Rasia v University of Sydney
[2011] NSWWCCPD 5
•2 February 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Rasia v University of Sydney [2011] NSWWCCPD 5 | ||||
| APPELLANT: | Jerome Rasia | ||||
| RESPONDENT: | University of Sydney | ||||
| INSURER: | Allianz | ||||
| FILE NUMBER: | A1-4821/10 | ||||
| ARBITRATOR: | Mr Paul Sweeney | ||||
| DATE OF ARBITRATOR’S DECISION: | 8 October 2010 | ||||
| DATE OF APPEAL DECISION: | 2 February 2011 | ||||
| SUBJECT MATTER OF DECISION: | Section 11A of the Workers Compensation Act 1987; reasonable action of employer with respect to performance appraisal, discipline or dismissal; review of Arbitrator’s findings of fact based upon credit of witnesses; requirements as to proof of actual bias. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Self-Represented Worker | |||
| Respondent: | Moray & Agnew Solicitors | ||||
ORDERS MADE ON APPEAL: | The determination made by the Arbitrator as recorded in Certificate of Determination dated 8 October 2010 is confirmed. No order as to costs of this appeal | ||||
BACKGROUND TO THE APPEAL
The appellant, Mr Jerome Rasia, seeks leave pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to bring an appeal from the decision of an Arbitrator, Mr Paul Sweeney, made on 8 October 2010. Mr Rasia had sought orders against his employer the University of Sydney (the respondent) in respect of lump sum entitlement pursuant to s 66 and s 67 of the Workers Compensation Act 1987 (the 1987 Act). An award was entered by the Arbitrator in favour of the respondent.
Mr Rasia, who is 57 years of age, commenced employment with the respondent as an Accounting Officer Level 5 Step 1 on 16 February 2001. He was, until 21 March 2005, employed at the College of Humanities and Social Sciences. In that month he took up duties, on secondment, at the School of Medical Sciences. In May 2005 Mr Rasia’s position was transferred to the School of Medical Sciences (Physiology). His position, which was confirmed in correspondence received by him from the respondent dated 23 May 2005, was as a full-time Administrative Officer. His classification, as noted in that correspondence, was that of a Higher Education Officer Level 5 and his salary was determined “at Step 5”. All other conditions of his employment remained the same.
In his new position Mr Rasia was assigned to perform his duties at both Physiology and the Brain and Mind Research Institute (BMRI). It is Mr Rasia’s evidence that he sought the transfer to the School of Medical Sciences with a view to advancing his career. He reported to Ms Lali Jacob of Physiology. Ms Jacob reported to Mr Gurudutt Shenoy, Financial Manager of the school.
In September 2006, in circumstances which, having regard to the evidence before the Commission, were controversial, Mr John Dodson was appointed as Mr Rasia’s supervisor by the Associate Dean and Head of School, Professor Chris Murphy.
In November 2006 Mr Rasia was directed by Professor Murphy to attend a Performance Management and Development (PM&D) meeting fixed for 20 November 2006. This meeting had been appointed in place of one fixed earlier on 13 November 2006 which had not proceeded. On that day he was transferred to perform his duties full time at Physiology.
A PM&D assessment dated 20 November 2006 was prepared following a meeting between Mr Rasia and Mr Dodson. The “outcomes sheet” relating to that assessment, which is in evidence, was sighted by Professor Murphy who wrote at the foot of that document “I am totally dissatisfied with this PM&D”.
A Performance Improvement Plan (PIP) concerning Mr Rasia’s work was submitted to him in February 2007. That PIP was overseen by Ms Kimberly Corke-Daniele, Case Coordinator with the respondent’s Human Resources Department. The content of that PIP was objected to by Mr Rasia over a period of weeks. The PIP, as amended, commenced on 5 March 2007.
At a meeting held on 13 April 2007 Mr Rasia was informed that his performance during the PIP had been unsatisfactory and that the matter was to be referred to a Delegated Officer (staffing) in accordance with the respondent’s General Staff Agreement 2006-2008.
On 1 June 2007 a PIP outcome sheet was forwarded to the Human Relations Services Centre. On 15 August 2007, following certain objections raised by Mr Rasia to the appointment of a Delegated Officer (investigation), Ms Carroll Graham, Pharmacy Faculty Manager, was appointed Delegated Officer (investigation).
On 12 September 2007 a report by Ms Graham recommended termination of Mr Rasia’s employment. That recommendation was the subject of review by a Review Committee. Ms Graham’s recommendation was confirmed. Written notice of termination of employment was given by the respondent to Mr Rasia by letter dated 22 November 2007, the date of termination being 29 November 2007. Subsequent proceedings concerning allegations of wrongful dismissal were later settled. Settlement included provision to permit resignation by Mr Rasia.
On 5 March 2008 Mr Rasia provided the respondent with a “Workers Injury Claim Form” in which a psychological injury, being anxiety and depression, was alleged. The date of that injury was stated to have been 1 September 2006. Notice of denial of that claim was given to Mr Rasia by the respondent’s insurer by letter dated 11 August 2008. A claim in respect of lump sum compensation was made on behalf of Mr Rasia by his solicitors by letter dated 21 December 2009. A notice issued pursuant to s 74 of the 1998 Act, in which liability was denied, was given by the insurer to Mr Rasia on 13 January 2010. That notice placed reliance upon the provisions of s 11A of the 1987 Act.
The dispute concerning Mr Rasia’s entitlement for compensation benefits was the subject of an Application to Resolve a Dispute filed with the Commission on 16 June 2010. The matter was listed before the Arbitrator for conciliation/arbitration on 2 September 2010 at which time the matter proceeded to hearing. The matter was part heard on that day and the hearing concluded before the Commission on 13 September 2010. A Certificate of Determination issued on 8 October 2010.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 8 October 2010 records the following determination:
“1. Award for the respondent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An application seeking leave to appeal against the decision of the Arbitrator was filed with the Commission on 5 November 2010.
ISSUES IN DISPUTE
The grounds of appeal have been prepared by Mr Rasia without the benefit of professional legal advice. Whilst he was represented at the hearing before the Arbitrator by experienced solicitors and counsel, the appeal has been brought by Mr Rasia in person.
The documentation prepared by Mr Rasia include, at [2.8], “grounds of appeal” which do not directly address the findings of the Arbitrator, but represent a series of challenges to the conduct of the respondent. That document is accompanied, at [2.9], by “Statements of Support” which include submissions as to the facts and argument concerning suggested breach of contract and breach by the respondent of the provisions of the Protected Disclosers Act 1994.
The arguments raised by Mr Rasia, stated generally, may be perceived as challenging the reasonableness of the actions taken by the respondent leading to termination of his contract of employment. Fundamental to the matters advanced is an assertion that the evidence of the respondent’s witnesses should, where it conflicts with that of Mr Rasia, be rejected.
Much of the argument advanced by Mr Rasia repeats matters raised on his behalf by counsel appearing before the Arbitrator. However, a number of propositions and assertions are, as stated in submissions by the respondent, matters which were not raised before the Arbitrator. It is also put by the respondent that Mr Rasia “appears to be seeking a re-hearing of factual and credit issues which were considered at some length and with due process in the substantive proceedings”.
It is of particular significance that Mr Rasia has, following receipt by him of a transcript of the proceedings, provided supplementary submissions which include an assertion that the Arbitrator was biased. It is proposed to deal with that submission before the merits of the appeal generally are addressed.
It is not surprising that an appeal, such as the present, prepared by a litigant in person is in some respects flawed having regard to relevant general principles and the complexity of the Acts and Rules. It must be remembered that the legislation requires that proceedings before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits: s 354(1) of the 1998 Act. It is also important to have regard to the fact that Mr Rasia is unrepresented and, with respect to that fact, the Commission may be guided by the observations made by the Court of Appeal in Rajski v Scitec Corporation Pty Ltd (unreported, NSW Court of Appeal, 16 June 1986); BC 8601930 and, in particular that which was there stated by Mahoney JA (at [56]):
“But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done. … However, the right of the party so to advance his interest by litigation must be balanced against the right of the parties involved in his litigation not to be involved in pointless litigation and to have the litigation conducted properly and with reasonable promptitude.”
The general tenor of the written material provided by Mr Rasia appears to address the primary issue which was litigated before the Arbitrator, that is, whether the psychological injury, the occurrence of which was not in issue, had been caused wholly or predominately by reasonable action taken by the employer with respect to performance appraisal, discipline, or dismissal within the meaning of the s 11A of the 1987 Act. That issue and the question as to the correctness of the Arbitrator’s findings as to credit of the witnesses whose evidence was before him, as well as the argument raised as to suggested bias, appear to me to be those matters which require examination should leave be granted.
The summary of the issues which I have attempted to set forth immediately above seems, in my opinion, to reflect that which was stated by Mr Rasia in his supplementary submissions filed 18 January 2011 where it was stated at page one:
“The applicant categorises the appeal into the following main sections:
A. Matters relating to Arbitrator Sweeney and [the respondent’s solicitor].
B. Unreasonable Actions by the Respondent after the injury.
C. Injury that does not fall within sec. 11A(1) due to victimization, breach of contract, bullying, harassment and humiliation Prior to the Performance Review.
D. Arbitrator Sweeney gives credibility to Untruthful and Unsupported Witness Statements taken in July 2010 and Disregards Applicant’s Documentary Evidence.
E. Conclusion.
F. Other claims and evidences.”
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The respondent has submitted that the appeal may be heard on the papers. The appellant submits that the appeal cannot be decided on the papers and asserts at [2.3] of his application that on hearing:
“1. We will be able to explain if the commission feels any the unreasonable actions that affected my health reasonable and wouldn’t affect my health.
2. I intend getting help from my MP, Mr. Greg Smyth [sic Smith] SC, Shadow Attorney General and Shadow Minister for Justice and interested groups.
3. I may hire someone to help me to explain the case to the commission.
4. If the appeal decision is in my favour, there will be no need for a hearing.”
The Commission has before it a vast volume of documentary evidence and a transcript (T) of the proceedings. That transcript records the oral evidence from a number of witnesses, including the appellant, whose cross-examination was permitted by the Arbitrator. The transcript also records the submissions put on behalf of each party at the hearing. Each party has provided submissions on this appeal.
I have considered the material abovementioned and I am satisfied that I have sufficient information to proceed ‘on the papers’ without conducting any conference or further hearing. I have reached this view notwithstanding the reasons advanced by the appellant as to the need for a hearing. The appellant has elected to conduct this appeal to this point without legal representation. His submissions, it may be said, are exhaustive. The mere possibility of the appellant taking steps to secure representation at a hearing is not a sufficient basis upon which a decision to proceed to formal hearing may be made. The appropriate course is to proceed to determination of the appeal on the papers.
LEAVE
There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of the 1998 Act.
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
FRESH EVIDENCE
‘Fresh evidence’ on this appeal is governed by s 352(6) of the 1998 Act in its terms as they appeared before those amendments made by the Workers Compensation Legislation Amendment Act 2010, which provided as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No 6 dated 15 November 2007, being the relevant Practice Direction in force prior to the recent amendments, sets out the relevant process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see s 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·the evidence is credible;
·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under s 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Practice Direction No 6 also provides that, if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
“● a schedule of the fresh or additional evidence;
● a copy of the fresh or additional evidence;
● a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
● submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.”
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
Mr Rasia seeks leave to adduce additional documentary evidence. That material is identified at [2.5] of the application made in respect of this appeal and are:
(i)Letter dated 22 January 2008 from the respondent to Mr Rasia in which acceptance is noted of his resignation “from the position of Finance Officer in the school of Medical Sciences effective from 29 November 2007”, and
(ii)Budget advice being a copy email to Professor Hickie from Mr Rasia.
The respondent objects to the admission of the additional evidence.
The requirements of Practice Direction No 6 have not been strictly complied with by Mr Rasia, in particular, no suggestion is made by him that the evidence could not with reasonable diligence have been obtained by him and tendered in the proceedings before the Arbitrator.
The arguments advanced by Mr Rasia in support of the admission of the documents make reference to the need to ensure that justice is done and is seen to be done. The other arguments noted at [2.5.10] do not address the issues raised as to whether such evidence should be admitted, but rather appear to address the motivation and credit of the respondent’s witnesses. Those arguments must be disregarded when the question of admissibility is considered.
It is not suggested by the respondent that any prejudice would be occasioned by admission of the further evidence. As was stated by Basten JA in Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158; 4 DDCR 634 the Commission’s power to admit, with leave, further evidence is “broad” (see discussion at [37] – [47]). Mr Rasia asserts that the documents are relevant to those arguments raised by him and should be before the Commission to ensure justice is done. In the circumstances I grant leave pursuant to s 352(6) to Mr Rasia to tender those documents noted at [33] above.
THE ARBITRAL PROCEEDINGS
The documentary material which was in evidence is noted by the Arbitrator at [13] of his Reasons. Leave was granted permitting cross-examination of Mr Rasia, Mr Dodson and Ms Kimberley Corke-Daniele. The transcript of proceedings records that evidence as well as submissions made on behalf of each party.
The evidence
By reason of the large volume of documentary evidence before the Commission it is not intended to attempt an overall summary of that material. The evidence of Mr Rasia is to be found in two statements dated 11 June 2010 and 10 August 2010 and also as recorded in the transcript of his oral evidence before the Arbitrator.
Mr Rasia’s first statement, which is 26 pages in length, records the following matters:
(a) He studied civil engineering in his native Sri Lanka and worked there as a technical officer. Following arrival in Australia he completed a diploma in accounting at a college of TAFE and subsequently, in 1995, obtained a degree in Accounting at Victoria University. He became an Associate Member of Certified Practising Accountants in 2004.
(b) His work history in this country includes early packing work during a five year period of study. Between 1996 and 2000 he was an employed as an accounting officer with the NSW Police Service. In February 2001 he took up a position with the respondent which he describes as “Finance Officer”. He worked initially at the College of Humanities and Social Sciences. In 2002 a PM&D evaluation of his work was conducted. He states that he was rated “Excellent in Professionalism, Excellent in Team Work and Very Good in performance of duties.” A copy of that evaluation is in evidence and is discussed below. No further evaluation was conducted until 2006.
(c) In 2005 he went on secondment for six weeks to the School of Medical Sciences. It is stated that his title was to be Financial Officer. Thereafter, by letter dated 23 May 2005, he was notified of the respondent’s approval for his transfer to the School of Medical Studies, his appointment being that of full-time Administrative Officer, his classification being Higher Education Officer Level 5, salary at Step 5. He had been working, and continued to work, in two locations being the BMRI and Physiology. He states that he reported to Professor Ian Hickey, the CEO at BMRI when working there. He states he replaced Ms Andrea Mitchell (a level eight employee). He describes his work as involving higher level of tasks of some sophistication. He informed Professor Bennett, who was concerned with a significant building contract, how costs had exceeded an estimate by two million dollars. Such reports, he states, are “usually done by levels nine/ten”. It is stated that he “was able to point out where a short fall of $2 million was” and that Professor Bennett “terminated the building contract.” Copy of an email, undated, sent by him to Professor Bennett is attached to the statement.
(d) Following the appointment of a Finance Officer to Physiology in early 2006 he “waited to be transferred to BMRI as per my verbal agreement with Professor Hickey and Professor Murphy.”
(e) He continued to work at BMRI and Physiology, but was doing nothing at the Physiology department. He made a request of Professor Hickey that he be transferred to BMRI and that he be placed on a higher duties allowance. He was concerned about his security and career development. He also wrote, in July 2006, to Ms Melody Newman, HR Manger, requesting transfer and outlining relevant circumstances.
(f) He refers to an email sent to him by Professor Murphy (copy to Mr Shenoy, Mr Dillon and Ms Newman) regarding alleged corruption and malpractice. A copy of that email is attached to the statement.
(g) He states that he was “not protected either by the Associate Dean and the Head of School or the Manager HR for disclosing corrupt conduct and maladministration”. He states that his complaints were ignored and that he was victimised. Those complaints are summarised at page six of the statement.
(h) On 22 September 2006 Mr John Dodson was appointed by Professor Murphy (effective 25 September 2006) as his supervisor. He states that he was thereby “put in a hostile environment against the existing line of reporting.” He states Mr Dodson was a computer systems officer and that “no other finance staff were put under his supervision.”
(i) He states that the respondent “does not have any evidence against [sic] any under performance or I [sic] am aware of any breaches of the University policies and procedures prior to Dodson’s appointment as my supervisor”.
(j) On 26 September 2006 Professor Murphy reported to Human Resources that Mr Rasia had substantial performance issues. Thereafter, at the end of September, he was referred to the Case Management Group.
(k) He states that, had Professor Murphy “verbally told me that my performance was not satisfactory I will asked [sic] to state specifically in writing so that I could respond appropriately”. It is stated that Professor Murphy and Ms Corke-Daniele “had been giving false and misleading information to everyone”. He states that nomination of Mr Dobson as his supervisor “clearly indicates that the university has already decided to victimise me/terminate me”.
(l) He states his strong suspicion that Professor Murphy “may have had some connection in the short fall of 2 million and the termination of contract/or he did not like my complaints”. It is stated the respondent’s treatment was “very cruel and animalistic”.
(m) He states that once appointed Mr Dodson:
“immediately initiated a vicious campaign of verbal, physical and emotional abuse, intimidation and harassment. He called me ‘fucking idiot, black bastard, stupid, fucking Indian, old bastard, keep your mouth shut or face the consequences’. He would sit very close to me and nudge my body with his elbow saying ‘show me how you do this or that and show me how fast you do the work’. He shouted at me in front of others or he would call my name and use his finger in a motioning belittling fashion to indicate that I should follow him. He gave me tasks such as shredding paper and to do a phone book update. If I went to the rest room he would ask where I had been even though he knew I had been to the restroom. He often screamed at me. He said things like ‘You Indian or Sri Lankan, don’t try to challenge us… your time is up so stay at home and look after your children… the university does not need you’”.
(n) The statement includes detail of Mr Dodson nudging him with his elbow whilst giving instructions. It is stated that this behaviour was intended to “intimidate me and make me uncomfortable”. On 13 November 2006 he was “removed from BMRI”. It is stated that he, on 30 October 2006, reported this incident to Ms Chard, Case Coordinator in HR and Ms Scahill, Director of Equal Opportunity. He received no reply.
(o) His removal from BMRI took place without any notice or consultation. He had “no work” in Physiology. He sat there with nothing to do. He was treated as a criminal. He felt ashamed, embarrassed, threatened and humiliated.
(p) A date, 8 November 2006, was set by Professor Murphy for performance review. That appointment was cancelled by Mr Dodson. A second meeting date was fixed for 13 November 2006. He forgot to take some documents but “I told Dodson I would bring them the following day”. It is stated that Mr Dodson abused him and said:
‘“you fucking idiot, don’t you know you had to bring them today’. He was screaming at me and said ‘you black bastard, I want them now’ and he pushed me. He put his right hand in the middle of my chest and pushed me forward. He said ‘You will know about me soon.’ We were in a room alone at the time of the incident.”
(q) It is stated that Mr Dodson emailed Professor Murphy that he had refused to do the Performance Management Review. He wrote to Professor Murphy denying he had refused and said he wished to see the school accountant, that Mr Dodson was making him sick unnecessarily and that he was going home. He attended his general practitioner Dr Jim Haddad and obtained a medical certificate with respect to the period 13 to 17 November 2006. He reported to Dr Haddad that “I was being harassed and abused at work and didn’t feel well”.
(r) He received a letter dated 17 November 2006 from Mr Shenoy “saying that he (level 8) and another finance officer would be doing my work at BMRI”.
(s) The Performance Management Review took place on 20 November 2006. Mr Dodson marked it as “NM” (not meeting expectation). Mr Dodson noted that he was obstructive and did things at the last minute. Those matters were not elaborated and no examples were given. He was not given an opportunity to respond. It is stated that Mr Dodson “deliberately rated me ‘NM’ in order to put me on Performance Improvement Plan (PIP)”. Mr Dodson’s allegations are denied in the statement.
(t) Two references for “outstanding performance” were attached to the PM&D form. It is stated that those “were not recognised” by Professor Murphy and Mr Dodson.
(u) He had noted on the PM&D form that correct procedure had not been followed. He notes that Professor Murphy had written on the form “I am totally dissatisfied with this PMD review”.
(v) He became sick. The respondent referred him to a psychiatrist Dr Leonard Lee. It is stated that Ms Corke-Daniele provided “false and misleading information” to Dr Lee. He was also referred to a psychologist by the respondent for counselling. He applied for six weeks leave. Mr Dodson said he should break it into one of four weeks and another of two weeks. He stated he was sick and needed six weeks off to go overseas. It is said that Mr Dodson became “very angry and screamed at me ‘do what we tell you. Keep your mouth shut or face the consequences. Fucking Indian. Are you trying to teach me?’”
(w) On 6 February 2007 he received a draft PIP. On 15 February he received a performance warning letter from Professor Murphy. The tasks given to him were “very low level”. He states that proper procedures were not followed as detailed at page 13 of the statement.
(x) The PIP started 5 March 2007 and concluded 5 April 2007. He had earlier, on 12 February 2007, complained to the Dean that he was being humiliated harassed and persecuted. The Dean declined to intervene.
(y) On 27 February 2007 he, with the assistance of a union representative, met with Ms Scahill concerning his being persecuted, humiliated and bullied. He was informed that he had to do the PIP.
(z) He requested that he be made redundant. That was refused. Some further counselling occurred.
(aa) He states that on 30 March 2007, whilst present in Mr Dodson’s car, he asked why he had been hassled for six months. It is stated: “He was screaming at me and said, ‘fucking idiot. No black bastard should be allowed in this country’”.
(bb) A second performance warning and misconduct warning was received from Professor Murphy on 5 April 2007. His description of Mr Shenoy as being “incompetent” was part of the complaint and his use of that word is explained in his statement. When he understood that use of the word was classified as misconduct he apologised.
(cc) He states that he “had made numerous complaints about being sworn out [sic] and being abused and humiliated and harassed by Dodson to numerous people” and that Mr Dodson had “not been called to account”.
(dd) In April 2007 Mr Dodson sat next to him and nudged him with his elbow and asked that a timesheet be printed at which time he was again verbally abused.
(ee) He asked that an internal auditor and a university solicitor be appointed to look at his relevant work. This request was denied.
(ff) Details of correspondence from Mark Easson concerning the finance structure which had not been sent to him but had been sent to other staff, is cited as evidence of his being isolated. He received no reply from Mr Easson when a fax was sent explaining his finance work.
(gg) On 12 July 2007 he was referred to Mr Kotic, the Chief Operating Officer by Head of School for termination. That was supported by the HR Director. An internal investigation officer, Ms Dumm, was nominated. At “the last minute” Ms Dunn was replaced by Ms Graham “who was not independent”.
(hh) He asked for documents relating to the allegations against him and was told they had none. He provided documents to Ms Scahill concerning his higher level tasks. He was told no further documents were required and that they were not taken into account in compiling the report. He was not given an opportunity to respond to the report that was given to the review committee.
(ii) He applied for a finance officer position advertised for BMRI in August 2007. He was advised on 19 September 2007 that “they would not be progressing with my application”.
(jj) On 27 September 2007 he received a notice of termination from Mr Kotic. He retained a solicitor, Mr Port, to act on his behalf. An allegation concerning financial errors was “dropped by the review committee”. The review committee of three were Dr Edmond (Chair), Mr McCoy (management representative) and Ms Wilson (staff representative). The committee’s decision that processes were correctly followed is challenged by him (at page 17). Termination was recommended.
(kk) A termination letter dated 22 November 2007 setting out five reasons for termination was received from Mr Kotic. Those five reasons are addressed at pages 129 to 132 of the statement.
The statement by Mr Rasia dated 10 August 2010 includes a description of circumstances at the time of his transfer to the School of Medical Sciences. It is made clear that the move was intended to advance, and make secure, his career with the respondent. It is stated that Mr Shenoy said his work would firstly involve work at BMRI and Physiology and “then on a full time basis at the BMRI later on”. It is stated that Professor Murphy said that once refurbishment was complete at BMRI “you will be moving there full time”. He also states that Professor Hickey said that after six months he would be needed at BMRI on a full-time basis. Reference is made to communications between him and various staff concerning full-time work at BMRI.
Mr Rasia responds to the evidence of Mr Shenoy, Mr Dodson and Ms Corke-Daniele. Much of this statement repeats matters earlier raised.
The respondent relied upon the evidence contained in the statements made by Professor Murphy (two), Mr Dodson, Ms Corke-Danielle (two), Mr Shenoy, Ms Scahill, Ms Harrison, Ms Smythe and the contents of a report by Ms Louise Morrow, clinical psychologist. Ms Morrow interviewed and took statements from Ms Corke-Danielle and Professor Murphy. Relevant evidence is addressed and considered below.
A large volume of documents are in evidence including copies of correspondence, emails and copies of the respondent’s General Staff Agreement 2006-2008. That material, where relevant, is addressed below.
Mr Rasia, when cross-examined, denied that there were occasions when he could not be located at either BMRI or Physiology. Other matters put to him which were denied concerned:
(a) his duties were less complex than he pretended;
(b) he failed to perform duties on the grounds that they were not his job;
(c) argument had occurred with Mr Dodson concerning the nature of his duties;
(d) that he attended work late;
(e) that he left work early;
(f) that Mr Dodson brought his attention to mistakes made by him;
(g) that there was never a need for a full-time position at BMRI, and
(h) that Mr Dodson at all times behaved appropriately.
In response to questions by the Arbitrator, concerning Mr Dodson’s alleged racist remarks, Mr Rasia stated that he did not mention in his complaint to Ms Chad that the remarks were racist but that he had been persecuted, harassed and humiliated. He agreed that he had not mentioned racist remarks to any of the respondent’s staff.
Mr Dodson, when cross-examined before the Arbitrator, was closely questioned concerning the completion of the PM&D documentation. A number of concessions were made in the course of this evidence which are addressed below. In response to questions asserting that he had insulted, sworn at and called Mr Rasia various names Mr Dodson disagreed by stating that he “would have to categorically deny it”. In response to a question put by the Arbitrator concerning the identity of the person who instigated the PM&D Mr Dodson stated:
“In – in discussions with a number of people in my talking over Jerome’s supervision my – my need was to actually do something – do a PM&D immediately to try to understand the problems that – that there were in this case. So I guess the case came to me as a problem of supervision and I was allotted the supervision of Jerome because there were already perceived problems.”
Submissions before the Arbitrator
The respondent put submissions concerning the construction of provisions the of s 11A. Counsel summarised the evidence concerning events during the latter part of 2006 and, in particular, the evidence of a meeting which took place on 19 December 2006, the purpose of which being to prepare a PIP. On that occasion Mr Rasia was offered assistance from the Employees Assistance Program and was referred to Dr Lee. It was put that the meeting constituted reasonable action taken by the respondent with regard to performance appraisal. It had earlier been argued that correspondence forwarded to Mr Rasia concerning non-attendance at the PM&D meeting was “an action… with respect to discipline”. Subsequent events concerning the PIP were said to be reasonable actions with respect to performance appraisal. The warning correspondence forwarded to Mr Rasia was said to be reasonable action with respect to discipline and also with respect to termination or dismissal. Similar argument was advanced in respect of subsequent action taken by the respondent. It was put that the respondent conducted a “thorough and pain staking process” when coming to the conclusion that Mr Rasia’s employment should be terminated. It was accepted by counsel that the respondent bears the onus of proof concerning the application of s 11A.
Counsel challenged the allegations made by Mr Rasia concerning Mr Dodson’s conduct and language and argued that contemporaneous records of medical and other health practitioners do not contain any such detail. It was put that rejection of Mr Rasia’s evidence on these matters by the Commission would lead to non-acceptance of his evidence generally unless otherwise corroborated.
Mr Rasia’s counsel submitted that the facts may be approached by an examination of relevant matters before Mr Dodson’s appointment in September 2006 and those matters which occurred thereafter. Mr Rasia’s case was stated to be that he “has been the subject of a deliberate campaign to have his employment terminated”. It was argued that the evidence concerning permanent appointment to BMRI supports the conclusion that Mr Rasia understood there had been an agreement concerning a full-time position.
It was argued that the evidence permits an inference that there was a plan to manage Mr Rasia out of his employment.
It was argued that there is no documentary evidence concerning the alleged failure by Mr Rasia to perform his duties prior to the appointment of Mr Dodson. Counsel criticised the manner and conduct of the PM&D process and the respondent’s apparent disregard of the references provided by Mr Rasia. The respondent, it was put, had not proven the action concerning PM&D was reasonable. The failure to permit Mr Rasia to respond to the “NM” rating was criticised in the course of this argument. The respondent’s failure to respond to Dr Lee’s advice concerning mediation was criticised by counsel. Dr Lee’s views concerning the likelihood of aggravation of Mr Rasia’s mental state if he returned to Physiology was noted during submissions.
Counsel submitted that the PIP procedure may not be undertaken “unless you get the PM&D process correct”. Evidence concerning weekly meetings during the PIP process was referred to by counsel, and it was argued that Mr Rasia’s conduct may be explained upon the basis that he had developed frustration and believed the university was attempting to terminate his employment. It was put that failure of the respondent to appoint Mr Rasia full-time, as agreed, at BMRI was “critical” to the causation of his “grievance”.
The evidence of Dr Canaris was relied upon in support of an argument that Mr Rasia’s depressive disorder was caused by harassment and abuse by Mr Dodson. Other relevant factors, in that witness’s view, were a failure to move him to BMRI and the adverse performance reviews.
The respondent’s abandonment of one “reason” for termination is, it was argued, a factor to be considered when the question of “reasonableness” was being considered.
The respondent’s counsel, in reply, argued that the evidence concerning the conduct of the PM&D establishes that Mr Rasia was deliberately obstructive. It is stated by Mr Dodson, such procedure is “usually easy”. Agreement is reached and an attempt is made to get the employee “back on course”.
THE ARBITRATOR’S REASONS
The Arbitrator, in the course of his carefully considered Reasons, summarised the principal aspects of the evidence given by Mr Rasia and proceeded to summarise the evidence concerning conduct of the PM&D and PIP procedures. The lay and expert medical evidence was also outlined following which a summary of submissions put on behalf of each party was made.
The Arbitrator at first dealt with the question of the reliability of the witnesses whose oral evidence had been given. Particular attention was given to the conflict in the evidence concerning Mr Rasia’s allegations that Mr Dodson had been abusive and had racially vilified him.
The conclusion was reached by the Arbitrator that Mr Rasia had either fabricated, or grossly exaggerated, the manner in which he was spoken to and treated by Mr Dodson. Mr Rasia’s allegations concerning physical intimidation and those concerning Mr Dodson speaking to him in a demeaning manner were rejected. Following these findings the Arbitrator stated that, in the circumstances, the evidence of Mr Rasia on all critical issues should be subjected to careful scrutiny.
The Arbitrator proceeded to express his doubt that Mr Rasia had been promised full-time work at BMRI, or on higher duties, prior to or at the time of his acceptance of the position of Administrative Officer at the School of Medical Sciences. It was acknowledged by the Arbitrator that the evidence suggests that Mr Rasia had a genuine belief that a full-time financial position would eventually become available at BMRI.
A number of findings concerning the application of s 11A were made by the Arbitrator concerning particular identified correspondence, the conduct of the PM&D and PIP processes and meetings. These were found to be related to performance appraisal or discipline. The investigation by the Delegated Officer and the review of her decisions leading to the termination of Mr Rasia’s employment were found to be actions relating to dismissal.
The evidence of Ms Morrow was accepted by the Arbitrator in preference to the evidence of Dr Canaris and Dr Chapanis concerning the question as to whether the action of the respondent in respect of discipline, performance appraisal and dismissal were the whole or predominant cause of Mr Rasia’s psychiatric injury. Ms Morrow, as accepted by the Arbitrator, concluded that the primary workplace factors contributing to Mr Rasia’s disorder pertained to performance management and the termination of his employment.
It was acknowledged by the Arbitrator that two other aspects of Mr Rasia’s employment may have had potential to cause psychiatric injury. The first, being failure to transfer him to BMRI, was following consideration of the evidence, found unlikely to have been a causal factor concerning his depression. The second matter, being the transfer of Mr Rasia to full-time duties at Physiology, was considered together with other evidence. A conclusion was reached that, if the transfer contributed to the injury, it was a minor contributing cause and not the predominant cause of the injury.
The Arbitrator proceeded to consider the question as to whether the relevant actions identified were reasonable. Following consideration of argument advanced on behalf of Mr Rasia and the evidence before him, the Arbitrator found that the actions taken by the respondent relating to discipline, performance appraisal and dismissal which wholly or predominantly caused his psychiatric injury were reasonable actions. An award was entered in favour of the respondent.
It is noted that the Arbitrator, at the conclusion of his Reasons, prudently considered the question as to the reasonableness of the respondent’s actions concerning refusal to transfer Mr Rasia to BMRI on a full-time basis and in transferring him from BMRI on 13 November 2006. The first, refusal to transfer, was found to be reasonable. The second, transfer from BMRI, was found not to be reasonable. There can be no doubt that these findings were made by the Arbitrator given the desirability to ensure that all arguments concerning each point relied upon by a party be addressed, notwithstanding a conclusion that such point raised may be rejected.
SUBMISSIONS
Mr Rasia’s submissions which are cross-referenced to matters raised by him and described as “grounds of appeal” do not, as earlier noted, directly address the reasons given by the Arbitrator for his order entering an award in favour of the respondent. The approach he takes on this appeal appears to be one seeking a rehearing of his application. The arguments advanced, whilst suggesting breach of contract and breach of provisions of the Protected Disclosures Act 1994, appear also to challenge the Arbitrator’s factual findings and his application of the provisions of s 11A to those facts. Any analysis of these submissions is, to an extent, rendered difficult given that Mr Rasia on more than one occasion, adopts a narrative approach and seeks to repeat, and in some cases elaborate, the evidence presented before the Arbitrator.
Mr Rasia’s further submissions filed on 18 January 2011 include allegations that the Arbitrator “appears biased”. Those submissions also include criticism of matters advanced on this appeal by the respondent’s solicitor. An attempt is made in the course of his submissions to challenge the evidence of individual witnesses and the Arbitrator’s reliance upon that evidence in reaching his decision. Particular attention is given to Mr Rasia’s argument that the respondent’s actions were unreasonable. The fundamental proposition in these submissions appears at Biii (page 5) where it is put:
“The respondent then has used the Performance Review as the manipulative vehicle and emotional abusive technique to continue to victimise, harass, humiliate and terminate [Mr Rasia]”.
At page 14 of those submissions an argument is advanced by Mr Rasia that the Arbitrator “ignores the health professionals”. He relies, in part, upon the contents of a report by Dr Chapanis dated 3 January 2011. Whilst a copy of that report accompanies the submissions, and had been forwarded to the Commission in earlier correspondence, that report is not in evidence. No application has been made by Mr Rasia to have that report admitted as fresh or additional evidence.
A forceful complaint is made concerning the Arbitrator’s findings made upon acceptance by him of the evidence of the respondent’s witnesses. It is argued that that acceptance was made in the absence of “documentary evidence”, and the further complaint is made that his own evidence, supported by documentary material, had been rejected.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of s 352 of the 1998 Act. That section applies to this appeal in its terms as they stood prior to its amendment effected by the Workers Compensation Legislation Amendment Act 2010 (Sch 1 Cl 25.8.1). Subsection (5) of that section provided:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The concept of “review” as it appears in the aforementioned subsection was considered by the Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; 5 DDCR 286 where it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) (at [30]):
“A Presidential Member exercising the power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit…”
The proper approach by the Commission to the task of an “appeal… by way of review” was again discussed by the Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71; 7 DDCR 54. A comprehensive review of relevant authority is to be found in the joint judgment of Allsop P and Hoeben J. Included among the authorities addressed by their Honours was the decision in Chemler and, in particular, the statements made by Spigelman CJ as cited immediately above. Their Honours proceeded to state (at [57] and [58]):
“This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson; Boston Clothing;Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352(7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352(7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”
I have earlier noted that Mr Rasia’s submissions appear to seek a rehearing of his application. The relief which he seeks in the application filed concerning this appeal includes that which appears at 2.10 “I wish to have a new Arbitrator appointed.” At 2.9 of his “statements of support” filed with that application the following appears:
“The Determination indicates to me that Mr Sweeney ignored or dismissed my complaints about harassment, humiliation… etc D1, D2, E2, H3. My word does not appear to have been taken seriously, and I require a reconsideration of my claims, as is my legal right.”
There is, as I have noted, a very large volume of documentary evidence before the Commission. It is clear that that material was the subject of lengthy and detailed submissions put on behalf of each party before the Arbitrator. Those submissions were described by the Arbitrator as having been “highly organised and cogent arguments in support of the cases of their respective clients”. I, having read the transcript, respectfully agree with the view expressed by the Arbitrator. The Arbitrator’s reasons are both detailed and lengthy. It is apparent that the Arbitrator has had regard to each argument raised and the evidence relevant to resolution of those matters. Mr Rasia’s arguments on this appeal suggest that certain matters have either been ignored or otherwise disregarded by the Arbitrator. Both of those arguments are addressed below.
Notwithstanding the breadth of the power granted to the Commission to review a decision of an Arbitrator, I have reached the conclusion that, given the thorough manner of conduct of the application at arbitration, and the comprehensive reasons given by the Arbitrator, this is not a matter that requires a rehearing as is suggested by Mr Rasia. It is proposed that the complaints raised by Mr Rasia on this appeal be considered with a view to determining, as was stated in Chemler, whether the Arbitrator’s decision is wrong. In approaching that task it becomes necessary to decide what is the true and correct view of the evidence and those arguments advanced on behalf of the parties.
Bias
The supplementary submissions provided by Mr Rasia following receipt by him of a copy of the transcript of proceedings contain numerous criticisms of the conduct of the Arbitrator which include allegations that he “appears biased” and that his conduct had been “unprofessional and unconscionable” (at page 1). I infer from these statements and other matters raised in the course of submissions that it is Mr Rasia’s contention that the Arbitrator had demonstrated actual bias. It is clear that an Arbitrator must act impartially and failure so to do would be in breach of the duty to afford the parties procedural fairness and natural justice. (see discussion in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 per McColl JA [88]-[92] (Edmonds)).
Matters which require consideration in circumstances where an allegation of bias is made were discussed by McColl JA in Edmonds, where a number of propositions were distilled from various authorities. Her Honour observed (at [97]):
“A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be ‘distinctly made and clearly proved’: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: at 127 per Burchett J.”
An assertion is made by Mr Rasia that bias is evident in the reasons as expressed by the Arbitrator given his acceptance of “the manipulated and erroneous rating of ‘Overall unsatisfactory performance’, gives credit to untruthful and unsupported witness statements, ignores laws, General Staff Agreement and Performance Management Procedures”. This submission appears to focus upon the respondent’s assertion of “unsatisfactory performance” as a basis upon which, as stated in correspondence dated 27 September 2007, the respondent proposed to terminate his employment. Whilst it is abundantly clear that Mr Rasia emphatically disagrees with the conclusions reached by the Arbitrator concerning a variety of factual issues, there is nothing put in submissions that would be remotely capable of being described as a “distinctly made and clearly proved” allegation of bias. Proof of actual bias, and thus breach of the requirements of natural justice, may only be made out where it is firmly established “that a suspicion may reasonably be engendered in the minds of those who come before [the Commission] or in the minds of the public that [the Commission] or a member or members of it may not bring to the resolution of the questions arising before [the Commission] fair and unprejudiced minds”, as was discussed by the High Court in The Queen v Commonwealth Conciliation and Arbitration Commission:Ex parteAngliss Group (1969) 122 CLR 546 at 553 and 554. Mr Rasia, notwithstanding his broad attack on the reasoning process of the Arbitrator, as found in his submissions, has failed to make out such a case. Nothing, in my view, raised by Mr Rasia is of such a character as to be capable of discharging the onus upon him to establish that the Arbitrator had an unfair and prejudiced mind when determining the dispute before him. Mr Rasia’s suggestion of bias must be rejected.
Credit
As noted at [58] above the Arbitrator first dealt with questions raised as to the credit of the witnesses whose evidence was before him. Given the very substantial factual disputes requiring resolution it was, in my view, appropriate that this issue be addressed before determination of the arguments raised. The Arbitrator’s conclusion that Mr Rasia had either fabricated, or grossly exaggerated, the manner in which he was spoken to and treated by Mr Dodson was reached after a careful consideration of the evidence. The Arbitrator also outlined his reasons for his rejection of the evidence of Mr Rasia. Briefly stated those reasons included that there was no contemporaneous report by Mr Rasia of the alleged behaviour; the Arbitrator was “particularly impressed” with the oral evidence of Mr Dodson which he accepted; and that all witnesses called on behalf of the respondent were familiar with Mr Dodson and each asserted that he was not disposed to the behaviour or language alleged by Mr Rasia.
Given that the Arbitrator has made findings of fact founded, in part, upon the acceptance of the evidence of Mr Dodson and other witnesses over that of Mr Rasia, the Commission’s approach to review under the 1998 Act may be guided by those matters as stated by the High Court in Devries v Australian National Railways Commission [1993] 177 CLR 472. In that matter, which concerned review by the Full Court of a finding as to credit made by the trial judge, it was stated such a finding could properly be overturned “only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open to the trial judge to accept [the plaintiff] as a witness of truth” (per Deane J and Dawson J at 483). Further guidance, concerning the review of findings of fact based on credibility of a witness, is to be found in the joint judgment of Brennan, Gaudron and McHugh JJ (at 479, omitting footnotes):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
Whilst it is correct that the Arbitrator has had some regard to the demeanour of Mr Dodson when considering the question of Mr Rasia’s credibility, such consideration and reliance was made with appropriate caution. It is clear, in my view, having regard to the Arbitrator’s analysis of the evidence as a whole, that he (as was observed in Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 202 ALJR 989 per Gleeson CJ, Gummow and Kirby JJ at [31]) has reasoned his “conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”.
The Arbitrator’s finding rejecting Mr Rasia’s evidence concerning Mr Dodson’s conduct was open to him on the evidence and it is a conclusion with which I respectfully agree. I have reached this view having regard to the evidence generally and I have taken into account a number of aspects of Mr Rasia’s evidence which appear to conflict with objective, documentary evidence. These matters of conflict are in themselves, perhaps, not of great significance. However taken in context, and having regard to the vehement assertions made by Mr Rasia as to his occupational status and, in particular, the suggested agreement concerning permanent appointment at BMRI, they tend to contradict his evidence and, taken together, cast doubt upon the veracity of his evidence generally. The following are a number of illustrations of such inconsistency:
(a) Mr Rasia at 4.1 of his statement dated 11 June 2010 asserts that he commenced work with the respondent as a Finance Officer. That is contradicted by the Staff Appointment Form signed by Mr Rasia’s superiors in February 2001 which confirms his “job title” as being “accounting officer level 5 step 1”.
(b) Mr Rasia’s statement that his PM&D review carried out in 2002 resulted in a rating being “excellent in professionalism, excellent in teamwork and very good in performance of duties” is contradicted by the contents of the document which is marked A2. It is true that Mr Rasia’s self evaluation for each of professionalism and teamwork is noted as “E” (exceeding expectations of the job). However the overall evaluation noted on that document is M + (meeting expectations of the job at an advanced level).
(c) Mr Rasia’s assertion that he did not refuse to take part in the PM&D process on 13 September 2006 appears to be contradicted by the sequence of emails which are in evidence. Whilst it is clear that Mr Rasia denied, in an email addressed to Professor Murphy, that he had refused to participate in the process it is clear that he attended the University on that day without having relevant documents in his possession as expected by Mr Dodson, and that he seemed to have been insisting on a meeting with Mr Shenoy before he again contacted Mr Dodson. Professor Murphy’s response to that communication stated that “Guru’s return changes nothing in this context. Please meet with John as your supervisor and complete the PM&D process.” Correspondence bearing date 13 November 2006 included a formal direction from Professor Murphy to Mr Rasia to attend a rescheduled PM&D meeting on 20 November 2006. Professor Murphy stated that he had an expectation that Mr Rasia would “fully cooperate by completing the relevant forms for this meeting with Mr Dodson and bringing them with you on this newly designated date.” The clear inference may be drawn from that documentary evidence that Mr Rasia was not only reluctant to comply with Mr Dodson’s requirements concerning the PM&D process, but that he had resisted having any dealings with Mr Dodson which prompted the formal direction issued by Professor Murphy.
I have taken the time to summarise the three matters enumerated immediately above as examples of circumstances where Mr Rasia appears to have misconstrued or plainly misrepresented circumstances which have occurred in the course of his work. Those misconstructions or misrepresentations each demonstrate Mr Rasia’s apparent inability to accept the correct status of his appointment and any suggestion that his work performance required improvement. Whilst it is correct, as argued by Mr Rasia, and as acknowledged by the Arbitrator, that there is no documentary evidence of his failure to adequately carry out his duties prior to the appointment of Mr Dodson, it is the evidence of Mr Shenoy that he began receiving complaints from Ms Jacob concerning Mr Rasia’s performance several months after his appointment. It is Mr Shenoy’s evidence that by reason of the number of complaints received concerning Mr Rasia’s work and his absences from his work station, Ms Jacob was unable to supervise him. Those problems were reported to Professor Murphy which led to the appointment of Mr Dodson as his supervisor. Before that appointment Mr Shenoy had met on numerous occasions with Mr Rasia with a view to correcting the problems which had arisen. His efforts had been fruitless.
Insofar as Mr Rasia’s submissions may be construed as representing a challenge to the Arbitrator’s findings as to his credit, those submissions must be rejected. Given that the Arbitrator’s finding on that issue stands he was correct, in my view, to observe that in the circumstances the evidence of Mr Rasia on all of the critical issues in the case “should be subjected to careful scrutiny”.
Section 11A
In his supplementary submissions Mr Rasia makes reference to an argument advanced on his behalf by counsel that there was no evidence of unsatisfactory performance of his duties before the PM&D procedure and, secondly that the PM&D procedure was not correctly followed. The submission suggests that the Arbitrator disregarded relevant law, the evidence and, further, misrepresented the evidence. Mr Rasia suggests that the Arbitrator “appeared to cover up for the university by taking an advocate-stance for the respondent, rather than as an objective arbitrator, guided by law”.
Whilst it is clear that the arguments advanced by Mr Rasia are directed to criticism of the Arbitrator’s determinations of fact, it appears that what is being put by Mr Rasia is that the Arbitrator’s determination of the question of reasonableness of the respondent’s actions was made in error. Such an argument ignores the Arbitrator’s express attention given to the matters raised in counsel’s submissions.
At the outset of his reasons concerning reasonableness of the respondent’s actions the Arbitrator rejected counsel’s “pivotal argument that the respondent deliberately set out to remove the applicant from his position in the School of Medical Sciences”. He stated his reasons for so concluding at [104]. I am of the opinion that his conclusion was open to him on the evidence and, again, it is a conclusion with which I respectfully agree. It has been suggested both before the Arbitrator and on this appeal that the respondent’s motivation for the suggested “victimisation” leading to termination was founded upon Mr Rasia’s recorded suggestions of nepotism within the respondent’s organisation and maladministration of finances amounting to corruption. At the hearing, evidence concerning those allegations was scant and was of such a nature as not to permit any inference that there was any evidence of substance in support of those allegations. There was no evidence concerning improper motivation on the part of the respondent other than the assertions of Mr Rasia.
The Arbitrator, at [105] of reasons, acknowledged that “there is no documentary evidence of [Mr Rasia] under performing in his work prior to the appointment of Mr Dodson”. That acknowledgment appears to have been disregarded by Mr Rasia when presenting his submissions. It is clear from the Arbitrator’s reasons that he was satisfied, having regard to the evidence of Professor Murphy, Mr Shenoy and Ms Harrison that at the relevant time Mr Rasia was either not performing to the best of his ability, or was performing in an unsatisfactory manner the work required of him at, at least, the Department of Physiology. Again it was open to the Arbitrator to accept that evidence and, in my view, nothing put by Mr Rasia raises any doubt as to the manner in which the evidence was evaluated by the Arbitrator and the correctness of his conclusions.
The Arbitrator, following a consideration of Mr Dodson’s oral evidence concerning the conduct of the PM&D process, concluded that “technically the process was flawed”. That conclusion was reached having regard not only to Mr Dodson’s evidence but also the requirements of the respondent’s agreement with its staff and the document which prescribed procedures. The conclusion of the Arbitrator that the process was flawed is not acknowledged by Mr Rasia in his submissions.
The Arbitrator dealt with the subject of the performance procedures between [107] and [112]. In addition to the finding concerning the “flawed” nature of the PM&D process, the Arbitrator made the observation that the evidence clearly established Professor Murphy’s opinion of Mr Rasia’s work performance and that the deficiency in the documentation following that process “would certainly not have led to a different outcome for [Mr Rasia].” It was also found that the PIP which was “actually performed” was “far simpler than that which was initially proposed”. The Arbitrator found that such variation “should have enhanced [Mr Rasia’s] prospects of satisfactorily completing the PIP”. The Arbitrator’s conclusion concerning the question of reasonableness, is to be found at [112] of Reasons where it was stated:
“Obviously in such a long process human error may occur, resulting in the policies and procedures made under the Staff Agreement not being followed to the letter. Nonetheless I am of the opinion, by and large, that the appropriate procedure was followed. Further I am of the opinion that the procedure was reasonable. If a criticism could be made of the overall process leading up to [Mr Rasia’s] dismissal it is that it was far too long and this may have had an adverse impact upon his health”.
It may be seen that the Arbitrator has concluded that the respondent’s actions, which he had earlier identified, were reasonable notwithstanding the deficiencies which he identified concerning the PM&D process. Such a conclusion was open to the Arbitrator and is consistent with the proper application of the test as to reasonableness as prescribed by s 11A. As was stated by Spigelman CJ in Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (at [69]):
“The statutory test could not be satisfied merely by identifying two respects in which the Appellant’s conduct was unreasonable. It remained necessary to determine whether, notwithstanding those blemishes in the decision-making process, ‘reasonable action’ was the sole or predominate cause. On the submissions before his Honour, it was incumbent upon him to determine whether or not the sole or predominate cause was the employer’s reasonable action, in circumstances where the investigation itself, the delay in completing it, and the Transfer, were all found to be reasonable. His Honour did not address that issue”.
The Arbitrator has addressed all relevant issues raised by a proper application of the provisions of s 11A. His conclusion as to the reasonableness of the respondent’s actions was open to him on the evidence and again it is one with which I respectfully agree. Mr Rasia’s arguments, insofar as they may be construed as being directed to the Arbitrator’s findings with respect to s 11A, must be rejected.
For the reasons which I have attempted to summarise above the challenge raised by Mr Rasia on this appeal to the findings and conclusions of the Arbitrator must be rejected. In reaching that conclusion I have taken into account both the arguments raised and the content of the additional evidence which has been admitted on this appeal. In the circumstances the appeal should be dismissed and the Arbitrator’s determination confirmed.
DECISION
The determination made by the Arbitrator as recorded in Certificate of Determination dated 8 October 2010 is confirmed.
COSTS
No order as to costs of this appeal.
Kevin O’Grady
Deputy President
2 February 2011
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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