Petty Veldekis v Commonwealth of Australia as represented by the Australian Taxation Office
[2023] FWC 798
•6 APRIL 2023
| [2023] FWC 798 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Petty Veldekis
v
Commonwealth of Australia as represented by the Australian Taxation Office
(C2022/3490)
| COMMISSIONER MCKINNON | SYDNEY, 6 APRIL 2023 |
Alleged dispute about matters arising under the enterprise agreement – application of clause 91 of the Australian Taxation Office (ATO) Enterprise Agreement 2017
On 15 June 2022, Ms Petty Veldekis applied under section 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute with the Commonwealth of Australia as represented by the Australian Taxation Office (ATO). The dispute is brought under the Australian Taxation Office (ATO) Enterprise Agreement 2017 (the Agreement). The Australian Municipal, Administrative, Clerical and Services Union (ASU) represents Ms Veldekis in relation to the dispute.
Ms Veldekis is employed as an APS6 Law Interpretation Officer in the ATO’s Interpretative Assistance Team. She gives complex advice on tax law and processes and has done so for more than 30 years. In recent times, her performance of ancillary administrative tasks has been called into question by her managers, and the ATO has sought to address the concerns under clause 91 of the Agreement. These efforts have largely been resisted by Ms Veldekis and the ASU on the basis that the ATO has not complied with the Agreement.
There are three questions to be determined. The first is whether the ATO complied with its obligations in how it “placed Ms Veldekis on a clause 91.1 process”. The second is whether the ATO has proper grounds to place Ms Veldekis on such a process. The third, which depends on the answer to the first two questions, is whether the ATO can now proceed to deal with the concerns it has raised under clause 91.1 in accordance with the Agreement.
I have decided that the ATO complied with its obligations when it commenced discussions with Ms Veldekis about performance-related concerns under clause 91.1 of the Agreement. In connection with those discussions, Ms Veldekis has addressed each of the ATO’s concerns. It follows that the ATO cannot proceed to deal with the concerns it has raised under clause 91.1 by progressing to the steps contemplated in clause 91.2 of the Agreement. These are my reasons for the decision.
Jurisdiction
Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains a dispute settlement term at clause 100, which provides for arbitration of disputes that have not been resolved by other means. Those other methods of dispute resolution have failed to resolve the dispute and I find jurisdiction to deal with the dispute by arbitration.
Relevant agreement terms
The Agreement is a single enterprise agreement made between the ATO and its employees at or below Australian Public Service (APS) Executive Level 2. In addition to the ATO and its relevant employees, the Agreement covers the ASU and the Community and Public Sector Union (CPSU).
Clause 4 of the Agreement declares that the Agreement provides for a “principles‑based decision-making framework”. Ten principles are said to “underpin all provisions” in the Agreement, supported by policies and guidelines as appropriate:
“a) providing a safe, secure and fair environment;
b) assisting employees to balance their work and personal commitments;
c) the ATO being as flexible as it can, taking into account the employee’s preferences and personal circumstances;
d) fostering strong cooperative relationships between the ATO and its employees;
e) safeguarding the health and wellbeing of employees;
f) respecting and valuing diversity;
g) preventing discrimination and harassment;
h) treating employees fairly and impartially;
i) making the most efficient use of resources; and
j) supporting sustainable environmental management.”Clause 8 of the Agreement deals with ATO policies and guidelines. It commits the ATO to consultation on policies and guidelines relating to provisions of the Agreement, although those policies and guidelines are not incorporated into, and do not form part of, the Agreement. The Agreement prevails to the extent of any inconsistency with a policy, guideline or procedure. It is however subject to the Public Service Act 1999 (PS Act), the Public ServiceRegulations 1999 (PS Regulations) and the Australian Public Service Commissioner’s Directions 2022 (APSC Directions), again to the extent of any inconsistency.[1]
Clause 91 of the Agreement appears in Section F of the Agreement, which deals with “Performance and Capability”. Clauses 90 to 92 of Section F deal with performance, while clauses 93 to 99 deal with capability development. Clauses 90 to 92 are set out in full below:
“SECTION F – PERFORMANCE AND CAPABILITY
90. Performance Framework
90.1The ATO performance framework will assist employees achieve performance
outcomes through collaboration that:
a) delivers ATO business objectives;
b) assists employees to develop the capabilities they need for their career;
c) builds and consolidates professional relationships;
d) provides regular, constructive feedback; and
e) shares responsibility for performance
Performance and development agreements
90.2All employees will have a team plan and individual performance and development agreement that is developed, reviewed and updated through discussion with their manager.
90.3 The individual performance and development agreement will:
a) set out the work performance goals of the employee. These should be aligned to team and ATO strategic goals and reflect the role of the employee;
b) identify employees’ career and learning and development needs, how they will be met and the outcomes measured; and
c) specify the mutual expectations between an employee and their manager, and the support required to achieve the agreed goals and behaviours.90.4Achievement of the goals will be supported by open and genuine feedback conversations (both formal and informal) throughout the year. The conversations will:
a) occur on a regular basis and as agreed, but will be at least quarterly (with formal conversations occurring at least twice a year);
b) recognise employees’ contributions to individual, team and corporate outcomes and place equal emphasis on business outcomes and behaviours demonstrated in achieving those outcomes;
c) include two-way feedback on the performance and development agreement and may include agreed sources in addition to the manager’s observations to ensure balance and objectivity; and
d) clarify next steps around mutual expectations and performance issues as soon as practicable after they arise.90.5Employees should be given help at the earliest practicable opportunity to address performance gaps.
Recognition
90.6The ATO will have a recognition scheme which is aimed at recognising the achievements of employees.
91. Closing performance gaps
91.1If a manager forms an opinion that an employee’s work performance is at risk of falling, or has fallen, below the standard expected for that particular job, the manager will discuss this concern with the employee. The discussion will consider any issues that may be affecting performance and determine any action that needs to be taken to address the situation.
If action taken under this subclause does not lead to a satisfactory level of performance then action should be taken under subclause 91.2.
91.2Employees should be given help to improve their work performance to a satisfactory level through fair procedures that protect the interests of the ATO, its employees and its clients.
Those procedures may take the form of a Performance Improvement Plan that includes role clarification (including the manager’s expectation of the role) and/or training, and/or some other support or development activity.
91.3The employee may be assigned alternate duties if there is available work that the employee is capable of performing and that is in the interests of the employee and the ATO.
91.4If the employee has not achieved a satisfactory performance level within a reasonable period of time then the manager should recommend action be taken under clause 92. The employee will be counselled as to the likely consequences if the employee does not reach the standard expected.
91.5Where in the past six months an employee has had action taken in relation to clause 91 and the manager forms the opinion that the employee is again at risk of falling below the general standard expected for that particular job, the manager will again discuss their concerns with the employee before taking action under this clause or clause 92.
92. Managing underperformance
92.1This clause only applies to ongoing employees who are no longer on probation.
92.2 These underperformance procedures are not to be used where:
a) it is suspected that an employee has breached the APS Code of Conduct, or
b) it is reasonably suspected, and a medical practitioner confirms the employee’s physical or mental capacity may be a cause of their unsatisfactory performance, or
c) there is a genuine case of the services of an employee no longer being able to be effectively used because of technological or work practice changes in the ATO.92.3Before the delegate decides whether or not to conduct a formal assessment of the employee’s performance:
a) The employee must be provided with the manager’s recommendation and have a reasonable opportunity to put their case to the delegate including any factors which may have materially prejudiced the employee from achieving the expected standard, and
b) the delegate must be satisfied the procedure to date has been fair and free from bias.92.4If the delegate decides a formal assessment is appropriate, a written warning must be issued to the employee which:
a) details the problems with the employee’s performance and confirms the standard required to be achieved to be satisfactory;
b) specifies how long the employee has got to reach the standard. This period will generally be eight weeks, except where the delegate determines that a different period is appropriate. The written warning will include the reasons for the chosen period; and
c) sets out the likely consequences if the employee does not reach the required standard and advises the employee may request their employment be terminated before the completion of the assessment period.92.5The employee’s performance will be assessed on a regular basis throughout the assessment period. Where in the opinion of the delegate there would be benefit from the employee’s performance being assessed by an independent assessor, the delegate will appoint an assessor from outside the immediate work area. The employee will be given an opportunity to comment on each progress report.
92.6The employee may request annual, purchased or long service leave during the assessment period, but this will only extend the assessment period if this is agreed by the delegate or the leave was approved prior to the decision to commence the assessment period.
92.7The assessment period will be extended if the employee is absent due to their personal illness or injury, but only if this is supported by a certificate from a health practitioner for:
a) a single period of five days or more; and/or
b) broken periods totalling to 20% or more of their period of review.
The length of the extensions will be the total number of working days of a) and b) above.92.8At the end of the formal assessment period, if performance has improved to the standard expected, no further action will be taken.
92.9If performance is still unsatisfactory at the end of the assessment period, the employee will be given seven days to show cause why action should not be taken against them.
The delegate may decide to:
a) move the employee to a more suitable work unit; or
b) a reduction in salary and/or classification (effective one month after notification if no request for a review is lodged under clause 92.10); or
c) termination of employment on the grounds of unsatisfactory performance of duties.92.10An employee who is reduced in salary or classification without consent may request a review of the decision. In accordance with subclause 86.2 the ATO will stay the decision made under subclause 92.9 b) pending the outcome of the primary review.”
History to the dispute
The ATO manages employee performance through, among other things, “Compass check-ins”. These are intended to be regular meetings between an employee and their manager to talk about the employee’s performance and development. One outcome of a Compass check-in is that the employee is given a “track rating”, indicating that they are either “on track” or “not on track”. Until March 2022, it does not seem to be in dispute that Ms Veldekis’ performance has always been “on track”. In addition to Compass check-ins, employees have regular “case callovers” with managers to discuss any issues with their allocated cases.
On 17 November 2021, there was a case callover between Ms Veldekis and her Team Leader, Mr Robert Zhou. Also in attendance was Ms Sarah Marshall, Team Director. One outcome of the discussion was a temporary pause on the allocation of new work so that Ms Veldekis could progress and finalise existing work.
On 2 February 2022, a further case callover was held between Ms Veldekis and Mr Zhou. Also in attendance were Mr Jeffrey Lapidos, Branch Secretary of the ASU (Taxation Officers’ Branch) and Ms Marshall. Mr Zhou identified administrative and procedural issues in cases allocated to Ms Veldekis. These issues were summarised in an email from Mr Zhou on 3 February 2022, with Mr Zhou advising that he would consider allocating new work to Ms Veldekis from the following week.
On 10 February 2022, Ms Veldekis provided a detailed response to the email summary from Mr Zhou. Ms Veldekis set out in her response how she had addressed each of the matters identified in Mr Zhou’s email of 3 February 2022.
On 23 March 2022, Ms Veldekis had a Compass check-in with Mr Zhou over the phone. Also in attendance were Ms Marshall, and Mr George Northend, another ASU representative. Mr Zhou told Ms Veldekis that he had concerns about her performance. The notes of the check‑in, recorded in Compass, say:
“Check in held with Petty at 1pm on 23 March 2022. Attended by Petty Veldekis, Robert Zhou, Sarah Marshall and ASU representative George Northend (ATO EL1). I explained that I have concerns that Petty's performance has fallen below the expected standards and gave feedback as part of Clause 91.1 of the ATO Enterprise Agreement 2017. Further details attached on Compass record: PDF of follow up email sent to Petty on 24 March 2022. As explained in this follow up email, Compass rating will be updated to 'not on track'.”
The email of 24 March 2022 explained Mr Zhou’s concerns about Ms Veldekis’ performance falling “below the expected standards”. It described in detail some of the observed performance gaps in the areas of following procedure and active case management. It noted previous discussions in relation to factors that might be affecting her performance and provided information about the expectations of her role. Mr Zhou proposed a four week “plan of action” from Monday 4 April 2022 to Monday 2 May 2022.
As Ms Veldekis works part time and was on approved leave the following week, she did not see the email of 24 March 2022 until the afternoon of 30 March 2022. This meant in practical terms, she did not have adequate time to respond to the issues raised by Mr Zhou by his nominated deadline of 31 March 2022.
Instead, on 4 April 2022, the ASU (on behalf of Ms Veldekis) notified the ATO Deputy Commissioner, Emma Rosenzweig, of a dispute under clause 100.3 of the Agreement and requested assistance to resolve the dispute. ATO Assistant Commissioner, Jenny Lin, reviewed the relevant materials and the parties met to discuss the dispute on 22 April 2022.
On 6 May 2022, Assistant Commissioner Lin wrote to the ASU (on behalf of Deputy Commissioner Rosenzweig) confirming her view that the ATO had complied with its obligations in raising performance concerns with Ms Veldekis under clause 91.1 of the Agreement. She noted that the identified performance gaps were uncharacteristic given the tenure and experience of Ms Veldekis and confirmed that the ATO was committed to supporting Ms Veldekis to improve her performance.
It is not apparent that any further steps were then taken in relation to the matter until 15 June 2022, when Ms Veldekis referred the dispute to the Commission pursuant to clause 100.4 of the Agreement. A mention and three conferences were held in the Commission on 21 June 2022, 12 July 2022, 29 August 2022 and 6 October 2022. One outcome of these conferences was an agreed 5‑week period during which Ms Veldekis would perform her ordinary duties and be given regular feedback and support in relation to her performance against relevant active case management principles.
The agreed 5-week period commenced on 31 August 2022. During this time, Ms Veldekis was given performance feedback by a different manager, Mr William Ho. This occurred in the form of both weekly check-in meetings and follow up emails or discussion notes. Ms Veldekis made at least 30 client contacts and recorded corresponding notes in the ATO’s software. She also completed 3 Ministerials, 1 Private Ruling, 1 Complaint and 1 First Home Super Saver Hardship request. The quality of her advice is not in question.
On 29 September 2022, the ATO sent a draft action plan to the ASU and Ms Veldekis for their review and comment. The purpose of sending the draft action plan was to give Ms Veldekis and her representative a meaningful opportunity to have input into an action plan ahead of its implementation, in the event that performance concerns remained at the end of the agreed 5-week period.
The 5-week period ended on 5 October 2022. On 4 October 2022, Ms Veldekis commenced a period of leave. On 7 October 2022, Mr Ho advised Ms Marshall of his opinion that Ms Veldekis’ work performance remained below the standard expected for her role.
On 11 October 2022, copies of all feedback provided to Ms Veldekis over the 5‑week period were provided to the ASU via email, as Ms Veldekis was on leave. Subsequent attempts to set up a meeting with Ms Veldekis were unsuccessful. Ms Veldekis returned from leave for one day on 17 October 2022 and then resumed leave from 18 October 2022.
On 4 November 2022, Ms Marshall wrote to Ms Veldekis via the ASU. She communicated Mr Ho’s opinion and referenced the detail of his concerns, being the contents of the weekly check-ins and follow up emails. She advised that ongoing support would now be provided under clause 91.1 of the Agreement and proposed a meeting when Ms Veldekis returned from leave. She advised that the ATO would be seeking to commence an action plan under clause 91.1 as soon as reasonably possible after the meeting.
On 14 November 2022, Ms Veldekis returned from leave. Ms Marshall sent her an email to set up a time to discuss the material provided on 4 November 2022. In response, the ASU emailed a complaint to Deputy Commissioner Rosenzweig about Ms Marshall’s potential breaches of clauses 9.2 and 9.3 of the Agreement, the lack of any basis in fact for the opinion of Mr Ho and an allegation that Ms Marshall was bullying Ms Veldekis. The ASU advised that they saw no point in meeting with Ms Marshall given her refusal to tell Ms Veldekis why she was not meeting performance expectations.
On 23 November 2022, the ATO wrote to the ASU seeking to confirm whether Ms Veldekis and the ASU would meet with Ms Marshall to discuss the performance concerns.
On 25 November 2022, the ASU responded to the ATO, asserting that:
Ms Marshall had failed to provide either the ASU or Ms Veldekis with her opinion as to the performance concerns and the basis for that opinion.
Clause 91.1 of the Agreement was a formal process, requiring a discussion with the employee, consideration of any issues affecting the employee’s performance, and a determination of what action needed to be taken.
The underlying principles requiring the ATO to treat Ms Veldekis fairly meant that Ms Veldekis was entitled to be given notice of the clause 91.1 opinion and detailed reasons for the opinion before the discussion occurs, and that “general” feedback provided during the 5‑week period did not meet this obligation.
By not being clear about the reasons for forming her opinion, Ms Marshall had not complied with section 50(d) of the Australian Public Service Commissioner’s Directions 2022 (APSC Directions) which obliges supervisors to ensure “the APS employee is provided with clear, honest and timely feedback about the employee’s performance”.
The ASU did not directly answer the question about whether Ms Veldekis would meet with Ms Marshall to discuss the matter. Instead, it said if the ATO agreed with the ASU’s submission, and agreed to implement it, “they can move forward to the next step”.
On 5 December 2022, Ms Marshall wrote to Ms Veldekis to advise that a 4-week action plan set out in the email would commence on 12 December 2022. With a break over the Christmas period to accommodate for pre-planned leave, the plan would end on 22 February 2023. Ms Marshall communicated her own opinion under clause 91.1 of the Agreement that Ms Veldekis’ performance had fallen below the standard expected for her job. In doing so, she identified three specific concerns and provided detailed examples for each. She invited input in relation to any factors that may be affecting Ms Veldekis’ performance. Ms Marshall also foreshadowed the potential for the matter to progress to a clause 91.2 “Right Track” plan if the concerns were not resolved. Ms Veldekis took leave from 12 to 22 December 2022.
On 23 December 2022, Ms Veldekis provided a detailed response to the issues raised by Ms Marshall in support of her opinion of 4 November 2022. Rather than providing it directly to the ATO, the response was filed in the Commission as part of submissions in this case. Ms Veldekis took leave again from 3 January 2023 to at least 3 February 2023.
Did the ATO comply with its obligations in how it placed Ms Veldekis on a clause 91.1 process?
Clause 91.1 is a straightforward provision of the Agreement. It requires simply that a manager - who forms an opinion that an employee’s work performance is or may fall below the standard expected for their job - discuss their concern with the employee. The content of the discussion is prescribed to the extent that it must cover at least the nature of the concern, any identified issues that may be affecting performance, and any action needed to address the situation.
Clause 91.1 does not require more than it says, and nor is it limited to a single exchange. It is also important to bear in mind that a discussion can occur orally or in writing.[2] In the context of clause 91.1, the requirement for discussion demands that the manager try to engage in mutual communication with the employee in a genuine attempt to resolve the performance concern(s).[3] The start of a discussion may lead to further discussion – for example, where an employee requests time to consider and respond to the issues raised, or the parties agree to think about next steps and reconvene. These and other steps can be taken to ensure that any discussion is procedurally fair from beginning to end. In a practical sense, steps that are necessary to ensure procedural fairness will depend on how things evolve once the discussion gets underway.
ATO policies and guidelines, including the “Manager Guide” and the “Guide for managing underperformance in the ATO”, do not form part of the Agreement. They supplement the Agreement and public sector employment laws, including the APSC Directions. Their purpose is to assist managers in meeting their obligations under the Agreement and relevant public sector employment laws in connection with the management of employee performance. A failure to follow such policies and guidelines is not, without more, a breach of the Agreement.
To the extent that a more formal process is contemplated by clause 91.1 of the Agreement, it is found in the second paragraph of the clause. It is a condition precedent of such a process that discussions under the first paragraph of clause 91.1 (and any outcomes of those discussions) have not resolved the performance concerns. Upon that event, action can be taken under clause 91.2 of the Agreement.
The precise content of the more formal processes that can be taken under clause 91.2 of the Agreement is not prescribed and depends on the circumstances. Options include a performance improvement plan, training, other support or development activities. The flexibility inherent in clause 91.2 is important to allow for support to be tailored to the individual and circumstances concerned. There is also the capacity for an employee to be assigned suitable alternate duties under clause 91.3 of the Agreement if that is in the interests of both the employee and the ATO. As with clause 91.2, clause 91.3 is only enlivened if discussions under clause 91.1 have not resolved the performance concerns.
I do not agree with the submission that the ATO cannot validly hold discussions with an employee under clause 91.1 of the Agreement if it has failed in some way to comply with clause 90 of the Agreement, although of course it is desirable that any such obligations are met. Clause 91 of the Agreement does not operate subject to clause 90 of the Agreement. The two clauses are capable of both separate and concurrent operation. Clause 90 of the Agreement establishes the ATO’s performance framework, with some general and some specific provisions which underpin the more detailed processes in clauses 91 and 92 of the Agreement. Clause 90 of the Agreement operates alongside the APSC Directions, including at section 50 (which requires supervisors to manage employee performance) and section 51 (which requires employees to participate constructively in performance management processes). The clause cannot operate in a way that negates compliance with the APSC Directions because in the event of an inconsistency with the Agreement, the APSC Directions prevail.
The specific obligations in clause 90 of the Agreement include the requirement for all employees to have a team plan and an individual performance and development agreement, and for there to be regular two-way feedback conversations at least quarterly throughout the year. There are also general principles embedded within clause 90, including that employees should be given help at the earliest practicable opportunity to address performance gaps. Supplementing this principle is the requirement to hold performance-related discussions with an employee under clause 91.1 of the Agreement once a manager forms the requisite opinion.
I reject the submission that the content of these discussions is limited to an assessment of the employee’s performance against the content of their individual performance and development agreement. It is clear on the evidence that performance expectations for APS employees are set by a combination of public sector employment laws, the Agreement, documents established under the Agreement’s performance framework and the contract of employment more generally. Some of these will be express, and some will be implied. Ancillary administrative tasks are a good example of the kind of performance expectations commonly required of professional employees, but rarely particularised in minute detail.
At the time the ATO sought to address performance concerns with Ms Veldekis in March 2022, a team plan had been implemented in relation to Ms Veldekis’ team (if only just) and her Compass Record shows an agreement having been reached on performance expectations on 7 January 2021. Certain “goals” also set at that time had expired on 30 June 2021, but the performance expectations remained. Compass “check ins” had occurred on 12 April 2021, 26 July 2021 and 23 March 2022. Case callovers had also occurred on 17 November 2021 and 2 February 2022, during which feedback was provided to Ms Veldekis about cases that required further action.
I find that the ATO met the requirements of clause 90 in relation to Ms Veldekis. The ATO held regular feedback meetings with Ms Veldekis “at least quarterly” through the combination of Compass check-ins and case callovers. Compass check‑ins were conducted “at least twice a year”, in accordance with clause 90.4(a) of the Agreement.
I also find that the ATO met its obligations under clause 91.1 of the Agreement in relation to Ms Veldekis. This occurred when Mr Zhou communicated his opinion to Ms Veldekis over the telephone on 23 March 2022 during a check-in meeting. It occurred again on 4 November 2022 when the opinion of Mr Ho was communicated to Ms Veldekis in writing after attempts to set up a meeting to discuss those matters in person failed, and again on 5 December 2022 when Ms Marshall communicated her own opinion about the performance of Ms Veldekis by email.
For these reasons, the answer to the first question is “Yes”. The ATO complied with its obligations under clause 91.1 when, having formed an opinion that the performance of Ms Veldekis was not meeting their expectations, her managers sought to discuss the matter with her. Ms Veldekis was asked if there were any issues that may be affecting her performance, and a 4-week action plan to address her performance concerns was proposed. I am satisfied that efforts were made by the ATO to engage in mutual communication with Ms Veldekis about her performance in a genuine attempt to resolve the performance concerns.
Did the ATO have proper grounds to place Ms Veldekis on a clause 91.1 process?
The answer to this question is “Yes”, but only to the extent that the question is directed to the first paragraph of clause 91.1 of the Agreement. A relevant opinion had been formed, which is all that was required to trigger the capacity for a manager of Ms Veldekis to hold discussions with her under clause 91.1. I reject the submission that clause 91.1 cannot be used to deal with concerns that are only about the procedural or administrative aspects of a more substantive role. The words of clause 91.1 should be given their ordinary meaning, and encompass, as they do, any aspect of an employee’s performance to which job standards apply.
To the extent that the question is directed to the second paragraph of clause 91.1, the answer to the second question is “No”. The second paragraph says this:
“If action taken under this subclause does not lead to a satisfactory level of performance then action should be taken under subclause 91.2.”
Only Ms Veldekis and Mr David Lavender, another manager in her work area, gave evidence in the proceeding. I accept their evidence as to the facts of the matter. I find that the concerns expressed about Ms Veldekis’ performance, while valid at least to begin with, have been satisfactorily addressed by Ms Veldekis. To illustrate this conclusion, it is necessary to examine the content of the opinions formed by each manager for the purposes of clause 91.1.
The opinion of Mr Zhou
Mr Zhou’s opinion was expressed in connection with earlier case callovers on 17 November 2021 and 2 February 2022, during which Mr Zhou had raised concerns about certain aspects of Ms Veldekis’ work. In each respect, the concern had been remedied by Ms Veldekis taking the action required of her by Mr Zhou.
The opinion of 23 March 2022 relies on three examples of alleged substandard performance. These, and the responses of Ms Veldekis, are summarised in the table below.
| Mr Zhou’s concerns of 23 March 2022 | Ms Veldekis’ response |
| RA (private ruling case): a letter to the client was emailed in Word rather than PDF format, and the “RDRP template” was not loaded when requesting information. The case status was not set ‘on hold’ while waiting for client information, and a note recording the sending of an email did not include a copy of the email itself. Ms Veldekis negotiated a two‑month period for the client to provide a response, which was considered excessive. Reference was made to the Taxpayers’ Charter, which sets service standards of 28 days for rulings. The case had been with Ms Veldekis for over 150 days. | Issue of letter being sent in wrong format was raised with Ms Veldekis on 24 February 2021. Error acknowledged: Ms Veldekis was rushing to acknowledge a case only allocated after 3 months. Has not happened again, nor has the RDRP template issue, which was raised with Ms Veldekis while she was on leave and resolved the day after she returned. Matter had been addressed and resolved in the February 2022 callover. The email was not included in the file record because it was a collated version of existing information on file, prepared for an internal review by her senior technical officer. Consistent with internal guidelines, the case was not put ‘on hold’ as it was a complex case still under review by her subject matter expert. The 28‑day service standard applies to rulings where all information has been provided. An extended due date can be negotiated in complex cases, as had been done. Much of the delay was dependent on the approvals process, which was outside her responsibility. |
| CM (private ruling case): Ms Veldekis did not contact the client for 114 days, from 5 October 2021 to 27 January 2022 (active case management requiring contact within 14 days). The case had been with Ms Veldekis for over 260 days. | After contacting the client on 5 October 2021, the case was referred to an internal cross-business advice line. There was then back and forth between the relevant experts/advisors which took time (outside Ms Veldekis’ control). Ms Veldekis was also on leave from 22 December 2021 to 24 January 2022. On 21 March 2022, the client was advised of progress on the case and the deadline for negotiating a further due date by 4 April 2022 had not yet passed. Case not raised in February callover. |
| JSB (death benefit case): a note recorded on the file indicates that Ms Veldekis sought agreement from the agent to only receive contact from her if further information was needed or there was a “clear finalisation status”. | Mr Zhou had reminded Ms Veldekis to have regular contact with this client “unless otherwise agreed”. There was an agreement between Ms Veldekis and the client as recorded in the file. The client also contacted Ms Veldekis for a status update on 29 February 2022. |
It is apparent from the responses provided by Ms Veldekis that in each example where feedback was provided by Mr Zhou, this was either acknowledged and appropriate steps were taken to act in accordance with his required “actions”, or a reasonable explanation was provided by Ms Veldekis for the matters raised by Mr Zhou.
The responses provided by Ms Veldekis, when considered having regard to all relevant circumstances including the proper application of the 28-day service standard, the complexity of cases Ms Veldekis was dealing with, Mr Zhou’s own instructions to Ms Veldekis about the capacity for client agreement in appropriate cases, and the involvement of persons other than Ms Veldekis in delays progressing cases, should have been sufficient to resolve Mr Zhou’s concerns, if necessary by the implementation of agreed outcomes to guide future performance. If they were not, it was incumbent on Mr Zhou to more clearly articulate either the actions that had not met his expectations, or the additional steps that Ms Veldekis was required to take to address his concerns. The evidence does not establish that this was done.
The opinion of Mr Ho
On 7 October 2022, Mr Ho expressed his opinion that Ms Veldekis’ “work performance remains below the standard expected for her particular job”. The specific concerns expressed by Mr Ho were those “shared and discussed with” Ms Veldekis over the 5-week period from 31 August 2022 to 5 October 2022, as recorded in “the weekly check-ins and ‘as discussed’ notes” relating to that period.
On my review of these check-ins and notes, it is apparent that in each case where concerns about performance were raised with Ms Veldekis, they were either acted upon and resolved by Ms Veldekis during the 5‑week period, within the timeframe specified by Mr Ho, or they were misplaced. This is because corrective action was taken by Ms Veldekis even in cases where there was a difference of opinion about her manager’s technical assessment of what was required, such as the erroneous applications of “IA Practice Note – Managing requests for information” and the “IA reference guide – Guidance”.
Ms Veldekis was best placed to assess how these practice notes and guides applied in the context of the particular cases she was dealing with, and I accept her observations in this regard. In the one instance where Ms Veldekis asked Mr Ho for advice on the best way to progress a case due to difficulty eliciting a response from another internal team member, Mr Ho did not support Ms Veldekis. Instead, he used her request as an example of Ms Veldekis failing to meet expectations satisfactorily and instead unhelpfully directed her elsewhere. In my view, this was inconsistent with the various obligations on the ATO to support Ms Veldekis in the performance of her duties where required.
The opinion of Ms Marshall
Ms Marshall’s opinion in relation to the performance of Ms Veldekis on 5 December 2022 was expressed in relation to three areas: “active case management”; “stakeholder and client management”; and following “established priorities, practices, and methodologies to deliver quality outcomes.” In each case, the examples given by Ms Marshall were drawn from cases and concerns identified by Mr Ho. However, as I have found above, those concerns had been appropriately addressed by Ms Veldekis.
It follows that Ms Marshall’s opinion did not rest on a proper foundation. And nor is it apparent that Ms Marshall gave proper consideration to all of the relevant circumstances in forming her opinion, including the experience and expertise of Ms Veldekis, the lack of positive support from Mr Zhou and Mr Ho, the corrective steps taken by Ms Veldekis, the nature of cases under her consideration, the responsibility of others for delays attributed to Ms Veldekis, errors made by Mr Ho in relation to the application of ATO guidance and the fact that Ms Veldekis was absent on leave during some of the periods in respect of which concerns were raised.
In relation to “active case management”, Ms Marshall expressed the opinion that Ms Veldekis was not progressing her cases, not working with independence, and not progressing work tasks. The specific example relied upon either ignored or overlooked the agreement reached on 20 September 2022 for Mr Lavender, rather than Ms Veldekis, to take responsibility for the task. To the extent that the concern was about a delay in seeking internal technical advice, there is no evidence that this had previously been raised in any of the weekly check-ins or discussion notes.
Ms Marshall expressed the opinion that the ATO had been required to provide regular and consistent feedback to Ms Veldekis, with no significant improvement in her progressing cases. This was plainly unfair, in circumstances where the ATO had a responsibility under clause 90 of the Agreement to provide regular feedback to Ms Veldekis, the ATO had expressly agreed to do so during the 5-week review period, and Ms Veldekis had acted upon each of the action items set for her by Mr Ho. The ATO had agreed, as part of the process, to provide Ms Veldekis with additional 1-1 technical support. There is no evidence that otherwise, Ms Veldekis was incapable of working independently, as she had done competently for decades.
In relation to “stakeholder and client management”, Ms Marshall expressed the opinion that Ms Veldekis was “not maintaining early and continuous engagement with internal and external stakeholders throughout the case to keep them informed on the progress of their case and to facilitate transparency, timeliness and service focus.” The specific example relied upon (Siebel case ID: 1-U86F3BP-DL) involved a misunderstanding on the part of Mr Ho about “IA Practice Note – Managing requests for information”, which did not apply to the case in question. The misunderstanding was adopted by Ms Marshall in support of her opinion. Ms Marshall also failed to acknowledge the (unnecessary) step Ms Veldekis had taken to address Mr Ho’s concern on 21 September 2022 by contacting the client and recording the contact on file.
In relation to following “established priorities, practices, and methodologies to deliver quality outcomes”, Ms Marshall expressed the opinion that Ms Veldekis was not following “appropriate procedures and guidelines” in managing her cases. She gave the example of the 14-day delay uploading a document on the ATO’s record keeping software (Siebel case ID: 1-V0A8KEP-TT). But as noted above, this matter was resolved by the actions of Ms Veldekis on 13 and 27 September 2022. Unfairly, Ms Marshall also expressed the opinion that Ms Veldekis had not maintained an appropriate level of communication with the client throughout the case “despite feedback about this failure in each week” of the 5-week review period. The weekly check-in notes do not record any such feedback. They do record Ms Veldekis being asked to contact the client on 13 and 27 September 2022, which is precisely what Ms Veldekis did.
Is the ATO entitled to proceed with the clause 91.1 process?
Given my conclusions in relation to the second question, I am not persuaded that action taken under clause 91.1 has not established a satisfactory level of performance on the part of Ms Veldekis. Things have not reached the stage where further action can now be taken under subclause 91.2 of the Agreement in relation to the matters raised.
This does not mean that further discussion might not be required in the future in relation to the performance of Ms Veldekis, if her manager once again forms the opinion that performance concerns warrant discussion under clause 91.1 of the Agreement. The formation of any such opinion requires consideration of both what is being done well and where improvement might be required. Subsequent discussions in connection with any opinion expressed should occur with open minds and a willingness to find common ground in a way that both supports Ms Veldekis and achieves the desired results.
It is incumbent on Ms Veldekis to participate constructively in future discussions under clause 91.1 so that the issues can be resolved at the earliest possible opportunity. The approach taken since March 2022 has not always been consistent with this obligation, although responsibility for same can largely be attributed to the misunderstanding of her representatives in relation to how and when discussions under clause 91.1 can occur. Given the subject matter of this decision, such conduct should not be repeated.
I also recommend that the ATO provide refresher training to managers in the Interpretative Assistance Team on effective implementation of the ATO “Manager Guide” and the “Guide for managing underperformance in the ATO”, with a particular emphasis on the provision of positive support for employees.
Finally, one of the remedies sought by the ASU in relation to the dispute was an agreed transfer for Ms Veldekis to another suitable position in accordance with clause 91.3 of the Agreement. I agree with the ATO that an order of this kind would be beyond the scope of this dispute, including because of the conclusion I have reached about its capacity to continue dealing with the performance concerns beyond clause 91.1 of the Agreement.
The dispute is determined accordingly.
COMMISSIONER
Appearances:
J Lapidos of the Australian Services Union for the applicant.
C Mann of Australian Government Solicitor for the respondent.
Hearing details:
2023.
Sydney (by video):
February 13.
[1] Fair Work Act 2009 (Cth), s.40(1).
[2] The Australasian Meat Industry Employees Union [2015] FWCFB 5228 at [25] and [29].
[3] A similar approach was taken in DP World (Fremantle) Ltd & Ors v Construction, Forestry, Maritime, Mining and Energy Union [2019] FWCFB 3965 at [29].
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