Wardle v Diocese of Wagga Wagga
[2021] NSWPIC 460
•16 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wardle v Diocese of Wagga Wagga [2021] NSWPIC 460 |
| APPLICANT: | Matthew Wardle |
| RESPONDENT: | Diocese of Wagga Wagga |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 16 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly compensation in respect of a psychological injury; liability disputed by respondent on grounds the accepted injury was wholly or predominantly caused by its reasonable actions with respect to performance appraisal; meaning of “performance appraisal” in the context of section 11A of the Workers Compensation Act 1987 discussed; whether some of the less formal processes to which the applicant was subjected could be said to amount to performance appraisal; whether the performance appraisal process was the whole or predominant cause of the applicant’s injury; whether the steps taken by the respondent with respect to performance appraisal were reasonable; whether the applicant suffered incapacity for employment, and if so, to what extent; Held - performance appraisal must be a formal, structured process rather than a process of continued and protracted assessment; Dunn v Department of Education and Training and Irwin v Director-General of Education discussed and followed; the evidence discloses the less formal processes were not performance appraisal, including statement evidence from the respondent’s witnesses to that effect; rather the performance appraisal process began with a meeting held on 28 October 2019; the performance appraisal was the predominant cause of the applicant’s injury; the applicant’s contention that other matter such as a lack of training and guidance were also causative of his injury is not supported by the balance of the evidence; the steps taken were not reasonable in the circumstances; the applicant was given no notice of the agenda of the meeting to which he was called, the contents of the concerns his employer had, nor was he given the opportunity to have a support person present with him at the meeting; rather, the applicant was submitted to what was essentially a surprise meeting at which the respondent set out a number of issues which ultimately formed the basis for a performance improvement plan; moreover, the performance improvement plan itself lacked sufficient specificity in material aspects to be considered reasonable in the circumstances; Commissioner of Police v Minahan referred to; Ritchie v Department of Community Services discussed and followed; the applicant was totally incapacitated up to 19 March 2021, and thereafter remains partially incapacitated; the defence under section 11A is not made out; respondent ordered to pay the applicant weekly compensation from 18 August 2020 to date and continuing as set out in the Certificate of Determination. |
| DETERMINATIONS MADE: | 1. The leave is granted to amend the date of commencement of the claim for weekly benefits to 18 August 2020. 2. The applicant suffered a psychological injury in the course of his employment with the respondent to which his employment was the main contributing factor with a deemed date of injury of 27 November 2019. 3. The injury referred to (2) above was not caused by the reasonable actions of the respondent in relation to performance appraisal. 4. At the date of injury, the applicant’s pre-injury average weekly earnings were $2,477.60 per week. 5. As a result of the injury referred to above, the applicant was totally incapacitated for employment from 18 August 2020 to 19 March 2021. 6. As a result of his injury, the applicant has had partial capacity for employment and a capacity to earn income at the rate of $1,000 per week from 19 March 2021 to date and continuing. 7. The respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 as follows: (a) from 18 August 2020 to 19 March 2021 at the rate of $1,982.08 (being 80% of the applicant’s pre-injury average weekly earnings), and (b) from 20 March 2021 to date in continuing at the rate of $982.08 per week (being 80% of the applicant’s pre-injury average weekly earnings less $1,000, being his capacity for employment). |
STATEMENT OF REASONS
BACKGROUND
There is no issue Matthew Wardle (the applicant) suffered a psychological injury in the course of his employment with Diocese of Wagga Wagga (the respondent). The agreed deemed date of that injury is 27 November 2019.
The respondent disputes liability to pay compensation for the applicant’s injury on the basis that it was wholly or predominantly caused by its reasonable actions with respect to performance appraisal provided to the applicant in connection with his role as a technical services professional officer with the respondent.
The applicant claims weekly compensation from 18 August 2020 to date and continuing and alleges that he is totally incapacitated. For its part, the respondent alleges that if it is liable for the applicant’s injury, then he now has capacity for employment.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain to be determined:
(a) whether the applicant’s injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to performance appraisal, and
(b) if the answer to (a) above is in the negative, what is the extent of the applicant’s incapacity for employment as a result of his injury.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 6 October 2021. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Ms K Balendra of counsel appeared for the applicant instructed by
Mr C Cregan, solicitor. Mr S McMahon of counsel instructed by Mr S Patterson, solicitor, appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence and taken into consideration in making this decision:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) respondent’s Application to Admit Late Documents (AALD) and attached documents dated 31 August 2021.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Section 11A
Section 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) relevantly provides:
“No compensation is payable under this Act. In respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by the reasonable action taken or proposed to be taken by or on behalf of the employer with respect to...performance appraisal.”
10.An employer which seeks to make out of defence pursuant to section 11A carries the onus of establishing that defence: Pirie v Franklins Ltd [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.
11.In this matter, there is an issue as to whether part of the conduct relied upon by the respondent can be said to fall within the ambit of performance appraisal. That term was referred to in Dunn v Department of Education and Training [2000] NSWCC 11 (Dunn), in which matter Geraghty J referred to an earlier decision of his in Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998 (Irwin) where his Honour had said such appraisal should be “formal, somewhat like an examination or a test rather than an extended and continuing assessment.”
12.In Dunn, his Honour concluded an enhancement programme to which a teacher was subjected for over a year was not performance appraisal. The reasoning of his Honour in Irwin as followed in Dunn was also cited with approval by his Honour Nielson CCJ (as he then was) in Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32.
13.The relevance of these decisions to this matter is that the applicant was, in the respondent’s view, submitted to both informal and formal performance appraisal over a period of time. The applicant does not accept that the less formal conduct relied upon amounted to performance appraisal, and therefore cannot form part of the conduct relied upon to establish a defence under section 11A.
14.It should be noted the applicant accepts that if the informal conduct relied upon by the respondent is found to be part of performance appraisal, then the totality of that conduct combined with the formal process was the whole or predominant cause of his injury, though he says the conduct relied on was not reasonable.
15.The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused.” The test of causation to be applied is that described by Kirby P (as he then was) in the oft-cited passage in Kooragang CementPty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). That is, a common-sense evaluation of the causal chain is required, taking into account both the lay and medical evidence.
16.In order to successfully raise a defence under section 11A, the respondent must not only show the records of causal connection between its actions and the applicant’s injury, it must also satisfy the Commission that its actions were reasonable. The meaning of reasonableness was also considered by Geraghty J in Irwin where his Honour said:
“The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
17.His Honour’s comments in relation to the question of reasonableness were cited with approval by the Court of Appeal in Commissioner of Police v Minahan [2003] NSWCA 239 and by the former compensation Court of New South Wales in Ritchie v Department of Community Services [1998] 16 NSWCCR 727 where his Honour Armitage J said:
“It is apparent that the test in this case is an objective one where one must weigh the consequences of the respondent’s conduct against the reasons given for it. It follows of course from the objective nature of the test that the evidence given by the applicant as to the procedure and reasonableness of the respondent’s conduct or from the respondent as to the reasonableness of its conduct from its prospective will not be determinative of the issue.”
18.Reasonableness in the context of section 11A can therefore be said to be the objective determination of what is just having regard to fairness appropriate in the circumstances, including what went before or after a particular action.
19.In this matter, the respondent relies upon a number of interactions between the applicant and his supervisors which it alleges constitute performance appraisal. They are, for example, set out in the statement of Mr Baaten, who set out from [39] of his statement an instance where the applicant required support in completing a project at work. Mr Baaten said:
“39. The insured commenced the project in early 2019 called Serverless Primary School. The purpose of the project was to remove service from the schools and centralise them in the cloud. The claimant’s role in the project was to centralise print services. The claimant’s role was to design a printing solution for schools.
40. Candice Masling, business analyst and project manager was brought in on the project to project manage the project.
41. The meetings occurred two to three times per week from around mid-2019 to discuss progress and will it to be done. The staff talked about what the status was of the piece of the project, what had to be done and support required. The claimant rarely asked for help, to my knowledge. Other staff would request help from time to time.
42. I provided advice to the claimant in the meetings and he took that on board. When the serverless primary school project ended in September 2019, the claimant commenced on the access management project. He worked with Grants on that.
43. The claimant asked me for help with the Adobe test planned and Adobe cutover. I found a guide for him online as how to migrate Adobe. A cutover was completed, but he did not perform any testing. When it went live, there were a multitude of issues. Someone resolved the issues on behalf of the claimant.”
20.In my view, on Mr Baaten’s own evidence, that conduct cannot be said to be performance appraisal. Rather, the meetings were an attempt to coordinate and manage the relevant project, not to appraise the applicant’s performance.
21.In a further statement, Mr Vogt, supervisor of the applicant provided a version of events surrounding feedback provided to the applicant and other matters. In relation to feedback and support, which the applicant alleges were inadequate, Mr Vogt said that on a couple of occasions, he brought to another supervisor’s attention the issues with technical performance of the applicant in relation to the serverless primary school printing project. According to Mr Vogt, “Bruce [Crawford] told me that he was having conversations with the claimant over that to resolve the issues.”
22.At [105] of the Reply, is a document headed “Matt Wardle Catch Up 20190906.” I take that date to be 6 September 2019. The respondent relies upon this as the initial phase of what it describes as the performance appraisal of the applicant. That document referred to the applicant’s work in progress including the printing project, various reporting, phone billing issues and professional development. At [107] of the Reply, as part of the catch up, under the heading “Performance Reflection Note” is the following:
“Bruce and Matt discussed the outcomes of the print migration activities and will be, however, a line to expectations of Matt’s role. Key areas of concern:
·Self-management: when given a problem to resolve such as printing and access management projects, Matt has a difficulty identifying the tasks and timeline needed to ensure the outcomes required time or outcomes in the required timeline.
·Actions: - Matt will work on planning better and mapping out tasks.
·Matt will take ownership of outcomes and manage work and expectations accordingly.”
23.There are also issues set out in relation to solution design and quality which are dealt with in some detail in the document. At the conclusion of those matters, there is a summary which states “there is currently a shortfall between the depth and quality of Matt’s output and the expectations of a Level 3 Tech which his role is.”
24.It should be noted the document does not set out the manner in which the applicant’s performance in relation to the matters the subject of the discussion would be judged, against what measures they would be judged, by whom or when. Nor is it made clear what the ramifications of a failure to improve would be.
25.Whilst Mr Crawford has, to his credit, set out in detail a number of matters which needed addressing by the applicant, in my view the document of 6 September 2019 cannot be said to be sufficiently formal or stringent enough to constitute performance appraisal as that term is defined under section 11A and in the line of authorities commencing with Irwin.
26.On 11 September 2019, Mr Vogt forwarded to Mr Wardle and Ms Masling notes of a meeting which included a list of to do tasks for the applicant. There is nothing, in my opinion, which suggests that this email forms part of a performance appraisal process. Rather, it simply seems to be a list of tasks which the applicant needs to complete. I do not make that observation as a criticism of Mr Vogt, however, it is necessary to examine the relevant material to determine whether it meets the criteria to be considered part of a performance appraisal process.
27.At [26] of the Reply, Julia Patterson, who was a human resources executive for the respondent noted that the applicant’s supervisor had ongoing concerns with his performance in technical leadership, technical expertise, planning, time management and communication. According to Ms Patterson:
“28. Bruce told me that he had been meeting with the claimant fortnightly to support him, hoping that performance management would not be required. Bruce told me there was no improvement. Bruce told me that other team members were being impacted as overcompensating for the claimant.
29. Bruce, Colin Davey (senior human resources advisor) and myself met with the claimant on 29 October 2019 to discuss the issues Bruce identified. Bruce invited the claimant to the meeting. New documentation was provided to the claimant before the meeting.
30. We informed the claimant that he will be placed on performance management, what the process was, how it would look like and asked for his input.
31. Bruce raised his concerns in the meeting. Bruce took his time to explain the evidence he had on the claimant’s performance. We were very supportive in the meeting.
32. He provided a Performance Improvement Plan (PIP) and the discussions took place in accordance with that. The claimant was engaging and took on board all that was discussed in meeting [sic] and regards to the PIP. The claimant stated that he agreed that he was not performing at the standard expected in his role. He did not disagree with the feedback provided.
33. The claimant expressed the desire to improve his performance and engage in the process to do so.”
28.In my view, Ms Patterson’s statement makes it clear that, contrary to the submission made on behalf of the respondent to the effect the performance appraisal commenced on 6 September 2019, in fact the performance appraisal did not really begin until the meeting on 29 October 2019. Were there already performance appraisal processes in place, one would not expect Mr Crawford to tell Ms Patterson that he had hoped “performance management would not be required.”
29.Given the contents of Ms Patterson’s statement, I am of the view that the process of performance appraisal did not commence until the meeting in late October 2019. As the authorities made clear, performance appraisal should be “formal, somewhat like an examination or a test rather than an extended and continuing assessment.” That is, managing some problems with a worker’s performance on an informal basis does not necessarily qualify as performance appraisal as that term is referred to in section 11A.
30.As to whether the conduct in relation to performance appraisal was the whole or predominant cause of the applicant’s problems, I note the applicant makes complaint in his statements that he was not provided with sufficient training to develop his skill set.
31.Although the respondent’s witnesses make some consistent comments regarding the applicant’s performance and the problems which he was having, his statement to the effect that there was insufficient training is not explicitly contradicted by them. It should, however, be noted that across two statements entered into evidence, the applicant does not describe that lack of training as being causative of his injury. He makes no mention of it in his first statement but does so in his second.
32.On balance, I do not believe the lack of training was causative of the applicant’s psychological injury. It may well be the lack of training gave rise to issues with his performance which in turn led in part to the performance appraisal being undertaken, however, I have difficulty accepting the proposition that this aspect of the applicant’s employment was a contributing factor to his injury. I do not suggest the applicant is anything other than a witness of truth, however, his own statements fall short of setting out the effect of any lack of training on his mental wellbeing.
33.On balance, I am of the opinion the applicant’s injury was predominantly caused by actions taken by the respondent with respect to performance appraisal, even though that performance appraisal only commenced at the meeting on 29 October 2019. At paragraph 20 and following of his statement dated 18 March 2020, the applicant said:
“20. On 25 October 2019, as I was about to leave work, Bruce walked with me to the door and told me that he wanted to meet with me on Monday with Virginia Patterson, HR and Chris (surname unknown). Bruce did not elaborate.
21. On the Monday (28 October 2019), Chris was not present, and instead it was an external person, whose name I do not know. The external person told me that it was a performance management meeting. That was the first time that I was aware I was going to be performance managed.
22. Questions were asked about how I was feeling at the time and how the project went. Three performance improvement areas were brought to my attention and I was provided with nine weeks to show that I met the requirements for my position. I was provided with that Performance Improvement Plan, that contained the action items and timeframes.
23. The first action item was time management, which I rate as an area that I felt I needed to improve (in the meeting of 28 October 2019). Human resources agreed to send me on some time management training – three sessions. When I attended the first session, the training was counselling – the person was a social worker from the employee assistance programme. This was a shock to me. There was no time management training in that meeting, just discussion.
24. I attended the second session, which was much the same as the first session.
25. I was provided with a letter, signed by Mark McLean, Director of Education (since ceased employment with the insured). After the meeting, stating that I was on a Performance Improvement Plan.
26. I attended fortnightly meetings with Bruce to discuss my progress in relation to the action items in the Performance Improvement Plan. All meetings held with Bruce felt hostile. No matter what work I produce at that point, major changes were required to the work I produced, due to Bruce’s perceived and changing expectations.”
34.It is not, in my opinion, a coincidence the applicant first consulted his general practitioner complaining of symptoms relating to a psychological injury after he was placed on the Performance Improvement Plan. Whilst correlation is not causation, in the circumstances, there is no suggestion the applicant was struggling with any psychological condition until such time as he was placed on the Performance Improvement Plan.
35.However, I am not of the opinion that the steps taken by the respondent with respect to performance appraisal were reasonable. It was made clear to the applicant at the meeting on 28 October 2019 that the future of his employment would be subject to the outcome of the Performance Improvement Plan which was provided to him on that date.
36.As admitted by the respondent itself, no notice was given to the applicant ahead of the meeting that it would concern performance appraisal. The applicant was not given the opportunity to provide a support person or have the agenda of the meeting provided to him in advance so he could formulate reasoned and dispassionate responses to the matters which were raised. Rather, the applicant was essentially ambushed at a serious meeting where he was to be placed on a plan, the outcomes of which would determine whether he was able to remain in employment and was given no notice of the subject of the meeting and not provided with support at it.
37.I also note Mr Crawford’s statement dated 1 April 2020 does not traverse the applicant’s allegation contained in his statement of 18 March 2020 to the respondent’s investigator, that Mr Crawford’s expectations changed during the course of the Performance Improvement Plan and the meetings were conducted in a hostile setting. In my view, that is a significant omission in the respondent’s evidence.
38.It should also be noted that the Performance Improvement Plan to which the applicant was subjected does not set out the ramifications for failure to meet the areas for improvement; does not indicate what input, if any, he would have into the review process; does not set out whether the applicant would have a right of reply to any relevant adverse findings made against him, nor does it indicate with clarity the precise bench marks he needed to meet with respect to tasks such as closing a “knowledge gap”, completing tasks to the satisfaction of customers or who would decide whether he was attending to his role “at the standard of delivery required by a Tech 3 Professional Officer.” In my view, greater particularity is required when subjecting an employee to performance appraisal than that which was provided to the applicant in this Performance Improvement Plan.
39.On balance, whilst I am satisfied that the respondent’s actions with respect to performance appraisal were the predominant cause of the applicant’s injury, I am not satisfied those actions were objectively reasonable having regard to the totality of the evidence.
40.This being so, the respondent’s defence under section 11A will fail.
Capacity for employment
41.The applicant contends that he has, since 18 August 2020, been totally incapacitated for employment. I reject that submission for the following reasons.
42.Although there are various certifications provided as to the applicant’s ongoing total incapacity, I note in his report dated 28 September 2020 the applicant’s own Independent Medical Examiner (IME), Dr Bertucen, stated the applicant had begun to look sporadically for alternative work opportunities, however, they were infrequent in Wagga Wagga. Dr Bertucen, when asked about the applicant’s capacity for employment stated:
“At the present stage, in my opinion, Mr Wardle is partially incapacitated for work and could probably work 15 to 20 hours per week in the IT field locally. Nonetheless, given the clinical trajectory in my opinion, Mr Wardle will probably regain full capacity for work within the next 6 to 12 months.”
43.Qualifying a worker’s partial incapacity for employment is not a precise science. I note the respondent’s IME, Dr Chow, stated in his first report dated 3 June 2020 that the applicant was fit to return to full time employment in either another vocation or with another manager. I reject that opinion, as it is at odds with the balance of the IME and treating medical evidence which suggests at the time of Dr Chow’s first report the applicant was still totally incapacitated for employment.
44.Indeed, in his second report dated 19 March 2021, Dr Chow noted the applicant was continuing to suffer from his adjustment disorder, was having ongoing treatment and the “prognosis of his condition will depend on when he will start engaging in vocational rehab and successfully engage in alternative employment.”
45.When next asked about the effects of the injury, Dr Chow suggested that the contribution to the applicant’s condition by the work injury should cease over “the next 6 to 12 months or at least once he starts to look for a new job.” Dr Chow also stated the applicant’s condition has not resolved and that as at 19 March 2021, he had only partial capacity to start engaging in alternative employment.
46.The slight concession in position by Dr Chow is appropriate given the balance of the medical evidence in the matter. It is apparent the applicant, at the time of Dr Chow’s second assessment in March 2021 continued to have ongoing difficulties. I do not, however, accept the applicant’s submission that his capacity for employment remains total.
47.Doing the best I can, I am of the view that the applicant was totally incapacitated for employment up to and including 19 March 2021, namely the date of Dr Chow’s second report. From 20 March 2021 to date and continuing, I find the applicant has partial capacity for employment to the value of $1,000 per week.
48.There will therefore be an award for the applicant on the claim for weekly compensation from 18 August 2020 to 19 March 2021 for total incapacity at the rate of 80% of his pre-injury average weekly earnings (PIAWE) pursuant to section 37 of the 1987 Act. From 20 March 2021 there will be an award reflecting the difference between 80% of his PIAWE and his capacity for employment, namely $1,000 per week, also pursuant to section 37.
SUMMARY
49.For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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