[2020] FWC 5053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Ms Katrina Hohn
(AB2019/432)

DEPUTY PRESIDENT ASBURY

BRISBANE, 21 SEPTEMBER 2020

Application for an FWC order to stop bullying – whether bullying conduct – whether alleged conduct was reasonable management action carried out in a reasonable manner – findings made – limited procedural defects in performance management process do not constitute bullying and are capable of being addressed by the process– no basis to consider orders – application dismissed.

OVERVIEW

[1] Ms Katrina Gae Hohn (the Applicant/Ms Hohn) has applied to the Fair Work Commission (the Commission) for an order to stop bullying. The application has been made pursuant to s.789FC of the Fair Work Act 2009 (the Act) and is made in respect of Ms Hohn’s employment with the Commonwealth of Australia as a member of the Australian Public Service; specifically the Department of Human Services (now Services Australia) (Services Australia/the First Respondent). Ms Hohn alleges that she has been bullied at work by her direct manager, Mr Scott Hardingham (Mr Hardingham/the Second Respondent).

[2] Ms Hohn has been continuously employed by the Department of Human Services (and now Services Australia) since 1992. At present, Ms Hohn holds the position of EL1 Test Manager at the Brisbane Delivery Centre. In that role, Ms Hohn is responsible for testing outcomes across projects or programs of work implemented by Services Australia. Mr Hardingham commenced in a role as Ms Hohn’s supervisor on 18 August 2018.

[3] Ms Hohn’s case was a moving feast. In her Form F72 application, Ms Hohn described the behaviour that she considered constituted bullying by Mr Hardingham as follows:

“Since October 2018 after a HR complaint and absence from work, I have been provided extended periods of very little work, excluded from meetings that I previously would have been included in, offered very little in regard of support from HR or within my workplace. Seven months later I am advised that I was underperforming.”

[4] In response to a question on the Form F72 in relation to examples of the behaviour outlined above, specifically addressing what happened, who was involved etc, Ms Hohn responded:

“There are multiple witnesses to my being excluded from meetings and being given very little work. this has been ongoing from October 2018 to current.”

[5] Ms Hohn went on in the Form F72 application to state that she had been put into a performance review process referred to as Back On Track (BOT) by Mr Hardingham while a decision regarding a performance rating she had received was under review. Further, Ms Hohn stated that she had made a complaint of bullying via a HR tool operated by Services Australia. The outcome sought by Ms Hohn is stated to be: “mediation, respect and different role?”.

[6] In her written submissions, Ms Hohn listed headings taken from the Fair Work Commission’s “Guide to the Anti-bullying Jurisdiction” and then inserted under those headings samples of correspondence said to evidence the conduct of which she complains. These claims are not advanced in a chronological order and lack cohesiveness. A number of the matters raised are unintelligible.

[7] As Ms Hohn developed her case before the Commission, it became apparent that rather than the matters raised in her written submissions, the dispute centred on the fact that Ms Hohn was given a performance rating by Mr Hardingham in her mid-cycle review for the 2018/2019 year, of “2 – Support required” and that Ms Hohn also took issue with attempts by Mr Hardingham to implement the BOT process. The outcomes sought by Ms Hohn in her submissions were that her performance rating be “reinstated as 3” and that she not be required to report to Mr Hardingham.

[8] At the hearing Ms Hohn did not press a number of the allegations she had made in her earlier statements, either in her evidence in chief or during cross-examination of witnesses. In this regard, I note that persons who featured in Ms Hohn’s allegations attended the hearing to give their evidence and were available to be cross-examined. It should also be noted that I explained the process of the hearing to Ms Hohn including the requirements associated with cross-examining witnesses. 1 The allegations that were pressed by Ms Hohn in support her assertion that she was bullied (including some not previously raised) can be summarised as follows:

• Mr Hardingham’s conduct of the performance management process, and his action in rating Ms Hohn “2 – support required”;

• Mr Hardingham’s initiation and conduct of a BOT;

• A request made by Mr Hardingham on 10 October 2018 that Ms Hohn provide him with a Test Plan;

• Mr Hardingham moved Ms Hohn off a project known as the Annual Lifetime Caps project and failed to provide her with enough work; and

• A request made by Mr Hardingham on 26 February 2019 that Ms Hohn provide medical evidence in relation to her attendance at future psychologist appointments, not just invoices (as she had previously submitted).

[9] In its Form F73 Response to Ms Hohn’s application, Services Australia denied that Ms Hohn had been bullied at work, disputed that some of the alleged behaviour had occurred and asserted that the Alleged Bullying Behaviour was reasonable management action, carried out in a reasonable manner. Services Australia acknowledged that on 23 October 2018, Ms Hohn lodged an incident report in relation to an “incident or injury” in which she alleged bullying, but maintained that Ms Hohn had not lodged a formal bullying complaint in accordance with the Department’s policy. Services Australia contended that it had endeavoured to investigate Ms Hohn’s complaint but was unsuccessful due to her initial non-responsiveness and subsequent indication that she did not wish to pursue the complaint.

[10] In its outline of submissions Services Australia contended that the Applicant’s written submissions did not address how or why Mr Hardingham’s conduct constituted bullying. Services Australia also submitted that the Commission should find that Ms Hohn’s claims lack substance and that the conduct of Mr Hardingham in issuing the rating and the BOT was reasonable management action taken in a reasonable way and that he had dealt with the Applicant in a manner that was professional, reasonable and fair, notwithstanding some minor procedural issues. In its final submissions Services Australia reiterated that the evidence before the Commission does not support a finding that Mr Hardingham demonstrated any unreasonable conduct towards Ms Hohn that posed a threat to her health and safety, and therefore Ms Hohn has not been bullied by Mr Hardingham.

[11] When the file was allocated to me, I conducted conferences of the parties. At the conclusion of that conferences, I issued a Statement that recorded an agreed course of action to be taken between the parties in an endeavour to resolve the dispute without the need for a formal hearing. That Statement set out several questions that Services Australia agreed to answer for Ms Hohn and an agreed process of communication between Ms Hohn and Mr Hardingham. A further conference was listed to support this process.

[12] The matters in dispute were not resolved following via this process and it was clear that the central issues were that the performance rating be increased to a 3 and the BOT be ceased. Directions were issued in relation to the filing and service of outlines of submissions and witness statements and a hearing was conducted. A Court book was prepared by the Respondent, which was utilised for the purposes of the hearing without objection. 2 Ms Hohn represented herself throughout these proceedings. Services Australia (the First Respondent) was represented by Ms Sekler of the Australian Government Solicitor. Despite being a lawyer, as an employee of the Commonwealth, representing the Commonwealth, Ms Sekler was entitled to represent Services Australia as of right and did not require the Commission’s permission to do so.3 Ms Sekler was given permission to represent Mr Hardingham (the Second Respondent) on the basis that I was satisfied that it would enable the matter to be conducted more efficiently given her representation of the First Respondent.

[13] Ms Hohn gave evidence on her own behalf. Evidence for Ms Hohn was also given by Mr Geoffrey Prince 4, a colleague and friend. Evidence for the Respondents was given by:

• Mr Scott Hardingham (second Respondent) EL2 Test Director in the Brisbane Delivery Centre; 5

• Ms Alison Lane, a former contractor to Services Australia from January 2018 to 7 June 2019; 6

• Mr Sudhir Govinakovi Basavaraj, a contractor to Services Australia and Scrum Master (Project Manager) of the Aged Care Project; 7 and

• Ms Katherine Jean Rutkin, Assistant Director For HR Support – Face to Face Services People Operations, Services Australia. 8

[14] After considering the evidence I have concluded that none of the matters raised by the Applicant constitute bullying by Mr Hardingham or anyone within Services Australia. I have also concluded that the performance rating of 2 and the BOT process are reasonable management action taken in a reasonable way. My reasons for reaching these conclusions are set out below.

SUMMARY OF LAW

[15] Ms Hohn’s application is made pursuant to s.789FC of the Act, which provides, in part:

“Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.”

[16] It is not in dispute that Ms Hohn is a “worker”. By virtue of s. 789FD, a worker has been bullied at work if:

“(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.” 9

[17] It is not in dispute that in her employment with Services Australia Ms Hohn is at work in a constitutionally-covered business. The Commonwealth is specifically defined in the Act as a business or undertaking that is a constitutionally-covered business. 10 It is also not in dispute that the alleged bullying behaviour occurred (if it did occur) while Ms Hohn was “at work”.

[18] Section 789FD of the Act does not apply to reasonable management action carried out in a reasonable manner. Services Australia asserts that the alleged bullying behaviour either did not occur or was reasonable management action carried out in a reasonable manner. To be reasonable management action carried out in a reasonable manner, the conduct must be:

1. Management action;

2. Reasonable to be taken; and

3. Carried out in a manner that is reasonable.

[19] The term management action is not defined by the Act but has been extensively considered in the context of workers’ compensation legislation. The Commission’s benchbook in relation to Anti-Bullying provides:

“The following are examples of what may constitute management action:

• performance appraisals

• ongoing meetings to address underperformance

• counselling or disciplining a worker for misconduct

• modifying a worker’s duties including by transferring or re-deploying the worker

• investigating alleged misconduct

• denying a worker a benefit in relation to their employment, or

• refusing an employee permission to return to work due to a medical condition.

An informal, spontaneous conversation between a manager and a worker may not be considered management action, even if issues such as those listed above are raised.” (footnotes omitted)

[20] Determining whether management action is reasonable involves an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Such circumstances may include what led to the need for the management action; the circumstances while the management action was being taken; and consequences flowing from the management action. 11 Circumstances may also include the emotional state and psychological health of the worker involved.12

[21] The test to be applied is whether the management action was reasonable, not whether it could have been “more reasonable” or “more acceptable”. 13 Management action does not need to be perfect. The assessment of ‘unreasonableness’ must arise from the management action itself, not the worker’s perception of it.

[22] Whether management action is taken in a reasonable manner is a question of fact to be determined objectively. 14 The determination is made in the circumstances giving rise to the management action. Compliance with policies and procedures may be relevant. To find that management action was not taken in a reasonable manner, an employee must establish that the decision lacked any evidence and intelligible justification.15 I turn now to consider the evidence and submissions.

EVIDENCE

Background

[23] As previously noted, Ms Hohn’s case developed over time. Various issues which were referred to in her original Form F72 Application were not pressed. Issues raised in the statement Ms Hohn filed in the Commission were not clearly articulated and were not pressed in Ms Hohn’s oral evidence or her cross-examination of witnesses. Ms Hohn is an EL1 Test Manager. Through Mr Hardingham, a Job Statement for an EL1 role was tendered. The Job Statement indicates that expectations of EL1s are higher than staff at the APS levels in many areas including leadership, initiative, communication and engagement with a variety of stakeholders. Under cross-examination, Ms Hohn was taken to sections of her job statement, and agreed it was part of her job to develop staff capability, provide mentorship to less experienced colleagues, and to collaborate with a broad range of internal and external stakeholders to achieve project outcomes. 16 Ms Hohn also agreed that relationship management, including facilitating open communication and discussion between stakeholders, is an important part of her role.17

[24] The evidence is that Mr Hardingham commenced in the position of EL2 Test Director at the Brisbane Delivery Centre in August 2018. Mr Hardingham commenced as Ms Hohn’s supervisor at this time. As Test Director, Mr Hardingham is responsible for managing and overseeing 94 staff in the branch including Ms Hohn. The Department is undertaking an Aged Care Project comprising a number of programs. Two of those programs are the Unified Aged Care Provider Portal Project (the Unified Portal Project) and the Annual Lifetime Caps project. Each project contains a number of Multi-Disciplinary Teams (MDTs) made up of workers from different disciplines, including Testers supplied by Test Managers. In an exchange during her cross-examination of Mr Hardingham, Ms Hohn accepted that she was the Test Manager for the Aged Care Program of work. 18 It appears from the evidence that there was change underway in relation to team work and other processes to support different ways of working.

[25] Mr Hardingham said in his evidence that the Unified Portal Project falls under the umbrella of the Aged Care Program of work. 19 Mr Govinakovi also said while Ms Hohn was not part of the MDTs working on the Unified Portal Project, she assigned the testers or test resources from the team that she was managing to the MDTs that Mr Govinakovi was managing.20 During cross-examination, Mr Govinakovi disagreed with the suggestion that Ms Hohn was not involved in the Unified Portal Project. Mr Govinakovi accepted that Ms Hohn had previously run the day to day activities of the team and that her role became more of a mentoring and coaching role.21 Mr Govinakovi also said that Ms Hohn still had test management responsibilities including test strategy, coaching, mentoring and communication with the program manager to make sure all the test strategies were in place.22

[26] Ms Hohn accepted during her evidence that she had supplied testers to the MDTs working on the Unified Portal Project. Further, Ms Hohn accepted that it was her role to supervise testers, but said this role was decreased as a result of the introduction of self-managed teams and that she was not working on the Unified Portal Project with the exception of having to coach and undertake the performance agreements of those staff. 23 In response to the proposition that she was not helpful to Mr Govinakova with respect to his role, Ms Hohn said that this was not her role and there was no need for Mr Govinakova to get information from her.24

[27] Under cross-examination, Ms Hohn was taken to the comments she had submitted in relation to her mid-cycle review where she acknowledged her responsibility in the Unified Portal Project stating that she would “continue to work with scrum master, PM and product owners”. Ms Hohn agreed that the to the Scrum Master is a reference to Mr Govinakovi, who fills that role for the Unified Portal Project. In response to the proposition that this was an acknowledgement of her role in the Unified Portal Project, Ms Hohn said that the comment was “definitely a copy and paste from another one that Scott [Hardingham] was using”. 25

[28] Against that background, I consider the matters identified by Ms Hohn as the basis upon which she asserts that Mr Hardingham bullied her. I will deal with those matters in chronological order.

The test plan request

[29] I commence with the allegations in relation to the request made by Mr Hardingham for a test plan to be provided by Ms Hohn. This matter was the subject of an internal complaint made by Ms Hohn on 10 October 2018. Ms Hohn said nothing about this in her Form F72 Application or in her witness statement. In her oral evidence at the hearing, Ms Hohn said that she did not think that she had to say anything about this issue because she had already made an internal complaint to HR in relation to it. Ms Hohn said that while she had previously worked with Mr Hardingham, within a short space of time after Mr Hardingham commenced in his EL2 role their relationship went downhill. By 10 October 2018, Ms Hohn had made an internal complaint alleging that she had been bullied by Mr Hardingham. Essentially the complaint was that the request by Mr Hardingham would require Ms Hohn to prepare a document for a project that she had not been involved with and that she was given insufficient time to complete this task.

[30] Mr Hardingham tendered an email chain in relation to this matter commencing on Friday, 21 September 2018 at 8:45am with an email from Mr Hardingham to Ms Hohn and another employee, Ms Mary Connell. That email states:

“Hi Katrina, Mary

We will need some sort of Test Plan done for Unified Portal. Using Adrian’s or the one I sent from Di Airey would be a good template to use. I will review once you have done first draft. Can this be done by Monday COB please.”

[31] Ms Hohn responded at 9:07am on 21 September stating:

“Hi Scott,

Just for sprints 1-6? I can’t complete a document for something I haven’t been involved in. I’ve been to 1 scrum meeting, and am still not on any invited to anything. What test team did they approach when they were in Brisbane last week?

At what point will someone decide if agile is going to continue because essentially it is turning into waterfall requirements. Steph indicated in an ALC meeting this week that she thought it was being put out turn off, and a pilot set up in March? Is that what is happening? In which case, what is the urgency for the plan?

Mary, can you continue with the test plan that you started the other day please once Scott indicates an answer to question 1 please? I would imagine the information in the planning sessions is going to be relevant.”

[32] Mr Hardingham responded at 3:54pm:

“Agreed. It won’t be a final document. Just need to use Adrian’s templet (sic) to develop the planned approach for SIT for the Unified Portal.

We should develop based on what we planned now what is actually occurring. Detailed scope of what we are testing in Sprints should be provided from the testers in the MDTs. Additional data can be sourced for Sudhir.”

[33] The other employee replied to Ms Hohn and Mr Hardingham on Monday, 24 September 2018 at 8:54am to advise that she had drafted the Test Plan based on the template suggested. On Wednesday, 10 October 2018 at 9:28am, Mr Hardingham emailed Ms Hohn and a different employee:

“Hi Katrina,

Can I please ask that you complete the attached DTP before COB tomorrow. There are still gaps in this document, and I want to also add sections about:

…

Also, can you please send me or provide an ETA on when we can review the ALC Integration Test Plan and Schedule.”

[34] Ms Hohn responded to Mr Hardingham 5 minutes later:

“Hi Scott,

Could you arrange to have the project plan sent through. I will need it in order to complete the tasks below.”

[35] About 15 minutes later, Mr Hardingham responded:

“Hi Katrina,

You don’t need the project plan. I have provided some additional information below in red to assist you.

Please work with others if required to complete.”

[36] Under cross-examination Ms Hohn agreed that she and Ms Connell had been asked to move the testing plan forward, and that she tasked Ms Connell with drafting the plan. Ms Hohn maintained that she did not understand why she was being asked to undertake this task and did not think that she needed to comply with Mr Hardingham’s request because it was not a valid request. Ms Hohn agreed that Mr Hardingham told her where she could obtain the information that she required to undertake the drafting of the plan but maintained that the time frame she was given to provide the plan was not reasonable. Ms Hohn also agreed that she did not raise with Mr Hardingham her concerns about the time frame or her view that she should not have been requested to undertake the preparation of the test plan. Ms Hohn said that she did not review the draft prepared by Ms Connell because she did not think that the plan was required. Ms Hohn agreed that she commenced a period of leave around 10 October when she lodged the complaint against Mr Hardingham and did not return until 23 October 2018.

[37] Mr Hardingham said that he thought that his request to Ms Hohn was reasonable and that preparation of test plans is a standard part of a test manager’s role. In response to questions from me in an attempt to clarify Ms Hohn’s position during her cross-examination of Mr Hardingham, Mr Hardingham said that he was asked for a test plan for the Unified Portal Project and went to Ms Hohn because she is the Test Manager for Aged Care which has the Unified Portal Program within it. In response to the proposition that Ms Hohn was not the Test Manager for the Unified Portal Program, Mr Hardingham said that: “We only had one aged care test manager and that was Ms Hohn.” 26

[38] During Ms Hohn’s cross-examination of Mr Hardingham it was apparent that Ms Hohn’s assertion that Mr Hardingham bullied her by requesting her to prepare the plan, was based on a number of matters including that Mr Hardingham had previously agreed with her that the plan was not required and had subsequently asked her to prepare it. Ms Hohn said that there was an email in which Mr Hardingham stated that the plan was not necessary. Mr Hardingham disputed that there was such an email or that he had commented that the test plan was unnecessary. It subsequently emerged that the email Ms Hohn was referring to was was contained in documents before the Administrative Appeals Tribunal in relation to Ms Hohn’s appeal against the refusal of her workers compensation claim. Issue was raised with tender of the email by Counsel for the First and Second Respondents, on the basis that such documents are subject of an implied undertaking that they would only be used for the purposes of the proceedings in which they were filed.

[39] In an exchange with Ms Hohn I pointed out that the email may be of limited relevance given that as a manager, Mr Hardingham had a right to change his mind and ask Ms Hohn to undertake a task that was within the limits of her skills, competence and training and that on the surface, the trail of emails that Ms Hohn had produced in her evidence to the Commission evidenced nothing more than Mr Hardingham asking her to complete a task by 23 September 2018 and that she had pushed back and was still debating that request with Mr Hardingham on 10 October 2018. I informed Ms Hohn that if she wished to press this issue it was entirely a matter for her and she should seek to tender any particular emails that were not in the material before the Commission, and I would rule on any objections at that time. Ms Hohn did not press this matter, despite being given an opportunity to do so.

The IPA rating and the Back on Track process

[40] Given the interrelationship between these two issues, it is convenient to deal with them together. The mid-cycle review process is an assessment of an employee’s performance over a six month period. The review is provided for in Part I of the Department of Human Services Enterprise Agreement 2017 - 2020 (the Agreement) which deals with performance management. one of the purposes of the performance management process in the Agreement is to ensure that employees have a clear understanding of their role, and the performance standards expected of them. The principles of performance management are stated to include joint responsibility for participating in all aspects of the process, including initiating reviews. The performance cycle runs from 1 July to 30 June each year. The process provides for an agreed Individual Performance Agreement (IPA) within 8 weeks of the commencement of a new performance cycle and/or the employee starting in a new position.

[41] Clause 14.4 of Part I of the Agreement provides that the mid-cycle review will be completed in writing, by February each year and that the employee will be provided with an indicative rating of performance as part of the review. Relevantly, the ratings and their descriptions as set out in clause 14.7 are as follows:

1 – Requirements not met: employee has not met most or all of their performance outcomes as outlined in their Individual Performance Agreement.

2 – Support required: employees has met some performance outcomes, or has made satisfactory progress towards meeting their performance outcomes, but requires further time,k support, development or improvement to perform at the Fully Effective level as outlined in their Individual Performance Agreement.

3 – Fully effective: employee has met their required performance outcomes as outlined in their Individual Performance Agreement.

4 – Exceeds expectations: employee has consistently exceeded their required performance outcomes as outlined in their Individual Performance Agreement.

[42] Clause 14.9 of Part I of the Agreement provides that where an employee’s performance is assessed as “Support required”, clause 15 (Back on Track Process) will apply and they will not be eligible for salary advancement in accordance with the Agreement other than as provided in clause 15. Clause 15 provides as follows:

“15 'BACK-ON-TRACK' PROCESS

15.1 This clause does not apply to non-ongoing and casual employees, employees on an Entry Level Program or employees on probation.

15.2 At any stage during the performance cycle where an employee's supervisor or manager identifies that an employee's performance is below, and remains below, satisfactory standards (including, but not limited to, where an employee's performance has been rated as a "2" in accordance with subclause 14. 7), the supervisor may initiate a 'Back on Track' process in order to assist the employee to attain and sustain fully effective performance.

15.3 The 'Back on Track' process is a structured approach to performance improvement that is designed to be Jess formal and operate before the Formal Performance Counselling process at clause 16.

15.4 The 'Back on Track' process will involve:

(a) identification of areas of performance that require improvement;

(b) discussions between the employee and their supervisor to develop strategies to improve performance, including reasonable support that will be provided to the employee (including training or learning and development needs);

employee and their supervisor, which will outline:

(i) performance expectations; that are realistic, reasonable, measurable, and consistent with the Individual Performance Agreement; during the period of the plan;

(ii) arrangements for supervision and assessment during the period of the plan; and

(iii) arrangements for support, including learning or training, for the employee to assist in improving their performance during the period of the plan; and

(d) regular assessments of progress against the 'Back on Track' plan.

15.5 While an employee is participating in a 'Back on Track' process their Individual Performance Agreement is suspended. On successful completion of the 'Back on Track' process, their Individual Performance Agreement will be updated to ensure it meets the principle as set out in subclause 12.5 ('holistic').

15.6 The 'Back on Track' process will run for ten weeks, subject to subclause 15.7.

15.7 This ten week period may be extended by any periods of approved leave.

15.8 Where, at the end of ten weeks, an employee has attained and sustained fully effective performance, the process will cease.

15.9 Where, at the end of ten weeks, an employee has not attained fully effective performance with reasonable support, the Secretary may initiate the Formal Performance Counselling process at clause 16. Salary advancement will not occur.

15.10 Where an employee is reassessed as "Fully Effective" at the end of a 'Back on Track' process initiated as a result of subclause 14.9; the employee will be eligible for salary advancement in accordance with clause B5 with effect from the date of the reassessment.

15.11 At the end of the ten week 'Back on Track' process if the employee has not attained and sustained fully effective performance, the Secretary may initiate a Formal Performance Counselling process under this clause 15. Salary advancement will not occur.”

[43] To assist managers to implement a Back on Track process, there is a “Back on Track Guide”’ which was attached to Ms Hohn’s statement. Relevant extracts from the guide are:

“Both managers and employees can use this guide.

The Back on Track (BOT) process is a structured approach to improving the performance of an employee.

…

The BOT process can be initiated at any stage during the performance cycle where:

• an employee’s manager identified that an employee’s performance is below and remains below fully effective or

• an employee has been rated ‘2-support required’ at the mid-cycle review.

Note that the BOT process must be initiated where an employee has been rated ‘2-support required’ at annual review.

The initiation of a BOT process should not be a surprise to the employee. It is expected that the employee is aware of their underperformance through open, regular, meaningful and evidence-based discussions, and support has occurred between the employee and manager prior to initiating the BOT plan.

…

Responsibility for developing the BOT plan is a joint process that sits with both the employee and the manager.”

[44] Under the heading ‘Before you start’, the guide states:

“Is there supporting evidence of the performance concerns? This may include:

• meeting and coaching notes

• key performance indicator data

• feedback and employee comments.

It is important that you have discussed the supporting evidence with the employee to provide an opportunity for the employee to respond to the performance concerns before initiate a BOT process.

Are there non-work related issues that may be impacting on their work performance? If so these should be discussed with HR Support before initiating a BOT process.

See also the Underperformance checklist for a list of actions that should be undertaken prior to commencing a BOT process.” (underlining in original)

[45] The guide sets out Step 1 of the process as follows:

“Before initiating a BOT the manager should:

• Consult with HR Support and forward the Manager’s documented trail of feedback and discussions that have occurred (and have also been sent to the employee). In turn, HR Support will provide advice and support to ensure that all the necessary steps have been taken.

• Inform the employee that a BOT will be initiated.

• Schedule a meeting with the employee to discuss the BOT process. All meetings should be scheduled with at least 24 hours notice (sic) to ensure the employee has time to organise a support person. Advise the employee they may have a support person and confirm if a support person will be present.

• Give the employee time to prepare for the meeting.

Note:

• It is good practice to advise the employee about the BOT process, prior to the meeting, including the start date, end date and areas of performance identified for improvement.

• Manager may also compile a draft BOT plan and send to HR Support for feedback.”

[46] Step two is as follows:

“Both employee and manager meet to discuss and adjust the draft BOT plan. The meeting should be conducted in private and quiet location. Refer to the following actions as a guide.

Employee should discuss

• areas of performance identified for improvement

• their comments and feedback on areas requiring performance improvement

• strategies they have considered that will assist them to meet performance goals

• any factors that may impact on their ability to achieve the goals.

Manager to:

• Explain how the BOT process works, the goals to be achieved and commitment to provide support so the goals can be achieved within the BOT plan timeframes.

• Encourage the employee to reflect on their own performance and their role.

• Give the employee a genuine opportunity to respond.

• Acknowledge achievements and circumstances during the performance cycle to date.

• Clarify and confirm the expected standards for performance and/or workplace behaviour as documented within the IPA.

• Identify the area(s) of performance and/or workplace behaviour where improvement is required. Discuss the evidence supporting this assessment.

• Outline the expected skills, knowledge and behaviours that demonstrate effective performance and the ways these will be reviewed and measured.

• Discuss and confirm the skills or knowledge the employee required to deliver on he expectations and the options available for developing these.

• Outline the range of other support that can be reasonably provided to the employee such as the Employee Assistance Program, mentoring and conducting weekly meetings to discuss progress.”

[47] As previously noted, Mr Hardingham gave Ms Hohn a rating of 2 – Support required, in her IPA review for the period 1 July to 31 December 2018, which was a mid-cycle review. Mr Hardingham’s evidence about the IPA rating he gave Ms Hohn can be summarised as follows. The Unified Portal Project had three MDTs managed by Mr Govinakovi as Scrum Master. While Ms Hohn was not member of any of the MDTs, she supplied testers to them and as Test Manager, Ms Hohn’s role was to work closely and co-operatively with the MDTs to ensure she was kept up to date.

[48] Mr Govinakovi approached Mr Hardingham on a number of occasions in August 2018 and early September 2018 to advise of difficulties he was having engaging with and getting information from Ms Hohn. Mr Hardingham recalls that the feedback he received from Mr Govinakovi about Ms Hohn included that Ms Hohn was not helpful, Mr Govinakovi could not get information from Ms Hohn, Ms Hohn was difficult to talk to and Ms Hohn did not like Mr Govinakovi approaching her staff. In relation to the last point, Mr Govinakovi advised Mr Hardingham that this was creating a barrier to communications for the project as Ms Hohn’s testers were reluctant to engage with Mr Govinakovi.

[49] In his evidence, Mr Govinakovi confirmed that he had issues communicating and engaging with Ms Hohn and said that these followed Mr Govanakovi raising issues with Ms Hohn in relation to her conduct at MDT stand-up meetings. Mr Govinakovi considered that Ms Hohn was offended that he had brought the issue up with her. Mr Govinakovi also confirmed that he raised these issues with Mr Hardingham in August 2018. According to Mr Govanakovi, Mr Hardingham’s response was protective of Ms Hohn and questioned the steps that Mr Govanakovi had taken to engage with Ms Hohn.

[50] To deal with this issue, Mr Hardingham convened a meeting with Mr Govinakovi and Ms Hohn. The meeting occurred on 12 September 2018. Mr Hardingham tendered an agenda for the meeting which he emailed to Ms Hohn and Mr Govanakovi prior to the meeting. The topics included expectations for MDTs and communication. Mr Govanakovi said that Mr Hardingham ended the meeting by concluding that he needed to try to engage more effectively with Ms Hohn and that they needed to collaborate and co-operate to deliver a successful project. Mr Govinakovi said that following the meeting matters did not improve between him and Ms Hohn. Ms Hohn did not give evidence about this meeting or contradict the evidence of Mr Hardingham and Mr Govinakovi.

[51] Also, during September 2018, Ms Stephanie Lane, Project Manager of the Annual Lifetime Caps project approached Mr Hardingham to express the troubles she was having engaging with Ms Hohn. Mr Hardingham recalls that Ms Lane expressed that she did not know how to approach Ms Hohn, Ms Hohn was reluctant to attend meetings sending subordinates in her place and Ms Hohn was not providing the testing updates that might be expected and required. Mr Hardingham provided this feedback to Ms Hohn in or around the last week of September 2018.

[52] At the same time as receiving the concerns of Mr Govinakovi and Ms Lane, Mr Hardingham was also having difficulty communicating with Ms Hohn. In particular, Mr Hardingham said that he noticed Ms Hohn was not being responsive to his emails, would often not answer his calls, would not return missed calls or voicemails left for her and her status on Skype was often set to “away” for long periods of time.

[53] Ms Hohn was absent from work on a period of personal leave from 10 October 2018 until 23 October 2018. Following Ms Hohn’s return from personal leave, Mr Hardingham decided that because of the feedback of Mr Govinakovi and Ms Lane, and his own experiences with Ms Hohn, he would organise a meeting to discuss communication expectations, engagement and how Mr Hardingham could support Ms Hohn in her role. Mr Hardingham emailed Ms Hohn at 11:11am on Thursday, 1 November 2018 proposing a meeting at 2pm that day. Mr Hardingham’s email stated:

“Hi Katrina,

I’ve had a little difficulty in catching up with you recently and have scheduled this meeting so we can get together to discuss the points below:

• Your thoughts on your role, how you are feeling within the role and the ways in which I can support you.

• Communication, engagement and interaction. It’s important that there are no barriers within our networks of communication. I’d like to talk about the ways in which we need to communicate and hear your preferences in communicating.

• The current status of the Aged Care program of work.

It is very important that we discuss these items, so if you are unable to make this time please send me an updated appointment or give me a call to discuss an alternative time.

Please feel free to bring a support person if you feel this is required.”

[54] During the meeting Mr Hardingham raised some of the communication and engagement issues with Ms Hohn. Ms Hohn told Mr Hardingham that she only wished to remain in the role of Test Manager until the end of the year. It was agreed that Mr Hardingham and Ms Hohn would have regular meetings to “catch up”. Mr Hardingham summarised his understanding of what was discussed in the meeting in an email to Ms Hohn sent at 9:45pm on 1 November 2018. That summary includes:

• Ms Hohn exercised the option to bring a witness to the meeting;

• In response to a question about thoughts on her role and how Mr Hardingham could support her Ms Hohn said that the job description had not changed and that she was familiar and comfortable with the role and responsibilities of Test Manager;

• In response to a statement about the importance of communication with Mr Hardingham and her preferences for communication, Ms Hohn stated that she wanted all communication with Mr Hardingham to be in a written format and later said that she was fine with face to face communication provided it is summarized in writing afterwards;

• In response to her Skype profile status being set to “away” Ms Hohn said that she had lunch breaks, she did not believe that this hindered those wishing to contact her and that it was not a deliberate act to avoid communication in any way, including with Mr Hardingham who is located in a separate office;

• Mr Hardingham stated that Ms Hohn should pay special attention to communication etiquette, such as accurately maintaining her skype status, returning phone calls, and responding to email and appointment invitations in a timely manner;

• Ms Hohn advised that she wished to remain in the Test Manager role, until the end of the current year and was considering some other options; and

• Ms Hohn stated that during absences from work over the last few weeks and upon her return, she did not feel it was necessary to make any contact with Mr Hardingham for Director Level updates regarding the BDC and/or the Aged Care program and that she received this information from her test team; and

• Ms Hohn had no other concerns other than raising a question regarding Mr Prince moving to another area. 27

[55] Ms Hohn and Mr Hardingham met again on 21 November 2018. Ms Hohn was supported by Mr Prince in that meeting. Ms Hohn advised Mr Hardingham that she had requested a move into a new role. Because of this, Mr Hardingham told Ms Hohn that he would communicate a change of leadership to the project team. Mr Hardingham also advised Ms Hohn that he wished for her to attend Safe for Teams training in Canberra and that she be relocated back to Creek Street to be in the same building as Mr Hardingham. The change in physical location would, in Mr Hardingham’s view, improve opportunities for face-to-face contact.

[56] Mr Hardingham again followed up the meeting with an email summarising his understanding of what was discussed. That email was sent at 8:29 pm on Wednesday, 21 November 2018, and stated:

“Hi Katrina

A summary of our discussion this afternoon.

You have had a discussion with HR and requested for them to facilitate a move into a new role. This role is still to be confirmed. I have not had any contact from HR in regards to your request.

I confirmed that I am facilitating a request for you to attend Safe for Teams training in Canberra for the 28^th and 29^th of November. This is pending confirmation from the BDC Learning team. This will support you moving into a role on one of the BDC Agile Release Trains. You have advised that you are available to attend.

I have requested you to relocate back to L9, 140 Creek Street, effective from tomorrow, and I advised you of your desk location. You confirmed this move and suggested you will seek support to move your belongings as required from the BDC Support Team.

Due to your request I confirmed that I will communicate a leadership change to the Aged Care Test Team.

I asked if there was anything else you would like to discuss. You advised that there wasn’t.

Geoff Prince was in attendance as a witness.”

[57] Ms Hohn did not dispute Mr Hardingham’s notes of this meeting either in her evidence or when cross-examining Mr Hardingham. After the 21 November 2018 meeting, Mr Hardingham was not able to have another catch-up meeting with Ms Hohn until February 2019. Mr Hardingham states that this was because Ms Hohn either declined meetings or was absent from work. On Monday, 12 November 2018, Mr Hardingham emailed all Test Managers to advise that he would be meeting with each of them to discuss their Individual Performance Agreements (IPAs). For those (including Ms Hohn) who already had a scheduled catch-up with Mr Hardingham, the IPA would be discussed during that meeting. Consequently, Mr Hardingham changed the title of his planned meeting with Ms Hohn for 29 November 2018 from “Catch Up” to “IPA review”. Mr Hardingham’s evidence was that the 29 November meeting was rescheduled as follows:

• to 6 December when Ms Hohn was absent on personal leave;

• then 14 December when Ms Hohn was absent on annual leave;

• then 20 December when Ms Hohn was absent on annual leave.

[58] Exhibit R6 – a calendar showing Ms Hohn’s personal attendance from 1 July 2018 to 30 June 2019 – indicates that in November 2018 Ms Hohn was absent for a total of 7 full working days on personal leave and annual leave and an additional part day on annual leave. In December 2018, Hs Hohn was absent for a total of 13 working days mostly on annual leave and a part day of sick leave. In January 2019 Ms Hohn was absent for a total of 13 days of personal leave and a part day of personal leave. In February 2019, Ms Hohn had one full day of personal leave and four-part days of other leave. In March 2019, Ms Hohn had six days of annual leave and 1 day of personal leave. In April 2019, Ms Hohn had one day of personal leave and three days of annual leave and in May 2019, 3 days of personal leave. In June 2019, Ms Hohn had 6 working days of annual leave. I have adjusted the figures in Exhibit R6 which indicate that weekends in a period of leave are indicated as part of the leave and I have not counted weekends in the figures set out above on the basis that they are not working days.

[59] Mr Hardingham said that he met with Ms Hohn on 27 February 2019 for the purposes of the mid-cycle review of Ms Hohn’s IPA. Mr Hardingham’s evidence is that he advised Ms Hohn that she had not met the measured targets in the IPA and that the “key areas” where she had not met expectations were around communication, engagement with stakeholders and self-development. Mr Hardingham maintained that during this meeting he informed Ms Hohn that he intended to rate her performance as “2 – support required”. Mr Hardingham states that Ms Hohn was emotional but accepted the feedback and rating, telling Mr Hardingham that she was willing to work to improve her performance. Exhibit 5 indicates that Ms Hohn was at work on 27 February and took a part day absence on personal leave on 28 February 2019.

[60] The IPA form has provision where a rating of 2 is selected, for a manager who issues the rating, to check a box in the form. Checking the box triggers a Back on Track process in accordance with the timing in clause 15 of the Agreement. Mr Hardingham states that “at this time” he did not select the Back on Track option or submit his rating of 2 to HR. Mr Hardingham said that he did not do so because this would have immediately triggered a Back on Track process and its associated time frame. Mr Hardingham was aware that Ms Hohn was in the process of applying for workers’ compensation and would be undertaking a fitness for duty assessment in the future. Before finalising his rating 2 in the system, Mr Hardingham wanted to be sure that Ms Hohn was fit to participate in the BOT process. Mr Hardingham said that he was trying to do the right thing and look after Ms Hohn’s welfare. Unlike previous meetings he had conducted with Ms Hohn, Mr Hardingham did not record the discussion or outcomes in writing.

[61] On 9 April 2019, Mr Hardingham was contacted by a Rehabilitation Case Manager who informed him that Ms Hohn had been assessed as fit for duty. Mr Hardingham tendered a fitness for duty outcome advice that was provided to him. It indicates that the assessment was conducted on 21 February 2019. Mr Hardingham also tendered an email he received on 11 April 2019 forwarding the Report to him which states that the Report “has now been received”. 28

[62] Mr Hardingham said in his evidence that because Ms Hohn’s fitness for work had been confirmed, he wished to commence regular fortnightly coaching sessions to assist Ms Hohn to improve her performance. On 9 April 2019 Mr Hardingham sent Ms Hohn a recurring calendar invitation to coaching sessions. The first was to take place on 9 May 2019. The coaching session of 9 May 2019 did take place, although at a rescheduled time. Mr Hardingham tendered a summary of what was discussed at the coaching session, which set out a number of areas for improvement including:

• Mr Hardingham would like to see more effort made in networking with other Test Managers and himself outside the designated fortnightly meetings;

• Seeking advice, support and opinions on test leadership matters across the group would help build Ms Hohn’s profile;

• Ms Hohn was unable to answer Mr Hardingham’s questions about where the group was at with strategic objectives and he advised her to seek information from others outside her team to gauge where the group is at and share this with others;

• Mr Hardingham requested that Ms Hohn provide a strategy/vision on her plan for her new team and what would be in place to build a stronger more engaged team that embraces the way that work is done including “agile”;

• Ms Hohn needed to work on communication with stakeholders to make sure the correct strategy was being portrayed – example provided was not getting invited to meetings. 29

[63] Mr Hardingham said that on 23 May 2019, he submitted Ms Hohn’s IPA document containing the rating of 2 and the following comments, which were consistent with what he told Ms Hohn at their meeting of 27 February 2019:

“Katrina has not met the expectation of the EL1 test Manager role. As discussed, and provided as feedback Katrina have been reluctant to participate in engagements with the Scrum Master/Project Manager. The project team including the Scrum Master and the Annual Lifetime Caps Project Manager had been attempting to include you but found you unresponsive/unwilling. Katrina’s role was to not just Test Manage Annual Lifetime Caps, but to Test Manage the whole of the Aged Care BDC Project portfolio. Katrina has been provided feedback in regards to her ineffective communication style. Annual Lifetime Caps success was as a result of the APS5 Senior Test Analyst and the Acting Test Manager for the Aged Care portal project.

Katrina has been reluctant to promote the principles of Agile within her team, and has not embraced this part of her personal development. Evidence provided to Katrina in regards to her reaction to and Invite organised for herself and her team on the Agile World delivered by Co Activation. This approach does instil confidence in the testers and the broader capability…

Katrina has been a reluctant participant in coaching and is generally unwilling to discuss with me her concerns, her performance is partly shown by the lack of participation in coaching and ownership of career planning. Katrina has been reluctant to communicate face to face contact and in communication with myself. When Katrina was located in a separate building, I found it difficult to contact her via phone/skype calls. Katrina makes little to no attempt touch base with myself even following long absences…

Katrina needs to demonstrate that she is going to own and take her self development seriously. She will need to demonstrate significant improvement in behaviours, engagement, interaction, and communication with her peers, team and other leaders across the BDC expected at the EL1 level.” (errors in original) 30

[64] Mr Hardingham informed Ms Hohn of this by email sent at 10.48 am on 23 May 2019, stating:

Hi Katrina

I am following up in writing our conversation and feedback provided to you by me for your mid-cycle IPA on Feb 27^th.

As discussed, I am putting you on a rating of 2 – Support Required.

Through my feedback and leading up to your Mid Cycle IPA, you were unable to demonstrate the core competencies of a test manager role and the objectives outlined in your agreed IPA. Unfortunately at times you were and have been quite defensive in receiving feedback from me and others and at times appear to have taken this as personal criticism and not use this for your own personal development, and the requirements expected of you as an EL1 Test Manager.

When we have met, you were unable to demonstrate and/or provide any additional evidence to support meeting expectations, and you understood why you were placed on this rating. You also advised that you were willing to work with me to improve your performance and get back to the expected performance for the EL1 Level.” 31

[65] Ms Hohn’s response by email sent on 23 May at 11.00 am, was as follows:

“Hi Scott,

I don’t find this an accurate representation of events.” 32

[66] Mr Hardingham responded on 23 May at 1.57 pm, in the following terms:

Hi Katrina,

Sorry to hear that, can you please outline what part of my email below you do not recollect or find accurate.

As this is a direct summary of our discussion. We will need to meet to discuss.

To aid this conversation, I would like you to consider the requirements of your role, the feedback I have given you and come prepared with your own goals as to how you can lift your performance to the required standard.”

[67] Ms Hohn did not respond to that email. Mr Hardingham stated that he attempted to arrange coaching sessions with Ms Hohn in June and July 2019, which she declined on the basis that she disputed the 2 rating. Mr Hardingham tendered emails from Ms Hohn dated 12 and 18 June in which she declined to attend coaching sessions stating that she had referred the issue of the rating to HR. Ms Hohn applied for an internal review of the rating and was unsuccessful. The rating of 2 was confirmed on 18 June 2019 in accordance with the internal review processes conducted by the Department. The Review Decision including annexures, was tendered by Ms Hohn. Given the issues that I am deciding I have not placed weight on the conclusions in the Review decision but have preferred to draw my own conclusions on the basis of the evidence before me.

[68] Ms Hohn made little mention of the IPA rating in the Form F72 application or her witness statement in these proceedings. In her oral evidence, Ms Hohn said that before issuing her with an IPA rating of 2, Mr Hardingham should have spoken to her previous line manager and did not do so. Ms Hohn said that she knew this because she had asked her previous line manager whether Mr Hardingham had sought her input and was told that he had not. Ms Hohn also said that Mr Govinakovi and Ms Lane who had input into her IPA score were initially working in different projects and there were more than 50 people who worked on the project that Ms Hohn was on. Ms Hohn said that there were ample people who would have said positive things about her if Mr Hardingham had looked for more information before rating her performance. Ms Hohn also said that she did not find out that Mr Govinakovi and Ms Lane had issues with her until Services Australia filed its response to the present application. As a result, Ms Hohn said that she did not have an opportunity to improve her performance before the rating was given.

[69] Ms Hohn also said that the rating was not given until May 2019 when it was required by the terms of the EBA to be given in February. Ms Hohn said that she had a discussion with Mr Hardingham in February 2019, during which Mr Hardingham said that he had no feedback to give her. The IPA system required that Mr Hardingham give Ms Hohn an indicative rating in February 2019 for the period 1 July to 31 December 2018. As a result, when the rating was given, Ms Hohn could not go back and fix anything. Ms Hohn accepted a proposition I put to her, that regardless of when the performance rating was given, she would not have accepted being rated as 2.

[70] Under cross-examination, Ms Hohn agreed that she is familiar with the performance management provisions in the relevant enterprise agreement given that she undertakes performance assessment for her team members in her role as EL1. Ms Hohn accepted that the enterprise agreement provides that where a mid-cycle review has not been instituted within the required time an employee may raise the matter with their direct manager. Ms Hohn agreed that she had not raised this matter. Ms Hohn also agreed that in hindsight, she had not put her best foot forward for the mid-cycle review, and that given it was a joint process she bore some responsibility for it. Ms Hohn said that she should have spent more time documenting her achievements and sought feedback from people she had worked with.

[71] Ms Hohn was also asked about her communication with Mr Hardingham and Ms Lane. In relation to Mr Hardingham’s evidence that she had been non-responsive, Ms Hohn agreed that she had not been responsive to emails about “the other project” and said that there were problems with the Adelaide Street building relating to the requirement to sign into desk phones. Ms Hohn said that if there has been a delay with her signing in, she would not have a record of a missed call from Mr Hardingham. Ms Hohn also agreed that she had set her phone to “away” for “a couple of days”. Ms Hohn agreed that Mr Hardingham had provided notes summarising their meetings, including on 1 November 2018, and in response to the proposition that she had not indicated disagreement with those notes, Ms Hohn said that they were Mr Hardingham’s recollection of events, not hers.

[72] Ms Hohn acknowledged that these meetings were important and said that this is the reason she stopped setting her skype profile as “away” after the 1 November 2018 meeting. Ms Hohn agreed that prior to this time she had done this deliberately to avoid Mr Hardingham. In relation to Ms Lane’s evidence, Ms Hohn said that Ms Lane would need to check in with her to get updates, and she would not seek out Ms Lane to give her updates unless something needed to be escalated or followed up. Ms Hohn agreed that Ms Lane might have gone directly to testers because she was getting better support for them, on the days that Ms Hohn was not there.

[73] Ms Hohn agreed that she met with Mr Hardingham on 27 February 2019 to discuss her mid-cycle review. Ms Hohn disputed that Mr Hardingham told her at that meeting what he intended to say on the IPA form for each review area or that he told her he would be giving her a rating of 2. Ms Hohn was shown the email from Mr Hardingham dated 23 May 2019 stating that he had advised her of the 2 rating on 27 February 2019. Ms Hohn agreed that after responding to that email stating that it was not accurate, she had not responded to Mr Hardingham’s further email requesting her to advise what she disagreed with. 33

[74] In around August 2019, Mr Hardingham sought advice from the HR Department of Services Australia about implementing the BOT with respect to Ms Hohn in light of her workers’ compensation claim. Mr Hardingham was advised by HR that as Ms Hohn had been found to be fit to participate in performance management, the BOT process could commence. It was recommended to Mr Hardingham that the title of the next coaching session with Ms Hohn be changed to “BOT Session”. Mr Hardingham followed this advice and on 12 August 2019, updated the title of his coaching meeting with Ms Hohn scheduled for 13 August 2019, to BOT Session and sent Ms Hohn a calendar invite with a message outlining the purpose of the BOT and a blank copy of the BOT template, so that she could provide her input and work on the development of the BOT plan with Mr Hardingham.

[75] Mr Hardingham and Ms Hohn tendered an email dated 30 July 2019 in relation to a BOT session he sought to schedule on 13 August 2019 at 3.30pm. It is not clear that the email was sent on 30 July given it refers to “tomorrows meeting”, however it stated:

“Hi Katrina,

[110] Ms Hohn did not raise this issue with Mr Hardingham when he requested that she complete the plan. Ms Hohn did not raise any issue about her competence to undertake the task or the time that Mr Hardingham gave her to do so. Rather, Ms Hohn pushed back and resisted complying with Mr Hardingham’s request, notwithstanding that he responded to every issue she raised and provided information to her about how she could go about completing the task. At the end of the day, the task was completed by an employee who reported to Ms Hohn, without any apparent difficulty. The overwhelming impression I gained, was that Ms Hohn was resistant to complying with a reasonable request from Mr Hardingham without any valid reason for her refusal to comply.

[111] I accept that Ms Hohn made an application for workers compensation on the basis of this matter, and that there may be other evidence she provided in support of that claim which was not placed before the Commission. However, on the basis of the evidence before the Commission, there was nothing unreasonable about Mr Hardingham’s request that Ms Hohn draft the test plan and Ms Hohn had no basis to refuse to undertake this task. Ms Hohn effectively refused to comply with Mr Hardingham’s request and it was undertaken by another employee with no assistance from Ms Hohn, who was the supervisor of that employee. Ms Hohn did not even review the plan before it was provided to Mr Hardingham.

[112] I also consider that Mr Hardingham giving Ms Hohn a rating of 2 for her mid-cycle review was reasonable. I accept Mr Hardingham’s evidence that he had reasonable grounds to give this rating to Ms Hohn. In this regard I am satisfied that Ms Hohn was difficult to engage with and that she avoided communication with Mr Hardingham in circumstances where he was seeking to assist her to resolve her performance issues. I accept that Mr Hardingham had complaints about Ms Hohn’s lack of engagement with colleagues which reflected his own experience and that he sought to address these matters with Ms Hohn. I also accept that Mr Hardingham attempted to raise these issues with Ms Hohn in advance of her IPA rating and that she resisted his attempts to do so. The fact that Mr Hardingham organised a meeting between Ms Hohn and Mr Govinakovi in relation to communication, should have alerted Ms Hohn to the fact that there was an issue in this area.

[113] Further, I accept that Mr Hardingham informed Ms Hohn of the 2 rating at their meeting of 27 February 2019. In reaching this conclusion I note that unlike other meetings between Mr Hardingham and Ms Hohn, there was no written record of the meeting on 27 February 2019 at which Mr Hardingham said that he told Ms Hohn about the issues with her work performance and that he intended to give her a rating of 2 in her IPA. However this does not cause me to doubt the evidence of Mr Hardingham evidence that he did communicate this to Ms Hohn at the meeting. I consider that there is some likelihood that Ms Hohn did not understand the full import of what she was being told. I base this conclusion on Ms Hohn’s propensity when giving her evidence to dispute that matters had been raised with her at meetings with Mr Hardingham, in the face of contemporaneous email communication recording the discussions at those meetings. I also note that Ms Hohn did not take issue with the records of meetings tendered by Mr Hardingham, either at the time they were sent to her or in her evidence to the Commission.

[114] Further, I note that in February 2019, Mr Hardingham had been the subject of a complaint by Ms Hohn to HR and was aware that she had also made a claim for workers compensation, and was treading carefully in his interactions with Ms Hohn. In all of the circumstances I prefer Mr Hardingham’s evidence and I accept that he did raise issues with Ms Hohn’s performance on 27 February 2019 and indicate to her his intention to give her a rating of 2 in her IPA. Finally I note that the email record of meeting on 23 May 2019 at which the 2 rating was discussed, refers to the earlier meeting on 27 February 2019, and that despite being given an opportunity to state the basis of her disagreement with the contents of that record, Ms Hohn did not do so.

[115] Even if I am wrong on this point, Ms Hohn knew by 23 May 2019 that she had been given this rating. The rating related to the period from 1 July to 31 December 2018, and whether Ms Hohn was informed of it in February or May 2019, would not have changed anything. Ms Hohn had been given warning in the latter part of 2018, about issues Mr Hardingham had with her communication and engagement with colleagues including Mr Hardingham, and I do not accept that Ms Hohn had no knowledge of those issues.

[116] The issue for determination is not whether Mr Hardingham followed a perfect process in implementing Ms Hohn’s IPA. Rather it is whether Mr Hardingham engaged in repeated conduct that could properly be described as unreasonable and that was not reasonable management action taken in a reasonable way. I accept that there were some deficiencies in the manner in which Mr Hardingham dealt with Ms Hohn and that he did not adhere strictly to the IPA and BOT processes as provided for in the Agreement. However, these deficiencies are explained by the circumstances which applied at the time Mr Hardingham was dealing with Ms Hohn, rather than any unreasonableness on the part of Mr Hardingham, for the following reasons.

[117] Firstly, at the time the IPA mid-cycle review was undertaken, Ms Hohn had made a complaint of bullying against Mr Hardingham which was the subject of an internal review. This complaint related to what in my view, was an entirely reasonable request on the part of Mr Hardingham for Ms Hohn to facilitate the completion of a test plan. Secondly, Ms Hohn had made a claim for workers compensation based on the same matter. Ms Hohn had also been absent from work for significant periods prior to May 2019 including critical periods at the end of the Mid-cycle review. I am satisfied that these matters explain the delay in Mr Hardingham advising Ms Hohn of the mid-cycle rating of 2 and that this was reasonable in all of the circumstances.

[118] I am also of the view that the timing of the advice of the rating was immaterial and did not of itself lead to any unfairness for Ms Hohn. In this regard, I accept that issues with Ms Hohn’s performance were raised with her in the period subject of the mid-cycle review and that Ms Hohn had opportunity to address these matters in advance of being given the rating. It is also the case that the rating is itself an opportunity for Ms Hohn to address these matters. I accept Mr Hardingham’s evidence about his discussions with Ms Hohn during this period, confirmed by emails that he sent to her after the discussions. I am also of the view that Ms Hohn would have objected regardless of when she was informed of her rating and that this is not a matter that goes to the substantive issue of whether the rating should have been given.

[119] I am satisfied that it was reasonable for Mr Hardingham to give Ms Hohn a rating of 2 for her mid-cycle review. Mr Hardingham had received substantive complaints about Ms Hohn’s lack of engagement with colleagues and had direct experience of this lack of engagement on Ms Hohn’s part. I accept that Ms Hohn displayed a lack of insight into the what was expected of an employee at her level, which was also apparent in her evidence in the hearing of her application. In this regard, Ms Hohn was intent on denying responsibility for any areas in which it was asserted that her performance was deficient. The manner in which Ms Hohn dealt with the email correspondence in October 2019 relating to training for an employee who reported to her is an example of her continuing lack of insight.

[120] It should have been apparent to Ms Hohn that Mr Hardingham was attempting to have a discussion at management level in relation to dealing with the issue raised by the employee. Instead of engaging in the discussion in a manner that would be expected of an employee at Ms Hohn’s level, Ms Hohn copied the employee concerned into emails in circumstances where it was inappropriate to do so. Ms Hohn refused to acknowledge that her conduct in relation to this matter was inappropriate at the time it occurred or during the hearing of this matter. In my view, this conduct is illustrative of the earlier conduct which led to the rating of 2.

[121] It is also the case that Ms Hohn accepted that she did she did not put her best foot forward in the discussions with Mr Hardingham in relation to her IPA mid-cycle review. In my view, Ms Hohn had antipathy for Mr Hardingham and that this coloured her conduct in the review. In short, the evidence establishes that Ms Hohn was not constructive and at times went out of her way to avoid engaging with Mr Hardingham who was her supervisor. I do not accept that Ms Hohn had a valid reason for this conduct or that Mr Hardingham engaged unreasonably with her. To the contrary, Mr Hardingham showed what in my view is great restraint, in the face of Ms Hohn’s responses and resistance to reasonable action he was attempting to take in relation to addressing her work performance.

[122] In circumstances where the 2 rating was appropriate, it was also appropriate that a BOT process be initiated. For the reasons set out above, any deficiencies in the procedure followed by Mr Hardingham in initiating the back on track process are explained by the circumstances in which he was operating. Those deficiencies do not detract from the validity of the reasons for the process being initiated. I am satisfied that both the rating 2 and the back on track process were reasonable management action taken in a reasonable way. Further, I am of the view that the BOT process has mechanisms to address any issues which Ms Hohn has in relation to the substantive and procedural aspects of the process and that this decision will now remove barriers to the BOT process proceeding.

[123] I am also satisfied that Mr Hardingham’s conduct in relation to requiring evidence from Ms Hohn with respect to her attendance at medical appointments was not bullying. Mr Hardingham was mistaken in relation to the evidence he was entitled to request and when corrected by HR staff of the Department, ceased to require such evidence and accepted the evidence provided by Ms Hohn. The other complaints made by Ms Hohn in relation to the manner in which she was treated by Mr Hardingham are unsustainable. Ms Hohn was not at work for a significant proportion of the time in which she alleges that she was not provided with work. While Ms Hohn was entitled to be absent on annual leave or personal leave, the amount of time she was absent meant that as a matter of practicality, she could not have been assigned to undertake project work. Those absences, combined with the other matters that Mr Hardingham was dealing with in relation to Ms Hohn, provide a reasonable explanation for Ms Hohn not being assigned to project work.

[124] None of the other conduct complained about by Ms Hohn is bullying and in my view the gravamen of Ms Hohn’s application – the IPA rating of 2 and the attempt to implement a back on track process – is reasonable management action taken in a reasonable way.

[125] Given my findings in this matter, there is no basis to consider the making of orders as contemplated by s.789FF of the Act. Amongst other requirements, a finding of bullying conduct is a prerequisite for the making of orders. 40 Accordingly, this application must be dismissed and an Order to that effect will issue. In dismissing the application, I note that any procedural or substantive issues in relation to the BOT can be dealt with via the process for implementing an BOT plan, which can now be undertaken.

DEPUTY PRESIDENT

Appearances:

Ms K Hohn on her own behalf.

Ms A Sekler of the Australian Government Solicitor for Services Australia.

Hearing details:

20 January, 21 January & 9 April.

2020.

Brisbane.

Final written submissions:

Services Australia: 14 April 2020.

Ms Hohn: 21 April 2020.

Printed by authority of the Commonwealth Government Printer

1 Transcript PN19-22.

2 Transcript PN77 to PN88.

3 Fair Work Act 2009 (Cth) s.596(4)(b); Gibbens v The Commonwealth of Australia (Department of Immigration and Border Protection) [2017] FWCFB 2812; Knight v Commonwealth of Australia (Australian Criminal Intelligence Commission) [2017] FWCFB 3896.

4 Exhibit A2 – Statement of Geoffrey Prince.

5 Exhibit R8 – Statement of Scott Hardingham

6 Exhibit R4 Statement of Alison Stephanie Lane dated 18 November 2019.

7 Exhibit R9 Statement of Sudhir Govinakovi dated 20 November 2019.

8 Exhibit R1 Affidavit of Katherine Jean Rutkin affirmed 17 January 2020.

9 Fair Work Act 2009 (Cth) s789FD.

10 Fair Work Act 2009 (Cth) s.789FD(3)(a)(ii).

11 Georges and Telstra Corporation Limited [2009] AATA 731 (24 September 2009) at para. 23; Re Ms SB[2014] FWC 2104 (Hampton C, 12 May 2014) at paras 49–51.

12 Ibid.

13 Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (6 February 2004) at para. 79, [(2004) 135 FCR 105]; Re Ms SB[2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.

14 Re Ms SB[2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.

15 Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 (Hatcher VP, 13 February 2015) at para. 102.

16 Transcript PN281-PN283.

17 Transcript PN287-PN290.

18 Transcript PN1413.

19 Transcript PN1399.

20 Exhibit R9 at paragraph 3.

21 Transcript PN1865.

22 Transcript PN1867.

23 Transcript PN303 – 305.

24 Transcript PN315 – 316.

25 Transcript PN767.

26 Transcript PN1398.

27 Exhibit R8 – Statement of Scott Hardingham Annexure SH-4.

28 Exhibit R8 Statement of Scott Hardingham Annexure SH-8.

29 Exhibit R8 Statement of Scott Hardingham Annexure SH-9.

30 Annexure D to Form F73 Response to Ms Hohn’s application.

31 Ibid Annexure SH-10.

32 Ibid Annexure SH-10.

33 Transcript PN834-835.

34 Annexure 13 to Ms Hohn’s witness statement.

35 Transcript PN1219.

36 Transcript PN1206, PN1213.

37 Exhibit R8 Annexure SH-5.

38 Transcript PN1615.

39 Exhibit R7.

40 S.789FF(1)(b)(i) of the FW Act.