Wilson and Comcare
[2010] AATA 396
•28 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 396
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3419
GENERAL ADMINISTRATIVE DIVISION ) Re GARY WILSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date28 May 2010
PlaceCanberra
Decision The decision under review is affirmed.
..............................................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – whether reasonable administrative action taken in a reasonable manner in respect of employment – whether steps taken by management fall within exclusionary provisions of section 5A of Act – meaning of ‘administrative action’ – meaning of ‘as a result of’ management action – meaning of ‘reasonable administrative action taken in a reasonable manner – whether ‘lawful’ – eight administrative actions subject of claim – decision under review is affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A(1), 5A(2)
Defence Instruction (General) 35-3, Management and Reporting of Unacceptable Behaviour
Abrahams v St Virgil’s College [1998] TASSC 53
Ansell v Wells (1982) 43 ALR 41
Comcare v Caldwell [2008] FCA 2015
Comcare v Canute [2005] FCAFC 262
Comcare v Chenhall (1992) 37 FCR 75
Comcare v Sahu-Khan (2007) 156 FCR 536
Re George and Telstra Corporation Ltd [2009] AATA 731
Re Gilbert and Comcare [2009] AATA 224
Hart v Comcare (2005) 145 FCR 29
HIH Winterthur Workers Compensation (SA) v Hickman [1997] SAWCT 17
Kucks v CSR Ltd (1996) 66 IR 182
Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203
Repatriation Commission v Webb (1987) 13 ALD 421
Russel v Duke of Norfolk [1949] 1 ALL ER 109
Swanson v Northern Territory (2006) 204 FLR 392
Wattyl Australian Pty Ltd v York [1997] NTSC 86
Wiegand v Comcare (No 2) [2007] FCA 237
Workcover Corporation of South Australia v Summers (1995) 65 SASR 243
28 May 2010 REASONS FOR DECISION
Professor RM Creyke, Senior Member 1. Mr Gary Wilson was employed by the Department of Defence (the Department) as a financial officer at the Australian Public Service (APS) Level 2. He claimed to have suffered ‘anxiety’ due to ‘ongoing systemic unacceptable behaviour’, stress and bulling. He submitted a claim for workers’ compensation for ‘anxiety’ on 21 May 2008.
2. On 24 November 2008, Comcare determined that Mr Wilson was not entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for ‘adjustment reaction with mixed emotional features’.
3. Comcare decided that although Mr Wilson’s condition of adjustment reaction with mixed emotional features was contributed to, to a significant degree, by his employment the condition was the result of ‘reasonable administrative action’ and thus not an ‘injury’ within section 5A of the Act.
4. On 17 December 2008, Mr Wilson requested a review of the Comcare determination. On 20 May 2009, Comcare affirmed the decision. On 9 August 2009 Mr Wilson applied to the Tribunal for a further review.
Legislation
5. Section 14 of the Act provides that Comcare is liable to provide compensation for ‘injuries’. An ’injury’ is defined in section 5A which provides:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the
employee's employment …
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
6. For the purposes of this hearing, it is the exclusionary provisions in section 5A(2), that is, whether Mr Wilson’s condition was a ‘result of reasonable administrative action’ that is the focus of the decision.
Issues
7. The parties agreed that since Comcare had conceded that Mr Wilson’s condition had been contributed to, to a significant degree, by his employment, the sole issue is whether Mr Wilson’s condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. If this is the case, his condition would be excluded from being an ‘injury’ in accordance with section 5A of the Act.
Mr Wilson’s evidence
8. Mr Wilson joined the Department in 1997. In 2006 he spent three months working with another agency before returning to the Department in January 2007. Mr Wilson was then working in the financial processing area of the Department, known as Technical Services. Currently he is working as a security officer, reporting directly to Colonel Scott Thomas.
9. Mr Wilson’s then Director, Mr Mark Williams, informed him on his return that a member of the team had left and another had been involved in an accident and was not at work. Mr Wilson agreed to fill the position, on Additional Responsibility Pay (ARP). According to Mr Wilson, Mr Williams repeated on five occasions that he would be acting at the level of the person he was replacing and that the appropriate paperwork would be processed accordingly. On Tuesday 6 February 2007, Mr Wilson records Mr Williams as saying the paperwork was submitted.
10. Several pay periods after he had first, spoken with Mr Williams, Mr Wilson said his salary had not increased and since Mr Williams had told him that Human Resources (HR) was handling the matter Mr Wilson checked with HR on 12 February 2007 as to what was happening. He was informed they knew nothing about the arrangement.
11. As a consequence Mr Wilson said he became distressed and experienced chest pain, palpitations, difficulty in breathing, and tremor. He said it upset him that his director had lied to him. Mr Wilson had a pre-existing cardiac condition which he had had for the past five years but otherwise claimed to be in good health. He made a complaint to the area manager, receipt of which was confirmed.
12. On 14 February 2007, at a meeting with Mr Williams, Mr Wilson was told he would only be upgraded to one level below that which he said he had originally been advised, and then only from mid February 2007. Mr Wilson was sufficiently upset to consult his doctor who prescribed leave for two weeks. When he returned to work Mr Wilson was told he could take his complaint further but chose not to do so.
13. Mr Wilson also complained that on 9 February 2007, Mr Williams had instructed project officers that purchase orders over $5,000 required only two signatures from delegates. He claimed that was contrary to the Defence Procurement Policy Manual (DPPM). Mr Wilson argued that this was unlawful and he found it unacceptable.
14. On 13 February 2007, Mr Wilson complained to the Complaint Resolution Group. His principal concerns were:
·that he had been lied to by his director;
·that he should be paid Additional Responsibility Pay (ARP) at the level which he claimed he had been promised;
·that the finance directive made by his director was contrary to the DPPM; and
·that there was a lack of due process at the meeting on 14 February 2007 when he had been told that no matter what the outcome of his Review of Action (ROA) complaint, he would only be offered ARP at one, not two, levels above his substantive position.
15. He also requested, under workers’ compensation legislation, that his leave taken from mid February 2007 be entered as stress leave.
16. On 21 May 2007, Mr Wilson lodged a workers’ compensation claim for payment of leave due to his ‘anxiety’. The claim nominated as the cause of the anxiety ‘appointment of Quick Assessment Officer and requirement to commit to a leave plan’, and that what actually injured him was ‘ongoing systemic unacceptable behaviour’. That application was rejected on 10 August 2007 on the ground that his claim fell under the relevant exclusionary provisions. The decision stated that in part Mr Wilson’s condition had arisen as a result of a failure to obtain a benefit in connection with his employment, namely, to be paid for acting in a position at the level he believed he had been promised.
17. On 23 November 2007 Mr Wilson lodged a complaint of bullying against Mr Wyburn, the Regional Estate Finance Manager, who was by then Mr Wilson's first level supervisor. His new second level supervisor was Mr Robert Saines. The background to the complaint were a number of incidents that Mr Wilson chronicled as follows:
·Following a reorganisation, Mr Wilson was allocated a new first level supervisor, Mr Wyburn. On Mr Wyburn’s arrival in August 2007, Mr Wilson advised him of difficulties in the section concerning staffing, backlogs of work, and his ARP complaint. A couple of weeks later, Mr Wilson’s acting higher duty pay were discontinued.
·After the removal of his ARP, Mr Wilson said to Mr Rob Saines, his new second level supervisor, that he would not be working at the same level as he had when being paid ARP. Mr Saines became angry and responded with a threat of Performance Management.
·Shortly afterwards, a colleague reported to Mr Wilson that he had overheard Mr Wyburn and Mr Saines discussing how Mr Wilson could be removed from the group.
·Mr Wilson was criticised for having made a higher than standard number of data entry errors, including one overpayment to a company for $325,000. According to Mr Wilson, the overpayment was only one third of that amount, was detected, the client was notified but the error took longer than normal to be changed because of an upgrade of the system. Mr Wilson claimed he was frequently blamed for errors which were due to the data entry system rather than his mistakes, or for delays which were system-generated. He admitted some errors were his own.
·Mr Wilson claimed he was ordered by Mr Wyburn to carry archive boxes of documents during a 'clean up day' despite his supervisor knowing that Mr Wilson was on sedentary duties due to his cardiac condition.
·An incident where Mr Wyburn laid his hands on Mr Wilson, who was seated at his desk, and insisted he immediately do a job which Mr Wilson was unable to do.
·Mr Wyburn regularly interrupted Mr Wilson with new demands which prevented him completing tasks in which he was engaged. He was also hampered because invoices he was working on were removed prior to him completing the entries and he was later criticised for failure to complete them.
·Mr Wilson’s Performance Agreement for September 2007 to January 2008 required Mr Wilson to process invoices with a minimum of 10 per cent errors or lateness per invoice run and imposed strict time limits for raising purchase orders and provision of a report for all individual invoice runs. Mr Wilson said meeting these targets would on occasion not be possible and the wording of some of the Key Expected Results was ambiguous. However, he signed the Agreement.
·According to Mr Wilson, Mr Wyburn instituted two Performance Management Meetings which did not comply with due process. At the first, on 12 September 2007, Mr Wilson was told there was to be an entirely informal meeting but an HR observer was present, and Mr Wilson, without warning, was confronted with ‘a litany of processing errors’.
·Mr Wilson claimed there was a deficiency in the record of that meeting since it did not mention that the processing delays were due to failures of Project Officers to verify the work requiring repeated returns to operational areas for checking, and on occasion, lack of available finance in the system for payment of outstanding purchasing orders. Mr Wyburn summarised the meeting, and offered Mr Wilson the opportunity to comment. In an email to Mr Wilson dated 13 September 2007, Mr Wyburn said:
o The issue was raised about simple data entry errors that have been made by yourself and the impact they are having on the timely payment of the invoice runs. …
o An undertaking was given by yourself that you would endeavour to minimize simple data entry errors in the up coming invoice runs. …
o [This] discussion was not a formal discussion and only intended to point out a pattern of simple data entry errors in the hope of minimizing them in the future. …
·Mr Wilson was also aggrieved since he did not receive an annual salary progression for 2007. He was so informed by Mr Wyburn on 3 October 2007. The reason given was that he had not met the Key Expected Results in his Performance Agreement. Mr Wilson was, as a consequence, to be put on a Performance Improvement Plan. In those circumstances the Defence Collective Agreement 2006-2007 requires that the employee be advised in writing of the reasons and this should be entered on the Agreement. This notation did not occur. Mr Wilson complained that Wyburn also ignored other requirements for formal recording of views when there was disagreement about performance rating.
·On 28 November 2007 Mr Wilson was required, together with a support person, to attend a formal meeting. No agenda was provided for the meeting although he was advised in advance it was to discuss his ‘current performance and demeanour’. At the commencement of the meeting, Mr Wilson was advised that his support person could not participate actively in the meeting. The procedure for such meetings provided for a support person for the supervisor and for the employee.
·Mr Wyburn activated a Performance Improvement Plan (PIP) for Mr Wilson at the meeting of 28 November 2007, which according to Mr Wilson was unachievable. He refused to sign the document on the day on the ground that he had not been advised of the purpose of the meeting and the matters were too complex to respond to orally. Mr Wilson was granted time to respond in writing and a follow-on meeting was arranged for 6 December 2007.
·Mr Wyburn had a copy of Mr Wilson’s Performance Agreement at the 28 November 2007 meeting but did not provide it to Mr Wilson so Mr Wilson was unaware whether Mr Wyburn had commented on his performance.
·Mr Wyburn subsequently produced a record of conversation of the 28 November 2007 meeting. Mr Wilson disagreed with aspects of this record. Mr Wyburn amended his original record but omitted some salient points, so Mr Wilson refused to sign the document. The final version of the document recorded the terms of the oral agenda and Mr Wyburn’s reference to a September meeting, when Mr Wilson had been informally counselled about his performance. Mr Wyburn’s record of conversation also noted that at the September meeting, Mr Wyburn had noted some improvement in Mr Wilson’s performance but had said more was needed. Examples of why further improvement was required, as listed in the record of conversation of the 28 November 2007 meeting, were:
oOverpayment of approx $325,000 to Spotless in the previous month
o7 instances of payment in the wrong accounts together with documentation from Emma Bond, Spotless account manager (copies provided to Gary Wilson)
oGoods receipt left on purchase orders
oTwo purchase orders on file and only one raised
oRaising only four purchase orders on the 27/11/2007
oWritten complaint from Spotless regarding his demeanour to Spotless staff (appendix B) - Gary stated that he had never been shown the written complaint, only been told about it by his Director and also stated that he had apologised via e-mail, blind copying myself and Robert Saines (copy of complaint given to Gary Wilson)
oVerbal complaint from internal stakeholder on 1/11/2007 regarding Gary’s demeanour
oSeveral instances of Robert Saines stepping in to stop arguments between Karen Bollard and Gary Wilson. [Mr Wilson denied this last comment].
oDirect contradiction of my directions in regard to investigating the New Asset Acquisition rule when I had specifically told him not to.
·Mr Wyburn agreed at the 28 November 2007 meeting to reconvene the meeting on 6 December 2007 after formal notification of the agenda, but advised Mr Wilson that, as with the 28 November 2007 meeting, his support person ‘may not participate in any way during the meeting’. Mr Wilson complained that Mr Wyburn’s support person, Miss Deborah Cairns, had played an active role in the 28 November meeting.
·Mr Wyburn gave Mr Wilson time off on Thursday 6 December 2007, in advance of the meeting set for 3:00pm, to prepare a statement for the purposes of his complaint. Mr Wilson claimed that this was insufficient time since the Defence library in which he could work without interruption and which gave him access to the Defence system did not open until 8:30am and Mr Wilson needed to leave the library to get to the meeting by 2:30pm.
·At the meeting on 6 December 2007, Mr Wilson read a prepared statement. The following is a summary of three elements of that statement. It said:
o The specific procedures in DeCA 2006-2009 at Part D7 for Improving Poor Performance have not been adhered to and so this meeting is entirely invalid.
o The meeting of 12 September was supposed to be entirely informal but an HR person was present and notes of the meeting were provided afterwards. Those notes failed to record, among other things, Mr Wilson’s explanation that some data entry errors were due to the Department’s data system problems. Mr Wilson also noted that as no further meeting had occurred in the subsequent two and a half months since September 2007, and Mr Wyburn had noted with approval at the meeting the part Mr Wilson had played in the team’s improvement, fair process had not occurred as required by Part D7 of DeCA 2006-2009.
o Notification of the 28 November 2007 meeting was inadequate since the reference to ‘current performance and demeanour’ did not give an indication that the meeting was to discuss long-term performance and ‘demeanour’ was not relevant for a Performance Management process.
18. The remaining elements are covered in the dot-points which follow and which are drawn in part from other documents:
·The records of the 28 November 2007 meeting contained inaccuracies and even when some amendments had been made salient points were omitted. For example, reference was made to a complaint against Mr Wilson about his behaviour toward employees of a supply company on 5 November 2007, for which he later apologised. A written complaint by the company about that incident was produced on 13 November 2007. Mr Wilson claimed that the antagonistic behaviour of the company’s staff contributed to the incident.
·An internal complaint about Mr Wilson’s ‘demeanour’ was made on 11 November 2007, which Mr Wilson discounted as ‘hearsay’ and contrary to internal policy. A further complaint was made about instances of Mr Saines having to step in to stop arguments between Mr Wilson and another staff person. According to Mr Wilson, there was only one such incident.
·Mr Wilson also responded to comments about the Key Expected Results in his Performance Agreement. The only basis for any failure Mr Wilson could identify in relation to the first Key Expected Results about a need for adherence to the APS Values and Code of Conduct was the complaint about his behaviour to employees of the supply company. Mr Wilson maintained that in part these incidents may have been generated by the supply company to discredit him because he had instituted audit checks on the company’s overdue debt claims and found ‘hundreds of thousands of dollars [sic] excess claims which had in fact been paid and in some cases duplicated so [Defence was] owed credit notes.’
·Mr Wilson claimed in relation to Key Expected Results 2-4 that he had either completed them satisfactorily or they were not achievable or had been sabotaged.
·Mr Wilson conceded that Key Expected Result 5 was at the heart of the dispute since it related to the turnaround time and accuracy of Mr Wilson’s purchase order processing. Mr Wilson asserted that the intent of the Key Expected Results had been met.
·Mr Wilson listed numerous examples of Mr Wyburn not complying with procedural requirements in Defence policy documents relating to the conduct of the performance exchange meeting and the development and implementation of the Performance Improvement Plan.
·On 22 November 2007 Mr Wyburn reprimanded Mr Wilson for not completing an urgent task he had given him that day. Mr Wilson said he was too upset by the reprimand delivered in front of other staff to undertake the task and hence he had left work early that day without notifying Mr Wyburn he would not be completing the task.
·The formal Performance Improvement Plan document was presented to Mr Wilson on 11 December 2007 after it had been put on his record.
19. On 23 November 2007 Mr Wilson made a formal complaint of bullying against Mr Wyburn. On 7 December 2007 Mr Wilson submitted a medical certificate supporting his relocation due to stress. On 12 December 2007 Mr Wilson was certified to be suffering from anxiety and to be unfit to work between 13 December 2007 and 28 February 2008. Further certificates were provided from 29 February 2008 to 3 April 2008 and it appears Mr Wilson did not return to work until 1 May 2008.
20. On 11 December 2007 an officer was appointed to undertake a Quick Assessment of Mr Wilson’s complaint of bullying. Mr Wilson met with the officer on 13 December 2007. Subsequently, Mr Wilson objected to parts of the record of meeting and provided an amended version. Following a meeting with the officer on 9 January 2008 to discuss the amendments, the officer agreed to permit Mr Wilson to submit suggested amendments which Mr Wilson did on 10 January 2008.
21. The outcome of the Quick Assessment was that there was ‘insufficient evidence to substantiate Mr Wilson’s allegations’ and that, on the contrary, Mr Wyburn’s actions were deemed to be ‘reasonable, appropriate and legitimate management actions’. In relation to Mr Wilson’s request for relocation, the officer recommended that Mr Wilson remain in his current work location but under new reporting arrangements. Mr Wilson believed this recommendation was some recognition of the validity of his complaints.
22. A vocational assessment report for Mr Wilson conducted on 18 March 2008 concluded that Mr Wilson was ‘very good with attention to detail and methodical in his approach to work preferring to work with structure and process’, but that he would ‘benefit from understanding effective communications strategies’.
Cross-examination of Mr Wilson
23. In cross-examination, Mr Wilson conceded that he had made complaints about: Ms Jennifer Henderson, Senior Vocational Consultant at Dupont & Associates Pty Ltd, for her report on him dated 18 March 2008, which was not upheld; about his former medical practitioner, Dr Batagol, to the Medical Practitioners’ Board, which was dismissed; to the Merit Protection Commission about the conduct of the meetings with Mr Wyburn, which was not sustained; to the Complaints Committee of the ACT Law Society, against a solicitor consulted by Mr Wilson, which was not upheld; and against Mr Wyburn, for bullying which was also not upheld.
24. Mr Wilson recalled being spoken to by Mr Wyburn about data errors and conceded he had made data errors and said he understood why he was being spoken to but his objection was that no formal reasons were provided as required. He maintained that the reasonableness of achieving an accuracy rate of at least 90 per cent for data entries depended entirely on the type of invoices and other circumstances.
25. Although Mr Wilson could not recall the date on which Mr Wyburn became his first level manager, he did agree that the bullying which was the subject of his claim arose between 23 August 2007 and 11 December 2007. He admitted he could not recall any specific incident of bullying or harassment on 23 August 2007.
26. Mr Wilson acknowledged that Mr Wyburn had conceded in the archive box incident on the ‘clean up day’ that Mr Wyburn could not force Mr Wilson to carry the boxes. Mr Wilson’s complaint was that Mr Wyburn knew about Mr Wilson’s heart condition and he should not have been asked to carry boxes – whatever their weight – a considerable distance. Mr Wilson said he told Mr Wyburn about his heart condition ‘soon after he arrived’.
27. As to complaints about his low productivity, Mr Wyburn said he could manage to process 50 purchasing orders in a day as compared with Mr Wilson, who could process no more than 30. Mr Wilson explained that this was because he was also doing other work, which included checking the documentation behind purchasing orders. As he said, project officers were not experts in legal processes and Mr Wilson time and again had to send documentation back to officers, sometimes between five and seven times, before all the documentation was fully compliant.
28. Mr Wilson said that delays occurred because Defence had two ‘alien’ systems, and verifying components of a claim for payment often involved using both systems and errors arose where the systems were inconsistent. He claimed to be the person who had identified the inconsistencies between the two systems.
29. He also said his concern about the Additional Responsibility Pay was that he had been promised to be paid at a higher rate and this had not materialised.
30. Mr Wilson said the complaint about Mr Wyburn’s ‘laying of hands’ involved Mr Wyburn ‘putting his hands on my shoulders and holding me down and then giving me orders in front of employees of a private sector supply company.’
31. Mr Wilson said he failed to meet the ‘urgent deadline’ which Mr Wyburn had set because it was technically impossible, given the particular Defence system, to complete the task in that timeframe. When asked why he left that day without telling Mr Wyburn the reason, he said he was so upset and intimidated about being given the order in front of other staff when it was not physically possible to comply, that he just went home. However, he conceded he had not obtained a medical certificate for his absence for part of that day, nor had he advised his supervisor that he was leaving and why before departing.
32. When asked why Mr Wilson did not consider that four to five days was adequate to deal with the reconvened Performance Exchange meeting on 6 December 2007, he said he realised that there would be a high level of detail needed to respond to the many issues which were raised and he conceded he did not have a clear recollection of some of the details. He also claimed that responding to all the agenda items required him to have access to the Defence system. He explained he had no after-hours access to the Defence system and needed working days to do this. Hence, he had been given part of the day on 6 December to prepare, but this was insufficient.
33. He also claimed there were difficulties with the procedures and with the honesty of those involved in the 28 November meeting. For example, he denied the accuracy of some of the matters listed in Mr Wyburn’s record of conversation of the meeting. However, he did concede that the conduct of the meeting was only a small part of the issue.
34. Mr Wilson disagreed with the claim that he did not get on with people and that he and another employee, Ms Bollard, were incapable of communicating. He said that his identification of underpayments of about $500,000, and inaccuracies in payments by a supply company leading to a debt to Defence of close to $1 million, may have been behind the complaints by employees of that company. He also denied that there were two employees of the company who would not deal with Mr Wilson.
Other evidence
35. Colonel Scott Thomas was the Manager of the Technical Services area and had commenced working in the same area as Mr Wilson in December 2007. Initially he had no contact with Mr Wilson, who was on leave. Eventually, Colonel Thomas appreciated that Mr Wilson’s requests for further leave might be due to a reluctance to return to work, so he telephoned him. Colonel Thomas offered to move Mr Wilson to the security area where he would not be reporting to Mr Wyburn or Mr Saines, and would have no daily contact with others in his former work group. Mr Wilson accepted the offer and Colonel Thomas has had no problems with Mr Wilson in that position.
36. Mr Wyburn is now working in Perth, Western Australia. He was interviewed by telephone. He denied in cross-examination that he intended to get rid of Mr Wilson following his arrival in the Technical Services area. He believed, however, that as a manager he had to manage performance, including that of Mr Wilson. He denied that he was reviewing errors for the purpose of blaming Mr Wilson.
37. He also denied sabotaging Mr Wilson’s work by removing documents. Nor did he recollect that he had not given Mr Wilson a copy of his completed Performance Agreement before the meeting on 28 November 2007. Equally, Mr Wyburn denied asking Mr Wilson to perform tasks beyond his physical capacities, including for example, moving the archive boxes.
38. In relation to the incident in which he was said to have put his hands on Mr Wilson’s shoulders so that Mr Wilson was incapable of moving, Mr Wyburn said he recalled putting his hands on Mr Wilson’s shoulders but not using force. He said he knew that Mr Wilson had a hearing problem and in order to avoid startling him he would touch his back or shoulder to alert Mr Wilson to his presence. He recalled that Ms Gorman, an independent third party, had observed the interaction had said that Mr Wyburn had not used excessive pressure or force.
39. As to the task which was urgent and which Mr Wilson had not completed, Mr Wyburn said he believed Mr Wilson would have been capable of completing it that day.
40. In response to Mr Wilson’s complaint that Mr Wyburn was constantly setting deadlines and checking on his output, Mr Wyburn said that when he first started in the position he had left Mr Wilson alone, but after a month the number of errors detected in Mr Wilson’s work made it necessary to intervene. In response to Mr Wilson’s complaint that some of the Key Expected Results were unachievable, Mr Wyburn said he had sought advice before development of the Performance Agreement and that he believed the ‘metrics’ were achievable.
41. Mr Wyburn said an achievable output per day was completion of 80 purchasing orders. Mr Wilson was often only managing between 14 and 18 a day and on one day his output was only 4. Mr Wyburn said although he had no experience of doing purchase orders prior to taking up the position in Technical Services, he could do 40 a day within 6 weeks of his arrival.
42. Of the complaint from employees of the supply company, Mr Wyburn said there was a high level of interaction with the team in the company and that the role of Technical Services was to deal directly with this supplier. He said Mr Wilson was gruff and belligerent to the company’s staff on occasion, and had been known to curse and swear when they dropped off invoices, so he was not surprised when he received the formal complaint. He also had a number of similar complaints, particularly from young women within Defence, who needed to seek advice from Technical Services. An instance of Mr Wilson’s poor interaction with young women was that Mr Wilson did not listen to Ms Karen Bollard, who at one point was Mr Wilson’s first level supervisor. Mr Wyburn said he had to step in because Mr Wilson was not listening to Ms Bollard.
43. Mr Wyburn said he had no recollection of directing Mr Wilson to circumvent the mandatory audit trail requirements, a matter that Mr Wilson felt strongly about. He said he had an issue with Mr Wilson over his failure to follow several directions.
Consideration
44. The sole issue is whether the steps taken by management in this matter fall within the description of the exclusionary provisions of section 5A of the Act with the result that Mr Wilson has not suffered an ‘injury’. That requires examination of what is ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ (section 5A(2)). There are several provisions in the non-exhaustive definition of ‘reasonable administrative action’ in section 5A(2) which may be relevant, including:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment; …
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), or… (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a … benefit … in connection with ...employment.
‘Administrative action’
45. What amounts to ‘administrative action’ is defined only to the extent of the examples given in section 5A(2). These refer to performance appraisal, counselling, suspension or disciplinary action and 'anything done in connection with' any of these examples.[1] The examples are not exhaustive and the words 'in connection with' have been interpreted as words which 'have an ambulatory significance capable of a wide range of applications.’[2] The indications are that ‘administrative action’ is capable of having a broad meaning.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(2)(e).
[2] Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203, para 106, per Black CJ, French and Weinberg JJ.
46. To date the case law has largely been based on cases arising under the expression ‘administrative action’ in comparable legislation, in particular in South Australia, the Northern Territory and in Tasmania.[3] In summary, the cases establish that administrative action can be constituted by a series of actions as opposed to merely one action. If the injury arises from the inability to comply with the ordinary demands of the workplace – for example, the nature of the work causes stress – rather than from some specific instruction or demand of the employment, the expression has no application.
[3] Workcover Corporation of South Australia v Summers (1995) 65 SASR 243; Abrahams v St Virgil’s College [1998] TASSC 53; Wattyl Australian Pty Ltd v York [1997] NTSC 86; HIH Winterthur Workers Compensation (SA) v Hickman [1997] SAWCT 17.
47. As Doyle CJ said in Workcover Corporation of SA v Summers:
[T]he words … “administrative action” do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform [his] duties….[4]
[S]tress caused by an inability to cope with the job itself … is not stress which arises wholly or predominantly from administrative action taken by the employer in connection with the worker’s employment.[5]
[4] Workcover Corporation of South Australia v Summers (1995) 65 SASR 243, 247.
[5] Ibid, 248.
48. In other words, ‘administrative action’ must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer.
49. Applying these principles to the circumstances faced by Mr Wilson, the Tribunal finds that the relevant administrative actions include: Mr Wilson not receiving ARP at the level he expected; the informal counselling session in September 2007; the steps taken relating to Mr Wilson’s Performance Agreement 2006-2007; the processes surrounding the imposition of a Performance Improvement Process (PIP); and the meetings relating to the PIP on 28 November 2007 and 6 December 2007.
‘As a result of' management action
50. In Hart v Comcare,[6] Branson, Conti and Allsop JJ concluded that for a cause of injury to be 'as a result of' administrative action within the proviso to section 5A(1), the administrative action must have materially contributed to a condition.[7] In Swanson v Northern Territory,[8] Martin CJ indicated that the expression 'as a result of' in the comparable Northern Territory legislation should be ‘given its ordinary and natural meaning’[9] and that the operative cause did not have to be the ‘predominant or sole cause’.[10] These decisions establish that although the administrative action need not be the main or sole cause of the injury, it must have materially contributed to the condition.
[6] Hart v Comcare (2005) 145 FCR 29.
[7] Ibid, 33-34.
[8] Swanson v Northern Territory (2006) 204 FLR 392.
[9] Id, para 100.
[10] Ibid.
51. What amounts to a material contribution has been considered by the courts in the context of the pre-2007 amendments to the Act relating to the meaning of ‘in a material degree’ in the former section 4(1).[11] Following the amendments to the Act in 2007 referred to earlier, a material contribution must be more than de minimis.[12] However, the 'as a result of' test in the proviso to section 5A(1) is less demanding than the ‘substantially more than material’ (emphasis added) test of what is contribution to a ‘significant degree’ (section 5B). Quantifying these distinctions is a question of fact and degree in each case.
‘Reasonable administrative action taken in a reasonable manner'
Reasonable
[11] Comcare v Canute [2005] FCAFC 262, paras 63- 66, per French and Stone JJ; Comcare v Sahu-Khan (2007) 156 FCR 536, paras 14- 16, per Finn J; Wiegand v Comcare (No 2) [2007] FCA 237, paras 3- 6, per Finn J; and Comcare v Caldwell [2008] FCA 2015, para 5, per Perram J.
[12] Comcare v Sahu-Khan (2007) 156 FCR 536 and the discussion at paras 53- 54 in the reasons.
52. The principal issue is whether the examples of administrative action taken by Defence that affected Mr Wilson are 'reasonable' for the purposes of section 5A(2). Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful.[13] What is reasonable is also assessed objectively and relates to the specific conduct involved.[14] Dr Campbell explored the concept of reasonableness in Re Georges and Telstra Corporation Ltd where he said:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of soundness of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less nor more than might be expected, tolerable, fair.[15]
[13] Comcare v Chenhall (1992) 37 FCR 75.
[14] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[15] Ibid, para 22, per Dr Campbell.
53. In addition, for ‘administrative action’ to be reasonable, it must be established that there was nothing ‘untoward’ about the actions involved.[16] The actions must also not be ‘irrational, absurd or ridiculous’.[17]
Lawful
[16] Re Gilbert and Comcare [2009] AATA 224, para 33, per DP Hack.
[17] Repatriation Commission v Webb (1987) 13 ALD 421, at 421, per Beaumont J.
54. Whether the administrative actions were lawful depends on adherence to the steps outlined in the relevant policies relating to the employment of Mr Wilson. In relying on relevant policies and agreements, the Tribunal accepts that as Madgwick J said in Kucks v CSR Ltd:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.[18]
[18] Kucks v CSR Ltd (1996) 66 IR 182.
Reasonable manner
55. In Re Georges and Telstra Corporation Ltd Dr Campbell addressed the issue of what it means to take action ‘in a reasonable manner’. As he put it:
[T]he fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that may flow as the consequence of such administrative action being taken. In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further the circumstances of the individual that could have become known by simple enquiry should be considered. …[W]hile the assessment of “in a reasonable manner” relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee [is] usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instruction that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action … taken.[19]
[19] Re Georges and Telstra Corporation Ltd [2009] AATA 731, para 23.
First administrative action: Additional Responsibility Pay (ARP)
56. Although at the hearing Mr Wilson confirmed that his concerns about harassment and bullying only commenced on 23 August 2007, it appears from his evidence that the initial refusal to pay him Additional Responsibility Pay (ARP), an administrative action taken in January 2007, was also a matter of concern. This was also the basis for reliance on the exclusionary provision in the reviewable decision, being ‘failure to obtain a …benefit’ (section 5A(2)(f)). The Tribunal has accordingly considered this issue.
57. The initial complaint raised by Mr Wilson was that Mr Williams, his supervisor on his return to the Technical Services area in early January 2007, did not arrange for payment of ARP to Mr Wilson either as promptly as anticipated, or at the expected level. Mr Wilson understood he would be standing in for someone who had been at the ASO 4 level, but he was only paid ARP at the ASO 3 level and then only from mid February 2007, not from the date of his return to Technical Services in January 2007.
58. Whether this action was lawful depends on adherence to the Defence Collective Agreement 2006-2009 (DeCA 2006-2009). Part G4 deals with ARP. ARP is either ‘position-based’ or ‘non position-based’ (G4.3). It is clear that the choice is discretionary and depends on ‘recognition of the particular demands’ of the work (G4.3), and matters listed in G4.2, namely, the ‘impact on capability/operational performance if the position is left vacant; the length of the period of ARP; the proportion of duties to be performed at the higher level; and whether the duties to be performed are incidental and occasional’. No evidence was provided to the Tribunal about which classification was intended, and Mr Williams did not give evidence to the Tribunal. The only document relating to this matter was a brief written statement Mr Williams provided which did not address this issue.
59. The Tribunal also notes that G4.6, which relates to payment of ARP at two or more classification levels higher than the employee’s substantive classification, provides that ‘[in] determining the rate of ARP, the Secretary is to consider the relative worth of the work to be performed in comparison with the employee’s current level of remuneration’. Mr Wilson was substantively employed at the ASO 2 level, so this clause would have applied to him had he been paid ARP at the ASO4 level. Again in the absence of any information about the nature of the work actually to be performed by Mr Wilson in filling the position, the Tribunal is not able to be satisfied whether Mr Wilson’s work warranted payment at the ASO 4 level and makes no findings on this matter. The Tribunal also notes that Mr Williams's statement states that payment at the ARP level 'was never discussed and that duties that he would perform were at the APS 3 level'.
60. Mr Wilson said what upset him about the matter was not only the failure to pay him at the expected level but the fact that his director had lied to him about having set in motion the steps required to implement the ARP. This raises the question of whether Mr Williams undertook the steps to arrange for the ARP in a reasonable manner.
61. Taking an objective view of the matter, it is clear that although Mr Wilson had been asked to undertake duties at a higher level at some time in early January, no steps were apparently taken by Mr Williams to implement this arrangement until mid February. Mr Wilson said that three pay periods after the conversation, his pay had still not been adjusted which suggested that the inaction occurred over some six weeks. The Tribunal is not in a position to assess whether there were circumstances which may have provided Mr Williams with a reasonable excuse for not taking steps earlier, although it notes a statement by Mr Williams that the complaints by Mr Wilson were not substantiated.
62. On this matter, although Mr Wilson complained about not receiving ARP at the expected level, and that there were delays in implementing the arrangement, when offered the opportunity to pursue the matter Mr Wilson chose not to do so. In the circumstances, and given the absence of evidence from Mr Williams on key issues, the Tribunal is not able to be satisfied as to whether Mr Wilson had a legitimate grievance on this issue and makes no findings accordingly.
Second Administrative Action: Meeting on 12 September 2007
63. The meeting on 12 September 2007 is another administrative action about which Mr Wilson complained. What is ‘reasonable administrative action’, whether it was a counselling session or anything reasonable done in connection with a counselling action, must be assessed in light of the rules of conduct or behaviour which apply to and are enforceable against an employee by virtue of their employment by the Commonwealth.[20]
[20] Comcare v Chenhall (1992) 37 FCR 75.
64. In Mr Wilson's case, these principles involve recourse to the rules of conduct or behaviour found in the DeCA 2006-2009, in the Defence instruction on unacceptable behaviour (DI(G) 35-3, Management and Reporting of Unacceptable Behaviour), and in Comcare's Bullying in the Workplace: A Guide to Prevention for Managers and Supervisors.[21] Mr Wilson's complaints are that much of his treatment amounted to bullying, or abuse of power, and although no findings of bullying or abuse of power were substantiated in previous inquiries, this does not foreclose the issue before the Tribunal of whether this treatment was 'reasonable administrative action taken in a reasonable manner'.
[21] Comcare Bullying in the Workplace: A Guide to Prevention for Managers and Supervisors (2006).
65. The Defence instruction defines 'unacceptable behaviour', which includes workplace bullying, as:
behaviour that, having regard to all of the circumstances, would be offensive, belittling, abusive or threatening to another person or adverse to morale, discipline or workplace cohesion, or otherwise is not in the interest of Defence.
66. The instruction defines 'workplace bullying' as:
the persistent pattern of behaviour by a person in the workplace that is harmful, intimidating, humiliating or embarrassing, and which is aimed at making the complainant(s) feel miserable, demoralised and lacking in self confidence. It is the deliberate desire to hurt, threaten or frighten someone with words or actions.
67. The instruction says the following about 'abuse of power':
Abuse of power and authority attributed to rank or position to harass, discriminate or bully a subordinate is inappropriate and unethical, and in some situations con constitute criminal behaviour.
68. The process for handling complaints of unacceptable behaviour is also set out in the instruction. Managers are, among other things, to 'respond promptly, seriously and with fairness and sensitivity to allegations of unacceptable behaviour' to 'take disciplinary or administrative action, including misconduct action for Defence APS employees, with respect to complaints, as appropriate',[22] taking account of the need to comply with natural justice.[23]
[22] DI(G) 35-3 clause 26.
[23] DI(G) 35-3 clause 29.
69. The DeCA 2006-2009 contains two relevant parts: Part D – Performance, and Part I – Operation of This Agreement, which includes Part I4 – Dispute Avoidance and Settlement Procedures. Part D sets of the Defence performance management scheme. All employees must participate in the scheme and participation constitutes taking part in an employment exchange. The aim of the exchange is to produce a performance agreement. Between performance exchanges, the performance agreement is to be regularly monitored, reviewed and updated to 'reflect changes in circumstances and priorities'.[24]
[24] Defence Collective Agreement 2006-2009 (DeCA 2006-2009) clause D1.5(c).
70. The principles underpinning Part I4, the Dispute Avoidance and Settlement Procedures are:
(a) the avoidance and resolution of any dispute about the interpretation or application of this Agreement by measures based on the provision of information, explanation, consultation, negotiation and cooperation;
(b) the speedy and just resolution of disputes; and
(c) the resolution of disputes at the lowest practicable level by management and employees, and where they choose, their representatives.
71. Disputes about the application of the Agreement are to be dealt with by:
(a) In the first instance, an employee or, where they have chosen, their representative should discuss the dispute with the employee's supervisor;
(b) Where a dispute is not resolved pursuant to sub-paragraph (a), the dispute will be referred to more senior levels of management and the employee and where they choose their representatives for resolution...[25]
[25] DeCA 2006-2009 clause I4.1.
72. All parties are to participate in good faith.[26]
[26] DeCA 2006-2009 clause I4.2.
73. On 12 September 2007, at Mr Wyburn's request, an informal meeting was held between Mr Wilson and Mr Wyburn. That informal meeting was consistent with the principles underpinning Part I of DeCA 2006-2009. A representative from human resources was present and Mr Wilson complained that this turned it into a formal meeting. The Tribunal does not accept this complaint. Mr Wyburn only summarised the outcome in an email; no further formal action followed, and even if a note taker from HR was present, since other elements of more formal processes covered by DeCA were not followed, indicates that this was a counselling session at most.
74. The email summary from Mr Wyburn to Mr Wilson on 13 September 2007 said the aim of the informal meeting had been to discuss Mr Wilson's data entry errors and 'the impact they are having on the timely payment of the invoice runs', and that Mr Wilson undertook to 'endeavour to minimize simple data entry errors in the up coming invoice runs'. The email also noted improvement in the performance of the team and acknowledged Mr Wilson's part in that improvement. Mr Wilson complained that the record did not refer to the reasons he provided for some of the data entry errors and delays, but a summary of a meeting need not rehearse all that passed at the meeting and it was clearly the intention in this instance simply to cover the undertakings and major points. The summary was not unreasonable.
75. The Tribunal finds there was nothing ‘untoward’ about the calling or conduct of the meeting, nor was it ‘irrational, absurd or ridiculous’. Mr Wyburn said when he commenced work in their area he took the time to evaluate his team. When he discovered a high data entry error rate in Mr Wilson’s work, he decided to have an informal meeting with him about the matter. The action did not fall within 'bullying' or 'abuse of power'. There was no intention, for example, to ‘hurt, threaten or frighten someone with words or actions’. Data entry errors are clearly not acceptable behaviour in that they are 'not in the interest of Defence'. For that reason, to arrange a meeting with Mr Wilson to discuss the matter and counsel him was appropriate, and to do so informally complied with the principles in the DeCA 2006-2009 that any matter in dispute be dealt with speedily and justly 'at the lowest practical level'. It follows that the Tribunal finds that taking this step was lawful, and was reasonable administrative action taken in a reasonable manner.
Third administrative action: recommendation by Mr Wyburn on 3 October 2007 that Mr Wilson be put on a Performance Improvement Plan and that he not be granted a salary progression
76. The DeCA 2006-2009 introduced a new performance management scheme in February 2007 under which Defence employees' performance was to be monitored and assessed. Unless an employee met certain criteria they were not entitled to a salary progression.[27] Mr Wilson had a performance agreement. The DeCA 2006-2009 also provides for Performance Assessment. The underlying principle in assessing performance is:
Performance is to be objectively and fairly assessed against [Key Expected Results]. This assessment will follow, and be consistent with, the provision of honest, timely and comprehensive feedback, such that fully effective and outstanding performance is recognised, lapses in performance are identified and managed appropriately, and underperformance is managed.[28]
[27] DeCA 2006-2009 D6.5.
[28] DeCA 2006-2009 Part D5.
77. Improvement of poor performance requires that 'supervisors are to work with the affected employee(s) and their second level supervisor to achieve the performance standards required'.[29] Where exchanges between employees and their supervisors have not improved performance, an employee is to be involved in a performance exchange and a Performance Improvement Plan is to be established.[30]
[29] DeCA 2006-2009 Part D7.
[30] DeCA 2006-2009 Part D7.2.
78. The requirement to enter into a performance agreement was specifically provided to be a 'lawful general order'.[31] It was lawful. The Agreement provided for the non-payment of performance pay and the establishment of a Performance Improvement Plan when a person had not met their Key Expected Results.[32] Mr Wilson's performance agreement provided that he processed invoices with a minimum of 10 per cent errors or lateness per invoice run and required all purchase orders to be actioned within two working days of receipt and that purchase orders should be entered correctly with a 90% accuracy rate per month. Mr Wilson had signed that Performance Agreement. Mr Wyburn found that Mr Wilson had not met his Key Expected Results and therefore Mr Wilson was to be put on a Performance Improvement Plan, and was not eligible for a salary progression. There was nothing untoward about the decision to introduce a Performance Improvement Plan for Mr Wilson in these circumstances and it was lawful to do so and reasonable.
[31] DeCA 2006-2009 Part D1.4.
[32] DeCA 2006-2009 Part D6.5.
79. Mr Wilson conceded he had made errors in his invoice processing. Even if some of those errors were due to data system defects or delays, or to inconsistencies between two Defence data systems, it appears on the evidence that Mr Wilson’s error rate was higher than others doing the same work. There was no indication that others had been put on a Performance Improvement Plan program, also suggesting that Mr Wilson’s output fell below the group standard. Mr Wyburn gave evidence of the volume of invoices that were expected to be processed by employees in the Technical Services area each day. There was nothing in the evidence to indicate that Mr Wilson had a more demanding invoice processing caseload than others and in those circumstances, nor is there reason to assume that others were not meeting their targets. It is a manager’s role to take action to improve performance of employees when they do not meet targets. That is one of the purposes of having a performance agreement.
80. In those circumstances, Mr Wyburn’s denial of salary progression and putting Mr Wilson on a Performance Improvement Plan was both lawful and reasonable administrative action. Any complaint by Mr Wilson about the manner in which Mr Wyburn notified him of these steps is dealt with under the discussion of the meetings on 28 November 2007 and 6 December 2007.
Fourth administrative action: complaint by supplier
81. On 13 November 2007, the contract manager of a key supplier wrote to Mr Wyburn complaining about an incident on 5 November 2007 and alleged Mr Wilson had acted in an unprofessional manner towards staff of the supplier. Mr Wilson was said to have snatched invoices from an employee of the supply company and when he dropped them, that he swore and continued to do so for some period. On 9 November 2007, Mr Saines had received a call from the manager of the supplier, following which he had had an informal discussion with Mr Wilson about the incident. Mr Wilson had said he was unaware of the effect of his behaviour or that his manner was perceived as intimidating and confrontational. He agreed to write to one of the employees apologising for his behaviour. This he did on 12 November 2007. However, this did not prevent the manager sending the letter on 13 November 2007, saying he had instructed his staff to have no 'direct contact' with Mr Wilson for the present.
82. Mr Staines’s action in informally counselling Mr Wilson on 9 November 2007 was clearly an appropriate manner of handling the issue. Mr Wyburn subsequently raised the issue in the discussions on 28 November and 6 December 2007 and whether this was reasonable administrative action will be considered at that point.
Fifth administrative action: failure to perform requested action leading to performance exchange
83. On 22 November 2007, Mr Wilson had been asked by Mr Wyburn to process certain payments by that afternoon. Mr Wilson claimed that at the time he was locked out of the system and the orders were withdrawn before he could do them. That afternoon, according to Mr Wilson, Mr Wyburn forcefully made an urgent request that a particular payment be entered and offered the assistance of someone to ensure the task got done. Mr Wilson said he was very upset by the tone and content of Mr Wyburn's directive, not least because he and another employee had reported that attempting to enter the item resulted in a fatal error which he could not explain and he had logged a service request with the help desk, copied to Mr Wyburn. Mr Wyburn insisted that the payment be entered that day and departed. Mr Wilson said he was so upset by the interaction that he simply left for the day.
84. Later that day, Mr Wyburn emailed Mr Wilson asking why Mr Wilson had left without completing the task and to notify Mr Wilson that a formal meeting would be held on 28 November 2007 'regarding your current performance and demeanour'. The email advised that an HR representative would be at the meeting and that Mr Wilson could bring a support person. In response, on 23 November 2007, Mr Wilson replied that he had been too upset to concentrate and 'so took the advice received from both yourself and Robert Saines to simply walk away when too stressed'. He explained the circumstances which had caused him difficulties the preceding day when trying to enter documents into the system. He also noted that he was requesting an assessment of Mr Wyburn's 'continuous bullying, and verbal and physical intimidation'. However, in cross-examination he could not explain why he had not notified Mr Wyburn in advance of his going that he was not going to meet the deadline.
85. In evidence, Mr Wyburn said he believed the work could have been completed that day. He had also offered someone to enable Mr Wilson to complete the task, which underlined its urgency. In these circumstances, Mr Wyburn’s request, although expressed forcefully, was reasonable given that Mr Wyburn had assessed the matter as urgent. The failure by Mr Wilson to inform Mr Wyburn that he was following his advice and simply walking away because he was stressed was unprofessional and merited a disciplinary response. The calling of a formal performance exchange meeting on 28 November 2007 in these circumstances was not unreasonable and in the context of Mr Wilson’s performance overall, was lawful and was reasonable administrative action. The action, in emailing Mr Wilson and informing him that a formal information exchange meeting was to be instituted was conducted in a reasonable manner.
Sixth administrative action: meeting on 28 November 2007
86. On 28 November 2007 a formal meeting was held. Present were Mr Wyburn, Ms Deborah Cairns from Human Resources, Mr Wilson and Mr Michael Henneberger as support person for Mr Wilson. The meeting commenced with Ms Cairns reading an agenda of matters for discussion and explaining the process for instituting a Performance Improvement Plan. Mr Wyburn then took over and stated that he did not consider Mr Wilson's performance had improved since the informal appraisal/counselling session in September, and he listed nine examples of less than satisfactory performance. He then said he was planning to put Mr Wilson on a Performance Improvement Plan and supplied him with a copy, including the Key Expected Results it contained. Mr Wilson then said he did not agree with the Key Expected Results and would not sign the Performance Improvement Plan. Mr Wyburn said if Mr Wilson did not sign it he would have it endorsed by Ms Cairns and Mr Saines and it would be implemented.
87. Mr Wilson was asked whether he could identify any specific training from which he would benefit and Ms Cairns asked whether he thought he was in the wrong role or if the demands on him were unfair. Mr Wilson did not comment. He was also reminded about the Employee Assistance Program, should he need confidential advice. Mr Wilson then produced documents containing his accusation of bullying and harassment against Mr Wyburn and asked Ms Cairns what was happening. She said she had no knowledge of the complaint. Mr Wilson also said he had not understood from the invitation to the formal meeting that he would be expected to respond to detailed matters of the kinds raised and that he could not respond at that meeting. A further meeting was arranged for one week's time and the meeting was adjourned. Mr Wilson was asked whether a week was sufficient and he replied 'No comment'.
88. The meeting was clearly authorised under the DeCA 2006-2009 Part D, given Mr Wilson's failure to meet the Key Expected Results in his Performance Agreement and the continued dissatisfaction with his performance. In those circumstances, to have called the meeting and to have set in train a Performance Improvement Plan was clearly reasonable action by a manager. The invitation which referred only to Mr Wilson's 'poor performance and demeanour' should have been more explicit. Mr Wilson said the juxtaposition of this invitation with Mr Wyburn's complaints about Mr Wilson not completing an urgent task made it understandable that Mr Wilson was only expecting this matter to be discussed.
89. Administrative action, however, only has to be reasonable, that is, tolerable or fair, not perfect. Mr Wilson had been put on notice in September that his performance was under scrutiny and the Key Expected Results in his performance agreement were also an indication of what was expected. In those circumstances, the limited specificity in the invitation was not unreasonable. In addition, that deficiency was acknowledged and fair process followed when Mr Wyburn agreed to give Mr Wilson additional time to respond to the specific allegations. A week was a not unreasonable period to have allowed, particularly as Mr Wilson was given the opportunity at the 28 November meeting to ask for longer and chose not to do so.
90. Furthermore, when Mr Wilson subsequently sought work time for preparation, this was granted. Although Mr Wilson complained that the time allotted was only some 5.5 to 6 hours, it can be assumed that he would have used the intervening weekend and evenings for this purpose as well, and that he would be able to rely on documentary resources he would have at home even if he could not access the Defence system at those times. To have permitted Mr Wilson to take work time for this purpose is not a requirement under the DeCA 2006-2009 and was generous in the circumstances.
91. Mr Wilson claimed that it was inherent in the principle of natural justice that he should be given such preparation time. To so argue is to misrepresent those principles. What is fair process is flexible and depends on the particular context[33] and the absence of any such right in the DeCA 2006-2009 must tell against Mr Wilson's interpretation of the principle in the context of Defence employment. In Ansell v Wells[34] the court was prepared to find that an appellant in a promotions appeal 'must have an opportunity quietly to consider the allegations against him, and, if necessary, to obtain material to rebut them'[35] but this time for reflection was not required to be taken during working hours. In those circumstances, a week was not an unreasonable period of time to allow prior to the meeting and for that time for preparation to include work time was not necessarily required.. In addition, Mr Wyburn agreed to amend his record of the meeting on 28 November 2007, when Mr Wilson objected to aspects of it. Although Mr Wilson was still not fully satisfied, the overall process followed was reasonable and fair.
[33] Russell v Duke of Norfolk [1949] 1 All ER 109.
[34] Ansell v Wells (1982) 43 ALR 41.
[35] Id at 62.
92. Mr Wilson also complained about the fact that he was not shown the record of the meeting made by Ms Cairns, although Mr Wyburn had stated that she was there 'to ensure that all items are recorded correctly'. There is no evidence that Ms Cairns made a record of the meeting. Given that Mr Wyburn produced a record of meeting there was no need for two records to be produced. That was not unreasonable. An agenda listing all the items to be discussed was also provided on 3 December 2007, responding to Mr Wilson's complaints that the previous invitation/agenda had been inadequate. In those circumstances, the holding of the meeting and how it was conducted was not unfair given it was accepted that the defects in the notice and time to prepare were rectified by Mr Wyburn’s provision of a more informative agenda, and the reconvening of the meeting after Mr Wilson had been given preparation time.
Seventh administrative action: formal meeting of 6 December 2007
93. The resumed meeting on 6 December 2007 was attended by Mr Wyburn, Ms Kelly from Human Resources, Mr Saines, Mr Wilson and Mr Henneberger. Mr Wilson commenced by reading a prepared statement. The meeting then discussed Mr Wilson's Key Expected Results in his performance agreement and his poor performance. Mr Wilson did not discuss the Key Expected Results in the Performance Improvement Plan since he said he had inadequate time in which to do so. Instead, Mr Wilson read a prepared statement addressing most of the issues listed in the agenda provided on 3 December 2007.
94. Mr Wilson's claim that Mr Wyburn was 'not consulting, but merely steam-rolling through with his agenda and presenting a PIP with unachievable Key Expected Results' is not sustainable. Mr Wyburn had delayed the meeting for over a week to give Mr Wilson time to respond, he had counselled him at an informal meeting in September followed by another informal discussion on 9 November, prior to the formal discussion on 28 November and the delayed performance exchange meeting on 6 December 2007.
95. As discussed previously, Mr Wyburn was entitled to implement a Performance Improvement Plan in view of Mr Wilson's performance failures. The Tribunal notes that Mr Wilson complained that he had not seen the completed performance agreement with the comment about his performance and the rejection of a salary progression, as required in the DeCA 2006-2009 prior to it being produced at the 6 December meeting. This was a failure strictly to follow the procedures outlined, but Mr Wilson was aware of the substance of the issues and was not disadvantaged by them. Mr Wilson's complaint that the term of the Performance Improvement Plan of 15 weeks, rather than the more usual 4-6 weeks, was excessive, fails to take account of the need for flexibility in instituting such an arrangement. In addition, given Mr Wilson's resistance to improvement over the preceding three months, setting a longer time-frame was not unreasonable.
96. Mr Wilson made a number of allegations of bullying in relation to Mr Wyburn's apparent refusal to accept some of Mr Wilson's explanations of his poor performance, for example, in relation to each of the Key Expected Results. The Tribunal's task is solely to decide whether the administrative action was reasonable and was carried out in a reasonable manner. As discussed earlier, there was no evidence to indicate that others in the same work group were not achieving targets, nor that the targets were unreasonable, even given the data system inconsistencies and problems referred to by Mr Wilson. In those circumstances, it can be inferred that Mr Wilson’s complaints had less force than might otherwise be the case were they supported by others’ experiences. In those circumstances, the action taken was not unreasonable, nor were they taken out with a ‘deliberate desire to hurt, threaten or frighten someone with words or actions’. The actions were not bullying and hence were not undertaken in an unreasonable manner.
Eighth administrative action: sabotaging Mr Wilson's performance
97. Mr Wilson made several allegations that he was continually interrupted while working, half-completed purchase orders were removed from his desk and not returned but that he was still expected to be accountable for their completion, and that he was humiliated by being reprimanded by Mr Wyburn in front of fellow employees and even staff of supplier organisations. The Tribunal does not have evidence as to why material was removed from Mr Wilson's desk and hence is not in a position to comment. The interruptions to Mr Wilson's work may also have been for good cause. Working in teams does not always permit completion of tasks in an orderly fashion. Mr Wilson appears to be a person who likes to be in control of his activities and does not easily accommodate the needs of fellow employees. This may account for some of the issues he perceived. It is significant that Colonel Thomas commented that in Mr Wilson's new position as a security officer, he does not have to report to anyone other than Colonel Thomas and the arrangement appears to be working satisfactorily, suggesting Mr Wilson is a person who works better on his own than in a team.
98. Mr Wyburn admitted he may have, on occasions, addressed Mr Wilson 'forcefully, maybe tersely'. Given the deterioration in the working relationship between Mr Wyburn and Mr Wilson culminating in Mr Wilson making a formal complaint about Mr Wyburn and Mr Wyburn instituting a Performance Improvement Plan in relation to Mr Wilson, it is not surprising that communications between the two was not always pleasant.
99. Once again, although these interactions go to the manner of taking administrative action, and on their own would not be reasonable, in the circumstances, and given that reasonable action does not have to be perfect, provided it is ‘tolerable and fair’, the Tribunal does not find that these issues were an unreasonable manner of undertaking various administrative actions involving Mr Wilson.
100. In conclusion, the Tribunal upholds the finding that the administrative action taken in relation to Mr Wilson, in particular by Mr Wyburn, were reasonable administrative actions being lawful and appropriate in the circumstances and they were not taken in an unreasonable manner.
101. The decision under review is affirmed.
102. The usual order as to costs is made.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member
Signed: .........................................................................
C. Kocak, AssociateDate/s of Hearing 29 March - 30 March 2010
Date of Decision 28 May 2010
Solicitor for the Applicant Self-represented
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Australian Government Solicitor
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