Weldon v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 58
•27 March 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMSION
CITATION: | Weldon v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 058 |
PARTIES: OTHER: | Weldon, Osbourne v Simon Blackwood (Workers' Compensation Regulator) Peabody Energy Australia Coal Pty Ltd (Employer) |
CASE NO: | WC/2014/243 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 27 March 2015 |
HEARING DATES: | 18 November 2014 - 20 November 2014 |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. Appeal allowed. 2. The decision of the Respondent is set aside. 3. Mr Weldon's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 is accepted. 4. The respondents are to pay the appellant's costs of and incidental to the appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION - whether reasonable management action taken - performance management plan - performance improvement notice - written warning - relevance of worker's performance |
| CASES: | Workers Compensation and Rehabilitation Act 2003, s 32(5) |
APPEARANCES: | P. de Platter, of Counsel, instructed by M. Callow of Schultz Toomey O'Brien Lawyers for the Appellant S. P Gray, of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator) for the Respondent S. Sapsford, of Counsel, instructed by J. Veiga of Minter Ellison for the Employer. |
Reasons for Decision
The appellant, Osbourne Phillip Weldon sustained an injury of a psychological or psychiatric nature whilst he was employed by Peabody Energy Australia Coal Pty Ltd at its Millennium mine. The injury arose out of, or in the course of, his employment, which was a significant contributing factor to the injury.
The appellant made a claim for compensation under the Workers' Compensation and Rehabilitation Act 2003. His application was rejected by WorkCover Queensland, which rejection was confirmed by Simon Blackwood, the Workers' Compensation Regulator. He has appealed to the commission.
There is only one issue to be decided in this appeal
If the appellant's injury arose out, of or in the course, of reasonable management action taken in a reasonable way by Peabody in connection with the appellant's employment, or his expectation or perception of reasonable management action being taken against him, his application for compensation must be rejected.[1]
[1] Workers Compensation and Rehabilitation Act 2003, s 32(5).
Background
Mr Weldon had been employed by Peabody as a training superintendent at its Millennium mine in July 2012. On 12 September 2013 his position became that of health safety and training superintendent, albeit there was no change to his remuneration package. Whereas his key accountabilities had previously only related to the training function from 12 September 2013 those key accountabilities now also related to health and safety.[2]
[2] Ex A7.
The events leading to him suffering the injury occurred over a relatively short time frame.
On 5 September 2013 he and his immediate superior, Andrew Foley, the then acting health safety and training manager, completed an annual midyear review of Mr Weldon's performance. The process began on 12 August when Mr Foley emailed an annual performance review form to Mr Weldon which required Mr Weldon to draft his goals and a management plan to be discussed with Mr Foley. On 20 and 21 August, when mutually convenient times could be found, the two men met to complete the review. The review form was signed by each of them on 5 September 2013. It is not contested that the outcome of that review indicated that Mr Weldon had performed satisfactorily or even better. There is a significant factual dispute regarding the events surrounding that performance review, and I will deal with that later in these reasons.
Shortly, some three weeks after commencing the performance review process, and six days after it had been finalized, at about 6.15pm on 11 September 2013, Mr Foley handed a performance management plan (PMP) to Mr Weldon. In contrast to the relatively glowing terms of the midyear review, the PMP alleged many deficiencies in the way in which Mr Weldon performed his job. It required Mr Weldon to take certain identified steps to improve his performance and provided that a review of the performance issues outlined in the document would take place on Tuesday, 22 October 2013, being some six weeks after the issue of the PMP.
On 12 September 2013 Mr Foley went to the United States on leave until his return on 15 October 2013. On 12 September Mr Weldon emailed Mr Foley rejecting "all claims in that document" and further stating that "we will step through these allegations on your return." Mr Foley replied to that email stating "the plan is in place and will be reviewed when I get back as per the review date in the back of the document."
Whilst Mr Foley was on leave, the appellant prepared a response to the performance management plan which, he says, he intended to present at the review meeting that was intended to occur on 22 October.[3] The response was dated 19 October 2013.[4] The meeting did not occur on 22 October. Nothing turns on the response. Although between Mr Foley's return from leave and 24 October, the two men briefly engaged in the normal interactions at work, they did not discuss the PMP.
[3] T1-39/9 - T1-39/40.
[4] Exhibit A8.
At approximately 3:40pm on Thursday, 24 October 2013 Mr Weldon was informed that there would be a meeting with Mr Foley and Ms Taryn Hocking, Peabody's human resources officer, at 4pm that day in relation to the PMP.[5] He was told that he could bring a support person with him, but said that he could not find anyone who was suitable at such short notice.
[5] Exhibit E5; T1-36/45 - T1-37/7; T2-4/44 - T2-6/10.
At the meeting Mr Weldon was handed a performance improvement notice (PIN), which may properly be characterized as a disciplinary document, as well as a written warning. What occurred at that meeting is contested and will be dealt with later in these reasons.
On Friday, 25 October 2013 Mr Weldon returned to site but felt unwell and remained for only a short period of time before he went home. He did not return to the site thereafter. [6]
[6] Exhibit E5.
On Saturday, 26 October 2013 Mr Weldon's office and filing cabinet were examined by officers of the employer, at which time a large number of documents were discovered. The employer contends that many of these documents should not have been in the appellant's possession or control.
Mr Weldon's employment was terminated on 20 January 2014.
The factual dispute
From Mr Weldon's perspective
When Mr Weldon commenced his employment he was engaged as a supervisor, training. At that time Mr Foley was a supervisor, health and safety. They both worked long hours typically clocking on around 5:15am and not returning until after 7pm. They got on well and often travelled from the camp to the mine and back in the one car. They generally discussed work in the car and, to some extent, debriefed on the way home.[7] There was never any suggestion from Mr Foley that he had discerned any problems with Mr Weldon's work. Their superior was Mark Collins who was apparently a bully and whose employment was terminated in 2013. After Mr Collins' departure Mr Foley was promoted to the position of manager, health safety and training. The training supervisor position was not filled. Mr Foley retained health and safety responsibilities and was assisted by other members of staff.
[7] T1-26/44.
The midyear performance review was conducted over the course of a couple of days at times when both Mr Weldon and Mr Foley were available.[8] There were three iterations of the performance review form. The first was created by Mr Weldon who typed his self-assessment of his performance and rating into a pro-forma review form. The second was created by Mr Foley, on his computer, in the presence of Mr Weldon. Mr Foley, who by that time was Mr Weldon's manager, inserted his assessment of Mr Weldon's performance and also his numerical ratings of Mr Weldon. The third iteration was the only form signed by Mr Weldon and by Mr Foley. Unlike the previous forms it did not contain any ratings. Except in two instances where favourable comments had been made in the second document by Mr Foley about Mr Weldon, the final document was the same as the second document. The two favourable comments do not appear in the signed review form which is the only one placed on Mr Weldon's personnel file. Mr Foley told Mr Weldon that the general manager, Bill Hall, did not want ratings in the document.[9]
[8] T1-22/29 - T1-22/45.
[9] T1-25/27.
Shortly after the completion of the performance review, without Mr Foley having had anything critical to say about Mr Weldon's performance, Mr Foley provided Mr Weldon with the PMP. Given the favourable performance review and the lack of any criticism of his performance by Mr Foley this came as a complete surprise to Mr Weldon. Mr Foley had not intimated that he had any concerns with Mr Weldon's performance.
Mr Weldon only cursorily perused the PMP document and asked if he could take it home to the camp to read overnight so that the two of them could discuss it the following morning before Mr Foley went on leave. Mr Foley acceded to this course.[10]
[10] T1-31/4.
The following day Mr Weldon tried to see Mr Foley to discuss the performance management plan but Mr Foley had no time for him and ushered him from his office. Mr Weldon observed many other employees having access to Mr Foley during that morning.[11]
[11] T1-32/24 - T1-32/39.
At some time during the period that Mr Foley was on leave, Mr Weldon prepared a response to the PMP for discussion with Mr Foley at the review date on 22 October 2013.
Given that Mr Weldon considered that almost the entire PMP was drivel he did not act on any of its directives during Mr Foley's absence. He did not raise the matter with the human resources department or the general manager because he considered that it should be dealt with between himself and Mr Foley.
Mr Foley returned from leave around 15 October 2013 and the two men had their normal work interaction, but the PMP was not discussed. Given that no meeting was called on 22 October to review the identified performance issues, Mr Weldon assumed that the issue had "fallen through the cracks".[12]
[12] T1-102/40.
On Thursday, 24 October 2013 Mr Foley advised Mr Weldon at 3:40pm that he wished to see him at 4pm and that he could bring a support person with him. Mr Weldon did not know what the discussion was to comprise. He did not bring a support person because he could not find somebody whom he considered appropriate at such short notice.[13]
[13] T1-36/45 - T1-37/23.
The meeting took place in Ms Hocking's office and she conducted it. Mr Foley said almost nothing. Mr Weldon was given the PIN, at which time he also saw a copy of the written warning which was subsequently given to him. He started to read the notice but felt unwell and asked if he could go home to the camp and read the document overnight and resume the meeting the following day. This request was acceded to and Mr Foley, showing concern for Mr Weldon, asked him whether he was all right to drive home or whether he would like a lift. Mr Weldon declined the offer and drove himself back to the camp after which he read the document.[14]
[14] T1-104/42 - T1-105/9.
Mr Weldon returned to the mine site the following morning, but felt unwell and left after a couple of hours. He never returned and suffered a severe depression and panic disorder. It is for this injury that he seeks compensation.
From the employer's perspective
The midyear performance review was conducted in one session at which the second iteration of the review form was completed by Mr Foley sitting at his computer discussing each item with Mr Weldon. Mr Foley did not insert any ratings.[15] His reason for not doing so was that ratings were not inserted at midyear reviews. Mr Hall did not tell him that he did not want ratings in the review form.
[15] T2-64/16.
Whilst performing the review Mr Foley felt that he should look further into some of the matters that had been discussed between him and Mr Weldon during that process. He did so over the course of the week following the performance review and also spoke to other employees.[16] Mr Weldon was unable to produce satisfactory documentation to support some of his assertions. Those discussions led him to have serious concerns about many aspects of Mr Weldon's performance, particularly in relation to the completion of an employee training matrix. This is a very important document that is kept in electronic form and needs to be constantly updated. Peabody had taken over the operation of the mine from Downer EDI and it was essential that the skills, licences and so on of all the operational personnel working at the mine were updated and filed in the matrix in order that no employee could be asked to operate a piece of machinery for which he or she did not have the relevant training, certification and licences. The matrix was to have been completed by April 2013 at the time that the employer took over the operation of the mine and it was of concern to Mr Hall and Mr Foley that this task had not yet been completed by Mr Weldon.
[16] T2-65/14.
It was because of what he had learned during that week that Mr Foley decided to issue the PMP in the hope that the issues would be addressed during his absence, rather than leaving them to fester until he returned. Had Mr Weldon sought to speak with Mr Foley on the morning of 12 September he could have done so.[17]
[17] T2-68/44 - T2-69/2.
On Mr Foley's return from leave he had many operational issues to attend to and was very busy. He was also informed by other employees at the mine that the matrix was not progressing and of other issues regarding Mr Weldon's performance. In consultation with Ms Hocking he developed the PIN.
At the meeting on 24 October he read the entire document aloud to Mr Weldon who refused to sign it. He acceded to Mr Weldon's request that he take it back to the camp and read it overnight. It was Ms Hocking who asked Mr Weldon whether he would like a lift back to the camp and who also offered him access to the employee assistance program.[18] Mr Foley did not speak with Mr Weldon the following day, Friday, 25 October 2013.
[18] T1-49/32 - T1-50/45.
After Mr Weldon left, Mr Foley sought permission from the general manager to access Mr Weldon's locked filing cabinet.[19] This was accessed the following day at which time a large number of documents was found in the filing cabinet, in Mr Weldon's office and in the simulator. Most of these documents should not have been in Mr Weldon's possession, but rather, should have been filed in various other departments where they were required to be kept for regulatory purposes and in order that they could be inspected by relevant officials to ensure that Peabody was complying with its obligations as a mine operator. That the documents were not where they should have been, and might not have been found but for the search of Mr Weldon's office might have resulted in serious consequences for the employer. Some of the documents were assessments of employees' competencies and qualifications without which the employees were not allowed to operate various pieces of mine equipment. Some employees had had to be assessed several times when there accreditations could not be found. This occasioned Peabody to incur significant unnecessary costs.
[19] T2-75/16.
Consideration
Much has been made of the detail of the performance review process and the manner in which the various iterations of the forms were completed. No satisfactory explanation was provided for numerical ratings appearing in the exhibit, comprising the first two iterations. Even more attention was focused on Mr Weldon's alleged poor performance; especially his failure to complete the employee matrix, his retention of documents and his failure to ensure that employee assessments and the like were dealt with appropriately. I accept that his performance issues are very serious matters which required Peabody to deal with them expeditiously.
However, it seems to me, that these matters are largely irrelevant to the question of whether the management action, out of which Mr Weldon's injury arose, was reasonable or taken in a reasonable way.
The management action in respect of which Mr Weldon complains is fairly confined. It essentially comprises the annual performance review, the PMP, including its timing and manner of delivery, the events immediately prior to Mr Foley going on leave and upon his return, the circumstances surrounding the PIN and the written warning.
It is apparent that, at some stage after the completion of the performance review process, Mr Foley started to entertain reservations about Mr Weldon's performance. It should be remembered that they signed the Annual Performance Review on 5 September 2013 and Mr Foley gave Mr Weldon the PMP on 11 September, the day before he left for the United States. There is no evidence to the effect that the two men had stopped commuting in their usual manner of that Mr Foley had expressed any concerns to Mr Weldon between 5 and 11 September 2013. Mr Weldon said that no such concerns were expressed.
As Mr Sapsford succinctly put it in his written submissions:
"There was pressure being brought to bear upon Mr. Foley by Mr. Hall in relation to the matrix and in relation to completion of documentation which had failed to progress through Mr. Weldon to the appropriate recipients."[20]
[20] Written submissions of the Employer, p 19.
Mr Foley said:
"So in the review form, it was a verbal discussion, and a lot of the work I'd done with Ossie at that point, when I was asking questions about where we were at with different tasks that were asked of our department, it was lot of verbal discussion. Between that form and the creation of the plan was – I asked him to actually produce the work that was required of us, and that, then, highlighted that we were struggling – it was – between what we were – what I was – what was verbal and what – what was actually something I could deliver to the GM or to whoever was asking for – for the material from our department. I – I couldn't do that. So that – that was what changed from … when I started looking for the – the physical work."[21]
[21] T2-67/6.
In answer to a question from me in relation to the provision of the PMP so soon after the completion of the favourable annual review he said:
"DEPUTY PRESIDENT: Yes. All right. It prompts me to ask why was it – well, I assume you felt it necessary to give this performance management plan to Mr Weldon before you left rather than waiting until you got back from overseas. Why?---So the time between doing the review and this plan was working on verbal communication with Os when I had to start producing work to pass on to mining, to the GM and such. I could not get that, so that made me dig deeper. I started to find that we were struggling in multiple areas and I didn't want to leave it another month. I was away for a month. I wanted to try and nip it in the bud, turn it around and get – get on the right track, hoping to come back from my leave and find out we're good. Easy to get bogged down, put the blinkers on, don't see it. I raised the issue. Hopefully we're on the right track again."[22]
[22] T2-104/3.
Whilst I accept that it was appropriate that Peabody, through Mr Foley, urgently raise its concerns about Mr Weldon's apparent failures with him, the sudden provision of the PMP in the circumstances that I have outlined, falls well short of what I consider to be reasonable management action. The Annual Review is replete with comments by Mr Foley, such as "Os has, within his budget and authorization, managed all planned and adhoc training requirements that have been requested for the site from the various departments. Os has steered the development of the department team."[23]
In Mr Weldon's self-assessment: "Work still in progress for up load and establishing Crew skills matrix. Up grading equipment to be uploaded onto Pegasus Working with the staff at Pegasus to introduce and establish the system into the Millenium Mine site."
And Mr Foley's response: "Os actively manages the upload of data and coaches others with the uploading of information into the site systems. He communicates regularly with the system administrators when issues arise."
After comments of that nature, it is more than passing odd, that without further comment from Mr Foley to Mr Weldon about his performance, at 6.15pm six days after they mutually signed off on the performance review, Mr Weldon is handed the PMP, which, under the heading Previous Discussions – Outline of Performance Issues states: "Informal discussions", lists a "Summary of Events/Facts Relating to the Incident" followed by an underlined heading; "Performance not of a standard for the position of Superintendent".
There then follow three and a half pages of criticisms of Mr Weldon's performance. Whether or not the document was read to Mr Weldon is of no consequence. It is not hard to imagine his bewilderment at this course of events. Little wonder he wanted to take the document home and consider it more fully overnight.
Again, whether or not Mr Weldon could have spoken with Mr Foley the following day, reasonable management action required, at the very least, that Mr Foley make the time and seek out Mr Weldon to discuss the PMP and why it had been issued before he departed on his five week holiday. On any version, this did not occur.
During Mr Foley's absence nobody at Peabody was delegated the task of supervising the PMP or assisting Mr Weldon although Mr Hall said tasks were taken away from Mr Weldon while Mr Foley was away on leave, in order that he could concentrate on the employee matrix.[24]
[24] Exhibit A19; T2-57/31 - T2-60/26.
Although I accept that the issues that had been identified just prior to Mr Foley's departure were serious and urgent, the giving of the PMP with no prior discussion about Mr Foley's concerns was inappropriate. To fail to put in place a plan for someone to help him with what was required of him by the PMP was even more egregious. I note that the PMP concluded with "Support required from Management." None was forthcoming.
Whilst I can understand that in the first few days after Mr Foley's return from leave he may have been too busy to deal, together with Mr Weldon, with a "review of the performance issues outlined in [the PMP]" on 22 October 2013 as anticipated, what happened next beggars belief. I have outlined what transpired at paragraphs 22 to 24 above.
Again, it matters not whether Mr Foley or Ms Hocking read the PIN to Mr Weldon. The very creation of it, in the circumstances I have outlined, was inappropriate and unreasonable. The same may be said of the written warning, which seems to be the formalization of what was the conclusion of the PIN.
Mr Weldon had made it clear to Mr Foley that he was not willing to deal with the issues raised by the PMP until Mr Foley's return from leave. In my view, this was perfectly understandable in the circumstances. Equally understandable was Mr Foley's desire to have the issues, particularly the finalization of the employee matrix, resolved prior to his return – Mr Hall had impressed upon him the urgency of the situation. Had some mechanism been put in place, other than the mere giving of the PMP to Mr Weldon, he might have had less cause for complaint. However, this was not done.
In circumstances, where Mr Weldon had little opportunity to address the issues in the PMP, it was highly inappropriate to issue him with a PIN.
I should add, that basic principles of fairness and natural justice would have seen Mr Weldon provided with an opportunity to reply to the issues raised by the PMP. That he was not given an opportunity to do so was unfair. These comments apply more powerfully in relation to the PIN and the written warning. Serious findings about Mr Weldon's performance were made without his having had any opportunity to defend himself. The opportunity he was given to go home to further consider the PIN and to discuss it the following morning did nothing to ameliorate the wrong that had been done.
It is evident that I am persuaded that the management action that was taken by Peabody in the lead up to Mr Weldon's decompensation was neither reasonable nor taken in a reasonable way.
A good deal of evidence was led in relation to Mr Weldon's performance including the discovery of documents in his office and the simulator after he had left. I do not need to deal with this as it is not relevant to the issue of the reasonableness, or otherwise, of the management action. I do however note that the circumstances in which the key to Mr Weldon's filing cabinets, prior to management apparently knowing that he would not return to work, was obtained, seem to be rather questionable.
The appeal is allowed, the decision of the regulator is set aside, the application for compensation is accepted, the respondent is to pay the appellant's costs. I so order.
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