Wei and Comcare
[2010] AATA 894
•11 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 894
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3224
GENERAL ADMINISTRATIVE DIVISION ) Re GREG WEI Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date11 November 2010
PlaceCanberra
Decision The decision under review, to deny liability for ‘major depressive disorder, single episode’ under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), is set aside and in substitution the Tribunal decides that Mr Wei is entitled to be compensated for his ‘injury’. ..............................................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – claim for ‘adjustment reaction with mixed emotional features’ – consideration of the exclusionary provision that no compensation is payable if an injury is suffered as a result of ‘reasonable administrative action taken in a reasonable manner’ – employer’s decision to commence underperformance process – delay – manner of undertaking the process - decision under review set aside and substituted
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 5, 5A, 5B, 7(4)
Comcare v Mooi (2996) 69 FCR 439
Radulovic and Comcare [2010] AATA 777
Comcare v Chenhall (1992) 37 FCR 75
Gilbert and Comcare [2009] AATA 224
Repatriation Commission v Webb (1987) 13 ALD 421
Re Georges and Telstra Corporation Ltd [2009] 731
Re Reubinson and Comcare [2010] AATA 676
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR
REASONS FOR DECISION
11 November 2010 Professor RM Creyke, Senior Member 1. Mr Greg Wei made a claim for compensation for major depressive disorder, single instance, with a deemed date of injury of 17 June 2008.
2. Comcare accepted Mr Wei suffered from the condition and that it was significantly contributed to by his employment by the Australian Bureau of Statistics (ABS).
3. However, liability was denied because the condition was said to be as a result of ‘reasonable administrative action taken in a reasonable manner in respect o the employee’s employment’ in the terms of section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
4. The outcome was conveyed to Mr Wei in a decision of 15 January 2009, which was upheld on review on 8 May 2009. On 13 July 2009, Mr Wei appealed to the Tribunal.
Legislative and legal framework
5. To be eligible for compensation, Mr Wei must establish that he is seeking compensation in accordance with the Act ‘in respect of an injury suffered by an employee [which] results in … incapacity for work, or impairment’.[1]
[1] Act, s 14.
6. To be an ‘employee’ requires, as relevant, that the applicant be ‘a person who is employed by the Commonwealth or by a Commonwealth authority’.[2]
[2] Act, s 5(1)(a) – ‘employee’.
7. ‘Injury’ is defined, as relevant, as a ‘disease suffered by an employee’.[3] ‘Disease’ is further defined, as relevant, as an ‘ailment suffered by an employee … that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth’.[4] An ‘ailment’ ‘means any … mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’,[5] and an ‘impairment’ for the purpose of section 7(4) ‘means the …. damage or malfunction of any part of the body or of any bodily system or function’.[6]
[3] Act, s 5A(1)(a) – ‘injury’.
[4] Act, s 5B(1).
[5] Act, s 4(1) – ‘ailment’.
[6] Act, s 4(1) – ‘impairment’.
8. However, to be a compensable ‘injury’ the claimed condition must not be ‘a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’.[7] ‘Reasonable administrative action’ is defined.[8]
[7] Act, s 5A(1).
[8] Act, s 5A(2).
9. An ‘injury’ is taken to be sustained on the deemed date of injury, namely, ‘on the day when (a) the employee first sought medical treatment for the disease’ or (b) the disease …. first resulted in the incapacity for work, or impairment of the employee’.[9]
[9] Act, s 7(4).
10. In deciding what is ‘reasonable administrative action taken in a reasonable manner’ in the context of this matter, the ABS Certified Agreement 2006-2009 sets out the framework for managing work performance. Details of the procedures to be followed are in ABS Guidelines. In broad terms, the Certified Agreement provides:
·The employee must first be notified if their performance is below expectations, given an opportunity to respond, and ‘reasonable time to improve’ their performance;
·if performance does not improve, a formal assessment of performance by an independent person against a mutually acceptable work plan is to be implemented;
·if a finding of underperformance is made, the Agreement sets out the sanctions which may be applied, including reduction in salary or work level, reassignment of duties or termination.
The ABS Guidelines on Managing Underperformance (Guidelines) set out the procedures to be followed. There are two stages to the management of underperformance: Stage 1 is designed to assess levels of performance and is undertaken by the line manager; Stage 2 involves an independent assessment of performance when, at Stage 1, performance does not reach the required standard. Since no issue arises in these proceedings about Stage 2, it will not be reproduced. The terms of Stage 1 are referred to later. The Guidelines provide as preconditions to setting the underperformance action, as follows:
·A performance agreement is in place ….;
·The employee has had all appropriate and relevant training and the opportunity to integrate it into their work;
·Regular and appropriate feedback on performance has been provided, in line with the good practice principles of these guidelines; and
·Appropriate records have been kept and copies have been provided to the employee eg records of discussion, journal notes, emails, notification of the consequence of work performance not improving,
Issues
11. The principal issues are:
(a)whether Mr Wei’s injury resulted from administrative action that was undertaken in a reasonable manner, within section 5A(2) of the Act;
(b) if not, whether liability should be accepted under section 14 of the Act for ‘major depressive disorder, single episode’.
Background
12. Mr Geng Xin Wei, known as Mr Greg Wei, was born in Hunan, China in 1959 and immigrated to Australia in 1988. He is a fully qualified Certified and Practising Accountant (CPA) with 10 years’ of CPA professional membership.
13. His employment in the Australian Public Service began in 1996. Since then he has worked for a variety of agencies. He was first appointed to a substantive Executive Level 1 (EL1) position in 2000. In May 2006, he obtained a position at that level in the Financial Management Section (FMS) of the Australian Bureau of Statistics (ABS). Immediately prior to taking this position, Mr Wei had worked at National Archives where he had performed well. In that position, he had no staff management responsibilities. In the first performance report since moving from the ABS to the Department of Defence, dated September 2009, Mr Wei was rated ‘Fully Effective’ for the period February to August 2009.
14. For the ABS position, communication skills were one of the criteria for selection. In evidence at the hearing, Mr Mark Whybrow, Mr Wei’s supervisor, revealed that members of the interview panel had some concerns about Mr Wei’s ability to be understood ‘given his very strong accent’. Nonetheless, the panel agreed to the appointment. Following his appointment, Mr Whybrow successfully submitted a case that Mr Wei be paid above the base level of salary because of his ‘skills, abilities, professional qualifications and experience’.
15. Prior to his move to the ABS, Mr Wei had been undertaking speech pathology lessons to assist with his strong regional accent. These lessons continued after his move to the ABS and were part funded by that agency. In October 2006, he was given a Recognition Award for his team’s significant contribution to the work of the Corporate Services Division and the ABS.
16. Mr Whybrow said that soon after Mr Wei started he became ‘slightly concerned about [Mr Wei’s] ability to perform the role effectively, but reserved [his] judgement’. He also said that he provided ‘regular informal feedback trying to keep things positive’.
17. However, by the time of Mr Wei’s mid-cycle performance review report on 15 September 2006, which was signed by Mr Wei and Mr Whybrow on 21 December 2006, Mr Whybrow noted that although Mr Wei had ‘achieved against the delivery of External reporting and budgeting requirements’ and other technical performance criteria, he had issues ‘in relation to managing staff and relationship building’. The mid-cycle review proposed that Mr Wei ‘undertake specific mentor arrangements with the [Chief Financial Officer] and an external consultant’.
18. In May 2007, Mr Wei started work with an external coach, Mr Brian Keech. Mr Whybrow had, with the consent of Mr Wei, sent Mr Wei’s performance review to Mr Keech, and confirmed the areas on which Mr Keech should focus in coaching sessions. The email noted that the ‘imperative for improving current performance is in making progression on leadership and management skills in the current role, particularly around building and maintaining the team’. On 16 May 2007, Mr Keech provided Mr Whybrow and Mr Wei with a coaching plan to achieve three goals: ‘A richer appreciation of management & leadership’; ‘enhance communication capabilities’ and ‘identify management/leadership behavioural framework & develop confidence in personal management/& leadership style’. The plan was endorsed by Mr Wei.
19. However, although Mr Wei met with Mr Keech five or six times between May and October 2007, according to Mr Wei because it was difficult to make an appointment with the coach, he abandoned the effort. Mr Keech said in his statement that both he and Mr Wei had in time agreed that the sessions were not achieving their purpose. According to Mr Keech, Mr Wei needed a communications coach or speech therapist and Mr Wei’s requirements were outside his areas of expertise. The sessions ceased towards the end of 2007. In evidence at the hearing, Mr Whybrow confirmed that Mr Keech was not asked for and did not provide reports on Mr Wei’s progress to the ABS.
20. The final performance report in the reporting cycle, completed by Mr Whybrow and Mr Wei on 20 April 2007, noted that despite Mr Wei’s good technical skills, and active attempts to improve his performance, ‘there still remains a gap between [his] ability to communicate and expected core EL1 communication competencies’. Under ‘Interact with People’ the report said:
Greg does have a strong accent which makes his communication with others quite difficult. Greg’s communications skills at the moment do not allow for subtleties in communication to be picked up or understood. Greg needs to improve personal and environmental astuteness abilities and read between the lines and pick up underlying messages. Skills such as reading body language, knowing when to empathise or be authoritative and what works in different circumstances are key communication skills required at the EL1 level.
21. Finally under ‘Action Points’ the initial report noted:
An external mentoring program has been arranged for Greg to help him develop his communication and leadership skills. Financial support has also been given for continued speech therapy. The issue for Greg and FMS is that we can not continue down a path of under performance indefinitely and that if significant improvement does not occur with Greg’s communication and liaison skills within the next 6 months, other arrangements will need to be considered. Such as a reassessment of Greg’s role and responsibilities to more accurately match his core skills and competences.
The final version of the report, however, reduced the time limit to three months and the ‘Action Points’ substituted after the same first two sentences in this paragraph in the initial report that ‘If significant improvement does not occur with Greg’s communication and liaison skills within the next 3 months, formal under-performance processes will be introduced’.
22. Mr Whybrow had initially ranked Mr Wei as ‘Unsuitable’ in the first version of the report. The People Management and Support Section (PMSS) pointed out, however, that as Mr Whybrow had not followed the performance management procedures in the ABS Certified Agreement 2006-2009 (Certified Agreement) and the ABS Managing Underperformance Guidelines (Guidelines), a ranking of ‘unsuitable’ was premature. Accordingly, Mr Whybrow changed the assessment in the final version to ‘Effective’.
23. In June 2007, Mr Wei, Ms Stokman, by then Mr Wei’s direct supervisor, and Mr Whybrow, then Chief Financial Officer, signed a performance agreement for the performance cycle beginning in April 2007, setting out the performance indicators for Mr Wei’s role.
24. On 3 August 2007, Mr Whybrow, who was moving that month to another agency, sent an email to Mr Wei, saying that before Mr Whybrow left the ABS, he wanted to record that if issues with Mr Wei’s performance continued, underperformance management would commence. The email concluded ‘it is my recommendation that official under performance management takes place’. At the hearing, Ms Debra Foggin, Chief Finance Officer, ABS, confirmed that although the conclusion was expressed in the form of a recommendation, it was in fact a decision by Mr Whybrow. She said that, had the steps that are a precursor to Stage 1 of the Guidelines been taken prior to 3 August 2007, she believed the process would have commenced at that point.
25. This absence of necessary documentary evidence was illustrated by Ms Foggin, who said in her statement dated 19 November 2009 that there was no documentation after the meeting she attended in August with Mr Wei and Mr Whybrow. As she said: ‘[Mr Whybrow] had intended to provide me with some documentation on the details of the underperformance after his departure from the Agency but this did not happen’. At the hearing, she confirmed that, given her understanding was that the underperformance processes had commenced before Mr Whybrow left in August 2007, the material to be provided to her would have been the notes of discussions and other written records required as a precursor to commencement of underperformance action.
26. Instead, taking those steps was left to his successor. As Mr Whybrow said in his statement of 18 November 2009:
… the underperformance process was still at the documentation stage [when Mr Whybrow left] with work plans developed by Chris Stokman [Mr Wei’s] immediate supervisor to directly monitoring his performance. I am certain that the Applicant was made fully aware that there were performance issues and that it was only a matter of time before the formal underperformance process would commence.
27. In an email to Ms Stokman, dated 7 August 2007, Mr Wei responded to comments made by Mr Whybrow about his performance. Mr Wei said he believed Mr Whybrow’s recommendation was unfair, since it did not specify the areas of continuing underperformance, and he ‘did not focus on results and outcomes against agreed performance indicators and giving examples’. He also complained that his performance had not been managed as required, and in particular there had been no regular feedback about his performance from Mr Whybrow. Mr Wei also referred to his Competent Toastmaster award as evidence of his improved communication skills, and his role in the on time delivery of the ABS 2006-07 Financial Statements as an indicator he was meeting performance standards. Neither had been referred to by Mr Whybrow in his final performance assessment report.
28. Ms Stokman said she was determined to start afresh with Mr Wei and to make her own assessment of his performance. On 14 August 2007, a meeting was held between Ms Stokman and Mr Wei in which she described concerns about his communication, lack of sound judgement and inability to exercise initiative, staff management, time management, and the extensive amount of supervision and guidance both upwards and downwards that he needed. A summary of this meeting was prepared by Ms Stokman on 21 August 2007, also giving examples. Both documents were given to Mr Wei.
29. Later, on 14 August 2007, Ms Stokman met with Ms Linda Malcolm, PMSS, who advised that as ‘no follow up action has taken place by [Mr Wei’s] line managers’ to their concerns about his level of performance, she ‘could not proceed with Stage 1 [for the Underperformance procedures] at this time, even though the concerns with Greg’s performance remain’.
30. On 21 August 2007, Ms Stokman had discussions with Mr Wei to explain what she understood were Mr Whybrow’s concerns. The summary of the discussions was provided to Mr Wei. The notes pointed out that she believed Mr Whybrow had been frustrated because, although he had raised issues of concern with Mr Wei in December 2006 arising from the mid-cycle review in September/October 2006, Mr Wei had not addressed them, nor had sought clarification and feedback. She believed some of that frustration was because Mr Wei should have taken responsibility for obtaining that information. She also pointed out that Mr Whybrow had said again in April 2007 at the end of the cycle that he could see no significant level of change in the areas of performance about which Mr Whybrow had expressed concern.
31. On 7 September 2007, Ms Malcolm emailed Ms Stokman setting out the way forward to manage Mr Wei’s underperformance. The steps involved:
·Clearly articulating expectations, roles and responsibilities of someone in Mr Wei’s position and setting these out in a performance agreement;
·A meeting with Mr Wei to inform him that concerns about his performance continued and to provide him with examples;
·Advice to Mr Wei that his performance would be reviewed in 6-8 weeks time;
·Advice to Mr Wei that these steps had been taken following consultation with People Management and Support Section and that he can also seek advice from the Section. This step also required that the line manager ‘provide Greg with an overview of where things are at and the Stage 1 process’.
32. Notes to PMSS for the purposes of the last dot point were provided by Ms Stokman in December 2007. This followed a request from Ms Wendy Bullock, PMSS on 13 December 2007. Following the email Ms Stokman in an undated reply said that ‘a draft’ titled ‘Underperformance process’ was with the Chief Finance Officer for clearance but was provided as an attachment to Ms Bullock at that point. Ms Bullock again emailed re the notes on 23 January 2008 and Ms Stokman advised on 23 January 2008 that the CFO still had not reviewed the document.
33. Ms Malcolm emailed Ms Stokman on 7 September 2007 with a file note of the 16 August meeting with Mr Wei and to ask how the further meeting with Mr Wei following the 24 August 2007 meeting had gone. On 14 September 2007, Ms Stokman emailed Ms Malcolm to report on progress. The email referred to positive steps Mr Wei had taken, and a project she said Mr Wei was to commence on about 24 September which was to be part of the formal assessment of his performance. The email also noted that his performance review was to be undertaken within the normal mid-cycle timing.
34. On 24 September 2007, Ms Stokman produced notes of comments by Mr Keech in a meeting she had had with him. These included that Mr Wei ‘cannot do conceptual or strategic issues’, that he ‘takes information back into his first language then back into English’ which slows his responses; that he was ‘struggling with information flows’ and ‘informal conversations’. She noted Mr Keech had said that Mr Wei was ‘pleased with focus on issues’ which ‘was not there at the start’.
35. On 30 September 2007, Mr Wei’s mid-cycle performance review was due. Mr Wei completed his part of the review by 23 October 2007. Mr Wei was then on leave from 25 October to 7 November. Ms Stokman was also on leave until 8 November. Apart from the 2007-08 Christmas break, Mr Wei and Ms Stokman also had a couple of days’ leave each in January 2008. The performance discussion between Ms Stokman and Mr Wei did not take place until 8 February 2009.
36. Ms Stokman attributed the delay in completing the mid-cycle review as ‘work pressures’, both she and Mr Wei taking leave in November, a change of government in December, and her own leave arrangements over Christmas/New Year.. Nonetheless, at the hearing she agreed that the delay was ‘not good managerial practice’.
37. In early October 2007, Mr Wei asked Ms Stokman to provide him with a reference for a position with another agency. Her notes say that the reference ‘clearly identified some areas of concern’ being ‘judgement, negotiation/consultation skills; interpersonal skills, and relationship building’ and in another report at the time, she noted ‘We agreed that those areas [of concern outlined in the reference] would be included under action items in your mid-cycle review’.
38. Ms Stokman sent Ms Malcolm an email on 17 October 2007 concerning Mr Wei’s progress. The email listed areas of concern, but conceded that she and Ms Foggin ‘do note some significant areas of improvement’. The email also said:
[Ms Foggin] and I do have a project in mind for him as well, which we have commenced team discussion on, so it is in the early stages of conception. If I need to get him to do something to assess where he still has weak points then we will roll the rest of that project to him as his responsibility.
39. Ms Foggin noted that she had been provided with regular feedback by Ms Stokman about Mr Wei’s performance. She also reported that in conversations with Mr Wei, it became apparent that he did not accept the accuracy of the matters subject to critical comment, including not just management issues but also ‘a lack of technical skill and ability’. She asserted that she and Ms Stokman ‘spent considerable time trying to help the Applicant understand that he was under performing’ and she noted ‘the Applicant was reluctant to avail himself of the opportunities provided’.
40. Ms Foggin also said ’I realised by December 2007 that the performance issues would have to be formally addressed’. Since she said she knew that such a move required well documented data before the formal process could commence, she and Ms Stokman decided to ask Mr Wei to complete a specific project in order to assess his performance.
41. On 4 February 2008, Ms Stokman emailed Ms Wendy Bullock to say that she was expecting to finalise Mr Wei’s mid-cycle review ‘this week’, that she intended to assess the internal project he had been given in November which was to be reviewed ‘next week’, and noted that ‘once the project review meeting is held and we document the outcomes … we will then need [to] advise Greg if we are going to commence formal proceedings on inefficiency grounds’. For that purpose ‘we have identified a specific range of projects for Greg to conduct off-line as part of that process’.
42. When asked at the hearing whether Mr Wei understood that despite the email from Ms Malcolm of 7 September 2007 setting out the next steps, including that his performance would be reviewed in six to eight weeks, he understood that no formal process was yet in place, Ms Stokman said ‘I understood that Mr Wei was aware that we were not taking formal under-performance process at that time’. She conceded, however, that she ‘neglected to … actually put that formally in writing’. She said she had, however, conveyed the information to him orally. Ms Foggin, when asked the same question at the hearing, said she assumed Ms Stokman would have advised Mr Wei that the formal process had not yet been implemented.
43. Ms Stokman also conceded that she may not have ensured that a meeting was held with PMSS in accordance with Ms Malcolm’s suggested timetable of 7 September 2007 ‘to provide Greg with an overview of where things are at and the stage 1 process’.
44. On 8 February 2008, Ms Stokman had the mid-cycle review discussion with Mr Wei. The reasons for her concerns about his performance were comprehensively set out and the statement was entered into the ABS system. This meeting was followed by a number of meetings with Mr Wei and Ms Foggin to deal with his objections to the content of the report. Ms Stokman said Mr Wei had difficulty accepting the feedback, particularly in relation to qualitative outcomes. As a consequence, the mid-cycle review had not been completed by early March 2008. However, Ms Stokman met with Mr Wei on 13 March 2008, when she handed him another document detailing performance issues and informed him that this concluded the mid-cycle review. The mid-cycle performance review document was signed by Mr Wei on 31 March 2008, but Ms Stokman did not sign until 12 May 2008.
45. On 14 March 2008, Ms Stokman and Ms Foggin had a meeting with Mr Wei to inform him that the formal underperformance process was commencing and they were embarking on Stage 1 of the process. He was also advised that he would be taken ‘offline’ to do specific projects on which he was to be assessed as part of that process. After the meeting Ms Foggin emailed Mr Wei to confirm the outcomes of the meeting. The email noted ‘We emphasised that these projects will be undertaken as part of the ABS’s under-performance process and would be your opportunity to prove that you are capable of maintaining an EL1 position contrary to your recent performance assessment’. She said clear instructions would be given to him ‘over the next 8 weeks’. In her statement Ms Stokman said that ‘the Applicant’s work performance deteriorated from that time’. She also recorded Mr Wei as telling her that the process caused him to feel depressed and upset, to be distracted and unable to focus on his work.
46. Ms Stokman agreed at the hearing that it would have been fair to have ensured that Mr Wei had a support person and someone from PMSS at that meeting. However, she also pointed out that the meeting was arranged by Ms Foggin, not her. At the hearing, Ms Foggin simply asserted that no support person was necessary at the meeting. Ms Foggin did acknowledge that she would have expected something to be given to Mr Wei in writing prior to the 14 March meeting. She said also that she did not know why notes of that meeting were not given to Mr Wei until 2 April 2008.
47. On 2 April 2008, Ms Foggin emailed Mr Wei to confirm that his performance had been found ‘less than satisfactory’ and he was told that his action plan would be given to him ‘later this week’, that is, by 4 April 2008. The email listed the three projects which had been identified as the assessment tools for the process. Ms Stokman acknowledged at the hearing that the Guidelines required that once an officer has been notified that underperformance action is to commence, ‘stage 1 of these procedures must be commenced immediately’. However, the final draft of the action plan was not notified to Mr Wei until 12 June 2008, although he was privy to earlier drafts.
48. Ms Foggin acknowledged that for a draft which was supposed to have been supplied on 4 April not to have been received until 12 June 2008 was an ‘inordinate delay’. However, she recalled that during this period Mr Wei had had 5 and a half weeks on carer’s leave which was a reason for part of that delay. Ms Stokman said in evidence she could not explain the delay. However, she agreed at the hearing that despite the promise of sending Mr Wei the draft Action Plan by 4 April 2008, this could never have been achieved since the plan needed to be pre-approved by PMSS.
49. In April 2008 Mr Wei’s mother commenced dialysis. This entailed him taking regular and at times extensive periods of carer’s leave. Mr Wei regularly stayed with at the hospital with his mother for the day while she underwent dialysis, since she did not speak English and was anxious about the procedure. Mr Wei took carer’s leave on 18 April 2008 and again from 21 April to 30 May 2008.
50. At a performance meeting on 17 April 2008 attended by Mr Wei, Ms Foggin and Ms Stokman, Mr Wei was informed that despite his saying the process was unfair, that he was psychologically stressed, and that he believed the process involved unfair treatment and judgment, the formal underperformance process was to go ahead and would take eight weeks. Ms Stokman had agreed at the end of the meeting that she would follow up with PMSS on the action plan for the projects and would document the meeting. At this meeting, Ms Foggin had noted that if Mr Wei had been in the private sector he would just have been sacked. She was also of the firm belief that the projects in the action plan were within Mr Wei’s competence. He was a financial accountant and all the projects were within the area of expertise of someone with his background.
51. Ms Stokman emailed Ms Foggin that day to set out the framework of the Action Plan, Stage 1 of which was scheduled to be run from 28 April to 20 June 2008. Ms Bullock emailed Ms Foggin on 17 April 2008 to say it was planned to provide the final draft of the action plan to Mr Wei that day in order that he could then consider it while on leave the following week. On 8 May 2008, Ms Bullock emailed Ms Stokman to ask why she had approved the five and a half weeks carer’s leave at that time.
52. On 10 June 2008, there was a performance discussion with Mr Wei, Ms Stokman, and Ms Foggin. On 12 June 2008, Mr Wei was provided with the draft Action Plan scheduled to be put into operation for the period 16 June 2008 to 8 August 2008 and listing the three projects to be performed by him in the eight week period to 8 August 2008. That day, Mr Wei contacted the Injury Management Section detailing his concerns about his health and was advised to discuss them with a counsellor. On 13 June 2008, Ms Foggin emailed Mr Wei stating that the underperformance process would commence on 16 June, that the Action Plan would be discussed and that there were to be weekly meetings as part of the process.
53. On 16 June 2008, Mr Wei’s workmates were concerned that he might self-harm. He was persuaded to finish work at lunch time and was not at work the following day. He emailed Ms Stokman on 17 June 2008 saying he was ‘stressful and deeply depressed’. He attended his general practitioner, Dr Ratnasingham on 17 June 2008, who diagnosed him with ‘anxiety state, low mood and feels depressed’ as a result of ‘being discriminated and bullied’. Mr Wei was then on stress leave till 20 June 2008. The Stage 1 meeting to discuss the action plan was rescheduled.
54. On 23 June 2008, Ms Stokman emailed Mr Wei to notify him that the start date of the eight week process was to be delayed to take account of Mr Wei’s leave and that the component to assess Mr Wei’s staff management performance was to be removed since the project was being conducted by Mr Wei on his own and did not involve staff management. Ms Stokman agreed at the hearing that this meant a major area of Mr Wei’s suggested performance deficiency was not to be assessed. The consequence was that even had he succeeded to demonstrate his competency in the four other areas covered by the action plan, he might still have been found to be not suitable because this key area of suspected incompetence, staff management, had not been assessed. She also agreed in cross-examination that an employee undergoing the process would be evaluated according to the criteria in their duty statement, that is, within their area of expertise and that the person should not be asked to learn new processes. Mr Wei had asserted that some of the projects involved skills and knowledge which he would need to acquire.
55. On 25 June 2008, Ms Stokman emailed Mr Wei to say that she had postponed the start date for the Action Plan for the for weeks to 30 June 2008, with completion by 22 August 2008. An Action Plan meeting had been scheduled for 25 June 2008 but a support person was not available, so the meeting took place on 27 June 2008. At the meeting, Mr Wei objected to the projects since he said they were outside the area of his duty statement, required skills and knowledge which he did not require for his position, were not appropriate for assessing him for the position he currently held, and were not objectively verifiable. They also did not allow for a ‘learning curve in the new position’ and he was concerned that he would not be able to complete the projects within the eight weeks as he was undertaking the projects on his own. Ms Stokman and Ms Foggin disagreed. Mr Wei was on carer’s leave from 30 June to 3 July 2008.
56. Mr Wei said he was also unhappy about not being eligible to participate in the salary ratings process as a consequence. At that time Mr Wei requested there be an independent review of the underperformance process by an independent Agency Director. The report, which is undated, did not find that the decision to commence underperformance action was ‘unwarranted’; rejected Mr Wei’s allegation of harassment and bullying; concluded that there was no substance to the claim that the procedures leading to the decision had not been followed; and found in relation to the secondary matter of eligibility for a pay rise that, since Mr Wei knew in March 2008 that underperformance action was under way, and according to the guidelines a salary rise is not payable in ‘a period in which an employee may be advised they are underperforming’, he was not eligible in accordance with the guidelines.
57. In December 2008, Mr Wei resigned from the ABS and commenced employment with the Department of Defence. No evidence was provided as to whether Mr Wei completed the projects assigned or whether his underperformance was confirmed.
Medical evidence
58. Dr Graham George, consultant psychiatrist, reported on 27 August 2008, that Mr Wei was suffering major depression involving ‘deficits in attention, concentration and short term memory’, with date of injury being 10 June 2008. In his opinion, Mr Wei had limited insight into the nature of his illness. He was not asked whether the condition was work-related. Dr L S Ratnasingham, Mr Wei’s treating practitioner, saw Mr Wei on 17 June 2008 and diagnosed ‘anxiety’ and ’related depression’, the symptoms being ‘related to his situation at work on account of the treatment by his supervisors’.
59. Dr Zoltan Zsadanyi, consultant psychiatrist, saw Mr Wei on 13 October 2008. He diagnosed major depressive disorder, single episode, severe without psychotic features and with no suicidal ideas at that time, caused by work-related incidents, with date of onset of the symptoms as 10 June 2008.He had apparently also seen Dr Knox, another consultant psychiatrist, on 24 September 2008 when he was prescribed an anti-depressant and he was due to be reviewed by Dr Knox on 4 November 2008. No report from Dr Knox has been provided.
Consideration
60. It was common ground at the hearing that Mr Wei was an ‘employee’,[10] being employed by an Agency, namely, the Australian Bureau of Statistics, that he suffered from an ‘ailment’,[11] namely, major depressive disorder, single episode, which was outside the boundaries of normal mental functioning and behaviour.[12] In turn, that ailment was a ‘disease’,[13] which also means Mr Wei had suffered an ‘injury’.[14] Both parties also accepted that Mr Wei’s employment had contributed to his condition to a significant degree.[15]
[10] Act, ss 4(1), 5.
[11] Act, s 4(1) – definition of ‘ailment’.
[12] Comcare v Mooi (1996) 69 FCR 439.
[13] Act, s 5B.
[14] Act, s 5A.
[15] Act, s 5B(1).
61. It was also common ground that the date of injury was deemed to be 17 June 2008. That was the date on which Mr Wei consulted Dr Ratnasingham about his depressive disorder. Although Dr George and Dr Zsadanyi nominated 10 June 2008 as the date of injury, and this concurs with Dr Ratnasingham’s clinical notes which state that Mr Wei first ‘noticed worsening’ one week earlier, there is insufficient evidence that Mr Wei’s symptoms on 10 June 2008 had been ‘outside the boundaries of normal mental functioning and behaviour’[16] until 16 June 2008, when Mr Wei was observed in a situation that was life-threatening and that led to him taking the remainder of that day and until 20 June 2008 off work. Dr Ratnasingham’s diagnosis was made at a visit by Mr Wei on 17 June 2008, which was the date on which he ‘first sought medical treatment for the condition'.[17] The Tribunal accepts that these concessions were properly made.
[16] Comcare v Mooi (1996) 69 FCR 439, 444.
[17] Act, s 7(4).
62. The principal contested issue is whether Mr Wei’s ‘injury’ was ‘suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [Mr Wei’s] employment’.[18] Mr Wei said in his statement of facts, issue and contentions: ‘[i]n my case, the actions carried out during the performance assessment and instigation of an under performance process were not conducted in a reasonable manner and [did not comply] with the ABS Managing Underperformance Guidelines.’
[18] Act, s 5A(1).
63. ‘Administrative action’ is defined in section 5A(2) of the Act. Although not defined exhaustively, ‘administrative action’ is not at large. The expression refers to administrative actions that involve any assessment of performance or corrective action of an employee by a manager, the failure to obtain a promotion, reclassification, transfer or benefit, any comparable administrative actions, and anything reasonable done in connection with such matters.[19] When a disease is ‘suffered as a result of reasonable administrative action taken in a reasonable manner' the 'injury' is not compensable.[20]
[19] Re Radulovic and Comcare [2010] AATA 777, para 74.
[20] Act s 5(1).
64. At the hearing, it was accepted that the administrative actions identified by Comcare involved a cluster of activities relating to the following:
· The events surrounding Mr Wei's mid-cycle performance assessment in April 2007, including Mr Whybrow's recommendation in August 2007;
· The mid-cycle assessment for 2007-2008;
· The events related to the decision to commence an under performance process on 14 March 2008 until the end of June 2008.
65. Each of these clusters of activities will be considered in turn.
Whether an ‘administrative action’ is ‘reasonable’
66. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful.[21] In addition, for ‘administrative action’ to be reasonable, it must be established that there was nothing ‘untoward’ about the actions involved.[22] The actions must also not be ‘irrational, absurd or ridiculous’.[23]
[21] Comcare v Chenhall (1992) 37 FCR 75.
[22] Re Gilbert and Comcare [2009] AATA 224, para 33 (DP Hack).
[23] Repatriation Commission v Webb (1987) 13 ALD 421, 421 (Beaumont J).
67. The question of whether ‘administrative action’ is taken ‘in a reasonable manner’ is a question of fact and must be considered on an objective basis. Matters that should be taken into account in that consideration include the circumstances leading to and flowing from any relevant administrative action, the particular circumstances of the individual known to the employer or which could have been discovered by simple inquiry, and any relevant corporate policy framework within which the actions took place.[24] These principles will be applied to the circumstances involved in this case.
[24] Re Georges and Telstra Corporation Ltd [2009] 731, para 33; Re Reubinson and Comcare [2010] AATA 676; Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42.
68. The manner of taking administrative action must also be assessed against any relevant corporate policy framework within which the actions took place. This requires that the Tribunal consider the Certified Agreement, and more specifically, the Guidelines which ‘expand on the framework’ in the Certified Agreement.
69. The Guidelines set out the procedures to be followed, but only when ‘all attempts under the Performance Management Scheme have failed to improve work performance and the line manager has advised the employee in writing that their work performance is less than effective’.
70. The Principles underpinning the Guidelines are based on ‘a mutual obligation to ensure timely and meaningful participation in all performance management processes’. Specifically, the principles involve ‘clarity of role and responsibilities’;‘open communication and feedback’;‘natural justice’; and ‘transparency of process’.
71. Preconditions to a finding of underperformance is that a performance agreement is in place; that the employee has had all appropriate and relevant training and the opportunity to integrate it into their work; regular and appropriate feedback on performance has been provided in line with the good practice principles in the guidelines; and appropriate records have been kept and provided to the employee.
72. Finally, if underperformance action under Stage 1 of the Guidelines is instigated, this requires in clause 15 of the Guidelines:
Stage 1: Line Manager assessment
a. Action Plan: The line manager and the employee will create an Action Plan. ... The Action Plan will contain:
(i) a timetable for implementation
(ii) clear expectations of work performance at the employee's classification
(iii) tasks that are to be undertaken during the period, including completion date and assessment of required standard
(iv) a meeting schedule; and
(v) articulation of the expected outcomes.
In order for the employee to reach the required standard of work performance, the Action Plan is to be undertaken for an eight week period. The ABS Work Level Standards should be taken into account when setting expectations and agreeing on the tasks to be undertaken.
b. Record keeping: The line manager is required to document brief notes of all work performance and feedback discussions and provide these to the employee, who has an opportunity to provide comments. The notes do not need to be detailed, but should cover the main points and articulate:
(i) areas for improvement
(ii) an Action Plan to address the work performance which has been identified as less than effective; and
(iii) regular feedback sessions and outcomes.
Both the line manager and employee should keep a copy of the notes to assist them to clarify expectations, check understanding and evaluate progress.
c. Assessment of Stage 1: No further action is taken if work performance meets the required standard at the end of Stage 1. However, if work performance does not meet the required standard, Stage 2 of the Managing Underperformance process is instigated.
Clause 13 of the Guidelines provides that where the preconditions to underperformance action have been complied with the employee must be ‘notified that their work performance is less than effective’ and at that point ‘Stage 1 of these procedures must be commenced immediately’. (emphasis added)
Mr Wei's performance assessment in April 2007, including Mr Whybrow's recommendation in August 2007
'Reasonable actions'
73. The assessment by Mr Whybrow in his final cycle review report, coupled with the initial ranking of Mr Wei as ‘not suitable’ in that report, came as a shock to Mr Wei. Mr Wei said that in the seven years as an EL1 prior to his time at the ABS, he had not previously been so rated and since leaving the ABS he was ranked by his new employer as ‘fully effective’. As Mr Whybrow said, ‘he was very upset to receive that information’ (Mr Whybrow said he was ‘angry’) and ‘It seemed to come as a complete surprise to [Mr Wei] that he was underperforming’. Nonetheless, that impact is insufficient to make a finding that the action by Mr Whybrow was unreasonable.
74. Deciding whether administrative action is reasonable involves a consideration of whether the action was lawful. For actions taken in relation to underperformance, the procedures are set out in the Certified Agreement and the Guidelines. In other words, these procedures provide the legal parameters within which the manager must act.
75. Mr Whybrow had alerted Mr Wei to concerns about his performance in his mid-cycle review report in December 2006 and had proposed that Mr Wei have a mentoring arrangement with the CFO, as well as the assistance of an external consultant, to help him better manage staff and with his ‘relationship building’. Mr Wei had moved from a position at Archives in which he had not had staff management responsibilities to one in the ABS where he was in charge of four persons. At this point, however, Mr Whybrow did not follow the preliminary procedures to the underperformance process in the Guidelines. Failure to do so was, however, not unlawful, since Mr Whybrow may have assumed that Mr Wei was capable of improving his performance and thus avoid the process.
76. Mr Wei clearly had difficulties with communication, at an interpersonal level and in a more structured setting. These deficiencies at times prevented him from effectively undertaking his liaison work with external clients, and within the ABS. His inexperience in people management also affected his ability to communicate clearly with staff, and there are reports, for example, of conversations with his team by the ABS independent reviewer in response to a request for review of action by Mr Wei, indicating that staff often bypassed Mr Wei and went straight to his supervisor when seeking advice or instructions. There were clearly issues on this front which required remedying.
77. Despite the warning by Mr Whybrow to Mr Wei during the mid-cycle review about his communications and management problems, there was apparently no change in Mr Wei’s performance in the first quarter of 2007. As a consequence, in April 2007, in Mr Whybrow’s final report of the 2006-2007 reporting cycle, he commented that ‘If significant improvement does not occur with Greg’s communication and liaison skills within the next 3 months, formal under-performance processes will be introduced’.
78. Initially, in the end or cycle review in April 2007 Mr Whybrow had intended to rank Mr Wei as ‘unsuitable’ However, he was advised by the PMSS that as Mr Whybrow had not followed the performance management procedures in the Certified Agreement and the Guidelines, he could not allocate such a ranking. Accordingly, Mr Whybrow ranked Mr Wei as ‘effective’. That decision was, therefore, lawful. At the same time, given Mr Whybrow’s concerns about his performance, it was not ‘irrational, absurd or ridiculous’ to have issued the warning he gave in April 2007. The Tribunal finds, as a consequence, that Mr Whybrow’s actions in relation to the April 2007 performance review were not unreasonable and overall were lawful.
'Actions taken in a reasonable manner'
79. That leaves the issue of whether the management actions which culminated in the end-of-cycle report for the 2006-2007 performance assessment were taken in a reasonable manner. In making its assessment, the Tribunal must take an objective view, and consider the circumstances leading to and flowing from any relevant administrative action, the particular circumstances of the individual known to the employer or which could have been discovered by simple inquiry, and any relevant corporate policy framework within which the actions took place. The corporate policy framework in this instance are found in the Certified Agreement and the Guidelines.
80. The circumstances leading to the administrative action have been taken into account in deciding that it was not unreasonable to warn about an impending underperformance process should Mr Wei’s performance not improve in the areas of concern. In relation to other circumstances, the Tribunal finds that Mr Whybrow was aware that Mr Wei was caring for his mother, who was suffering from chronic renal failure. However, as his mother was not on dialysis until April 2008, this circumstance had less impact in the period in question in 2007 than it did after April 2008.
81. Another particular circumstance relating to Mr Wei was his English proficiency. Mr Wei was Chinese born, and though at the time of the review in 2007, he had been in Australia for nineteen years, he still needed to work at his English expression, both oral and written. His communication skills had been an issue from the commencement of his appointment to the ABS. Mr Wei had acknowledged at his interview that he had a thick accent and Mr Whybrow conceded that he had some difficulty understanding him during the interview process. However, as the other two members of the interview panel had said they had not had the same difficulty, and Mr Whybrow received positive reports from Mr Wei’s referees, Mr Wei had been appointed.
82. Mr Wei was working on his communication skills. He was receiving assistance from a speech therapist, and was attending Toastmasters. So it caused surprise to Mr Wei to discover that his team members had difficulty with his communication. Despite these efforts by Mr Wei, at the end of cycle review in April 2007, Mr Whybrow concluded that Mr Wei's ‘communication skills remain an area of concern and [are] directly affecting ….key stakeholders, clients and program managers and … his team’. As his report said:
Greg needs to improve personal and environmental astuteness abilities and read between the lines and pick up underlying messages. Skills such as reading body language, knowing when to empathise or be authoritative and what works in different circumstances are key communication skills required at the EL1 level.
83. It is a challenge even to articulate, much less train someone who lacks these skills, to understand and to implement behaviours and to adopt a mode of communications which reflect these requirements.. Deciding whether that challenge has been met to a reasonable degree is also not easy. Nonetheless, the Tribunal has found that the actions taken by Mr Whybrow and FMS to assist Mr Wei with his communication and behavioural improvements fell short of reasonable managerial practice.
84. Given Mr Whybrow had identified these communications and other difficulties, it is surprising he did not resort more frequently to written instruction/advice to Mr Wei. Mr Whybrow continued to communicate with Mr Wei about his performance orally rather than in writing, as is evident from the absence of documented communication between them. Mr Whybrow confirmed at the hearing that ‘the last piece of written communication’ from him to Mr Wei about Mr Wei’s performance, prior to the assessment in April 2007, was his report as part of the mid-cycle review in December 2006. He maintained, however, that there was ongoing oral communication. The Tribunal notes by contrast that Ms Stokman, as Mr Wei’s supervisor, used email and other forms of written communication as her preferred mode of communication with Mr Wei for clarity and to avoid misunderstanding. So despite Mr Whybrow saying in evidence that ‘A great deal of effort has been expended by Greg and FMS on working [to improve] communications’, since these efforts did not apparently improve Mr Wei's communication skill level, the Tribunal considers that good management practice required a different strategy, including more written instruction, to Mr Wei. This was not provided.
85. Mr Wei also said it was not until March 2008 that he learned that his management style was an issue. Although management issues were referred to in Mr Whybrow’s April 2007 report, it is apparent that Mr Wei did not understand the basis for the concern. Mr Wei claimed that Mr Whybrow did not discuss performance issues with him either formally, or informally. He acknowledged that Mr Whybrow had put something about his management style in the performance agreement, but this was not produced until June 2007. Mr Wei also said that the performance agreement did not contain examples so Mr Wei did not understand what was needed. That concern was confirmed in evidence by Ms Stokman who noted that not long after she formally became Mr Wei’s line manager in August 2007 Mr Wei came to her because he did not understand some of the issues in the performance assessment report of April 2007 by Mr Whybrow and asked her to explain what it was that Mr Whybrow had in mind.
86. Mr Whybrow certainly recommended that others assist Mr Wei in this regard. However, even if he considered he was thereby satisfying his management responsibilities in this regard, there were deficiencies in the manner of implementing that recommendation. The April 2007 report noted that ‘an external mentoring program has been arranged’, but it was not until 18 May 2007 that Mr Whybrow first provided a briefing to the external mentor, Mr Keech, about Mr Wei’s needs in this area, and not until 22 May 2007 that the first meeting between Mr Keech and Mr Wei took place. There is no reference in the final review in April 2007 to Mr Wei having received any mentoring from a specific person in senior management, as recommended by Mr Whybrow in the mid-cycle review, and Ms Foggin said in evidence at the hearing that mentoring by the CFO did not occur. Since it was appropriate for Mr Whybrow, as the manager, to have set both these arrangements in place, the failure to do so, or to do so earlier, were deficiencies in the manner in which these recommendations were implemented.
87. Mr Whybrow was also aware that Mr Wei was reluctant to accept that he had performance deficiencies and firmly believed he was fulfilling most of his performance obligations. In other words, an additional issue for Mr Wei’s managers was his absence of self-awareness about these deficiencies. For example, in April 2007, Mr Wei asserted in his performance review that he was effectively managing the personnel with whom he was working, including liaising with colleagues, subordinates and external stakeholders. Mr Whybrow commented that ‘Greg does not agree with my overall assessment that this [communication] weakness has materially affected overall job performance’. So Mr Whybrow had knowledge of this lack of insight, which needed to be taken into account when developing strategies to assist Mr Wei improve his performance.
88. Despite this knowledge, similar findings to those made earlier apply to the management of this issue. That is, that if more explanation could have been given to Mr Wei in written form, there would have been less likelihood of the explanation being misunderstood. Also, had the issue been tackled in the early phase of his time at the ABS, the nature of the problem and the process of inculcating needed management and communication skills would have been identified earlier and alternative strategies adopted. As it was, no mentor arrangement with the CFO was set up, despite it being suggested in December 2006m and the arrangement with Mr Keech was not put in place until five months after it had been recommended and did not prove satisfactory in the long term.
89. Finally, Mr Whybrow did not take prompt or appropriate action following the April 2007 review to set in motion the procedures required as a precondition to taking underperformance action. Despite being warned by PMSS that he would need to follow the process in the Guidelines, and despite him having given Mr Wei three months in which to show improvement, Mr Whybrow did not develop an action plan, nor did he document meetings with Mr Wei as the Guidelines required, nor did he share with Mr Wei file notes of his discussions. He did not set out a timetable for Mr Wei to improve, nor did he ensure that Mr Wei clearly understood what was expected of his work performance, or adequately explain the implementation of the assessment process.
90. Mr Whybrow said he had discussions with Mr Wei and Ms Stokman to describe what should happen following his April assessment, but he admitted that he did not make notes about that meeting. Ms Stokman confirmed at the hearing that she was not shown any notes of discussions between Mr Whybrow and Mr Wei, nor to her memory was she provided with any file notes or documents in the handover to her from Mr Whybrow. Nor is there evidence of other documented discussions/guidance by Mr Whybrow to Mr Wei during this period. In terms of normal expectations in a performance cycle which commences in April, Mr Whybrow also did not finalise the performance agreement for Mr Wei for the 2007-2008 cycle, signed by him as ‘approving supervisor’, until June 2007. Also, to have initially rated Mr Wei ‘unsuitable’ in April 2007, a fact which was known to Mr Wei, even though the rating was subsequently changed to ‘effective’, contributed to Mr Wei’s distress.
91. In these circumstances, it was inappropriate for Mr Whybrow to send Mr Wei an email in August 2007, just prior to his departure, stating that ‘the issues raised earlier still remain in evidence and it is my recommendation that official under performance management takes place’. It was inappropriate because that recommendation, in Ms Foggin’s evidence, was considered to be a decision and Mr Whybrow knew that no such action could take place without the processes in the Guidelines having been followed, a requirement he had known and not acted upon since April 2007. As Mr Whybrow conceded in his statement, ‘the underperformance process was still at the documentation stage with work plans developed by Chris Stokman’ when he departed ABS in August 2007. So he was clearly aware that it was premature to state that underperformance action take place when testing of the need for the underperformance in accordance with the Guidelines, albeit by Ms Stokman, by then Mr Wei’s line manager, had not occurred. In these circumstances, sending the email was not to act in a reasonable manner.
92. On balance, the Tribunal finds that the manner in which administrative actions were taken by Mr Whybrow in relation to Mr Wei from December 2006 to August 2007, were not reasonable and contributed significantly to his condition. Mr Whybrow did not communicate important information to Mr Wei in writing as would have been good managerial practice given Mr Wei’s known communication problems; he failed to ensure, in a timely fashion, that the assistance he recommended for Mr Wei in the mid-cycle review had occurred; he did not follow the formal procedures in the Guidelines as pre-requisites to commencement of underperformance action; and prior to his departure, he again recommended that Stage 1 of the underperformance procedures should commence while knowing that this could not occur because he and then his successor as Mr Wei’s manager had not taken the necessary preliminary steps.
The mid-cycle assessment for the 2007-2008 period
‘Reasonable actions’
93. The second cluster of administrative events concerns the mid-cycle performance assessment of Mr Wei conducted by Mr Wei’s next supervisor, Ms Stokman. Ms Stokman took over as Mr Wei’s supervisor some time prior to 18 June 2007, when she signed his performance agreement. She was also aware of Mr Whybrow’s concerns about Mr Wei’s performance, which he had exchanged with her orally. In August 2007, after Mr Whybrow had left, Mr Wei also sought Ms Stokman’s assistance in explaining Mr Whybrow’s concerns and provided his two performance reports from 2006-2007 to enable her to do so. So she had written evidence of the issues Mr Whybrow had identified in relation to Mr Wei.
94. Nonetheless, Ms Stokman said she had decided to start afresh with Mr Wei and to assess his performance before taking action. However, by August 2007 she had discussions with Mr Wei about her own concerns as to his performance and on 7 September 2007, she sought the advice of PMSS about the steps she would need to take prior to beginning Stage 1 of the underperformance process. In relation to those steps, she had set out performance expectations in the June 2007 performance agreement; and on 21 August 2007 she had provided Mr Wei with a document containing examples of the issues which led to her own concerns. She also had discussions with him to explain what had led to Mr Whybrow’s concerns and expectations. The records of these discussions were documented and provided to Mr Wei. At that point, Ms Stokman was acting in an entirely lawful, and hence reasonable, manner.
95. In September 2007, Ms Stokman said she had devised a project for Mr Wei and his team to undertake as part of his formal assessment of performance prior to any decision about commencing underperformance action, and this was to commence before the end of September. The Tribunal has no evidence that this information was shared at that point with Mr Wei. By October 2007, no project had been set up and it was not until November 2007 that the project was instituted. The results had still not been assessed in February 2008. Presumably, when the project was started Ms Stokman informed Mr Wei that he had 6-8 weeks to complete it, in accordance with the steps outlined in the PMSS advice of 7 September 2007.
96. Of the remaining steps in the September advice from PMSS, Ms Stokman had not given Mr Wei ‘an overview of where things are at and the Stage 1 process’. Those notes were sought by PMSS in December 2007, but not provided until either late January or early February 2008. Nor had Mr Wei officially been told by her that Mr Whybrow’s recommendation in August 2007 that underperformance action commence was not to be implemented, although she said she believed Mr Wei understood that that was the case.
97. Mr Wei’s mid-cycle performance report was due in September 2007. He completed his section of the document by 30 October 2007. Both Ms Stokman and Mr Wei then had periods of leave until the first week of November. However, Ms Stokman did not complete her part of the review until 8 February 2008, and it was not until 13 March 2008 that, following discussions with Mr Wei about the document, she presented him with the final document, which he signed on 31 March 2008. Ms Stokman did not sign the report until 12 May 2008.
98. In summary, Ms Stokman made a considerable effort to advise Mr Wei about ABS’s concerns as to his performance. She also documented those communications appropriately. As the Tribunal has found the concerns about Mr Wei’s performance were legitimate and, as with Mr Whybrow’s decision to warn Mr Wei, Ms Stokman’s decision to document her concerns, and to set up a project to test Mr Wei’s level of performance were all steps envisaged by the Certified Agreement and the Guidelines. Her actions in these regards were, therefore, lawful.
‘Actions taken in a reasonable manner’
99. The principal issue is whether these administrative actions, in connection with Mr Wei’s mid-cycle review, were taken in a reasonable manner. The history of this period is one of considerable delay. Part of the reason was the fortnight or so leave taken by Ms Stokman and Mr Wei from late October until the first week in November. Ms Stokman also said the change of government in December, the Christmas/New Year break and the few days leave she and Mr Wei each had in January or early February 2008 were other reasons for the delay.
100. Those reasons do not explain why the 6-8 week project action discussed with PMSS in early September had not started until late November and had still not been assessed in February 2008. In a case in which, by August 2007, Ms Stokman has concerns about Mr Wei’s performance and has decided formally to test these concerns for herself by means of a project, for the testing not to have commenced until late November and the feedback not to have been finalised until at least February 2008, was, as Ms Stokman conceded at the hearing, ‘not good managerial practice’.
101. Equally, for Ms Stokman not to have signed off on Mr Wei’s mid-cycle review until 12 May 2008 when he had completed his section in October 2007 and signed the document on 31 March 2008, is not consistent with management concerns about his performance. Mr Wei had approached Ms Stokman for feedback in August 2007. She was aware that he had failed to understand what it was about his performance of which Mr Whybrow had complained. She knew from the exchanges they had had about her written reports that he was resistant to accepting deficiencies in his performance, but that with persistence, he had come to accept that he did have some issues.
102. She also knew because of Mr Wei’s complaints about Mr Whybrow’s recommendation in August 2007 that the underperformance process should commence that Mr Wei was fully aware of the processes for underperformance and that Mr Whybrow had not complied with them. She was on notice, accordingly that Mr Wei had considerable need for guidance and advice, that he had difficulty accepting his performance deficiencies, and that he was alive to the procedural steps in the underperformance process.
103. In these circumstances, the Tribunal finds that Ms Stokman’s slowness in taking steps to implement the pre-underperformance process, and to complete in good time, Mr Wei’s mid-cycle performance review was not sensitive to this employee’s needs, and was not action taken in a reasonable manner. The Tribunal also notes that there is no reference in the material to an end of cycle process which should have taken place in March/April 2008.
Decision to commence underperformance process
104. The third cluster of administrative actions relates to the steps taken to commence the formal underperformance action under Stage 1 of the Guidelines. That process comprised giving Mr Wei a document on performance issues on 13 March 2008, a meeting on 14 March to advise Mr Wei that the underperformance process was commencing, notes of that meeting emailed to Mr Wei on 2 April 2008, a performance meeting on 17 April 2007, a performance discussion with Mr Wei on 10 June 2008, the provision to Mr Wei of a draft Action Plan on 12 June, the variation of that plan which was handed to Mr Wei on 23 June 2008, and notification on 25 June 2008 that the eight week Action Plan projects were to commence on 30 June 2008, to be completed by 22 August 2008.
105. Mr Wei had been on notice since at least April 2007 that underperformance action was pending. That process did not commence until 30 June 2008, for completion on 22 August 2008. After which, the projects still had to be evaluated to decide whether further action was necessary and whether any 'reduction in salary or work level, reassignment of duties or termination' were to be imposed.[25].
[25] Guidelines, Stage 1(c).
106. The Guidelines require that action to implement the underperformance process once the employee is notified must commence 'immediately'.[26] There is good reason for that requirement. There is inevitable anxiety for an employee involved in this process. Mr Wei had to wait for up to 17 months till the end of the Stage 1 process and an assessment of his performance would have taken place. To have been faced over that length of time with the anxiety relating to the process and its aftermath was indefensible. It was not surprising that from mid March 2008, Mr Wei’s performance deteriorated and, as he informed Ms Stokman, he was depressed, upset, distracted and unable to focus on his work. Nor was it surprising that by June 2008 there were concerns that he might self-harm.
[26] Guidelines, cl 13.
107. Moreover, although there are some mitigating circumstances – the change of supervisor, a change of government, Mr Wei's absence on carer's leave to support his non English speaking mother during her dialysis, leave periods for Ms Stokman and Mr Wei, and the delays associated with Mr Wei's psychological illness in June 2008 – no such excuses apply to other aspects of how the process was handled. Mr Whybrow who first initiated the action, was forced to abandon the process because he had not complied with the procedures. Furthermore, having been alerted in April 2007 to the need to adhere to the Guidelines, he then failed to do so again before he left the ABS in August 2007, despite him attempting to implement the process again before he left.
108. In relation to Ms Stokman, although she attempted to rectify the documentation and advice deficiencies of her predecessor, she too exhibited unnecessary delays and there are other procedural deficiencies on the part of ABS management. Having informed Mr Wei on 14 March 2008 that the process was about to commence, and that instructions would be given to him over ‘the next 8 weeks’, presuming that the projects by then had commenced, she then delayed until 2 April formally to advise him that the process had commenced. She did not provide documentation to Mr Wei in advance of that critical 14 March meeting, nor did she or Ms Foggin ensure that he had a support person at that meeting.
109. On 14 March 2008, she had promised that the action plan, an integral part of the process because it contains the projects which are to be the testing vehicles, would be given to Mr Wei by 4 April. On 17 April 2008, Ms Stokman agreed that she would follow up with PMSS on the action plan and would document the meeting. It was also planned to provide the final draft of the action plan to Mr Wei that day, so that he could consider it while on leave the following week. The action plan had still not been provided to him in 'final' form until 12 June 2008, that is, two and a half months later. Ultimately, it was not until 23 June 2008 that Mr Wei was given what was described as the 'final' version. There was no 'immediacy' about that step in the process, and as Ms Foggin conceded in evidence, this was an 'inordinate delay'.
110. Finally, in the last version of the action plan, any element of the projects relating to management had been deleted. The reason given was that due to staff shortages, Mr Wei was to conduct the three projects it contained on his own, and hence there was no staff supervision involved. That meant, as counsel for Mr Wei pointed out, that even if Mr Wei had satisfactorily managed the projects, one of the two key performance deficiencies identified throughout the process, namely, Mr Wei's lack of managerial skills, was not to be tested and at the end of the process he would still face the prospect of needing another project to demonstrate his ability in that area. In other words, the Action plan, after all this time, was no more than a 'Clayton's' effort. That was not a reasonable manner in which to conduct a process which is intrinsically stressful and one which, in this case, had taken a considerable period to initiate.
111. Given these findings the Tribunal has not considered the issue of Mr Wei’s complaint about the salary ratings process.
112. In summary, the slowness of ABS to manage the situation and its ineptitude in doing so could not be considered to be the taking of administrative action in a reasonable manner. The Tribunal finds accordingly, that although the three 'administrative actions' were 'reasonable', the manner in which they were undertaken were not 'reasonable'. The decision under review is set aside and the Tribunal substitutes the decision that Comcare is liable under section 14 of the Act to compensate Mr Wei.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ...................................................................
C. Kocak, AssociateDate/s of Hearing 5 - 6 October 2010
Date of Decision 11 November 2010
Counsel for the Applicant Ian Bradfield
Solicitor for the Applicant Stacks Compensation
Counsel for the Respondent Ben Dube
Solicitor for the Respondent Sparke Helmore
[24] Id, 44-5.
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