upload applications so she could shortlist on the weekend. The claim for WorkCover was rejected, which was upsetting for her and in particular the failure of O'Brien to support the claim, but she was not stressed by the refusal. Khan applied for a review on 9 February 2016 and there was a decision issued on 19 April 2016 rejecting the review on the basis there was no work related need for her to be at work on that day.
Khan was questioned about a number of visits to her general practitioner between December 2015 and February 2016 where there was nothing recorded in relation to stress symptoms being experienced at those times. Khan accepted that "on paper"[79] in October 2015 O'Brien was laying down stepping-stones in relation to steps that might be taken to address issues around her performance. It was further accepted by her that as at 14 January 2016 it was possible O'Brien was looking at her performance. Also, around the same time issues were being raised by O'Brien that included:
· the need for Khan to be considerate in choice and use of language;
· development and improvement;
· communication;
· issues of escalation and de-escalation; and
· decision making.[80]
[79] TR5-63, L21.
[80] Exhibit 87; TR5-65, LL33-45; TR5-66, LL1-32.
Khan accepted at this time there had been particular aspects of her work identified that needed improvement.
On 4 February 2016 Khan signed off on her PAD meeting which identified issues of her work performance that were being looked at, although her evidence was that a "lot of them were routine".[81] On 11 February 2016 she had a further meeting with O'Brien who raised an incident that occurred with Kim Parry (Parry) on 9 February 2016. Khan denied in evidence she had spoken aggressively to Parry or threatened to end her employment. Khan did not recall saying at the meeting "those bitches".[82] O'Brien spoke to Khan on 17 February 2016, which she could not recall, although she did recall discussions with O'Brien about EAP. Khan did not recall getting upset at the meeting. Another meeting occurred with O'Brien on 23 February 2016 at which Khan could not recall the meeting or references to a PMP. It was put to Khan that there were any number of issues raised about her performance on 15 October 2015, 14 January 2016, 4 and 11 February 2016 to which she replied, "I'd also received some positive feedback during that period".[83] Khan acknowledged there had "been some complaints and there were discussions in my performance appraisal and development and our monthly meetings about a lot of issues. Yes."[84]
[81] TR5-70, L19.
[82] TR5-71, L32.
[83] TR5-79, L43.
[84] TR5-80, LL2-4.
A meeting was held on 29 February 2016 to address Khan's performance issues at which time she had a support person in the form of her union representative. Khan accepted the following proposition put to her in cross-examination:
She also said:
This meeting has been scheduled as there have been informal attempts to manage outcomes, required outcomes of the expectations had been linked formally to the PAD.
Do you agree she said that?---Yes.
Okay. And paragraph 5, she said:
The decision to escalate to a formal performance management plan relates to a scheduled communication that occurred 11th of February 2016.
Okay. She goes on to note:
The meeting was scheduled as an agreed outcome of the PAD. The meeting was to allow Colleen an opportunity to escalate the issues for consideration and support, provide an opportunity for Melissa to provide feedback on outcomes.
Okay. She goes on to note as follows:
The communication ended in high emotion, perceived aggression relating to other members of the administration team, was cut short as Colleen reported illness, that she was leaving the organisation. Conversation resumed after Colleen informed me that she'd contacted the employee directly after the conversation, which is an action that could be perceived as aggressive.
Can I stop there?---Yes.
Were those issues all discussed?---I – this is with reference to the Kim Parry incident, I believe.
Yes. That's right?---I do not believe I would've said that I was leaving the organisation.
I think she probably meant leaving the premises for the day?---Okay. Sorry. My apologies. Yes. I did contact Kim directly on the telephone.
Okay. And Ms O’Brien said:
There was concern that these actions demonstrate a gap in the ability to effectively and professionally communicate with management and staff relating to issues within the workplace particularly and this was very recently formally linked to the PAD outcomes.
---Okay. That - - -
You see that? - - - was the very first instance that I knew that Kim had been upset about that discussion that day.
I see?---That was the first I'd heard of it.
She went on to note:
The expected outcome of this meeting is to develop strategies and supports that aim to assist Colleen in achieving required outcomes for (sic) role and the required outcomes of the administration team, including booking officers, billing officers and records officers.
Do you accept that she said that?---Yes.[85]
[85] TR5-81, LL5-47; TR5-82, LL1-18.
Khan accepted that on 1 March 2016, O'Brien informed her of concerns she had about the recent performance discussions, as a result of the complaint made by Stanley, and assure her this was not the case but related back to issues outlined in their Monday discussion.[86] It was further accepted that on 28 February 2016 at a consultation with a general practitioner, Khan stated she was "[h]aving a performance review tomorrow and was quite worried about it".[87] At another general practitioner visit on 27 March 2016 Khan was reported as having been crying all the time at work and "[e]verything started after her broken right ankle".[88] Khan evidenced that wasn't the truth but conceded if that was in the doctor's notes then she "must've said that at the appointment".[89]
[86] TR5-83, LL6-19; Exhibit 173.
[87] TR5-84, LL26-27.
[88] TR5-85, L35.
[89] TR5-85, L45.
It was acknowledged by Khan her circumstances were compounded by her right ankle injury and the fact that WorkCover rejected the claim and it was rejected on review. She felt that O'Brien would have supported the claim resulting in her feeling unsupported. At a meeting with Tauti held on 3 May 2016, Khan signed off by stating that she remained committed to meeting the expectations of the PMP.
An audio recording of a meeting held on 24 June 2016 was played in the proceedings.[90]
[90] Exhibit 174.
In re-examination, Khan was taken to an email dated 24 October 2013 where a suggestion was made that it recorded O'Brien as seeking to provide guidance in respect of administration arrangements.[91] Khan's evidence was that most of the arrangements O'Brien was requesting, required clarification by her to fill positions.[92]
[91] Exhibit 160.
[92] TR5-17, LL23-26.
Khan gave an explanation for information given to Dr Likely about Schmidt being difficult to manage, indicating this behaviour had only occurred after the administration meeting with O'Brien when Schmidt's behaviour deteriorated. Khan was in tears when O'Brien informed her that Schmidt's contract would not be renewed.[93] Apart from two issues with Pittard, she had no recall of Pittard raising issue with her performance in the 12 months she had acted as O'Brien's relief.[94]
[93] TR6-9, L4.
[94] TR6-9, LL43-45.
Khan was taken to an email (dated 7 October 2015) regarding a complaint against her where the following was recorded:
She will never have a sustainable workforce, and I know of many people who second-think applying because of to whom they would be answering to".[95]
Khan was extremely upset by a lot of the content in this email particularly as the daughter of the person to whom the content was attributed had applied twice for a position as a booking officer.[96]
[95] TR6-11, LL13-14; Exhibit 166.
[96] TR6-11, LL18-25.
Khan recalled providing information to WorkCover about the injury to her ankle and mentioned the referee report because she thought there was a requirement to provide all the information. The person requiring the referee's report was a former staff member who was last employed 12 months prior.
Note: In a text exchange with the former staff member on 23 October 2015 (the day before Khan injured her ankle) she sent the following at 12.38 pm:
No worries kirsty. Will sort early next week. Well done and loverly (sic) to hear from you.[97]
[97] Exhibit 178.
The dental records workload issues had been ongoing for a long time prior to her being a line manager with there being numerous attempts to resolve them.
Dr Likely
Dr Likely, a consultant psychiatrist examined Khan on 19 June 2017 and subsequently generated a report on 18 July 2017. In responding to the specific question of "Details of the mental disorder diagnosed":
It is my opinion that as a result of the accumulative stressors outlined above in Ms Khan's place of work as an Administration Team Leader for Oral Health Service with Queensland Health between November 2013 and June 2016 that Ms Khan has developed a psychological injury. This is Major Depressive Disorder. This (sic) a severe disorder of mood, the symptoms of which can become more severe and treatment refractory with the passage of time if not effectively treated.[98]
[98] Exhibit 188.
Dr Likely, upon taking a history from Khan, had been unable to identify any other stressors outside of the workplace.
Under cross-examination, Dr Likely in the formulation of his opinions, relied upon the history given to him by Khan, the material supplied and the mental patient determination. Dr Likely proceeded upon the assumption that the information provided was accurate, reliable and correct.[99] Dr Likely was taken to Health Link Family Medical Centre records and in particular an entry on 27 March 2016 which stated:
Crying all the time due to her workplace situation - has been working in QLD health for the last 25 years never had any problem everything started after her Rt ankle, still getting pain and swelling after the days work . . .[100]
[99] TR7-4, LL35-36.
[100] Exhibit 176.
Dr Likely was then taken to a one page document from Optum Health and Technology (dated 18 May 2016) which reported on a session involving Khan where it was recorded:
Client reported that she had broken her leg at end of last year at her workplace and had seven weeks off but was gutted that she was denied WorkCover because she was at work on a Saturday.[101]
[101] Exhibit 154.
Dr Likely evidenced that Khan had not conveyed in her history anything about the breaking of a leg or the denial of WorkCover, acknowledging that in a general sense he would accept the proposition that events like that could have an impact on a person's psychiatric health.[102] Dr Likely was taken to the Report he prepared for these proceedings and in particular pages six and seven.
[102] TR7-7, LL17-24.
On page six in the third paragraph it was confirmed that Khan told him:
Ms Khan believes that one of the main factors with respect to the implementation of the Performance Management Plan, was that her Manager wanted her to terminate the temporary contract of a worker on what she considered to be vexatious grounds.[103]
[103] Exhibit 188.
Dr Likely accepted that in Khan's mind this was a "fairly focal event".[104]
[104] TR7-7, LL37-38.
At the last meeting, she told me, "I knew they weren't going to pass me".[105]
[105] TR7-7, LL44-46.
[100]In respect of some "Positive Feed Back" forms regarding Khan it was recorded as her informing that:
She presented these at the meeting but told me that they were 'ignored'.[106]
[106] Exhibit 188.
[101]On page seven of the Report it was recorded:
Ms Khan told me that after the meeting which lasted from 11.00 am to 1.00 pm on 24 June 2016, she worked until 4.30 pm and then attended her General Practitioner who issued her with a Medical Certificate.[107]
[107] Ibid.
[102]Dr Likely read a transcript of this meeting which did not give him cause to alter his opinions. He accepted that he predicated his opinions on what Khan had told him.
[103]In re-examination the witness was taken to session notes[108] partially quoted in the course of the cross-examination and given the full text from the notes:
[108] Exhibit 154, p 65.
Client reported that she had taken sick leave to come for session. Client reported that she had broken her leg at end of last year at her workplace and had 7 weeks off but was ghutted (sic) that she was denied Workcover because she was at work on a Saturday. Client reported that she was 'hit with a Performance Management Plan' in January, that she has had to have regular meetings in relation to this and that she has been having to do lots of extra hours of work to meet the high level demand of the KPIs. Client reported that a staff member (who she reported has been difficult to manage) had raised complaints about her and that she had been 'ambushed' in what she was told was a mediation. Client reported that at each meeting she has been told that she is 'failing' in the area of communication but that she is finding it very difficult to understand just what is wrong and how she can improve. Client reported that she is being treated for high blood pressure.
Assessment:
Client reported that she is experiencing high levels of stress and anxiety and finding it difficult to not cry at work. Client reported that she has worked in this Dept successfully for over 20 years and is devastated that she is being treated in this way.[109]
[109] Exhibit 154; TR7-9, LL11-32.
[104]Dr Likely, after hearing the notes in their entirety, reaffirmed his evidence in chief that, "It is my opinion that, as a result of the accumulative - I think the 'accumulative' is there the operative word stressors outlined in Ms Khan's [indistinct] etcetera, etcetera, that she has developed a psychological injury".[110]
[110] TR7-9, L43-45; TR7-10, LL1-6.
Respondent
O'Brien
[105]A business development manager with the Health and Wellbeing Service Group at Queensland Health, O'Brien had known Khan since 2007/8 having first managed her in May 2013. O'Brien commenced a 12 month period of maternity leave in June 2014 and upon her return in June 2015 continued in the supervisor role. The position held by Khan was that of an AO4 level Team Leader with responsibilities that included:
· managing a team of administration officers;
· co-ordinating; and
· problem solving.[111]
[111] TR6-21, LL19-21.
[106]Upon her return in June 2013 from a period of maternity leave she met with Khan for a "fairly substantial catch up"[112] and overview of all matters involving her duties in the workplace.
[112] TR6-22, L8.
[107]Khan raised workload issues but when explored by O'Brien they hadn't been documented and in her opinion were anecdotal. O'Brien contacted Khan on 20 August 2013 for the purpose of catching up "about your plans for rostering the administration team and your proposed backfill arrangements"[113] as she sensed that there were some issues around rostering and recruitment. On 28 August 2013 an email was sent to Khan requesting by close of business that day, O'Brien be provided with the following information:
[113] Exhibit 156; TR6-24, LL2-3.
· send through your copy of the administration roster for the next four weeks;
· outline how you are planning to cover reception in the case of emergent leave;
· list any non-reception priorities that you or your team have that will need to be factored into planning for next week; and
· outline any additional resources which are in excess to your current Booking, Billing and ATL resources that you feel that you may require for the next four weeks.
I am sure that you appreciate that this is a priority to the service and your team.[114]
[114] Exhibit 157.
[108]The discussions around these issues at the time were not positive, due to Khan suggesting it was not her fault or putting up barriers. O'Brien indicated that during the PAD in the upcoming six to 12 months there would be routine communication about Khan's performance gaps. A meeting was held with Khan on or around 2 September 2013 when it was evidenced that Khan was explosive, making allegations about O'Brien and she subsequently left the meeting before it had been completed.
[109]Khan's role, historically allowed for a small allocation of backfill on reception but only for short periods and not long periods, however in the second half of 2013 she was spending more time than would have been expected on reception. O'Brien adopted an approach of assisting Khan in a collaborative environment to work through roster arrangements, business rules and leave management. A file note prepared after a meeting involving O'Brien, Perry and Khan that was held on 6 February 2014 included the following commentary:
Reception Roster Arrangements
Reception roster arrangements were initially addressed during discussions. The aimed outcome was to develop a roster pattern which optimally utilised the 3 FTE Booking Officers permanently rostered to the reception. The next goal was to identify the amount and required hours that would need to be supplied from the 'ISOH Audit' Booking Officer and/or Billing Officer. It was agreed that the Administration Team Leader should not have any ongoing scheduled roster requirements based on current administration FTE.
To address these issues the following factors were required to be considered and agreed upon by Colleen Khan and myself:
·Cyclic roster patterns for 3.0 FTE Booking Officers allocated to the reception
·Service delivery requirements including patient arrival patterns
·Requirement and confirmation of amount of additional hours necessary outside of 3.0 FTE to be rostered on reception and identification of required position to undertake reception duties
·Planned leave arrangements and business rules relating to leave approval and backfill
·Emergent leave considerations
Prior to the meeting on 6/2/14 Colleen Khan had provided 3 options for roster arrangements which were discussed by Allison, Colleen and myself. A hybrid of two options was chosen and Colleen had indicated that she had discussed the proposed changes with staff and they were supportive of the new times. Colleen had indicated an implementation date of 17/2/14 would occur. Based on the new roster patterns there would be no requirement for Colleen to undertake ongoing work on reception.[115]
[115] Exhibit 162.
The purpose of the arrangement was to allow Khan the opportunity to have time to do the supervisory aspects of her role.
[110]Upon returning from a second period of maternity leave in June 2015, O'Brien discovered there were a variety of things that had happened over the twelve months including:
· anecdotal workload concerns;
· rostering leave; and
· Khan was still on reception duties.[116]
[116] TR6-37, LL14-15.
[111]At a meeting of the administration team on 9 September 2015, O'Brien asked Khan if it was intended to discuss a workload review, as it had not been included on the agenda despite an earlier request by O'Brien, that as a priority Khan undertake a review of workloads on reception. O'Brien approached the subject in the meeting but due to the conduct of an employee (Schmidt) she was required to de-escalate the situation by providing more information on what a workload review might achieve. A file note recorded O'Brien's recall of the meeting and discussions that occurred in the days following the meeting including this reference to Khan:
The next day I asked how she was after the meeting. She said she was well but felt that the meeting was mostly about 'shifting blame; and the (sic) she 'knows where this is going' and that she would 'ride it out'. It was further raised by Colleen that she felt that the reception desk had unfair workloads, did-not receive assistance from other administration staff and it was unfair that other administration staff could take breaks as they wished. I noted that that (sic) addressing these areas were all within the scope of her role and before any further resources are shifted to provide further support to reception that she would need to undertake an administration review as originally requested.
I suggested that we should put a plan in place and she was agreeable to organise a performance appraisal so that a plan could be implemented to address the issues of the administration team.[117]
[117] Exhibit 164; TR6-42, LL4-18.
[112]O'Brien gave evidence regarding a number of communications between Khan and herself concerning numerous issues including complaints about occurrences within the administration team. A communication table[118] listed seven incidents between 26 June 2015 and 11 February 2016. In dealing with these issues Khan at times was defensive and had a different perception of the communication incident. It had been really hard to work with Khan because of denials and excuses with the expectation that a Team Leader was to contribute to the role.
[118] Exhibit 175.
[113]In relation to Schmidt's employment in the administration team, she raised issues not addressed by Khan either at the PAD or at the time of a request to extend her contract. Schmidt struggled for a long period of time expressing dissatisfaction about workloads, colleagues, opportunity to communicate as a team, Team Leader communication and communication with O'Brien herself, all of which may have led to consequences if a dissatisfied employee was to continue in the job. O'Brien was taken to an extract from Dr Likely's report where Khan alleged:
Ms Khan believes one of the main factors with respect to the implementation of the performance management plan was that her manager wanted her to terminate the temporary contract of a worker on what she considered to be vexatious grounds.[119]
[119] Exhibit 188; TR6-50, L41.
O'Brien could "not possibly understand what those vexatious grounds could possibly be".[120]
[120] TR6-50, LL46-47.
[114]Khan was also recorded as having said:
Ms Khan alleges that the individual concerned was a single mum, a good worker and we've never had any problems with her.[121]
[121] TR6-51, LL7-11.
Khan had previously forwarded emails to O'Brien where she said that Schmidt was "difficult and disruptive".[122]
[122] TR6-51, L15.
[115]In terms of Khan's claim for workers' compensation in October 2015 and her attendance at a secure employment work location on Saturday 24 October 2015 to obtain job applications, it was O'Brien's evidence that in conducting the process as efficiently as possible the interviews could not have occurred prior to the Wednesday. As it turned out, the interviews took place the following week with a contributing factor being the injury to Khan. Whilst she had a different perspective about the Workcover incident to that of Khan, the issue was not discussed by them.[123]
[123] TR6-62, LL18-29.
[116]In dealing with numerous communication issues involving Khan, there had not been any occasion when Khan acknowledged some responsibility for what had occurred.[124] At a meeting held on 11 February 2016 with Khan, feedback was sought about an incident that may have occurred on 9 February 2016 when Khan became emotional and broke down in tears. This was the same time Khan was said to have used language perceived as aggressive towards staff within the administration team. At 3.15 pm on that day Khan left the meeting telling O'Brien she was going home sick but returned at 3.20 pm having contacted the other person in the incident again, leaving the office at 3.24 pm but did not go on sick leave. The language used was a reference to other administration staff as "those bitches".[125]
[124] TR6-65, LL12-14.
[125] TR6-70, L39.
[117]A meeting was held with Khan on 18 February 2016 where discussion occurred around communication issues which prompted O'Brien to make the following file note "Considering moving to formal management of performance - will send letter with details to discuss considerations for improvement plan - consider support person + EAP support".[126]
[126] Exhibit 170.
These comments reflected the discussions between the two.[127]
[127] TR6-73, LL41-44.
[118]On 23 February 2016 a meeting was held with Khan where she was handed a draft PMP. A file note prepared by O'Brien identified the subject of the meeting as "Provision of Performance Letter to Colleen Khan". The note further recorded that:
· 'CK became emotional and asked if I knew the impact this would have on her personally';
· 'Colleen challenged me on the reasons for the performance management. That she thought it was just related to communication'; and
· 'I provided feedback that the issues were consistent against previous discussions and against PAD agreement'.[128]
[128] Exhibit 171; TR6-76, LL19-46; TR6-77, LL1-6.
[119]A number of meetings were arranged to move forward with the PIP which took place on a weekly basis. In the first four meetings Khan attended unprepared which caused O'Brien to provide feedback about what she needed to bring to the meetings. Khan at some stage indicated that she was "not really interested in participating in this".[129] O'Brien, upon being transferred, exited the process to be replaced by Tauti. In the "draft meeting" to discuss the PIP, the communication document[130] was presented which brought a response from Khan in the form of, "I'm not proud of the document". "I'm not proud of this".[131]
[129] TR6-80, LL38-39.
[130] Exhibit 175, TR6-81, LL12-13.
[131] TR6-81, L28.
[120]Under cross-examination, O'Brien gave evidence about the issue involving Parry and Khan on 9 February 2016 and of the telephone contact made with Parry, where it became clear that Parry was not going to make a complaint about the incident because Khan had apologised. O'Brien was questioned at length about various roles in the administration team that required backfilling in the period of 2013-2015. A number of temporary staff were contracted in this period which O'Brien acknowledged was "one of the things that we deal with but in my perfect world I'd love a stable workforce. The reality is most teams have temporary roles across administration services due to higher duties and project roles".[132] With her current team she has a temporary staff member in every team for various reasons.
[132] TR6-93 LL37-39.
[121]The booking officer role is a frontline position interacting directly with high volumes of the public and ideally whoever filled that role would need a high level of knowledge about the dental health services organisational workings, however there needs to be a level of development for any movement of an employee in any clinical service. O'Brien conceded that each time a temporary employee is put into that role the training needs to start afresh. In accepting that one of the booking officer roles had been filled by October 2015 on a temporary basis for over a year by Schmidt, she stated that her engagement occurred whilst she was on leave and she didn't know her start date. Part of a Team Leader's role was to have an ongoing awareness of when a contract was due to end. To fill a temporary position requires more paperwork than filling a position permanently, but that is "pretty normal for most teams".[133]
[133] TR6-95, LL38-39; Exhibit 180.
[122]For the 12 months from June 2014 to June 2015 when she was on leave, her role was undertaken by Pittard with whom in the handover process she communicated there were performance issues with Khan, even though in the first half of 2014 she had worked collaboratively with her and provided an assessment that "[w]e got there in the end. I thought it was reasonably okay from then onwards".[134] The sustainability of moving forward with Khan had not been tested or demonstrated at the time of the handover to Pittard.
[134] TR6-97, L8.
[123]O'Brien acknowledged that on 6 February 2014 a document recorded the accountabilities of the role going forward and another four months elapsed after that date where she observed how it all was working. The only specific improvement had been the communication and they were still "progressing with some of the foundational stuff".[135] O'Brien could not recall creating any documents during the four month period about the performance issues. She was requested to recall the areas where Khan's performance had not improved in that period to which she identified that regular meetings were not occurring "with her team-mates"[136] and she was still not resolving concerns that were being raised. Khan had come to O'Brien for guidance in respect of issues she could have resolved herself but it was conceded by O'Brien that she had a duty to manage and provide support and guidance within her own supervisory role.
[135] TR6-99, L19.
[136] TR6-103, LL20-21.
[124]O'Brien did not accept that when Khan was performing the relief role of booking officer at reception she was not performing the core duties of her substantive role but "probably trying to juggle both".[137] Time spent on the booking officer role formed a direct relationship with the reduction in time available for her core duties, resulting in a drop in performance. In respect of improvement in the waitlist for dental treatments in or around April 2016, O'Brien did not accept a core part of the improvement was Khan's administration team, but acknowledged there was an element of work directly from that time with two additional administration positions. O'Brien was unable to give specifics about the two additional staff. In the period 2012-2013 there was a jump in the treatment numbers which resulted in outsourcing of some treatments and an increase in resources to minimise the impacts on the reception.
[378]At the end of the day it is, in the view of the Commission, reasonable for an employer who had become dissatisfied with the performance of an employee in the circumstances that were applicable in this instance to Khan, for a decision to be made to utilise the PI Policy and seek to implement a PMP. Grounds for such action were identified in the PAD and other meeting outcomes which were not successfully refuted in evidence before the proceedings.
[379]In the matter of Read v Workers' Compensation Regulator (Read), O'Connor DP (as he then was) stated:
Where an employee's performance falls below the standard expected of a person in that role, or when an employee's conduct does not accord with prescribed practices and procedures, it is reasonable, in those circumstances, for a disciplinary meeting to occur.
In this matter I am satisfied that it was reasonable for the appellant's managers to convene a meeting with her to discuss allegations relating to her conduct and professional standards.[343]
[343] Read v Workers' Compensation Regulator [2017] QIRC 072, [16]-[17].
[380]The principle relied upon in Read in my view is also applicable in respect of Khan except that rather than implement a disciplinary process, the employer through O'Brien adopted a more conciliatory approach aimed at improving the standard of performance rather than going down the path of disciplinary action.
[381]The decision to implement the PMP on this occasion was reasonable management action taken in a reasonable way by the employer.
Management of the PMP
[382]In the correspondence (dated 23 February 2016) which informed Khan of the decision to implement the PMP there was a draft PMP attached which proposed that the plan would operate for the period 7 March 2016 to 28 May 2016. A meeting foreshadowed in the correspondence was held at a date later than originally specified where a formal PMP was executed by the parties.
[383]The period of review was identified to take effect from 14 March 2016 until 3 June 2016 with review meetings to occur weekly on a Tuesday morning or at a mutually negotiated time if the initial date could not be maintained.
[384]The background to the PMP was set out in the document as follows:
Colleen Khan has been employed as Administration Team Leader, Oral Health Services since 25th January 2010.
Since 15 October 2015, Colleen's work performance and conduct have not been to the standard required. These issues were addressed through a performance Appraisal and Development Plan (PAD) which was conducted 14 January 2016 and formally reviewed and signed 4th February 2016. A scheduled support and development meeting was undertaken 11th February 2016 which further highlighted the need to consider formal support and development strategies.
The performance concerns include:
· Communication; and
· Management and Leadership.
Colleen's performance has not improved to the required level. Therefore, a Performance Management Plan (PMP) is to be implemented as a final opportunity to manage the issue at the local level.[344]
[344] Exhibit 101.
[385]The aim of the plan was to formally clarify the nature of Khan's performance concern and the cause of the concern, whilst outlining expectations and identifying support mechanisms to improve her communication and leadership outcomes as specified in the role description.
[386]The process to be utilised included the following criteria:
These meetings will provide all parties with an opportunity to discuss and provide feedback on Colleen's progress. The review meetings will include Colleen and the line manager. Colleen may wish to bring a support person to the review meetings.
Individual issues will be addressed with Colleen as soon as possible. The review meetings will provide an overview of all issues addressed since the last review meeting. Issues that have not been addressed prior to the review meeting due to time constraints or other reasons, may be addressed at the review meeting.
At the end of the review period, a written evaluation will be prepared and the outcome conveyed to Colleen in the final meeting. The evaluation report will be forwarded to the reviewing officer for consideration of appropriate action.[345]
[345] Ibid.
[387]Possible outcomes that may have flowed from the PMP were identified as:
1. The PMP objectives are met within the review period and the performance management process is finalised. Employees are expected to maintain the required performance level. If this does not occur, the PMP may be reinstated or the matter referred to the Health Service Chief Executive for consideration of discipline action.
2. The PMP is extended for a further period to ensure performance is managed and maintained over a greater period of time.
3. The objectives are not met and the matter is referred to the Health Service Chief Executive (through the reviewing officer and Human Resources) for consideration of possible discipline action.[346]
[346] Exhibit 101.
[388]The PMP identified in precise terms the responsibilities of the employee, supervisor and the reviewing officer and additionally attached an action plan that identified the following nine objectives (achievements):
· Compliance with the employer's policies and guidelines/work instructions;
· Adherence to the Code of Conduct specifically:
Principle 4 Accountability and transparency
4.1 Ensure diligence in public administration;· Adherence to the Code of Conduct specifically:
Principle 1 Integrity and impartiality
1.5Demonstrate a high standard of workplace behaviour and personal conduct;
· Adherence to the Code of Conduct specifically:
Principle 4 Accountability and transparency
4.5 Commit to innovation and continuous performance improvement;· Implement regular, professional and effective communication frameworks/meetings for relevant employees;
· Undertake effective and professional communication with line manager;
· Undertake effective and professional communication with all staff and stakeholders to demonstrate a high standard of workplace behaviour and personal conduct;
· Fulfil the accountabilities of the Administration Team Leader role description and take responsibility of the outcomes required to be achieved;
· Support for the employee.[347]
[347] Exhibit 101.
[389]The appellant took issue with the Action Plan presenting argument that the specified objectives were bland and not linked to any unsatisfactory work performance, therefore not satisfying the requirements of Schedule One of the PI Policy which recommended the following for the initial meeting:
· provide clear evidence of the performance concerns to be addressed
· develop clear, objective and measurable job performance expectations and support mechanisms in consultation with the employee
· assign responsibility of each requirement to the appropriate person
· establish the length of the performance improvement plan (e.g. usually three months) and schedule review meetings (e.g. usually weekly or fortnightly)
· remind the employee about Employee Assistance and how to access
· advise of possible outcomes should the employee fail to meet performance expectations (specifically disciplinary action which may include dismissal)
· document the performance improvement plan in writing
· all parties should sign the performance improvement plan however where an employee refuses to sign, this should be noted on document.[348]
[348] Exhibit 151, Schedule One.
[390]Firstly in respect of Schedule One of the PI Policy the process requires the information contained in the schedule to be considered as "the minimum standard practice" to enable satisfactory compliance with Queensland Health HR Policy. The process for the initial meeting is preceded with the following commentary:
The following process is recommended when implementing a performance improvement plan.[349]
[349] Exhibit 151, Schedule One.
[391]The term recommended is clearly absent of any mandatory connotations. The Australian Pocket Oxford Dictionary defines recommend as, "advise (course of action or treatment, someone to do, that thing should be done)".[350]
[350] The Australian Pocket Oxford Dictionary, Second Edition, Oxford University Press, Melbourne.
[392]The provisions of Schedule One of the PI Policy should be read with the understanding that all requirements of Schedule One are to be considered in the context of a direct relationship to them being a recommendation.
[393]In any event, in addressing the PMP agreed by the parties in terms of application to Khan, I make the following observations:
Provide clear evidence of the performance concerns to be addressed
The implementation correspondence of 23 February 2016 in my view provided through the attachment of four sets of various meeting notes was sufficient information regarding concerns with Khan's performance in the designated period to satisfactorily meet the requirements of this provision.
Develop clear, objective and measurable job performance expectations and support mechanisms in consultation with the employee
The Action Plan in terms of the Objective column identified the specific sections of the Code of Conduct required to be met by Khan with the Strategies column setting out "how will the objective be met". I am satisfied this provision of the Schedule had been met to a satisfactory standard.
Assign responsibility of each requirement to the appropriate person
The Action Plan through to the Responsibility column placed an onus on a particular individual for each objective, meeting successfully the required obligation.
Remind the employee about Employee Assistance and how to access
This facet was met in the correspondence of 23 February 2016 where Khan was advised:
Employee Assistance
Employee Assistance offers a confidential counselling service which is free of charge to all employees of the Townsville Hospital and Health Service for up to six sessions per calendar year. Access to this service is by self-referral. Please contact PPC Worldwide on 1300 361 008. More information on Employee Assistance can be found at Exhibit 101.
Advise of possible outcomes should the employee fail to meet performance expectations (specifically disciplinary action which may include dismissal)
The employer, whilst advising through the content of the PMP that if the objectives were not met then consideration could be given to possible disciplinary action, had not mentioned dismissal and this accorded with O'Brien's evidence that the focus was on improved performance and there was no intention to use the PMP to terminate Khan's employment.
Document the performance improvement plan in writing
Completed with both parties signing off on the PMP on 16 March 2016.
All parties should sign the performance improvement plan however where an employee refuses to sign, this should be noted on the document
This was not applicable as Khan signed the PMP.
[394]I am satisfied, based upon the evidence and material before the proceedings, the previously mentioned Schedule One criteria had all been met in respect of the initial meeting.
[395]The initial meeting was attended by the following:
· Khan;
· Christina Snowden (Snowden), Together Union;
· O'Brien; and
· Perry.
[396]Khan and O'Brien signed off on the document on 16 March 2016 agreeing to the following term:
I understand the expectations of me and agree to work to satisfactorily complete this Performance Management Plan.[352]
[352] Exhibit 110.
[397]Under the heading Employee Comments, Khan wrote the following:
I have read and understand the document. However, I have concerns with this process.[353]
[353] Exhibit 110.
[398]A Suitable Duties Program had also been signed off by Khan, O'Brien and a Rehabilitation Co-ordinator on 16 March 2016 that specified:
Duties
· Normal duties working within physical limitations.
Medical Restrictions
· Lifting, Carrying/Holding & Pushing/Pulling restrictions (not more than 5 kg)
· Restricted/limit amount of use of stairs.[354]
[354] Exhibit 113.
[399]Upon the parties signing off on the PMP, meetings were held on 15, 22 and 29 March 2016 attended by Khan and O'Brien. Review notes of those meetings recorded the following:
15 March 2016 - the review notes recorded amongst other things:
· advice given to Khan relating to the scope of decision making by Level 4 Administration Officer;
· PMP signed by Khan noting issues with the plan but declining to elaborate on the issues;
· discussion and advice occurred relating to planning for discussions with the line manager;
· Khan declined offer for mediation at this stage;
· Khan noted ongoing concern with professional relationship with another employee and that future issues are a likely outcome;
· O'Brien advised that relationship advice should be considered by Khan in this case;
· Support offered to Khan:
oagreed Khan would consider a mentor;
oKhan confirmed she had external support available to her;
oKhan would review external training opportunities;
oO'Brien to consider suitable external training programs.
The review notes were signed off by Khan and O'Brien on 1 April 2016 with Khan adding the following comment, "I have read and understood, however I do not agree".
In response O'Brien recorded, "Colleen declined to elaborate on her concerns relating to this process".[355]
[355] Exhibit 117.
22 March 2016 - It was uncontested that at the time of this meeting O'Brien had not provided notes of the meeting held on 15 March 2016 which was not helpful for Khan having to attend this meeting with only her own notes. The review notes tendered in the proceeding recorded amongst other things that:
· Khan highlighted a concern about her ability to meet the requirements of the PMP for the week 21-25 March 2016 due to leave arrangements;
· Khan raised concerns about the origin of the PMP becoming quite emotional on a number of occasions, declining an offer for a break;
· O'Brien highlighted that stakeholder communication was a requirement of the role;
· an offer of QHERS training was rejected by Khan as not being required at this time;
· support offered to Khan:
oKhan considering a mentor;
oO'Brien to provide an overview of Emotional Intelligence training available in Cairns in April 2016.
The review notes were signed off by Khan and O'Brien on 1 April 2016 with Khan adding the following comment, "I have read and understood however I do not agree".
In response, O'Brien recorded, "Colleen was offered an opportunity to discuss her further concerns and it was declined".[356]
[356] Exhibit 118.
29 March 2016 - The review notes included, amongst other items:
· O'Brien requested approval for the meeting to be recorded to support any requirement to review agreed outcomes in the future. Khan sought advice from the Union and this was declined;
· Khan confirmed she would seek support from a mentor in relation to meeting documentation;
· Khan attended THHS training "Communication - Foundation Skills" - positive response;
· Agreed to discuss "Communication/Escalation Framework" at the next meeting;
· Support for the employee -
oKhan continued to consider a mentor;
oKhan expressed an interest in "Emotional Intelligence" course but unavailable in April 2016 to attend in Cairns.
Khan and O'Brien signed off on 1 April 2016 with Khan recording, "I have read and understood however I do not agree".
O'Brien responded, "I provided Colleen an opportunity to elaborate on what aspects she did not agree with and Colleen declined".[357]
[357] Exhibit 120.
[400]A file note was tendered in the proceeding which was prepared by O'Brien arising from a meeting held with Khan on 1 April 2016 for the purpose of signing review documents. It recorded that Khan had made the following points:
· raised concerns about O'Brien's role and influence in the PMP process;
· was "too scared" to bring anything to add;
· felt she could prepare everything in the world and it wouldn't matter as this process was about managing her out of a job; and
· was upset about the whole process and felt it was completely detrimental to her and she would never recover.[358]
[358] Exhibit 121.
[401]On 29 March 2016 O'Brien sent an email to Khan which was identified as providing "some support and direction" on outcome focused communication between Khan and herself. In dealing with other communication strategies, O'Brien stated, "I encourage you to continue to be open to training opportunities that might come along or that you seek out".[359]
[359] Exhibit 123, p 357.
[402]On 5 April 2016, pursuant to the Queensland Health Grievance Policy E12, Khan lodged a grievance against the decision to initiate the PMP which was said to have adversely affected her, being unreasonable and having caused her a detriment. The grievance identified what she believed was required to resolve the complaint:
I request that this process be continued to be managed through the Performance Appraisal and Development Plan (PAD) processes and that I be provided with adequate and appropriate training and associated resources provided to me pursuant to section 2 of the Queensland Health Policy - Performance Improvement (G11(QH-POL-190)) in order to support me to improve in regard to these issues that have been raised with regard to my performance.[360]
[360] Exhibit 122.
[403]Correspondence (dated 26 April 2016) was forwarded to Khan from the Service Group Director, Health and Wellbeing who advised in respect of the grievance lodged, "I am therefore satisfied the current formal PIP process is appropriate to continue and I now consider this grievance closed".[361]
[361] Exhibit 129.
[404]On 5 April 2016 the final PMP review occurred in which Khan and O'Brien participated. The review notes recorded, amongst other things:
· Khan still required to consider and develop a plan for a communication framework across the team to ensure KPI's could be developed and reviewed on a regular basis.
· positive feedback provided from O'Brien relating to staff consultation undertaken by Khan.
· support for the employee -
oKhan continuing to consider a mentor;
oKhan provided advice she could attend Emotional Intelligence Course in Cairns. O'Brien would seek to gain approval.
[405]The review notes tendered in the proceedings were unsigned.[362]
[362] Exhibit 127.
[406]On 26 April 2016 Tauti had taken over the substantive role held by O'Brien and with it came the responsibility to continue with Khan's PMP. A meeting was arranged for 3 May 2016 between Tauti and Khan. A file note taken by Tauti recorded that Khan gave a perspective on what she needed to work on as being, "Communication, Management and Leadership" advising Tauti she had been on three courses the last six weeks. Tauti was recorded as saying, "[W]hat I would be looking for is for you to demonstrate how you are incorporating what you have learned in those courses back into your team in relation to communication and leadership". The file note was signed by Tauti with Khan adding, "I remain committed to meeting the expectations of the PMP and embrace ongoing development".[363]
[363] Exhibit 130.
[407]Shortly thereafter Tauti was involved in a meeting with Stanley and Khan where she considered the communication style of Khan to be "quite aggressive with her tone and manner" and on 17 May 2016 a meeting was held involving Tauti and Khan in which a file note taken by Tauti recorded Khan becoming "very visibly upset".[364]
[364] Exhibit 138.
[408]A further meeting between Tauti and Khan was held on 6 June 2016 where Tauti informed her, "Given that you attended the Emotional Intelligence Course only recently and there are further items for you to work on, I would like to extend this process by 6 weeks to allow you time to meet the requirements of the plan. At this time if the requirements of the plan are not met, at that point I will have to refer the matter to the appropriate delegate for consideration". The PMP would therefore be extended to 15 July 2016.[365]
[365] Exhibit 144.
[409]The final meeting in the PMP process was held on 24 June 2016 and in the file note listed as participants:
· Tauti;
· Khan;
· Wichman; and
· Murakami.[366]
[366] Exhibit 147.
[410]The meeting was recorded for note taking purposes (transcript produced and tendered in the proceedings). Tauti in opening commentary stated:
Alright, ok so in my email I sent you Colleen earlier in the week I'd mentioned that we would go through the plan today and then follow up on anything that is outstanding from the notes that have been taken from the past few weeks.[367]
[367] Exhibit 147.
[411]An examination of the lengthy transcript confirmed that the meeting transversed the content of the Action Plan in significant detail with a high degree of participation from Khan who was offered every opportunity to present her view on matters, including responses to a multitude of points made in the course of the meeting by Tauti, which included:
· conceding that it was a common error on her behalf that she took on all the actions rather than spread them out amongst the team and had been doing that for a 'long time to be honest';
· conceding there were client reception issues that she needed to delegate or escalate on a daily basis;
· agreeing that she needed to work on her communication with the Team Leader and in particular issues around being professional at all times and demonstrate a high level of personal conduct; and
· apologising for her conduct in a recent meeting with Tauti.[368]
[368] Ibid.
[412]In the course of the meeting Khan also made the following statement in reference to the PMP process:
Ok I haven't had a conversation with my line manager in 12 months that hasn't been documented, but if that is the way it is, that is the way it is I guess, I certainly would never do that to my staff, its just that I don't not (sic) have a regular meeting that is not part of this, I never have an opportunity to speak without it being part of this, everything that I do is part of this, everything, its just, but that is ok, I get that now.[369]
[369] Ibid.
[413]Towards the end of the meeting the following exchange occurred between Tauti, Wichman (Khan's support person), Murakami and Khan:
RW asked, 'I was just wondering when Colleen has her meeting next week, do we start at the beginning and work through all of these again? Is this ongoing every week is it?'
KT responded, 'It is my understanding that is what Melissa has done. What I have been doing is alternating one week we have a conversation and Colleen brings her bits and pieces and then the next week we go through each item on (sic) by one, that's what I have been doing'.
RW asked, 'So anything that happens from one week to another it appears in here again so it's just an ongoing thing is it?'
AM responded, 'It is just the way it is being done at the moment, you can do by exception if you want wherever you can say if that has been met and nothing has changed that you could if you wish'.
RW asked, 'Is there anything in here that we can close off, or is closed off now?'
KT advised, 'Well we talked about some of these things that they were met. I didn't specifically say met'.
AM advised, 'I recall you saying something like this was met in the first two weeks this was met on meeting plans or something like that'.
KT responded, 'Yeah'.
CK advised, 'The only thing that isn't being met is the communication, that's it, how do you measure that?'[370]
[370] Exhibit 147.
[414]In determining whether the management of the PMP by the employer was reasonable management action taken in a reasonable way it is necessary in the first instance to consider the two stages of the process, being the initial carriage by O'Brien and later by Tauti upon replacing O'Brien in that role on or around 26 April 2016.
O'Brien
[415]From the outset of O'Brien's participation in the PMP it is undeniable that Khan approached both the implementation of the PMP and the involvement in particular of O'Brien with a level of trepidation, believing the intent of the process was to manage her out of a job. There was an absence of evidence adduced in the proceedings to support such perturbation held by Khan.
[416]Also of significance was the view held by Khan that because of an involvement by O'Brien in a previously unsuccessful application for workers' compensation by Khan in mid to late 2015, she held a prejudice against her which would affect the discharge by O'Brien of her role as line manager. The Commission was not required to determine the genuineness or otherwise of the unsuccessful claim for compensation, however notes the involvement of O'Brien in that matter being limited to the production of a response regarding whether the injury suffered by Khan was indeed connected to her employment.
[417]The circumstances of the failed claim appear to be that Khan suffered an injury to her ankle when attending a precinct of the employer on a Saturday (when the premises were closed) for the purpose of obtaining recruitment documents for a said to be pressing recruitment process. O'Brien pointed out Khan had not been engaged in paid employment on the day. She had no authorised access to the then empty building and the recruitment process was not pressing as claimed. Additionally, the "hole" which Khan alleged caused her to fall was unable to be found in the location given by Khan. For O'Brien to provide information contrary to what was recorded would have been tantamount to failing to carry out her duties in a diligent manner. There was no evidence in the proceedings to support the allegation of a prejudice held by O'Brien in respect of Khan and I hasten to add or support a genuinely held perception of the same.
[418]The management of the PMP process by O'Brien had been well documented as identified in the proceedings and with the exception of the failure to provide at times copies of the review notes in a timely manner to Khan, the PMP process was conducted both professionally and with due care by O'Brien for the purpose of ensuring Khan was provided every opportunity to accomplish the desired outcome. O'Brien gave evidence of workload pressures being the reason for the lateness of the review notes and in the view of the Commission the lateness was at most a mere "blemish" in the process. Throughout the PMP process there were email trails which identified support and assistance given by O'Brien to Khan in meeting the required standards.
Tauti
[419]Unlike O'Brien, Tauti had no previous history with Khan and at the first meeting held between her and Khan on 3 May 2016 to discuss the PMP she was up front in telling Khan she only had the file for five minutes and sought Khan's perspective on what was required to finalise the PMP, with the response being, "Communication, Management and Leadership" issues. Khan, in counter signing the file note, made a positive notation of remaining committed to meeting the expectations of the PMP and to "embrace ongoing development" which was an indicative departure from the non-positive commentary entered on the earlier PMP review notes by her.
[420]In the limited time available to Tauti due to the end date of the PMP, the evidence supports that she undertook her PMP responsibilities in a diligent manner and had the benefit of being able to observe Khan in the workplace following her attendance at the Emotional Intelligence Course, after which she ascertained that further work was required to bring her work performance up to the required standard.
[421]On 6 June 2016 Khan was verbally informed by Tauti of the intention to exercise a prerogative pursuant to the PMP (signed off by Khan on 1 April 2016 - agreed on 15 March 2016) to extend the PMP for a further period to ensure her performance could be managed and maintained over a greater period of time. The conclusion reached by Tauti that the objects of the PMP had not been met enlivened the option of referring the matter for the consideration of possible disciplinary action but this was not desirable at the time. A final meeting was held on 24 June 2016 for the purpose of evaluating the PMP to date and during the course of the proceedings the Commission heard the audio recording of that meeting and had the benefit of a typewritten transcript of the recording tendered in the proceedings.[371]
[371] Exhibit 174.
[422]The PMP process itself was not without some difficulty as a consequence of the career changes for both O'Brien and Tauti which required the "handing over of the baton" from one to the other, shifting the responsibility to superintend the PMP. On my observation whilst not necessarily disruptive to any sizeable degree, the changeover may not have been seamless certainly at the point of handover as exhibited by Tauti at her meeting with Khan on 3 May 2016. However, despite any imperfection there was no evidence of a detriment to Khan who was requested to offer her perspective of what would finalise the PMP which for all intents was accepted by Tauti.
[423]The PI policy at Schedule One identifies the criteria with regard to the final review meeting:
Final review meeting
· In consultation with the employee, decide whether the performance requirements have been met, or have not been met for the duration of the performance improvement plan
· Document the final outcome of the performance improvement plan and advise the employee whether they have met or have not met the requirements of the performance improvement plan
· Where the performance requirements have been met:
-revert to the normal performance monitoring through the performance develop (sic) process
-advise the employee they are required to maintain the expected levels of performance and failure to do so may result in disciplinary action, which may lead to dismissal
· Where the performance requirements have not been met, advise the employee the matter will be referred to an appropriate delegate for consideration of any further action (i.e. disciplinary action).[372]
[372] Exhibit 151.
[424]The meeting held on 24 June 2016 had the appearance of genuinely meeting the criteria pursuant to Schedule One of the PI Policy in terms of consultation with Khan to decide whether the performance requirements of the PMP were met or otherwise. A further obligation to document the final outcome of the PMP and advise Khan of that outcome, in my view, was satisfied for the purpose of documentation by the production of the transcript taken from the audio recording. I acknowledged that the transcript was not made available to Khan for the obvious reason that upon leaving the workplace on the day of the meeting she did not return to the place of employment.
[425]The Commission with the benefit of having heard the audio recording and read the transcript understands that Khan was in no uncertain terms informed of deficiencies that existed with her performance at the completion of the PMP process and that a meeting would be held the following week as part of the continuation of the PMP. In her evidence in chief Khan acknowledged at the conclusion of the meeting she understood that she "didn't believe I'd met the plan and that it would be forwarded to a delegate". (See paragraph [71] of this decision)
[426]The conduct of the PMP by Tauti was in all circumstances reasonable but on occasion not perfect in that she had initially informed Khan of the decision to extend the PMP on 6 June 2016 which was three days beyond the expiry and whilst that was a flaw in my view, it was not a fatal flaw.
[427]In the matter of Delaney v Q-COMP, Hall P stated:
Some issue is also raised about the content of the notion of reasonableness at s. 34(5) WorkCover Queensland v Kehl (2002) 170 QGIG 93 at 94 adopts the view that 'reasonable' should be treated as meaning 'reasonable in all the circumstances of the case'. In reliance upon the decision of the trial judge (Walker J) in Doyle v Manly Pacific International Hotel [1998] NSWCA 44 at [106], counsel for the Appellant seeks if not to subsume 'reasonableness' in 'industrial fairness' to elevate 'industrial fairness' a dominant consideration. The relevant passage in Doyle v Manly International Hotel, ibid, is:
'In Jackson's case I endeavoured to come to terms with the difficult concept of reasonable in s11A (11). My conclusion was 'reasonable' means reasonable in all the circumstances of the case. Because the employer's actions are in an industrial law setting, the test I applied was whether a reasonable observer of all the circumstances of the case would find the employer's actions fair.'.[373]
[373] Delaney v Q-COMP [2005] QIC 11; 178 QGIG 197.
[428]In Qantas Airways Limited AND Q-Comp, Blades C stated:
. . . What management must do is be reasonable, not perfect, and if it be that before a meeting can be held with a worker, he has to be told specifically what it is about, I think it is placing too high a duty upon management. Surely management asking a worker what happened in an incident is not in breach of the principles of natural justice. Each case depends on its own facts and circumstances but what is 'reasonable' is 'reasonable in all the circumstances of the case' and 'reasonableness' does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant - Delaney v Q-Comp Review Unit (2005) 178 QGIG 197. In any event, the factual situation in this case did not arise in this way. . . .[374]
[374] Qantas Airways Limited AND Q-Comp [2006] 181 QGIG, No 9, pp 301-307.
[429]I am satisfied that the management of the PMP was reasonable management action taken in a reasonable way by the employer.
Findings
[430]Having considered the evidence, material and submissions before the proceedings, I make the following findings:
· Khan was for the purpose of s 11 of the Act at all relevant times a "worker";
· Khan sustained a personal injury in the form of a psychological injury pursuant to s 32 of the WCR Act;
· the personal injury sustained by Khan arose out of, or in the course of her employment, with the employment being the major significant contributing factor to the injury;
· the personal injury is excluded from being compensable by the operation of s 32(5)(a) of the WCR Act, "reasonable management action taken in a reasonable way by the employer in connection with the employment";
· the appeal is dismissed and the decision of the respondent of 6 June 2017 is confirmed; and
· Khan is to pay the respondent's costs of and incidental to the appeal.
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