Mac v Bank of Queensland Limited
[2015] FWC 774
•13 FEBRUARY 2015
| [2015] FWC 774 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Amie Mac
v
Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman
(AB2014/1324)
VICE PRESIDENT HATCHER | SYDNEY, 13 FEBRUARY 2015 |
Application for an FWC order to stop bullying.
Introduction
[1] On 3 July 2014 Ms Amie Mac filed an application pursuant to s.789FC of the Fair Work Act 2009 (FW Act) for orders to stop bullying at work. The application alleged that bullying occurred in the course of Ms Mac’s employment as a lawyer with the Bank of Queensland Limited (BOQ), and identified five persons employed by BOQ as the perpetrators of that bullying. BOQ filed a response to the application on 16 July 2014.
[2] On 19 September 2014, in response to a direction made by the Commission, Ms Mac filed a “Points of Claim” document setting out, in 124 paragraphs and numerous subparagraphs, the particulars of her application. It alleged 38 separate instances of unreasonable behaviour towards Ms Mac which were said to constitute bullying at work within the definition of that expression contained in s.789FD of the FW Act, explicated the risk that that behaviour was said to have caused to the health and safety of Ms Mac, and gave particulars of the basis upon which it was contended that there was a risk that Ms Mac would continue to be bullied at work. Nine orders sought to be made under s.789FF to stop Ms Mac being bullied at work were identified. I observe at this point that although the Commission’s direction to Ms Mac to file Points of Claim was undoubtedly intended to require her to more clearly define and focus the allegations of bullying that she made against the respondents, it appears that it had the quite different result of leading her lawyers to seize upon a large proportion of any interactions between the individual respondents and Ms Mac over the relevant period as constituting instances of alleged bullying. Hints made by me during the hearing that the applicant might want to consider narrowing the bullying allegations to those which concerned the critical issues at stake were perhaps too subtly expressed, since they were ignored (except to the extent that the applicant abandoned two of the 38 alleged instances of bullying in closing submissions).
[3] Also pursuant to directions of the Commission, on 29 September 2014 a joint “Points of Defence” document was filed by BOQ and the five individual employees of BOQ identified in Ms Mac’s application as being the perpetrators of the alleged bullying (the respondents). This document, in the manner of a pleading, responded paragraph by paragraph to Ms Mac’s “Points of Claim” with denials, admissions and non-admissions, and also raised additional factual matters in response. Each instance of alleged unreasonable behaviour was denied, and it was further contended that the alleged behaviours constituted reasonable management action carried out in a reasonable manner. Any continuing risk of Ms Mac being bullied at work was denied, and the making of orders under s.789FF was opposed.
[4] The matter was initially listed for hearing on 4-5 November 2014. For reasons which it is unnecessary to state, those hearings dates were vacated and the matter was heard in Brisbane on 26-28 November 2014. At the commencement of the hearing, the respondents applied for an order under s.593(3)(c) of the FW Act prohibiting the publication of the names of the applicant and the five persons it was alleged had engaged in bullying behaviour - in other words, to “de-identify” the individuals involved. This was opposed by Ms Mac. Upon hearing the parties on this issue, I indicated that I would rule on the application as part of the final judgment in the matter, but as an interim measure I ordered under s.593(3)(a) that the hearing be conducted in private.
The de-identification application
[5] It is convenient to deal with the de-identification application first. There was no issue that the Commission has power under s.593(3) to order the de-identification of the names of the individuals involved in this matter. The question in dispute was whether the circumstances of the case justified the making of such an order.
[6] The principle of open justice will usually be the paramount consideration in determining whether a confidentiality order of the type sought by the respondents ought be made. The main features of that principle were usefully summarised in the NSW Supreme Court decision (Pembroke J) in Seven Network (Operations) Limited & Ors v James Warburton (No 1) 1 as follows:
“[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.
[3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).
[4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.
- [5] To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings openly and with transparency.”
[8] As identified in the passage quoted, departures from the principle of open justice may be permitted where not to do so would defeat the proper administration of justice. For example, in criminal proceedings involving an allegation of blackmail, identifying details of the target of the alleged blackmail will often be suppressed in order that the system of justice does not serve to aid the blackmailer. Genuine trade secrets and commercially confidential information may be the subject of orders restricting publication and disclosure where their exposure in the course of litigation may result in a litigant suffering the injustice of detriment at the hands of a competitor.
[9] In relation to the anti-bullying jurisdiction established by Part 6-4B of the FW Act, it is apparent that the purpose of the legislation, namely to ensure that workers can continue in their engagements at work free from the risk to health and safety caused by workplace bullying, would be defeated if the public disclosure of sensitive information during the course of anti-bullying proceedings would be likely to have the effect of rendering the relevant worker’s continuing engagement unviable. However it is equally apparent that, in accordance with the open justice principle, it is not sufficient to justify the making of a non-disclosure order merely that allegations have been made which are embarrassing, distressing or potentially damaging to reputations. In an anti-bullying matter, as with other types of proceedings before the Commission such as unfair dismissal remedy applications, the findings of the Commission concerning allegations which have been made will usually appropriately resolve concerns about embarrassment, distress or damage to reputation. If findings are made that an applicant’s allegations of bullying behaviour are unfounded, then the position of persons alleged to be the perpetrators of such bullying will be vindicated and the outcome will redound upon the applicant. However if allegations of bullying are found to be substantiated, then public identification of the perpetrators of that bullying is normally appropriate. In either case, the public scrutiny involved will have a deterrent effect that is in the public interest - in the former case against the making of unfounded allegations and in the latter case against engagement in bullying behaviour.
[10] If a party applies for confidentiality orders on the basis that disclosure of sensitive information is likely to endanger the viability of a continuing working engagement, then that party will need to positively satisfy the Commission that this is the case. It is not sufficient for this simply to be asserted. In this case, the respondents have submitted that de-identification was appropriate because it would:
(1) minimise the negative impact that any open proceedings may have on Ms Mac, particularly in relation to her ability to return to work;
(2) minimise the negative impact that any open proceedings may have on the health of Ms Mac;
(3) minimise the adverse impact on the individual respondents of untested allegations, including allegations to the effect that they (being lawyers) have breached the Australian Solicitors’ Conduct Rules; and
(4) minimise unnecessary knowledge of the proceedings amongst BOQ employees, thereby minimising the potential to adversely affect any return to work by Ms Mac.
[11] In relation to contentions (1), (2) and (4) above, if the Commission was positively satisfied that the disclosure of the names of the individuals involved in this matter would seriously endanger the ability of Ms Mac, who is currently off work because of psychological illness, to ever return to her employment with BOQ, then that would form a proper basis for the making of de-identification orders under s.593(3) of the FW Act. However the contentions in this respect did not rise above the level of generalised assertions. There was nothing in the evidence, including the medical evidence, which could form a proper basis for the conclusion that the identification of the names of the relevant individuals would be likely to prevent Ms Mac from returning to work at an appropriate time. Ms Mac herself, who had access to competent legal and medical advice, expressed no concerns on this score and was opposed to the making of de-identification orders.
[12] Contention (3) is misconceived. There is no issue of “untested” allegations here, because the allegations have been tested at the hearing and will be the subject of findings in this decision. Whilst I do not anticipate that the findings I intend to make will give any of the individual respondents concern for their reputations, the possibility of the effect of adverse findings on the reputation of individuals is not in itself a proper basis for the non-disclosure of the names of those individuals, for the reasons already discussed. For example, although in this case there is no basis whatsoever to find that any of the individual respondents have as lawyers breached the Australian Solicitors’ Conduct Rules, were it necessary for me to make such a finding, the principle of open justice as well as the public interest would support the identification of the person(s) the subject of such a finding.
[13] Accordingly I do not consider there to be any proper basis for the making of the de-identification orders sought by the respondents and I reject their application in this respect.
Facts
The witnesses
[14] Ms Mac gave evidence on her own behalf by way of a lengthy witness statement which annexed a large number of documents, and was the subject of extensive cross-examination. She also adduced evidence from the following witnesses:
● William Morgan, her husband and a solicitor;
● Dr Louise Wilson, her general practitioner; and
● Dr Nicholas Jetnikoff, a psychiatrist.
[15] Mr Morgan and Dr Wilson made statements of evidence and were cross-examined on those statements. Dr Jetnikoff swore an affidavit which annexed an expert’s report which he produced dated 30 June 2014 arising from his examination of Ms Mac on 19 June 2014. He was not required for cross-examination.
[16] Each of the individual respondents gave evidence, namely:
● Stacey Hester, Head of Group Legal at BOQ;
● Christine Van Den Heuvel, Senior Corporate Solicitor at BOQ;
● Jane Newman, Senior Corporate Solicitor at BOQ;
● Michelle Locke, BOQ’s Human Resources (HR) Operations Team Leader; and
● Matthew Thompson, Senior Corporate Solicitor - General at BOQ.
[17] Each of the individual respondents made witness statements and were cross-examined.
[18] There was little contest about the basic facts in this matter. I consider that all the witnesses gave truthful evidence about the relevant matters of fact, and in most cases the factual issues between them can be explained by genuine differences in recollection or perception. The real contest between the witnesses requiring resolution concerned their opinions and characterisation of various events and conduct.
Background matters
[19] Ms Mac is an admitted solicitor and a chartered accountant. She has a background in corporate and finance law. She is 43 years of age. On 10 January 2011 she commenced employment with BOQ as Corporate Solicitor.
[20] BOQ has an internal legal department (Group Legal) which, at the time of the hearing, consisted of ten Corporate Solicitors reporting to their designated Senior Corporate Solicitor managers. Group Legal also has two paralegals and a secondee. At all times during Ms Mac’s employment, Ms Hester has been the Head of Group Legal. She reports to Mr Brad Edwards, BOQ’s General Counsel.
[21] At all relevant times, Group Legal has provided legal services internally to BOQ, including BOQ’s subsidiaries. Work is allocated to the Corporate Solicitors through two means: the Legal Inbox system and directly by each solicitor’s designated Senior Corporate Solicitor manager. The Legal Inbox is an email inbox to which internal “clients” may send legal queries and seek legal advice in response. Responsibility for the allocation of the queries for response is rotated between each of the Senior Corporate Solicitors and the Head of Group Legal on a weekly basis. The efficiency of the Corporate Solicitors may be assessed by reference to the number of Legal Inbox tasks allocated, the timeframe in which the response was prepared, and the quality of the response.
[22] Each Senior Corporate Solicitor also has responsibility for designated “work streams” - that is, areas of practice - within BOQ’s operations. Work requests are received by Senior Corporate Solicitors from their work streams, and these might then be allocated to the any of the Corporate Solicitors who reported to that Senior Corporate Solicitor.
[23] Corporate Solicitors are assessed for performance twice a year - an indicative half year Performance Development Assessment (PDA), and then a full-year PDA to which opportunities to be paid a bonus attach. Each Corporate Solicitor is required to fill out a self-assessment document as part of the PDA process, and then is initially assigned a performance rating by the Senior Corporate Solicitor to whom he or she reports. The performance rating is then “moderated” by Ms Hester and Mr Edwards, which may result in an adjustment of the performance rating. It is only after the moderation step has been taken that the Corporate Solicitor is meant to be informed of the outcome.
[24] For under-performing employees, BOQ uses Performance Improvement Plans to identify and attempt to rectify shortcomings in performance (as discussed in greater detail later in this decision). If poor performance cannot ultimately be rectified, termination of employment may result.
Performance issues emerge
[25] Ms Mac initially reported to Ms Sheryl Daley as her Senior Corporate Solicitor manager. She was rated as “competent” in her first full-year PDA in October 2011. On 12 December 2011 she had her first meeting with Mr Edwards, with Ms Hester present. Some elements of Ms Mac’s work performance appear to have been touched on in this meeting. A file note of the meeting records the following: “Weakness - analyse everything to the nth degree”. It is not clear from the file note who said this; Ms Mac’s recollection was that she said it herself. The note also states: “Internal courses to develop negotiation & people skills.” There were also positive comments about Ms Mac’s work performance at this meeting.
[26] From about July/August 2012 until December 2013, Ms Mac reported to Ms Van Den Heuvel. Ms Van Den Heuvel soon formed the view that there were problems with Ms Mac’s work performance - in particular that the amount of hours that she worked was not reflected in the volume of her work output, that she tended to “overwork” her files, and that she failed to effectively prioritise her work load. In October 2012 Ms Mac went through her second full-year PDA process. She was rated as “competent” again. On 15 October 2012 Ms Van Den Heuvel met with her to discuss her PDA. Ms Mac was advised that she needed to prioritise her work more effectively, not overwork her files and use her time more efficiently, and told that she seemed to take more time to complete her tasks than other Corporate Solicitors.
[27] From about this time onwards, Ms Mac was increasingly performing work on St Andrew’s matters. St Andrew’s was an insurance business which BOQ had purchased. From Ms Mac’s perspective, she found St Andrew’s to be a difficult and demanding client, particularly as she was required to deal with St Andrew’s personnel who were much higher in the corporate hierarchy than herself. She often raised these issues at the weekly “one-on-one” meetings which she had with Ms Van Den Heuvel, and at weekly team meetings. From Ms Van Den Heuvel’s perspective, Ms Mac was spending too much time “handholding” St Andrew’s personnel such as by unnecessarily attending lengthy teleconferences. Ms Van Den Heuvel advised Ms Mac as to strategies to minimise unnecessary time being spent on St Andrew’s matters.
[28] By approximately early to mid-2013, Ms Van Den Heuvel had firmed in her assessment of Ms Mac that she needed to increase her work output, manage her time more effectively and complete her priority work. In her 2013 half-yearly PDA she rated Ms Mac as “needs development”. She discussed her rating with Mr Edwards and Ms Hester, and informed them that there were issues concerning Ms Mac’s timeliness in completing assigned tasks, her failure to seek assistance, and her contract work. Ms Hester agreed with Ms Van Den Heuvel’s assessment of Ms Mac’s performance.
[29] On 12 June 2013 Ms Van Den Heuvel met with Ms Mac to discuss her half-yearly PDA. There is no dispute that Ms Van Den Heuvel made a number of positive comments concerning Ms Mac’s work performance, including that she was thorough, had good analytical skills, good people skills, and that St Andrew’s enjoyed working with her and she had a good rapport with that business. However, Ms Van Den Heuvel raised a number of areas in which Ms Mac needed to improve her work performance, namely:
● time management;
● work output;
● spending appropriate amounts of time on matters;
● general advising;
● workload;
● assisting others when they were busy;
● regularly and correctly completing St Andrew’s timesheets;
● decision making in progressing matters;
● service levels not being met on contract reviews; and
● allocation of general advice work from other Senior Corporate Solicitors.
[30] In relation to Ms Mac’s workload, Ms Van Den Heuvel in her evidence referred to a report entitled “Business Excellence Review - Analysis of Group Legal Inbox” which was prepared by BOQ’s Business Excellence Team in August 2013 and, among other things, analysed the volume of queries responded to by each member of Group Legal in the period May-August 2013. This analysis demonstrated that Ms Mac did the lowest number of responses to queries amongst the Corporate Solicitors (that is, not counting Mr Edwards, Ms Hester, the Senior Corporate Solicitors, the paralegals and the secondee) except for one Corporate Solicitor who worked on long-term contracts and was not required to respond to Legal Inbox queries. The same analysis demonstrated that 82% of the Legal Inbox responses were done by eight of the Corporate Solicitors, and this eight did not include Ms Mac.
[31] Ms Mac in her case pointed to another analysis in the same report which calculated the “average cycle time” (that is, the average time to provide a response) for each member of Group Legal in relation to Legal Inbox queries. This showed Ms Mac having a relatively low average response time of 1.6 days compared to the results for other members of Group Legal and an overall average of 3 days. Ms Mac, understandably enough, relied upon this analysis to rebut any suggestion that she had a timeliness problem. However, this particular analysis is, on its face, problematic. It shows a Corporate Solicitor who responded to 72 queries in the time period (compared to Ms Mac’s 18) having an average response time of 5 days. Similar results apply to a number of Corporate Solicitors with high volumes of response. It is difficult to comprehend how some persons could perform much higher volumes of work if they had much higher response times. For some persons, the average response time is recorded (without explanation) as zero. The report observes that the average cycle times by solicitor vary significantly, and states “The reasons for this require deeper analysis but could be due to the types of queries or complexity”. The contents of this report do not dissuade me from accepting the evidence given by Ms Van Den Heuvel and supported by Ms Hester that Ms Mac had difficulties in the timeliness with which she responded to legal inquiries.
[32] At the 12 June 2013 meeting, Ms Mac resisted much of what Ms Van Den Heuvel put to her. She disagreed that she had the lightest workload and the highest turnaround time in Group Legal, and that the other solicitors did not know exactly what she did because they had no visibility about the amount of work she did for St Andrews. Ms Van Den Heuvel made a number of suggestions concerning how she might improve her work performance, including that she should:
● have a spreadsheet prepared of her advising schedule for St Andrews so that the work that was being performed could be better understood;
● prepare timesheets, so that Ms Van Den Heuvel could understand what she was working on and how long she was taking to do it;
● provide greater assistance to other solicitors; and
● proactively seek more “exposure” from Ms Van Den Heuvel about how to “approach matters from a high level rather than a process level”.
[33] Either at this meeting or around the same time, Ms Van Den Heuvel requested that Ms Mac provide her with access to her email so that Ms Van Den Heuvel could monitor it when Ms Mac was on leave or if something urgent needed to be dealt with.
[34] Ms Mac did provide Ms Van Den Heuvel with timesheets for the six week period up to 23 July 2013. However they were not provided progressively; Ms Mac sent them all to Ms Van Den Heuvel in one email on 24 July 2013, under protest, when Ms Van Den Heuvel reminded her about them. Ms Mac did not have the advising schedule for the St Andrews work set up, and she did not provide Ms Van Den Heuvel with access to her email. Ms Mac blamed other persons for this. From Ms Van Den Heuvel’s perspective, Ms Mac did not proactively seek advice and feedback from her except on rare occasions.
[35] In a one-on-one meeting between Ms Mac and Mr Edwards which occurred soon after the meeting with Ms Van Den Heuvel, Ms Mac complained about being the only person in Group Legal that had been required to fill out timesheets. On 27 June 2013 Ms Mac had a further meeting with Mr Edwards, at which Ms Van Den Heuvel was present, during which there was a discussion about Ms Mac’s time management skills, with specific reference being made to the delay in issuing a letter relating to Western Union. Apparently arising from this meeting, Ms Mac sent Mr Edwards an email at his request listing areas in which she considered she needed development. Her list identified “Not to over-analyse”, “Not to overcook legal advices”, “To push back on work that is not a strategic priority for the Bank” and “The need to be commercial vs perfection”. I consider that Ms Mac’s email implicitly recognised that there was a legitimate concern about her timeliness and work prioritisation, in that she was spending too much time on advices that could properly have been prepared in a shorter period.
[36] On 6 September 2013, Ms Van Den Heuvel met with Ms Mac to discuss her full-year PDA. It is significant to note that the occurrence of this meeting was not in accordance with the usual procedures for PDAs earlier described, in that Ms Mac’s PDA had not yet undergone the moderation process and thus her final rating had not yet been determined. At this meeting, Ms Van Den Heuvel described areas in which Ms Mac had performed well, and areas in which she had made improvements, with the latter including less over-servicing, increased awareness of work outputs and some but still not sufficient improvement in work outputs, and some improvement in initiative. However, she identified eight areas in which improvement was required: time management; being proactive rather than reactive; completion of work in requested timeframes; turnaround times; assisting others; proactively moving projects forward; setting up the St Andrews advising schedule; and low workload and slow turnaround times on Legal Inbox work. Ms Van Den Heuvel gave some generalised examples of some of this. Overall, Ms Van Den Heuvel rated Ms Mac as “low level competent” based on a recognition that she had been making a concerted effort to improve.
[37] Ms Mac responded to a number of matters in which she was told she needed improvement, and defended herself against some of the criticisms made of her. Her evidence was that by the end of the meeting, “I was of the understanding that Christine did not have any ongoing problem with my work” and “Whatever issues she may have had previously had been resolved”. While I do not question that Ms Mac, subjectively speaking, went away from the meeting with that understanding, I do not consider that there was any reasonable objective basis for her to have formed that understanding. Ms Van Den Heuvel’s specific identification of a number of areas that needed improvement, and her overall rating of “low level competent”, should have clearly signalled to Ms Mac that there remained significant issues with her performance.
[38] Subsequent to this meeting, Ms Mac’s PDA was moderated by Ms Hester and Mr Edwards. Ms Hester formed the view that Ms Van Den Heuvel’s rating of Ms Mac was not supported by evidence, and she recommended to Mr Edwards that Ms Mac be rated “Needs development”. Ms Hester gave evidence that her view in this respect was influenced by the following matters:
● Ms Mac’s low workload and slow turnaround times on Legal Inbox inquiries;
● Ms Mac’s delay of about a week in having the Western Union letter issued after Ms Hester had approved it;
● Ms Hester could not identify any occasion where Ms Mac had volunteered to help other solicitors who were busy or under pressure;
● Ms Mac’s delay of some weeks in preparing a summary of the Credit Reporting Code – a task which Mr Hester considered should have taken 3-5 days to complete; and
● Ms Mac’s continuing failure to attend to tasks in a timely manner, such as a failure after about ten days to send documents to BOQ’s external legal advisors concerning advice about BOQ’s obligations under the Privacy Act 1988 (Cth).
[39] Mr Edwards agreed with Ms Hester’s recommendation, and Ms Mac’s PDA rating was downgraded to “Needs development” accordingly. A letter was drafted for Ms Van Den Heuvel to give to Ms Mac reflecting this decision. The letter, as issued, was dated 25 October 2013. One consequence of the rating of “Needs development”, as explained in the letter, was that Ms Mac received no increase to her salary.
[40] Ms Van Den Heuvel had a meeting with Ms Mac to discuss her PDA rating on 30 October 2013. There is some difference of recollection between them as to what happened at this meeting. Ms Mac’s evidence was that Ms Van Den Heuvel told her that the rating had nothing to do with her individual performance and it was a result of the fact that the whole of Group Legal had had its performance downgraded. Ms Van Den Heuvel denied this. What they do agree upon is that, at the meeting, Ms Van Den Heuvel again criticised Ms Mac’s performance by reference to her low workload and slow turnaround times, and discussed with her ways to improve this. This is inconsistent with the proposition that Ms Van Den Heuvel told Ms Mac that her individual performance was not an issue in the PDA rating downgrading. Ms Van Den Heuvel’s contemporaneous file note of the meeting supports her evidence about what occurred at the meeting. I prefer the evidence of Ms Van Den Heuvel in relation to this meeting.
[41] One issue that was flagged at this meeting, as confirmed by Ms Van Den Heuvel’s file note, was that Ms Van Den Heuvel was to be replaced in her role by Matthew Thompson, another Senior Corporate Solicitor, and as a result Mr Thompson would become Ms Mac’s supervisor. Ms Van Den Heuvel’s note of the meeting refers to Mr Thompson’s intention to do a “formal handover” on 29 November 2013. The note also refers to Ms Van Den Heuvel speaking to Mr Thompson about a “performance plan” for Ms Mac. Ms Van Den Heuvel observed that Ms Mac appeared quite angry during the meeting and may not have digested the reference to the performance plan, but had calmed down by the end of the meeting.
The Performance Improvement Plan
[42] At about the time of this meeting, BOQ had in place a Performance Management Policy, the intent of which was stated to be to “make explicit the Bank of Queensland’s performance management procedures which aim to provide justice, fairness and consistency”. The policy makes a reference to the application of a “performance management process” where an employee is not meeting the required standards in work performance or mandatory training for the employee’s role. The nature of that process is not described in the policy except for a requirement that the process be “procedurally and substantively fair” and that it have the objective to “ensure that employees understand what is required to perform the role so that they improve their performance to meet the required standards”. The rest of the policy is concerned with the disciplinary processes of counselling, first, second and final warnings, and if necessary termination where “an employee fails to meet the required performance standards or fails to complete the mandatory training for the role within a reasonable period of time ...”. There was no reference in the policy to a “performance improvement plan”. By February 2014 the Performance Management Policy had been modified somewhat, but it retained the same features as the earlier version of the policy already described. It too made no mention of a “performance improvement plan”.
[43] Notwithstanding the lack of reference to them in the relevant policy, it was the evidence of Ms Michelle Locke, BOQ’s HR Operations Team Leader, that performance improvements plans (PIPs) were the standard tool used by BOQ to “assist the employee to improve their performance”, and were used quite frequently to the extent that there were about 15 PIPS in place in BOQ at any one time. Ms Locke described the practice as being that once a manager had identified a need for an employee to be placed on a PIP, and that need had been confirmed by HR, the manager would be sent “the policy and guidelines on how to run the PIP process”. It was not clear to me what Ms Locke was referring to in this connection, since no document setting out any policy or guidelines concerning PIPs was placed into evidence. Ms Locke said that HR would then send the manager a template for the PIP, which would then be prepared by the manager, reviewed by HR, and signed off by the manager and the relevant employee. HR ensured that the manager had had informal discussions with the employee before putting them on a PIP, and once the terms of the PIP was settled, the manager was required to meet with the employee and present the PIP.
[44] Ms Locke said that PIPs generally had a 12 week duration. Once the PIP was in place, the process was that the manager and the employee would continue to have regular meetings to discuss the work being performed, with a formal review occurring every four weeks. Where an employee failed to meet the objectives of the PIP, this was referred to as a “breach”. When a breach occurred, HR would prepare a “notice of formal meeting” to be sent to the employee which outlined the nature of the breach which the manager believed had occurred and gave notice (usually 24 hours) of the details of a PIP review meeting to be held to discuss the breach. At the meeting the employee was to be requested to provide a response to the identified breach, which would then be considered by management and HR. Where, after such consideration had occurred, it was determined that the PIP had been breached, HR would draft a written warning to be given to the employee. Under the Performance Management Policy as earlier described, there was provision for three written warnings before a termination of employment on performance grounds could occur.
[45] Shortly after Ms Mac’s full-year PDA for 2013, a decision was collectively reached between Mr Edwards, Ms Hester and Ms Van Den Heuvel to place Ms Mac on a PIP. The PIP was prepared Ms Hester, Ms Van Den Heuvel and Mr Thompson in conjunction with HR. It was determined that Ms Van Den Heuvel, who had worked with Ms Mac as her supervisor and was regarded as having firsthand knowledge of the issues, would initially have primary responsibility for the preparation of the PIP and its presentation to Ms Mac, with Mr Thompson also being in attendance.
[46] On 8 January 2014 Ms Mac was invited by email to attend a “performance plan meeting” with Ms Van Den Heuvel and Mr Thompson on 10 January 2014. Ms Mac replied by requesting an agenda for the meeting, the response to which was that the agenda was to discuss a draft PIP. On 9 January 2014 the draft PIP was sent to Ms Mac. The PIP, which was in tabular form, identified in separate columns the “Specific areas for development”, the “Coaching, training or action required” in each such area, the manager responsible for coaching and feedback, and the standards of performance to be achieved. A final column, left blank, gave space to fill in a “A review of performance” in each identified area. There were five identified specific areas for development: preparation of legal advices in a user friendly way, proactivity in providing advice, timeliness in completion of work, accurate assessment of the amount of work required in a matter to increase work output, and collaboration. The document contained a warning that “If the agreed performance standards are not met and your performance does not improve in line with the requirements of your role, the result may include disciplinary action up to and including termination of your employment”. At the foot of the document there were spaces to record the manager’s and the employee’s comments for each review outcome including the final review outcome.
[47] Ms Mac described her reaction upon receiving and reading the draft PIP as follows:
- “I recall when I first received the PIP document that I had a physical reaction to it. I was shaking and my face became very flushed. I felt ill. I was completely surprised by the document. I did not understand it. I thought why do I have to do this. I had not heard of the PIP process before. I felt nervous and anxious. I did not know why I was being subjected to this process. I noted on the last page of the document that it says the process could lead to the termination of my employment. I was worried what I would do if I did not have a job. I felt powerless as if there was nothing I could do about it. I felt like crying but could not because I work in an open plan environment.”
[49] On 10 January 2014 the foreshadowed meeting to discuss the PIP occurred, with Ms Van Den Heuvel, Mr Thompson, Ms Mac and Ms Mac’s support person present. The meeting involved Ms Van Den Heuvel attempting to explain the PIP and the process, but being interrupted by questions from Ms Mac. Ms Van Den Heuvel’s file note of the meeting, which I accept as being accurate, records Ms Mac as saying that the PIP had come “out of the blue”, was “procedurally unfair”, that she had not heard any of the problems identified in the PIP before, that she objected to it and that she did not understand the process. Ms Mac gave evidence that Ms Van Den Heuvel described the PIP as “informal”, but I prefer Ms Van Den Heuvel’s evidence that she only said that that particular meeting was informal. The possibility of disciplinary action, including termination of employment, occurring if the PIP did not result in Ms Mac’s performance improving was canvassed. Ms Mac did not engage with Ms Van Den Heuvel or Mr Thompson concerning the contents of the PIP, and eventually the meeting was adjourned so that Ms Mac could get advice from HR about the process.
[50] On 13 January 2014 Ms Mac met with Ms Locke, and on her own evidence complained that she did not understand why she was to be put on a PIP, and said that “previous problems had been discussed and worked out from a prior PDA” and that Ms Van Den Heuvel had “upgraded my performance in my PDA from needs development to meets expectations”. I interpolate at this point that these statements evince on Ms Mac’s part a non-acceptance of what had been the actual outcome of the 2013 PDA process. Ms Locke told Ms Mac that there was a dispute resolution process which she could utilise to resolve her concerns about the PIP, under which she should first try to resolve the issue directly with her manager, and if that did not assist raise the issue with her “two-up” manager (which was Ms Hester). If the matter was not resolved at this point, Ms Mac could continue to escalate the matter further up the management chain until she reached an executive. Surprisingly, BOQ did not have a written and accessible dispute resolution policy for employees such as Ms Mac who were not covered by an industrial instrument, so that Ms Locke’s advice to Ms Mac on this issue had an ad hoc quality to it. The process described by Ms Locke was of little practical utility to Ms Mac in circumstances where her former supervisor Ms Van Den Heuvel, her two-up manager Ms Hester, and the General Counsel, Mr Edwards, had all been party to the decision to place her on the PIP. Ms Mac did not subsequently attempt to activate the dispute resolution process described to her by Ms Locke.
[51] According to Ms Mac, Ms Locke told her that HR would not get involved in a dispute between her and her manager concerning the PIP. Ms Locke denied saying this. I think it is likely that, in describing the dispute resolution process, Ms Locke may have said that involvement of HR was not a step in that process, but I consider that little turns on this. Ms Locke also gave Ms Mac an explanation of BOQ’s Performance Management Policy and the PIP process. This was not apparently of any assistance to Ms Mac. She described herself at this point in time as having trouble sleeping, feeling physically ill, not eating well, and feeling very anxious and uncertain about her position.
[52] The meeting to discuss the PIP with Ms Van Den Heuvel and Mr Thompson was eventually rescheduled to 17 January 2014. Ms Mac attended with her husband Mr Morgan as her support person. The meeting lasted for about an hour. Mr Thompson made an extensive contemporaneous file note of the meeting which I accept as reliable. During the meeting Ms Mac raised a number of objections to the PIP, including that she had gone from “Needs Development” to “Competent” from her mid-year to full-year 2013 PDA (again evincing a refusal to accept the actual outcome of the full-year 2013 PDA) so that she could not understand why a PIP was now necessary, that the 2013 PDA issues had been discussed and satisfactorily addressed, and that the PIP had come “out of the blue” and she could not understand the reasons behind it. She also asked “Where is the deficiency?” in a number of ways. When Ms Van Den Heuvel identified the performance deficiencies which had led to the PIP and gave some specific examples of these, Ms Mac disputed each of these. Ms Van Den Heuvel indicated that Mr Thompson would monitor and run the PIP process from that point onwards, and Mr Thompson himself declared that he would be “fair, reasonable and would strictly follow the process as set out by HR” and that he would “monitor performance under the PIP with fresh eyes”. Eventually some amendments to the PIP were agreed, and Ms Mac indicated that she would sign the PIP.
[53] The PIP with the agreed amendments was subsequently sent to Ms Mac, and she signed it on or about 21 January 2014. However in doing so, Ms Mac handwrote some comments on the PIP to the effect that she had been asked to sign the document without explanation and that she had no opportunity to respond. Ms Hester responded by email to the effect that BOQ did not accept those comments. I consider that Ms Hester was correct to do so. Ms Mac’s comments were simply at odds with the facts as described above. Ms Mac sent Ms Hester an email in reply on 31 January 2014 in which she canvassed a number of issues including that she did not know the reason why she had been required to engage in the PIP process and that she had not been provided with any specific details or examples of underperformance. Ms Hester replied in a short email on 3 February 2014 which included the statement: “The details of the underperformance are outlined in the PIP document”.
[54] Around this period and at Ms Van Den Heuvel’s suggestion, Mr Thompson sought “recent third party feedback” from St Andrews and BOQ’s compliance work stream concerning Ms Mac’s work performance. He and Ms Hester jointly telephoned Mr Doug Smith, St Andrews’ General Manager, Risk Reporting and General Counsel, who was St Andrews’ liaison with Group Legal. The notes of the teleconference record that Mr Thompson told Mr Smith that Ms Mac had been placed on a PIP as a result of consecutive “Needs development” PDA ratings, and asked Mr Smith for feedback concerning Ms Mac’s performance. Without going into details, it is sufficient to say that Mr Smith expressed a degree of dissatisfaction with Ms Mac’s work performance but noted improvement in some areas. Mr Thompson also emailed Mr Jon Holland, BOQ’s Senior Manager of Compliance, to seek similar feedback. His email referred to Ms Mac having been placed on a PIP. Mr Holland’s reply expressed concern about the content of some of the written advice which Ms Mac had provided, but stated that she had improved her timeliness.
[55] During the initial period of the operation of the PIP, Mr Thompson met with Ms Mac on a weekly basis in one-on-one meetings to discuss and provide feedback as to her performance. He formed the view by about mid-February that Ms Mac was not meeting the objectives of the PIP and had therefore “breached” it. This was based on his assessment that Ms Mac was not meeting the objectives in relation to four of the five “Specific areas for development” (with timeliness being the only area not included). The general observations made by Mr Thompson in his evidence about Ms Mac’s performance included that she was “struggling deeply”, “performed poorly on a number of occasions”, “escalated matters to me which should have been well and truly within her capabilities given her experience”, “communicated poorly with clients”, “displayed a lack of legal acumen on many commonly encountered, day to day matters”, “lacked the capacity for critical analysis” and “lacked confidence in her decisions”.
[56] Mr Thompson in forming his view that Ms Mac had breached the PIP also relied on feedback from colleagues. Ms Hester gave him a number of negative examples of Ms Mac’s performance. These were set out extensively in her statement of evidence. One of these was that Ms Hester had allocated three general inquiries, one trust deed review and one privacy query from the Legal Inbox to Ms Mac, but by the following week Ms Mac had only responded to two of them. Ms Hester estimated that she would have allocated three to four times as many Legal Inbox queries to other named solicitors. A further example was that Ms Mac had been required to respond to a query concerning the Privacy Act, and the answer which she gave had been incorrect. Jane Newman and Sheryl Daley were the other Senior Corporate Solicitors with whom Mr Thompson consulted. Ms Newman at least gave him an example of what she considered to be seriously deficient performance. Mr Thompson compiled a dossier of the various instances of unsatisfactory performance about which he was advised or was aware.
[57] The first formal review meeting was initially scheduled for 17 February 2014, one month after the meeting at which the PIP had been finalised, and then was rescheduled for 18 February 2014. Mr Thompson had prior to this meeting received advice from Ms Locke as to the appropriate way in which to conduct the review meeting and given notice to Ms Mac of the alleged breach of the PIP. However the meeting did not proceed, and the notice was not issued, because Ms Mac was off work sick. She telephoned Mr Thompson on 17 February 2014 and told him that she was suffering from diarrhoea, but in reality Ms Mac was suffering from a stress condition. Ms Mac’s general practitioner, Dr Louise Wilson issued a certificate that day indicating that Ms Mac was suffering from a “medical condition” and would be unfit for work up to and including 21 February 2014. Ms Mac saw Dr Wilson again on 21 February 2014, and was issued with a further certificate (again simply referring to a “medical condition”) certifying her as unfit up to and including 28 February 2014.
[58] On 3 March 2014 Ms Mac returned to work. During that day she received a letter from Mr Thompson notifying her that the review meeting would occur on 4 March 2014 and giving her notice that Mr Thompson had “reason to believe” that she had breached the PIP in respect of two of the “Specific areas for development” only, namely preparation of legal advices in a user friendly way and proactivity in providing advice. Ms Mac responded by sending an email the same day as follows:
“I refer to your letter dated 3 March 2014.
I note you allege that you have reason to believe that I may have breached the PIP in two respects. I am entitled to have notice of these alleged breaches so I can consider them and take advice about them. Please urgently provide detailed written particulars of each alleged breach so I can reasonably consider that and take advice before the review meeting which I noted has been scheduled for 4 March 2014.
I do wish to bring a support person to the review meeting being my legal representative Mr Adam Tayler from Turner Freeman Lawyers. Mr Tayler is unavailable to attend the meeting as scheduled at such short notice.
I accordingly seek to re-schedule the meeting until such time as the requested particulars are provided and I am given at least 48 hours to consider them and my representative is available. Assuming I receive the particulars in writing on 4 March 2014 then I would be available with my representative to meet with you on Thursday 6 March between 8:00am to 10:00am, between 12:00 and 1:30pm and after 3:30pm.”
[59] After having obtained advice from Ms Locke, Mr Thompson responded by advising Ms Mac by email the following day that the meeting would be held on 6 March 2014, that she was entitled to bring a support person to the meeting but not an advocate, and that BOQ had already provided her “with all necessary information and relevant information”, and that the purpose of the meeting would be to “discuss the matters outlined with you and to receive your response in relation to the matters”. Ms Mac then sent Mr Thompson a further email in which she pressed her request for particulars, to which Mr Thompson referred to his earlier email and letter and said that “We will run through each specific incident at the meeting”.
[60] It was Mr Thompson’s intention at the 6 March 2014 meeting to take Ms Mac to each example of unsatisfactory performance identified in his dossier which he regarded as being in breach of the PIP and discuss each one with her at length, and then consult with HR after the meeting to determine whether a breach had occurred and, if so, what action should be taken. The meeting proceeded with Mr Thompson, Ms Hester, Ms Mac, and Ms Mac’s legal representative Mr Tayler in attendance. Mr Thompson made a file note of what occurred at the meeting, which I accept as being reliable. Mr Thompson initially inquired of Ms Mac whether she was well enough to proceed with the meeting, and she indicated that she was. However Mr Tayler intervened at that point and said that Ms Mac was sick due to stress, and that he must know that. Mr Thompson replied that BOQ had never been informed before that Ms Mac was suffering from stress. After Ms Mac confirmed again that she was fit to proceed with the meeting, Mr Thompson described the process he intended to go through, and began to refer to the matters in his dossier (which he evidently had with him). Ms Mac then requested that she be provided with written details of each allegation, and then be given a week to formulate her response before a further meeting. Mr Thompson said that the purpose of the meeting was to discuss each of the issues, to which Ms Mac responded that this was unfair. Mr Tayler then asked for an adjournment of the meeting so that he and Ms Mac could confer. At Mr Tayler’s request, he then had a private discussion with Mr Thompson. Following that discussion, it was agreed that the meeting would be adjourned “to allow the parties to consider various issues”.
Ms Mac goes off work
[61] On 7 March 2014, Ms Mac’s solicitors, Turner Freeman Lawyers, sent a letter to BOQ confirming the adjournment of the meeting of the previous day and that Ms Mac was on sick leave due to “acute stress” caused by the PIP process and its surrounding circumstances. On 10 March 2014, Dr Wilson certified Ms Mac as being unfit for work from 7 March 2014 until 4 April 2014 inclusive. Ms Mac has not returned to work since that time.
[62] On 3 April 2014 Ms Locke sent Ms Mac an email in which, among other things, she requested authorisation from Ms Mac for BOQ to access her medical records to assess her fitness for work. Ms Mac’s solicitors responded the following day by email confirming that Ms Mac was “affected emotionally by the actions of the Bank in putting her through an unnecessary PIP process” and stating that because of her distress and need to regain her fitness for work all communications to her should be directed to them. The email also said that a response to the authorisation request would be provided after Ms Mac had attended a further medical appointment.
[63] On 7 April 2014 Dr Wilson certified Ms Mac as unfit for work until 9 May 2014. On 14 April 2014 Ms Locke sent an email letter to Ms Mac’s solicitors advising, among other things, that the PIP process would need to resume upon Ms Mac returning to work, and again seeking consent for her to liaise with Ms Mac’s medical practitioners. On 5 May 2014 Ms Mac gave written consent for BOQ to contact Dr Wilson and access her medical records.
[64] On 9 May 2014 Dr Wilson certified Ms Mac as unfit for work until 6 June 2014. The same day, Ms Locke sent Ms Mac’s solicitors a letter requesting that Ms Mac attend an appointment with an independent psychiatrist. On 12 May 2014 Ms Mac’s solicitors sent BOQ a letter, addressed to Mr Thompson, setting out her position with respect to the PIP process and requesting, among other things, that BOQ provide written particulars of the performance matters which had led to the implementation of the PIP and the alleged breaches of the PIP. Mr Thompson acknowledged that he would have received the letter, but had no specific memory of it, and may have passed it on to HR since he was no longer dealing with Ms Mac at this point in time. Ms Mac’s solicitors never received any reply to the letter.
[65] On 13 May 2014, Ms Mac’s solicitors wrote to Ms Locke confirming that she would attend an independent medical examination as requested, and on 16 May 2014 her solicitors sent Ms Locke a further authority to release medical records as requested. On 6 June 2014 Dr Wilson certified Ms Mac as being unfit for work until 6 July 2014, and on 4 July 2014 Dr Wilson further certified Ms Mac as being unfit for work until 4 August 2014.
[66] In a letter dated 13 June 2014 addressed to Dr Wilson, Ms Locke asked Dr Wilson, among other things, to answer a series of questions which were set out concerning Ms Mac’s diagnosis, treatment and prognosis. Dr Wilson handwrote answers to those questions on 22 June 2014 and returned them to Ms Locke. Some of Dr Wilson’s answers included the following:
● “Amie reports that she was assessed as ‘meets expectations’ at the end of 2013, then in January she was told that she was on another PIP”;
● “When she asked what the problem was with her work she received no answers”;
● “Amie feels that she is being bullied by her managers ...”;
● “If the Bank could provide in clear written form - what it feels is wrong with Amie’s performance then healing could start to take place”;
● “Now she needs a plan of action to ready her for return to work ... this needs ... clear explanation from the Bank about where she has failed, mediation - working with her solicitor, acknowledgement that she is medically unwell and unfit for work”;
● “She will not communicate directly when she feels that she is being bullied”;
● “She cannot recommence a PIP when no one has told her what the problem is”;
● “She is too fragile to return to a workplace which she sees as bullying ... This all needs to be sorted out before we do a return to work program”; and
● “Depression takes time to settle and there needs to be a supportive workplace”.
[67] It is clear from Dr Wilson’s answers that Ms Mac at this point of time was a long way from being fit for work and was not in a position to re-engage in direct communication with BOQ personnel. It must also be said that a number of the statements concerning BOQ’s alleged failure to identify what were Ms Mac’s shortcomings in performance, which no doubt reflect what Ms Mac told Dr Wilson, are simply not correct. I do not consider, for example, that there was a reasonable basis for the proposition that “no one has told her what the problem is”. This, I think, reflects an inability on the part of Ms Mac to accept the validity of any criticism of her performance rather than any failure to properly communicate that criticism to her.
[68] On 19 June 2014 Ms Mac attended an independent psychiatric examination conducted by Dr Nicholas Jetnikoff, a consultant psychiatrist, which had been arranged by BOQ. Dr Jetnikoff prepared a report arising from this examination dated 30 June 2014. In that report, Dr Jetnikoff gave the following diagnosis:
“...There is anxiety condition with depressive features specifically related to exposure [to] work. This diagnosis is adjustment disorder with anxiety and depressed mood present since approximately December 2013 in relation to perceived unfair treatment in the workplace. The issue relates to anxiety and paranoia. In my opinion Ms Mac is likely to experience a high degree of these in a return to work without any addressing of her concerns.
As such her attendance without some sense of understanding of what she will be facing is going to be unreliable and I believe she will have panic attacks and a fear of victimisation. This is also conceivable with the appropriate information being furnished as she has requested. She would still suffer some degree of apprehension which may take some time to subside and ultimately I suspect she will have a strong desire to work in an alternate area.”
[69] Dr Jetnikoff gave the following prognosis:
“...Prognosis is guarded at this stage but it is conceivable that with some careful handling of her request and a positive negotiation of how to return to work and complete a performance improvement plan, that she may in fact have a good outcome satisfactory to both herself and the employer.”
[70] In answer to a question concerning how Ms Mac’s medical condition would affect her ability to perform her role and duties, Dr Jetnikoff said:“Ms Mac’s issue relates to anxiety and a fear of victimisation with a belief that she has been targeted by her previous manager. This relates to her perception that she has had discriminatory treatment with respect to her performance. She has had no ability to integrate the information provided to this point to satisfaction that will explain why she has been provided performance management. In other words she does not see her performance having been substandard to the point where this performance management required implementation. This may need some direct counselling and if she is asking for further information along those lines I suggest it will need to be consistent and clear in its delivery. This would benefit the whole process proceeding.
[142] Ms Mac was not certified as fit to return to work until 8 October 2014. By that time, this litigation was in full swing, with the parties preparing for hearing. The hearing of Ms Mac’s application was, as earlier stated, originally listed to occur on 4-5 November 2014. That was postponed, and the hearing before me proceeded on 26-28 November 2014. Having regard to that, and the fact that BOQ was faced with unresolved allegations of bullying against senior members of Group Legal in relation to their dealings with Ms Mac, I do not consider it unreasonable on anyone’s part that Ms Mac’s return to work was not acted upon in the period from 8 October 2014 to the time of the hearing.
[143] I will now deal with the specific contentions on this topic advanced in Ms Mac’s Point of Claim at paragraphs 111(l), 116 and 120. My conclusions in relation to these are to be read together with the general conclusions I have just expressed.
111(l) It was unreasonable of the first respondent's representative instructing the respondent's lawyers not to provide instructions to respond to the return to work proposal contained in the applicant's solicitor's letter of 4 September 2014.
[144] I consider that this contention in relation to the “4 September 2014” letter (it was actually dated 1 September 2014 but sent on 4 September 2014) was improper and should never have been advanced, for the following reasons:
(1) It makes an allegation of bullying against a person (BOQ’s “representative”) who is not named and whom, to my knowledge, Ms Mac has not attempted to identify let alone have added as a party to the proceedings.
(2) There is no evidence that the unnamed person did not provide instructions in respect of the letter of 4 September 2014, and there is positive evidence to the contrary. After Ms Mac had advanced this contention in her Points of Claim filed on 19 September 2014 (a mere two weeks after the letter had been sent), her solicitors in a letter dated 2 October 2014 politely reminded BOQ’s solicitors of the proposal contained in the 1 September 2014 letter and requested advice as to BOQ’s attitude to the proposal. In a reply email dated 3 October 2014, the solicitors for BOQ referred to a telephone discussion about the proposal which had occurred between the respective solicitors shortly after the proposal had been advanced in which further information about the proposal had been sought from Ms Mac but had not been forthcoming. BOQ’s solicitors subsequently provided a comprehensive response to the proposal in a letter dated 10 October 2014 (evidencing that instructions had been obtained from the appropriate person in BOQ). All the material evidencing these matters is to be found in Ms Mac’s own witness statement. Nonetheless this contention was pressed at the hearing.
(3) It is apparent on the face of Ms Mac’s solicitors’ 4 September 2014 letter that it contains a proposal for resolution of the dispute underlying this litigation. It is effectively an offer of settlement. The proposition that dealings between an instructing officer of an employer party to an anti-bullying application and the party’s lawyer concerning an offer of settlement made by another party could itself constitute an act of bullying at work for the purposes of the application is self-evidently absurd.
116 The respondents have unreasonably failed to adequately or at all act on the advice of Dr L G Wilson to the extent that:
(a) Return to work will depend on whether the issues can be sorted out with the bank.
(b) The respondent should work through the applicant's solicitors.
(c) The applicant will need a gradual return to work.
(d) If the bank could provide in clear written form what it feels is wrong with Amie's performance then healing could start to take place.
(e) The applicant needs a plan of action to ready her to return to work.
(f) Clear explanation from the bank about where she has failed.
(g) Acknowledgement that she is medically unwell and unfit for work.
(h) The applicant cannot recommence a PIP when no one has told her what the problem is.
(i) Depression takes time to settle and then needs slow return to a supportive workplace.
120 The respondents have unreasonably failed to adequately or at all act on the advice of Dr Jetnikoff to the extent that:
(a) The applicant is likely to continue to experience a high degree of anxiety and paranoia without any addressing of her concerns.
(b) The applicant's attendance at work without some sense of understanding of what she will be facing will be unreliable and she will have panic attacks and a fear of victimisation.
(c) With some careful handling of the applicant's request and a positive negotiation of how to return to work and complete a performance improvement plan the applicant may in fact have a good outcome satisfactory to both herself and her employer.
(d) If the applicant is asking for information it will need to be consistent and clear in its delivery.
(e) The applicant should be provided with direct clear measures of performance indicators.
(f) There is an element of suspiciousness that can only be addressed through a gesture on the part of the employer.
(g) Initially it would be beneficial to get the applicant back in the workforce prior to commencing the PIP.
[146] Again, the import of this contention is not entirely clear. Dr Jetnikoff’s advice (unlike Dr Wilson’s) was clearly concerned with the process by which Ms Mac might return to work. At the time that Dr Jetnikoff prepared his report, Ms Mac had not been certified as fit to return work, so that consideration of how that might occur was not relevant at that time. Dr Jetnikoff’s advice did become relevant once Ms Mac was certified as fit for work from 8 October 2014 onwards, but as I have already explained it was not unreasonable for “the respondents” not to deal with Ms Mac’s return to work in the period from that date to the date of the hearing.
[147] One common feature of these last three contentions is that no particular individual has been identified as responsible for the alleged unreasonable behaviour. That is patently because the acts or omissions complained of are, in reality, those of BOQ itself, not any identifiable individual. The drafting of these contentions bespeaks of a token attempt to bring the impugned conduct within the statutory definition of “bullied at work” but no more than that.
Conclusions
[148] I am not satisfied that Ms Mac was bullied at work by Ms Hester, Ms Van Den Heuvel, Mr Thompson, Ms Locke or Ms Newman. That conclusion has been reached on the basis that none of the conduct of those individuals alleged to be unreasonable in Ms Mac’s Points of Claim was in fact unreasonable. Although it is not strictly necessary for me to do so, I also find that their conduct constituted reasonable management action carried out in a reasonable manner. That does not, in accordance with the principles I have earlier stated, mean that the relevant conduct was in all respects entirely beyond criticism or constituted the best human resources practice one might expect in a large and sophisticated employer such as BOQ. I have in the course of my reasoning identified some limited shortcomings in this respect. However, this did not reach anywhere near the required level of unreasonableness.
[149] In reaching that conclusion, it has not been necessary for me to determine whether all of the pleaded instances of behaviour occurred while Ms Mac was “at work”, although if it was necessary for me to do so, I would have found that many if not all of the instances of behaviour dating after Ms Mac went off work because of illness on 7 March 2014 did not occur “at work”. Nor has it been necessary for me to determine whether all of the pleaded instances of behaviour created a risk to health and safety, although clearly those instances most closely associated with the implementation of the PIP did create such a risk as manifested by Ms Mac’s subsequent mental illness.
[150] Because I am not satisfied that Ms Mac was bullied at work as alleged, there is no power to make the orders sought by her, and her application is dismissed.
VICE PRESIDENT
Appearances:
A. Tayler, solicitor for the applicant.
K. Garner of counsel and A. E. Elliot, solicitor for the respondents.
Hearing details:
2014.
Brisbane:
26, 27, 28 November.
1 [2011] NSWSC 3852 Reeve v Aqualast Pty Ltd [2012] FCA 679 at [65]
3 GlaxoSmithKline Australia Pty Ltd v Pharmacor Pty Ltd [2014] FCA 1202 at [44]
4 Lemoto v Able Technical Pty Ltd & 2 Ors (2005) 63 NSWLR 300 at [132] per McColl JA, with whom Hodgson and Ipp JJA agreed, quoting Medcalf v Mardell [2003] 1 AC 120 at [40] per Lord Steyn.
5 Bushell v Repatriation Commission (1992) 175 CLR 408 at 428 per Brennan J.
6 Points of Defence paragraphs 4(a), 5.
7 [2014] FWCFB 9227
8 Ibid at [46]-[47]
9 Ibid at [52]
10 [2014] FWC 2104
11 (2004) 218 CLR 216 at [84] and [103]
12 (1969) 119 CLR 365 at 383
13 (2013) 249 CLR 332
14 [1948] 1 KB 223
15 (2013) 249 CLR 332 at [68]
16 Ibid at [76]
17 (2004) 135 FCR 105
18 [2014] FWC 2104
19 See e.g s.5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth); s.11A of the Workers Compensation Act 1987 (NSW)
20 [2014] FWC 2104 at [47]-[53]
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