Wright v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 64
•16 April 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wright v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 064 |
PARTIES: | Wright, Bernard v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/315 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 16 April 2015 |
HEARING DATES: | 16, 17, 22, 23 and 24 April 2014 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | 1. Appeal dismissed. 2. The decision of the Regulator dated 3 September 2013 is confirmed. 3. Costs are reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION Psychological injury - whether injury arose out of reasonable management action taken in a reasonable way - whether employment a significant contributing factor to the development of the injury. |
CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32, s 550 |
APPEARANCES: | Mr B. Wright, self-represented, Appellant. |
Decision
Introduction
Bernard Wright ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject his application for workers' compensation.
The appellant lodged his application for compensation with WorkCover Queensland on 21 March 2013. On his claim form he referred to the injury as "anxiety and depression", alleged to have been sustained as a consequence of "ongoing bullying - harassment". At the time the appellant was employed as General Manager - Customer Service Division with Queensland Urban Utilities (QUU). The appellant attended on his general practitioner, Dr Douglas, on 13 February 2013. Dr Douglas entered a diagnosis of depression and issued a medical certificate certifying the appellant as unfit for work until 24 February 2013.
On 24 May 2013 WorkCover rejected the appellant's application for workers' compensation. On 29 July 2013, the appellant sought a review of WorkCover's decision. On 3 September 2013 the regulator confirmed WorkCover's decision that the claim was one for rejection. The appellant now appeals this decision to the Commission pursuant to s. 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act").
QUU was a new business formed from five pre-existing entities. Under legislative changes the water businesses of five local governments were extracted and transferred to form the newly created organisation, QUU. The five local governments involved were Brisbane City Council, Ipswich City Council, Somerset Regional Council, Scenic Regional Council and the Lockyer Valley Regional Council. Under the legislation QUU was to provide retail services as well as the infrastructure for water and sewerage.
The appellant worked in the Retail Division of QUU. His supervisor and manager of the Division was Helen Harding. The appellant's responsibilities included the management of interactions between QUU and its customers, management of the complaints process, and supervision of the call centre.
Initially the call centre services were provided by the Brisbane City Council under a transitional service level agreement. However in 2011 a decision was taken to bring the call centre facility "in-house" and arrangements were put in place to transition the call centre functions to QUU. The appellant was involved in the preparation of a business case recommending the establishment of the in-house facility and subsequently the management of the transition of the call centre from the Council to QUU control.
Issues for Determination
The appeal to the Commission is by way of a hearing de novo. The regulator did not contest findings to the effect that the appellant was a "worker" and that he had sustained a personal injury being a psychiatric or psychological disorder. It follows that the matters for determination are whether the injury is causally connected with the appellant’s employment at QUU pursuant to s 32(1) of the Act and, if so, whether s 32(5) operates to remove the injury from s 32(1).
For the purpose of the determination of this matter, s 32 of the Act relevantly provides:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against the worker;
(c) action by the Authority or an insurer in connection with the workers' application for compensation."
Evidence
During the course of the proceedings, evidence was provided by 12 witnesses. Other than Dr Storer, all witnesses were either current or former employees of QUU. The witnesses for the appellant were as follows:
·Bernard Wright (appellant and former General Manager-Customer Services)
·Hayley Reeves (Call Centre Manager)
·Dr David Storer (Consultant Psychiatrist)
The witnesses for the Regulator were as follows:
·Meheret Johnson (Business Analyst)
·Michael Biron (Business Support Manager)
·Debra Bullions (Project Manager)
·Helen Harding (Retail Executive Director)
·Louise Dudley (CEO)
·Justin Poulus (General Manager-Marketing and Communications)
·David Norris (HR Business Partner)
·Jenny Leis (Executive Leader of People and Safety)
·Christina Heather (Customer Advocacy Manager).
Medical Evidence
It was the appellant’s evidence that he decompensated on 6 February 2013 following receipt of a notification from Ms Harding informing him that a performance management process would be resumed at their weekly meeting scheduled for 7 February 2013. The appellant subsequently attended on his general practitioner, Dr Douglas, on 13 February 2013, and on his treating psychiatrist, Dr Storer, on 21 February 2013.
The medical records of Dr Douglas, were entered into the evidence as Exhibit 30. By consent of the parties Dr Douglas was not required to give evidence in the proceedings. The records cover consultations taking place between 18 July 2012 and 2 April 2014. The first relevant consultation occurred on 13 February 2013 when a diagnosis of depression was recorded and the appellant was referred to Dr Storer. The entries in the medical notes include "At work – a lot of issues works in Govt dept"; "Stood up for boss bullying"; and "Depressed and emotionally labile". The appellant was issued with a medical certificate which stated that he was unfit for work from 11 February 2013 to 24 February 2013.
Correspondence from Dr Storer to Dr Douglas is included in Exhibit 30. In a letter to Dr Douglas dated 22 February 2013, Dr Storer noted that the appellant was referred for "assessment and management of depression". He concluded that the appellant had a depressive disorder which was probably a major depressive episode, the differential diagnosis being an adjustment disorder.
The records of Dr Storer are in the evidence as Exhibit 27. The records include notes of consultations, correspondence, pathology results and a report dated 19 June 2013 which was prepared for QUU. Dr Storer first saw the appellant on 21 February 2013 and saw him subsequently on 12 March 2013, 20 March 2013, 26 March 2013, 16 April 2013, 7 May 2013, 18 June 2013 and 21 January 2014.
The report prepared for QUU stated inter alia that the appellant had previously suffered depression in 2010 following his retrenchment by Origin Energy in Victoria. At the time the appellant was treated with anti-depressants by his general practitioner but he was not able to take the medication because of side effects. The appellant's condition subsequently improved without further treatment. The report included a diagnosis of adjustment disorder with mixed anxiety and depressed mood. It concluded that "Mr Wright meets criteria for an Adjustment Disorder. He has suffered from an identifiable stressor namely a period of reported workplace harassment and bullying and excessive workload. As a result of this, he states that he has developed Depression and Anxiety which has had a significant impact upon his social and occupational functioning. In my opinion, the stated mechanism of injury is consistent with his current condition."
The QUU report also recorded that the appellant told Dr Storer that he had a number of problems with Ms Harding and that a number of his staff had complained to him that they were being bullied and harassed by Ms Harding. The appellant told Dr Storer that that he raised these issues in a meeting with Ms Harding in April 2012. The appellant said that thereafter Ms Harding "took it out on me". The appellant told Dr Storer that the retaliatory action included a harsh performance appraisal that meant he did not qualify for a bonus, and the commencement by Ms Harding of a performance management process which was based on "rubbish claims".
In his evidence before the Commission Dr Storer said that the performance management process was a cause of stress for the appellant both because he saw the process as unjust and also because he saw the process as a vehicle for the termination of his employment.
Significant Contributing Factor
The respondent’s primary argument was that the appellant had not sustained an injury pursuant to s 32(1) of the Act. In more particular terms, it was submitted that the appellant's employment was not a significant contributing factor in the development of his personal injury.
It was the respondent’s submission that the authorities supported an approach wherein a finding that the employment was a significant contributing factor cannot be entered where an appellant worker does not establish the truth of the workplace events that are claimed to have caused the injury. In this regard the distinction was drawn between the employment being a contributing factor and the employment being a significant contributing factor. It was also submitted that the employment should not be held to be a significant contributing factor in circumstances where the worker misperceives events occurring in the workplace.
The authorities relied on by the respondent included the decision of de Jersey P in Croning v Workers’ Compensation Board of Queensland[1] and Hall P in Pouesi v Q-COMP[2]. In Croning, de Jersey P concluded:
"The work conditions did, as I have said, certainly provide the setting or background against which the appellant’s particular disposition came into play. Although no doubt one should conclude then that the system operating at the place of employment was in that sense a ‘contributing factor’, it was not necessarily, as indeed the Magistrate must be taken to have found, a ‘significant’ one – the only significant contributing factor in accordance with his findings being the appellant’s own disposition. That was in my view a factual approach the Magistrate was entitled to take. It was open on the evidence and could not be described as unreasonable. The circumstance that the particular employment provided the setting in which this problem crystallized did not, in short, compel the conclusion that the employment was a significant contributor. The Magistrate was entitled to view it as like a causa sine qua non in the background as it were, the trigger and only significant contributing factor being the appellant’s own condition as overlaid on that foundation."
[1] Croning v Workers’ Compensation Board of Queensland (1997) 156 QGIG 100
[2] George Pouesi v Q-COMP(C/2013/4) – Decision type="1"> In Pouesi, Hall P stated: "[3] In the event, Mr Pouesi was unsuccessful. His problem lay in the evidence. The incidents/transactions upon which he relied were either not substantiated or shown to be quite different in nature to the incidents/transactions nominated by Mr Pouesi. In the case of the transactions involving his suspension from his employment in December 2011, the differences between Mr Pouesi’s version and the version supported by the evidence allowed a finding that any adverse impact on Mr Pouesi’s health was withdrawn from the statutory definition of injury by the operation of s 32(5) of the Act. In the case of other incidents/transactions, the difference between that which had occurred and that which was alleged, was so great, and the incident/transaction so inconsequential, that a finding of adverse impact on Mr Pouesi’s mental health was not reasonably open. And Mr Pouesi, needed such findings. The Consultant Psychiatrist (Dr Bersin) called by Mr Pouesi had been given the incorrect history." Relying on these and other authorities, the respondent advanced the proposition that it was open to the Commission to find in these proceedings that there was no factual basis for the stressors nominated by the appellant, or if there were a factual basis for some events, the stressor arises from the appellant's misperception of events, not the reality of the event. It was submitted that if such a finding were entered, then the employment could not be held to be a significant contributing factor to the development of the appellant's injury. If upon consideration of the facts and circumstances of this case it is concluded that the employment has not significantly contributed to the appellant’s injury (and that the injury did not arise out of or in the course of the employment), the appeal is lost. If however the determination is that the employment has significantly contributed to the injury, then the appeal is resolved by reference to s 32(5). It is within these parameters that the evidence relating to the stressors nominated by the appellant is to be evaluated. Stressors The appellant's list of stressors is in the evidence as Exhibit 1. The stressors were expressed in the following terms, or in words with the same effect: (i)Being subjected to a wrongful performance process – I was wrongly accused of not doing my job and was denied any consultation regarding my reply, which was in breach of my contract terms (29 November 2012); (ii)Being subjected to an annual performance review with punitive financial consequences where KPIs had been altered without my knowledge. Multiple requests for consultation were ignored (25 July 2012); (iii)Being overloaded with work and being pushed to do work that had nothing to do with me (2012-2013); (iv)Being subjected to bullying and harassment (2011-2013); (v)Being denied the resources to do my work (2012). All of the stressors involve allegations of unreasonable management action and all involve conduct allegedly engaged in by the appellant's supervisor, Ms Harding. The appellant said that in respect to stressors related to the performance process and the annual review, Ms Leis also acted unreasonably. While the appellant’s employment with QUU commenced in January 2011 the workplace stressors upon which he relied predominantly related to the period from February 2012 to March 2013. In his submissions the appellant said that the first significant event occurred in March 2012 when he asked Ms Harding to stop harassing Ms Bullions. The appellant said in his submission that "from this point on, the adverse actions towards myself escalated". It was the appellant’s evidence that around February or March 2012 Ms Bullions was not coping very well with her work load and that she asked the appellant to intervene on her behalf to try to moderate the demands being placed on her by Ms Harding. The appellant said that the catalyst for his discussion with Ms Harding about the treatment of Ms Bullions was provided by an incident in February 2012 where Ms Harding telephoned Ms Bullions while she was on a train travelling to a Pink Floyd concert and asked her to record a series of tasks that she wanted Ms Bullions to undertake the following morning. When Ms Bullions said that she did not have pen and paper, Ms Harding told Ms Bullions to borrow same from someone on the train. Ms Bullions however said that while the Pink Floyd incident occurred in February 2012, she did not raise the matter with the appellant until October 2012 when she attended a meeting convened by the appellant to discuss the impending resignation of Ms Harding's PA, Di Fryga. Ms Harding's evidence about the timing of the complaint was consistent with that provided by Ms Bullions. Ms Harding said that the appellant did not raise her treatment of Ms Bullions in March or April 2012, but that he did raise the issue with her in a meeting that took place on 3 October 2012. The appellant said that Ms Fryga told him that she intended to resign because "she could no longer work with Helen Harding and that the stress that Helen was putting her under was causing her health related problems and it just wasn't worth it." The appellant decided that he should do something about the matter and he arranged a meeting involving himself, Ms Bullions, Justin Poulus (General Manager-Marketing), and Kynan Sadlow (General Manager-Operations). Ms Bullions said that in the meeting the appellant asked the attendees if they had any issues with Ms Harding and questioned whether a complaint should be made about Ms Harding to the Human Resources Department (HR). It was in this context that Ms Bullions said she illustrated Ms Harding's demanding nature by describing the Pink Floyd incident. Ms Bullions disputed the appellant's version that the meeting arrived at an agreement to approach HR. It was the evidence of Mr Poulus that the appellant called the meeting because of Ms Harding’s treatment of Ms Fryga. He said that he was aware that Ms Fryga was going to resign because of difficulties in her working relationship with Ms Harding. It was his evidence that during the meeting he did not raise any complaint about Ms Harding’s treatment of staff. He denied that he said in the meeting that Ms Harding was the subject of complaints from staff when she worked at Energex. He said that he had previously worked with Ms Harding at Energex, but that he was not aware of any mistreatment of staff by Ms Harding during her period of employment with Energex. He did concede in cross-examination however that while he did not have any difficulty in his relationship with Ms Harding, he was aware that some staff did have problems with her. He did not recall any discussion about the Pink Floyd incident. The appellant’s motivation for pressing a complaint was called into question by Mr Poulus who considered that the appellant was more interested in discrediting Ms Harding than in advancing the cause of Ms Fryga. Shortly after the October meeting both Mr Poulus and Ms Bullions dissociated themselves from any complaint that the appellant proposed to take to HR. Mr Poulus confirmed that Ms Leis subsequently spoke to him about the matters raised by the appellant. It is not in dispute that soon after the meeting the appellant did complain to human resources about the way that some staff members were treated by Ms Harding. Ms Leis who fielded the complaint said that the appellant nominated Ms Bullions, Ms Fryga and Mr Sadlow as individuals who had been badly treated by Ms Harding. Ms Leis said that she had numerous meetings with the appellant in regard to his advocacy for these three individuals. The appellant may have over-reached in his advocating for others leading to questions about his motivation. Accepting that it was appropriate for him to draw the attention of HR to the predicament of Ms Fryga, the same could not be said for Ms Bullions or Mr Sadlow. Mr Sadlow was a General Manager in the Retail Division and at the same level of seniority as the appellant while Ms Bullions had a significant employment history with QUU and its predecessor organisations and had held the appellant's position before he took it on. It appears odd that the appellant would feel obliged to complain to HR on behalf of these individuals. No explanation was forthcoming from Mr Sadlow as he was not called by the appellant to give evidence. Mr Bullions however did give evidence and she took the position that she did not ask the appellant to complain to either HR or Ms Harding on her behalf.
Ms Bullions said that she had a direct relationship with Ms Harding and that if she had wanted to change that relationship she was capable of doing that herself. She did not recall asking the appellant to influence her relationship with Ms Harding. Ms Bullions did say however that Ms Harding's management style could be demanding and that she did have a discussion with Ms Harding in October 2012 about their relationship. In this discussion Ms Bullions said that she and Ms Harding agreed on a key word of "intense" which Ms Bullions would emphasise if she considered that Ms Harding was asking for work to be turned around in timeframes that were too tight.
It was Ms Harding’s evidence that the appellant raised his concerns about her treatment of Ms Bullions in a 3 October 2012 meeting. Ms Harding said that the issue emerged during a performance review discussion and after she had informed the appellant that he would not get a bonus. Ms Harding's evidence was to the effect that the appellant told her that she was a terrible manager and that nothing in the business unit had been achieved for two years. He also told her that she had badly treated Ms Bullions and that her PA, Di Fryga, was going to resign because she could not work with her. The appellant also informed her that he had lodged or was going to lodge a formal complaint with HR.
Ms Harding said that after the appellant had spoken to her, Ms Bullions told her, in effect, that it was not her intention that the incident should become the subject of a complaint, and that it was her view that any issues between them could be mutually resolved without external assistance.
The timing and nature of the Pink Floyd complaint was important to the appellant's version of events because it explained a change in Ms Harding's approach towards him from May 2012 onwards. If the matter was not raised until 3 October 2012, then it occurred well after Ms Harding had commenced informal counselling of the appellant for performance deficiencies in May 2012.
The appellant said at T1-16 that he was not sure when Ms Bullions told him about the incident. He said he had lost his notes and did not know the exact date. He said it may not have been the day after the concert because he thought Ms Bullions took some time off after the concert. Whenever it was, he said that at his next meeting with Ms Harding he raised the matter. His evidence at T1-16 was:
"So at my next meeting with Helen I did put that forward to her; that a number of people, including Deborah, were actually having some difficulty with her management style and that, you know - that it was causing a great deal of stress for Deborah Bullions, in particular. Helen at that stage was, I think, pretty taken aback by that feedback so - but that was where that got left. It just got left at that point."
Ms Harding denied propositions put to her by the appellant in cross-examination that he had raised concerns about the mistreatment of staff with her in the second quarter of 2012. However, while Ms Harding denied staff mistreatment was raised she did say that in a meeting on 28 June 2012 the appellant had raised her "perfectionism". Her evidence is recorded at T5-41:
" … you did give me feedback on the 28th of June at our performance review meeting, because I always ask for feedback, and the feedback you gave there was about my perfectionism with memos, and that’s actually in those notes too. And you outlined and made a request that I do - I - I just need to make sure that what I’m coming back to for changes with memos or corrections or additions or whatever, that I - I try and just let the small stuff go and just focus on the more significant issues when there’s feedback on a memo.
I put it to you that it was a great deal wider conversation than memos? ---No."
The appellant's evidence about timing is supported by the content of his email to Ms Leis dated 28 November 2012 (Exhibit 7) and the history he provided to Dr Storer which is recorded in Dr Storer's report dated 19 June 2013. It is difficult to reconcile the evidence about this issue but I am inclined to adopt the view that the appellant provided feedback to Ms Harding when she invited it in the performance review discussion in June 2012. But I am unable to make a finding about what particular words were exchanged and how the appellant may have articulated his concern. Was his manner aggressive or critical or was it respectful and solicitous? Either way this exchange alone does not establish that all subsequent performance discussions that Ms Harding had with the appellant should be seen to be motivated by vindictiveness.
It is not in dispute that the appellant discussed the mistreatment of staff with Ms Harding on 3 October 2012 and that the relationship between him and Ms Harding deteriorated further after this meeting. The deterioration was unsurprising given the nature of the appellant's feedback, the decision to disallow bonus and offer only a small pay rise, and the appellant's lodgment of a complaint with HR.
Bullying and Harassment
The appellant said that from the early stages of his employment he had experienced a difficult working relationship with Ms Harding and that over time the relationship was characterised by bullying behaviour by Ms Harding. He did not always suggest the relationship was defined by bullying and had in the early stages attributed the relationship problems to fundamentally different personalities or to Ms Harding's micromanagement and "perfectionism". Further the contemporaneous account of events shows that while the appellant raised Ms Harding's treatment of other staff, he did not complain about Ms Harding's treatment of him until he reduced complaints to writing in November and December 2012.
Whatever complaints that the appellant had about Ms Harding, she too had articulated a significant number of complaints about him and his performance. In the proceedings however the appellant made no concessions about the legitimacy of Ms Harding's concerns and described them as "rubbish" complaints. From Ms Harding's perspective, concerns held about the appellant's performance led her to start counselling the appellant in May 2012.
The appellant's complaints against Ms Harding were articulated in his evidence in the proceedings, in an email to Ms Leis dated 28 November 2012, in his response to the performance management process dated 12 December 2012, and in his formal complaint letter dated 31 December 2012. The complaints include:
- Bullying or mistreating subordinates, including the appellant;
- Reprisal actions against the appellant;
- Prevarication around the appointment of a Business Improvement Manager (BIM) and the ultimate rejection of this position;
- A flawed and punitive performance review which delivered a minimal pay rise and zero bonus;
- Excessive workload.
In his email to Ms Leis on 28 November 2012 the appellant said that things came to a head in the second quarter of the 2012 calendar year "when I had a very frank conversation with Helen about her workplace bullying involving several of my staff and some of her behaviours around micro-managing". The appellant said that at the time Ms Harding thanked him for his feedback. He then said that things did not improve and that he had to intervene and escalate the Di Fryga matter to HR. The appellant further stated in the email that "since this I believe HH has become increasingly vindictive and hostile in her manner particularly to myself and Kynan Sadlow as we are the only ones who stand up against her inappropriate behaviours". The appellant concluded that it was "for these reasons I believe my performance to have been improperly judged".
In his letter dated 12 December 2012 (Exhibit 4) which dealt with the commencement of the performance management process, the appellant said inter alia that it had "become clear to me that following a number of incidents where I have had to step in to defend myself and others, your attitude to our working relationship has become increasingly hostile and vindictive".
The complaint letter arose out of a meeting that the appellant had requested with the CEO, Ms Dudley. This meeting took place on 4 December 2012 and Ms Leis was also in attendance. Ms Leis said that in the meeting the appellant complained about Ms Harding's treatment of certain staff members and also about the fact that he did not receive a bonus. Ms Leis said that the outcome of the meeting was to request the appellant to reduce his grievances to writing. The appellant was also told by Ms Dudley that due to the seriousness of his allegations, an external investigation would be commissioned. Subsequently Ms Leis commissioned Savvy HR to complete the investigation. The appellant was informed of these developments. The appellant lodged the formal complaint requested of him on 31 December 2012 (Exhibit 9). The complaint was then given to Savvy HR.
In his bullying complaint letter dated 31 December 2012 the appellant said that Ms Harding had "engaged in a pattern of inappropriate and systematic bullying behaviour towards myself and others since I commenced employment with QUU". He also said that he had a "one on one" with Ms Harding immediately after the Pink Floyd incident and that he raised with Ms Harding her inappropriate behaviour toward Ms Bullions and himself. The appellant said that he was a victim of a vindictive escalation of bullying behaviour following his intervention in the Di Fryga incident. He said that he "tried to help a fellow staff member but it seems to have been the catalyst for escalated bullying behaviour".
A problem in the appellant's case arises from his reliance on the alleged bullying by Ms Harding of other staff. This is relevant to the appellant's case because it could establish a propensity on Ms Harding's part to engage in bullying behaviour which might in turn increase the probability that the appellant was also bullied. The difficulty is that the appellant did not lead evidence establishing that Ms Harding had bullied other staff. Neither did he extract such a concession from the QUU witnesses during cross-examination. Ms Leis said that in her dealings with the appellant he referred to Sadlow, Fryga and Bullions as the victims. But neither Mr Sadlow nor Ms Fryga gave evidence and while Ms Bullions said the Ms Harding was demanding, she denied much of what the appellant was asserting. Mr Poulus said that he had heard of friction between Ms Harding and other staff and he was aware that Ms Fryga had difficulty working for Ms Harding. However more needed to be provided by the appellant to establish that Ms Harding had systematically bullied other staff as claimed.
Nor did the appellant adduce evidence supporting his claim that he was bullied by Ms Harding. Again none of the witnesses that were called were asked to provide corroborating evidence of events and circumstances that would objectively be viewed as bullying behaviour. The truth could equally be found in a set of circumstances where Ms Harding was a driven, hardworking manager who employed a very directive style of management and who found it difficult to reconcile her own approach to her work with the approach taken by the appellant wherein he preferred to adopt a more incremental and longer term view of improvement, was less inclined to work long hours, and was not prepared to compromise his work-life balance.
While the appellant attributed the deterioration of his relationship with Ms Harding to her unreasonable behaviour, the evidence points to a more balanced conclusion in which a mix of factors were in play including a less than satisfactory performance by the appellant in some areas. Ms Harding's approach to the performance review discussion on 25 July 2012 may have been less than satisfactory and she may have employed a different management style when dealing with the appellant. On the other hand however the appellant's refusal to comply with the direction to take the lead on the meter project, his open criticism of the executive leadership's team decision on "hot desking", his display of disrespect for Ms Harding in the presence of junior staff, and his refusal to accept the decision not to appoint a BIM, were all examples of inappropriate conduct on his part.
In terms of any escalation in performance management activities, Ms Harding expressed the view that the appellant's performance necessarily came under much closer scrutiny when QUU assumed full operational responsibility for the call centre. It was Ms Harding's evidence at T5-92 that while some deficiencies in the appellant's performance could be overlooked or forgiven prior to the operation of the call centre, this approach changed once the call centre was operational and the consequences of management failures were much more significant given the potential for negative impacts on customers and the broader community.
The evidence does not support a finding that the appellant was bullied by Ms Harding. Firstly the appellant's own evidence on the subject was inconsistent. On the one hand he said that he was bullied from the commencement of his employment, yet on the other hand he stated that Ms Harding's attitude towards him worsened in the second quarter of June 2012 and subsequently escalated in October and November 2012. Further the appellant was unable to demonstrate with sufficient clarity how he had been bullied and where he provided specific examples of bullying such as the non-appointment of the BIM, the non-payment of bonus, the lead role on the meter project or the revision of the training modules, he was not able to establish his claims on the evidence. The evidence also indicates that the appellant never complained to HR that he was being bullied by Ms Harding until he wrote his 28 November 2012 email the day before his performance management meeting.
As the appellant's supervisor Ms Harding was entitled to raise matters with him and to counsel him in areas where performance or behaviour needed to be corrected or improved. It was unsurprising that the appellant was not generously treated in terms of bonus payments and salary review. By the time that the calibration process was undertaken by the executive leadership team, the appellant had been subject to informal counselling for four or five months and it was to be expected that the outcomes would reflect this process.
Performance Review
The review of the appellant's performance against key performance indicators (KPI's) set earlier in the year was conducted by Ms Harding on 25 July 2012. This review followed the appellant's six monthly performance review on 28 June 2012 which was qualitative in nature. The appellant's complaints about how the July review was conducted need to be considered in this context. In this regard it was the appellant's evidence that the manner in which the performance review was conducted was unfair and that the outcome of the review was unjust and unreasonable. Both of these failures amounted to unreasonable management action taken in an unreasonable manner. It was also a wrong that management did not grant him some form of internal review of the outcome of the assessment. It was the appellant's submission that:
a)Ms Harding conducted his annual performance review in an unreasonable and erroneous manner which disadvantaged him financially; and
b)QUU denied him on multiple occasions the opportunity of a "one-above" review of his annual performance review in accordance with his contract of employment.
The appellant said that he did not receive adequate notice of the review and that the review was completed in about 10 minutes. He said that the review was not conducted in a consultative manner and that it largely comprised the allocation of scores by Ms Harding. He was not given the opportunity to self-assess nor to contribute to a discussion about what score should be allocated against each KPI. He suggested that he was not briefed or prepared for the review and that some of the KPI's were different to those set earlier in the year. He maintained that he did not know that he was required to present his "Personal Safety Action Plan" at the meeting which led to the allocation of the lowest score against this KPI. He also said that there were inaccuracies in the allocation of scores by Ms Harding which disadvantaged him. Finally he said that he was told to sign off on the outcome of the process within an hour. The core of the appellant's complaint was that if the review were conducted fairly and accurately his aggregate score would have been lifted above 3.0 which would have elevated him to the category of "significant contributor".
The resolution of these complaints requires a reconciliation of the conflicting evidence of Ms Harding and the appellant. In so proceeding I am prepared to accept that the determination of scores was conducted unilaterally by Ms Harding. It was her responsibility to rate the performance of the appellant against the performance indicators set earlier in the year. It was preferable that she did this in a consultative way, but there was no major error in her preference not to so proceed. The fact that many of the KPI's scores were predetermined points to the utility of Ms Harding's approach. The utility of the approach is also supported by the fact that the qualitative "one on one" six monthly review had been concluded only a few weeks before. In these circumstances the approach adopted by Ms Harding was not unreasonable.
I do not accept the appellant's complaints about lack of notice, lack of preparation, changes to KPIs, and the misunderstanding about his personal safety plan. The appellant was a senior manager in the organisation and he must have known about the KPI reviews which were conducted across the organisation for all contract employees. If the appellant was prepared to ignore Ms Harding's direction to take on the water meter project I accept that he would not have been reluctant to ask Ms Harding to reschedule the KPI meeting. His excuse for not submitting his personal safety plan is weak and unconvincing.
It was Ms Harding's evidence that she completed a six monthly review with the appellant on 12 January 2012. Her notes from this meeting are in the evidence as Exhibit 25. The contemporaneous notes and Ms Harding's testimony establish that there was a need to finalise the appellant's KPI's. Ms Harding said that her KPI's were finalised the previous November and that it was necessary to conclude the process with the appellant which she did either on 12 January 2012 or shortly thereafter. She said the appellant's KPI's were recorded on a template document which was signed by both herself and the appellant. This document is in the evidence as Exhibit 13. Despite having signed the document the appellant said that this was not the document used in the assessment.
Ms Reeves said that she started work with QUU on 28 February 2012. She reported to the appellant. She was employed under a contract and was subject to similiar performance processes as the appellant. She said that soon after she commenced employment, the appellant emailed her a copy of his KPI schedule. The consequence of her evidence was that if she was fully apprised by March 2012 of her KPI's, then it followed that so to must have been the appellant. In the circumstances I accept the version of the evidence provided by Ms Harding and Ms Reeves and conclude that Exhibit 13 was a true record of the KPI's set for the appellant in January 2012.
Some of the appellant's KPI's were the same as those set for Ms Harding. Ms Harding said that that fifteen of the 23 KPI's were the same, while the appellant said that twelve KPI's were the same. Ms Harding said that a lot of the shared KPI's were corporate KPI's and that the scoring was consistent across the business unit for these indicators. These KPI's were to be distinguished from individual KPI's such as the personal safety plan which were specific to the appellant and were scored on a different basis. The assessment document arising from the 25 July 2012 review is in the evidence as Exhibit 14. While the appellant suggested that some KPI's had been changed and that new KPI's had been introduced into Exhibit 14, a comparison of Exhibits 13 and 14 reveal that the KPI's were the same for both reviews.
In respect to the shared KPI's, the appellant's average score was 2.92. For his individual KPI's the appellant's average score was 2.73. In respect to his score the appellant emphasised that a small upward variation in his KPI score may have rendered him eligible for bonus and it was his submission that a slightly more generous approach to scoring by Ms Harding would have lifted his score above 3 and into bonus consideration. Ms Harding however disputed this line of reasoning. Her evidence was to the effect that even if the appellant's KPI score had exceeded 3, he may not have been eligible for bonus because of concerns about his failure to model organisational values and behaviours. She said that the failure of an individual to demonstrate the appropriate values and behaviours across the course of the year would render the individual ineligible for a bonus payment. Further it was her evidence that the decision about values and behaviours was made by the executive leadership team, not herself.
In her evidence Ms Leis confirmed that the appellant complained to her about the outcome of his performance review and about the fact that he did not receive a bonus. The first complaint was made some time in October 2012 but subsequently the appellant had reduced his complaint to writing in an email to Ms Leis dated 28 November 2012 (Exhibit 7). In the written complaint the appellant said it was not fair that he should only receive a 1.3% increase across an 18 month period particularly given that the number of persons in his area of responsibility had increased from 39 to 69.
Ms Leis said that she informed Ms Dudley that the complaint had been made and that HR would assemble the relevant information and documentation to allow for a review to be undertaken. It was not clear on the evidence whether any such review was completed prior to the appellant's decompensation on 6 February 2013. Ms Leis's evidence at T6-23 was to the effect that she initiated the review process. She said that she asked the appellant for a copy of his performance plan and his KPI's. She said however that the process stalled when the external investigation of the appellant's complaint against Ms Harding was commissioned.
That the process stalled was not unexpected given that soon after dispatching his 28 November 2012 email the appellant commenced a period of sick leave which extended to mid-December 2012 and was on annual leave for most of January 2013. Given that he decompensated on 6 February, 2013, it would not have been surprising if, because of time constraints alone, the appellant's complaint about his performance review was not resolved before 6 February 2013.
The evidence does not support a finding that the non-resolution of performance review issue caused the appellant to decompensate, or that it contributed to his decompensation. However, if this issue had been found to have contributed to the development of the injury, a finding of reasonable management action would have removed it from consideration.
In his submission the appellant reviewed his performance against each of his 23 KPI's and concluded that the rating given by Ms Harding was correct in 15 instances. He disputed her rating in 8 instances. However in determining the areas of disagreement I prefer to rely on the contemporaneous email the appellant sent to Ms Leis on 28 November 2012 where he questioned the score that he was allocated in six areas. The areas in contention were "water quality", "net promoter", "TSA transition", "workflow", "personal safety plan", and "absenteeism". Of these six KPI's, four were shared KPI's which were not determined by Ms Harding. Of the two individual KPI's, the appellant's low score for personal safety was attributable to his failure to prepare a personal safety plan. On the evidence I am not able to express a view about the reasonableness of the score allocated for "workflows". This review of the KPI process does not support the appellant's claim that the assessment completed by Ms Harding amounted to unreasonable management action. The other factor suggesting that the process was not unfair was the operation of an internal review process.
It was the effect of Ms Leis's evidence that there were two dimensions to the performance review process. In addition to Ms Harding's assessment, the executive leadership team completed a calibration process in which the outcomes of all contracted staff were calibrated in an exercise which included a comparison between individual outcomes with the outcome for others in the same cohort. Ms Dudley's evidence was to the effect that she was part of the group that participated in the calibration meeting that settled on the appellant's final rating. Ms Leis said that the calibration process was completed prior to the appellant's 28 November 2012 complaint. This evidence is consistent with Ms Harding's evidence that she informed the appellant of the outcome of the process on 3 October 2012.
The calibration process is conveniently explained in correspondence sent to WorkCover by Ms Leis on 16 April 2013 (Exhibit 39):
"QUU Performance and Reward Strategy
Queensland Urban Utilities' performance and reward strategy guidelines are endorsed annually by the Board. In addition to the individual scoring, and in order to provide parity across a large and diverse range of employees, the entire Executive Leadership Team and the CEO undertake a formal calibration process to decide the salary progression and any STI (Short Term Incentive) for all common law employees (including Mr Wright). The remuneration strategy uses a preferred distribution curve and places 10% of employees as unsatisfactory or developing contributors. It is within this band that Mr Wright's holistic performance was evaluated for 2011/12.
Whilst Ms Harding is part of this group, other Executive Leadership Team members also review senior managers performance, including Mr Wrights', to determine overall performance metrics for the year."
The appellant also complained about the quantum (1.3%) of his salary increase and blamed Ms Harding for what he considered an unjust outcome. However the decision was not taken by Ms Harding but by the executive leadership team as part of its calibration process wherein all individual salary outcomes were subject to an organisation wide equity review. It was the executive leadership team who confirmed that the appellant was appropriately placed in a category where a salary increase was not warranted. It was Ms Harding's evidence that she did not agree with the decision to not award the appellant a salary increase and that she made representations to Ms Leis requesting that a CPI increase of 1.3% be applied.
The evidence does not support the appellant's claim that the performance review process was flawed and gave rise to unreasonable management action. Further it appeared that the executive leadership team's involvement in the remuneration process meant that the appellant's rating of his own achievements was not shared by the executive.
Wrongful Performance Process
It was the appellant's view that the performance process should not have been commenced unless there was clear factual evidence of unsatisfactory performance. In this regard the appellant denied that any such evidence existed. He relied on the content of his 12 December 2012 response (Exhibit 4) in asserting that none of the complaints made against him were correct. This assertion gave rise to a considerable conflict in the evidence of the appellant on the one hand and in the evidence of Ms Harding on the other hand.
Some witnesses other than Ms Harding also contradicted the appellant's version that his performance was always to be considered exemplary. Ms Reeves said that the appellant spent very little time on the floor of the call centre and very little time in "one on one" discussions with her; that the appellant's absences across the lunch period caused problems for her including when she had to deal with outages in the call centre without recourse to the appellant; that the appellant did not appear to enjoy coming to work; that the appellant behaved disrespectfully to Ms Harding when receiving her phone calls by feigning stabs to the neck when he picked up the phone to answer her calls and in referring to Ms Harding as a "fucking evil bitch"; and that he modelled inappropriate behaviours in front of junior staff (T3-31). Ms Johnson stated that on occasions she smelt alcohol on the appellant breath after lunch and that the appellant did not spend any dedicated time with her each week to discuss her performance or welfare. She said that the appellant should have discussed her work with her and provided direction and guidance. Mr Poulus was harsh in his criticism of the appellant's performance while Mr Biron said that, on his observations, Ms Harding did not treat the appellant differently from the rest of the managers.
For her part Ms Harding said that prior to the commencement of the formal process she had informally raised performance concerns with the appellant on a number of occasions extending back to May 2012. She had also expressed some concern about aspects of his behaviour in review meetings in July 2011 and January 2012. These matters reflected on a need for the appellant to model positive behaviours across the organisation and to recognise that at his level he was expected to be an enterprise leader.
It was Ms Harding's evidence that she found it necessary to counsel the appellant in meetings on 17 May 2012, 28 June 2012, 12 July 2012, 9 August 2012, 23 August 2012, 3 October 2012, 15 November 2012, 19 November 2012, and 26 November 2012. Ms Harding said that she had prepared notes prior to these meetings identifying the points of discussion that she wanted to raise. These notes are in the evidence as Exhibits 28, 31 and 32. Ms Harding explained why her approach to the appellant changed in May 2012 at T4-41:
"Yes? ---I was concerned that I was providing, you know, feedback to Bernard and there wasn’t changes in behaviours. And a few things sort of happened that really sort of made me think, wow, I really need – you know, I really need to have a chat with HR. So I met with HR and following that, I – rather than putting the notes so much in my diary, which I did continue to do to a certain extent, on the more formal meetings I wrote the notes. And the first – most of the notes, and it goes through various meetings and various emails that I sent following those meetings, the notes were very much preparation for me to make sure that I got (a) that I covered all the points that I wanted to cover with Bernard, because some of these points were points that I’ve never – I’d never had to cover with a senior manager before. And I did – it really required me to sit down and think about it. And also, it made sure that how I would deliver the messages too, just to make sure that I was delivering them in an appropriate manner too, given the sensitivity of some of them."
Ms Harding said that the 17 May 2012 meeting was an informal counselling session but that the 28 June 2012 meeting was more formal because it constituted a full year review. Her notes suggest that she discussed the organisation's values, input or feedback from the appellant, and KPI performance. The 12 July 2012 discussion was prompted by the appellant's activities at lunch time and the duration of his lunch break. According to an email included in Exhibit 28, the 9 August 2012 meeting discussed the appellant's lunch time arrangements, his failure to respond to communications on a timely basis, and accountability issues.
The 23 August 2012 counselling session arose from an email sent to Ms Harding by Mark Lettica on 21 August 2012 (Exhibit 29). In the email Mr Lettica expressed his concern about the appellant's behaviour in relation to a proposal to "hot desk" staff. The proposal, if implemented, meant that staff would not be assigned to a particular work station on a permanent basis but would occupy any station that was vacant upon arrival at work. The appellant did not greet the corporate initiative with any enthusiasm which led to Mr Lettica's intervention.
Ms Harding's evidence about the "hot desk" issue (T4-60) was to the effect that the appellant made it clear that he was not supportive of the decision of the executive leadership team and that he articulated his views during a walk around the call centre floor in such a way that his views were heard by front line staff. Ms Harding said that the appellant's resistance would make it harder to secure the support of call centre staff for the proposal. Ms Harding said that she met with the appellant on 23 August 2012 to discuss the matter. She said that she told the appellant that his behaviour was unacceptable and that she expected him to support decisions taken by the executive leadership team.
The notes of the meeting held on 3 October 2012 are in the evidence as Exhibit 31. This meeting included a discussion about matters of on-going concern with the appellant's performance and also to advise him of the executive leadership team's conclusions in relation to bonus and salary increase. Ms Harding said that she told the appellant of the need for him to raise the bar that he needed to increase his commitment to enterprise leadership, to improve his response to communications, and to work more closely with the operational parts of the business.
Matters escalated in late October 2012 and through November 2012 with a significant number of emails and email exchanges taking place between the appellant and Ms Harding. These emails are in the evidence as Exhibits 20, 21 and 37. Exhibit 20 comprises emails dated 24 October 2012, 30 October 2012, 1 November 2012, 5 November 2012, 8 November 2012, 9 November 2012 and 13 November 2012. Exhibit 21 contains emails dated 26 and 27 November 2012 while Exhibit 37 contains various emails some of which duplicated the contents of Exhibits 20 and 21. Removing the duplication, Exhibit 37 contains emails dated, 16 November 2012, 19 November 2012, and 22 November 2012.
The email trail starts on 24 October 2012 when Ms Harding asked the appellant to provide information in relation to a number of call centre issues. On 30 October 2012 Ms Harding requested the appellant to ensure that action items arising from a meeting held the previous day were completed in a timely manner and in a second email asked that all regular reports be sent through on a timely basis. Emails dated 1 November 2012 and 5 November 2012 culminate in the appellant being admonished by Ms Harding for deficiencies in a "draft complaints report". In a further email dated 5 November 2012 Ms Harding, among other things, complained to the appellant about his failure to address matters included in the earlier email dated 24 October 2012 within particular time frames. The email to the appellant from Ms Harding dated 8 November 2012 noted an agreement to defer a discussion on "targets for efficiencies" because the appellant had a lot on his plate and also included an observation that the appellant may need to increase his "personal capacity during busy times".
In the 9 November 2012 email from Ms Harding to the appellant she expressed some concerns about the Grade of Service (GOS) results but observed that given that "it is the 9th of the month – we can still influence the month's GOS figures". She also said that there would be a lot of people interested in the results and that it would be "great if we could finish with a +ve month". Ms Harding concluded the email by saying "can you please let me know what steps we can take to ensure we finish month on good result". At a meeting on 15 November 2012 Ms Harding raised concerns about results being achieved in the call centre.
I accept that the executive leadership team would have had a keen interest in the GOS during the start-up phase of the call centre. It followed from Ms Harding's evidence that she was closely monitoring the results during November 2012. When she noticed that the results were not as positive as she would have liked she raised the matter with the appellant and asked him what could be done to improve the results. Her related concern at this stage was that the appellant should have been actively monitoring the performance measure and taking the necessary remedial action without her intervention.
In her evidence Ms Reeves said that the transitioning of the call centre from the BCC to the QUU commenced on 2 October 2012. Under the transitional arrangement an increasing number or percentage of total calls were transferred from the BCC call centre to the QUU call centre to the point where as at 1 November 2012 all calls were being received by the QUU call centre. She explained that the "GOS" acronym referred to "grade of service" which was a measure of responsiveness used across the call centre industry. The standard or par measure is reached when 80% of calls are answered within 30 seconds.
Three emails were exchanged between Ms Harding and the appellant on 13 November 2012. In the first email at 9.49 am Ms Harding said that she was keen to speak with the appellant about "providing direction/support to chris and hayley on developing the efficiency targets". Ms Harding also complained about the appellant's failure to respond to her phone messages and informed him that it was important that he speaks to her when she requests him to call. The appellant responded to this email at 11.32 am and provided Ms Harding with certain information. At 12.07 pm Ms Harding emailed the appellant saying that she had just tried unsuccessfully to contact him by phone and asking that he meet with her that afternoon to discuss the GOS issue.
On 16 November 2012 Ms Harding requested the appellant to provide an update on call centre performance for reference to the CEO and the Board. The update was provided by the appellant in an email to Ms Harding dated Friday 16 November 2012 (Exhibit 37). The update noted that the month to date GOS result for general enquiries was 70% and for faults and emergencies was 74%. In the email the appellant identified some challenges and then proceeded to list a number of initiatives to effect improvements. The email concluded in effect that the GOS target for November of 80% would not be met and forecast a month-end result for "general enquiries" of 75% and a forecast result for "faults and emergencies" of 78%. Ms Harding acknowledged that the appellant had proposed a number of initiatives to improve the GOS result, but she said there was one major omission from his update (T5-67):
"What you didn’t include in there was the moving of the five staff off the call centre. I think it was on about the 7th, which Hayley brought to my attention after that when I was talking to her about why was GOS so low, I didn’t understand it, we had a 25 per cent buffer, and then she – and she pleaded whether I could approve to backfill those roles because you hadn’t approved to – (a) you’d taken them off the calls – the call centre, therefore, significantly reducing the number of staff and – and that wasn’t mentioned in that summary, and, secondly, have them give Hayley the permission to backfill, and so she came to me asking for permission from me."
On 19 November 2012 Ms Harding emailed the appellant (Exhibit 37) and informed him that it was "unacceptable" that he had not put in place "7am to 7pm DCP coverage in the call centre". She said that she had first spoken to the appellant about the matter on 4 November 2012 and had become aware on 16 November 2012 that the coverage had not been arranged. The email reflected on a discussion between the two earlier that day in which, on Ms Harding's version, the appellant apologised for the omission and said that he thought that the work had been done, but conceded that this was not the case. Ms Harding expressed the view in the email that the appellant lacked the necessary understanding about how the DCP coverage would be implemented and said that the appellant did not have the required level of understanding of the operation of the call centre. In his response the appellant complained about the failure to appoint a BIM and other staff and said that he did not think that he could push his team "any harder without it imploding". The appellant then said that he wanted to escalate the matter to the CEO to enable him to present his case directly to her.
Exhibit 21 contained the content of email exchanges between Ms Harding and the appellant dated 26 and 27 November 2012. In the first email Ms Harding raised a concern that the call centre was significantly understaffed and that this factor was negatively impacting on the GOS. The email included the following paragraph:
"Bernard, this is very disappointing. The fact that we are ≈ 39% below FTE is the fundamental reason we are not meeting GOS. In your role as General Manager Customer Services you are accountable for the performance of the call centre, and as such it is my expectations that you would be managing the FTE in the new call centre to ensure we do have the planned FTE coverage to enable GOS to be met."
The essence of Ms Harding's position was that the call centre was being operated with 22 full time equivalents (FTE's) plus 5 FTE's for two hours a day, when the budget provided for 36 FTE's. The appellant's response on the same day was prefaced with the statement that he was "deeply concerned about the tone and manner of this email, as it follows a number of others over the last 3 weeks where you have used incorrect data to falsely accuse me of not doing my job".
It was the appellant's view that the correct number of FTE's available in accordance with the budget was 31, not 36. The difference related to the extent of overstaffing allowed across the start-up phase of the call centre. Ms Harding said that a 25% uplift in FTE's was provided for amounting to an additional 9 FTE's while the appellant said that a 15% uplift or 4 FTE's was allowed. Further the appellant said that the GOS result had been negatively impacted by a number of unplanned factors including:
(i)The call centre was receiving more fault and emergency calls than expected and that the duration of the calls was 25% longer than expected;
(ii)The BCC data relied on by the call centre was misleading and incorrect;
(iii)The failure to appoint a BIM had the flow-on effect of reducing front line resources;
(iv)Issues with the telephone system;
(v)High turnover of staff.
In her evidence Ms Reeves confirmed that there were extensive issues with the telephone system and that in the first year of operation of the call centre 33 system issues or outages in the system were experienced. She also confirmed the unreliability of BCC data on call volumes and said this caused problems for rostering. In terms of the overstaffing issue, it was Ms Reeves's evidence that an additional 13 extra staff were allowed and she thought that this equated to six or seven additional FTE.
In responding to the appellant on 27 November 2012, Ms Harding did not accept the appellant's explanations relating to call centre coverage and informed him that her numbers were based on earlier conversations with him, and with Ms Reeves and Ms Heather. In her oral testimony Ms Harding said that the problem with call centre coverage was brought to her attention by Ms Reeves who said that in early November 2012 the appellant had made a decision to shift five call centre staff from the phones to the correspondence section.
Ms Harding maintained in her oral testimony that she did not accept the appellant's version of call centre numbers. She said that when she challenged the appellant's numbers she relied on information provided by Hayley Reeves, Debra Bullions and Michael Biron. It was her version that it was the appellant's failure to manage the call centre appropriately that led her to intervene and make certain decisions about staffing levels and the re-assignment of staff. She could not have done what she did if she were not fully informed on the status of the centre and staffing levels by Ms Reeves and others.
Ms Harding's account was indirectly supported by Ms Reeves. It was her evidence that Ms Harding was very interested in call centre performance and that she would regularly enquire about how the team was going and discuss the GOS. This view contrasted with her appreciation of the appellant's interest where she said that he rarely was seen on the floor of the call centre and allowed her to operate the centre autonomously. She also said the appellant did not meet regularly with her.
Ms Reeves accepted that an 80% GOS score for November was a good result for a start-up call centre. The fact that the call centre reached its budgeted GOS target for November 2012 was relied on by the appellant as evidence of his competent management of the call centre. However the evidence suggests that this result may not have been achieved without Ms Harding's intervention and direct management of the issue.
In the email dated 27 November 2012 Ms Harding said that she intended to discuss the appellant's management of the call centre at a meeting scheduled that week and informed him that she had asked a representative of HR to attend that meeting. She suggested that the appellant attend with a support person. In his reply later that day the appellant informed Ms Harding that he disputed her version of events; informed her that he had sought legal advice; and said that he did not need a support person at the proposed meeting. When this meeting took place on 29 November 2012 the appellant was presented with a letter headed "Commencement of Formal Management Process" which included a spreadsheet which provided details of concerns about the appellant's work performance (Exhibit 3). The correspondence also said, in part, that the appellant was notified that his performance was unsatisfactory and that he was to be placed under a formal performance improvement process.
It was Mr Norris's evidence that Ms Harding informed him that she had informally counselled the appellant on a number of occasions across May, July, and August 2012. Ms Harding had told him that there was a number of areas where the appellant's performance needed to improve and where he was not satisfying her expectations. In terms of the implementation of the formal process he gave the following evidence at T6-77:
"All right. Now firstly, what involvement did you have with respect to a decision to implement that process? ---Helen came to me and asked for advice on where to go next. She provided me with evidence of the conversations she’d had over a number of different times. She was at that point where she felt that was a discussion we had, would another informal discussion make a difference or was it that at that point where she felt that she needed to move to the next stage. And so she felt that she needed to move to the next stage and then we – we worked on that.
Right. And the discussions that – the previous discussions she had been telling you about, were these the ones you just gave evidence about where she’s told you about May, July and August?---Oh, those discussions were ones with Bernard directly. So they’re ones that she showed me her notes of. And that’s where she, sort of, talked me through the informal. Because the first thing I would normally do in this scenario is to ask about informal discussions to make sure they’ve occurred rather than moving straight to formal. So she presented that to me.
All right. So once you were satisfied that that had occurred you were happy that the formal process could then commence? ---Yes."
In the commencement of performance management correspondence the appellant was given the opportunity to provide a response within fourteen days in relation to the performance shortfalls identified. He provided his response in writing on 12 December 2012 (Exhibit 4) in which he rejected any criticism of his performance and stated that he intended to raise a formal complaint against Ms Harding which he understood would be independently investigated.
Both Mr Norris and Ms Leis rejected the appellant's proposition that the commencement of the formal performance process amounted to the first step in a termination process. Ms Leis said that the performance plan constituted an opportunity for the appellant to lift his performance and stay within the organisation. The dispute in this regard arises from the reliance in the 29 November 2012 correspondence on clause 12.6 of the appellant's contract of employment. This clause is headed "Termination due to Unsatisfactory Performance" and commences with the following sentence:
"Where Queensland Urban Utilities elects to terminate the Employee's employment under this Contract on the grounds of unsatisfactory performance, and provided that the processes defined below have been duly adhered to, the Employee will be entitled to a period of notice in writing equivalent to two (2) months, or the provision of payment of an amount equivalent to two (2) months total remuneration value in lieu of such notice".
[100]While it was open to the appellant, in the first instance, to conclude that the commencement of the performance process foreshadowed the termination of his employment, I do not agree that termination was the objective of the process. That this is so is evident from a full reading of the 29 November 2012 correspondence wherein it states that the designated performance improvement period is at least three months and that if performance improves consideration will be given to returning to an informal performance management process. There is no doubt that the appellant was being put on notice that if his performance did not improve, termination of employment was likely, but this was not the only option and it was equally clear that if the appellant did improve his performance there was no reason why he would not continue in employment.
[101]It is difficult to reconcile all the differences in the evidence but in particular I prefer the evidence of Ms Harding in relation to her complaint that the appellant did not appropriately manage call centre staffing during November 2012. I consider that Ms Harding was justified in concluding that the appellant had not complied with her directions and that he was not sufficiently familiar with the "day to day" or operational exigencies of the call centre. It followed that, given the history of informal counselling, Ms Harding was correct to shift the performance management process from a counselling stage to a disciplinary stage.
Workload
[102]The appellant said that he was overloaded with work and was pushed by Ms Harding to undertake work that was outside the scope of his role. The appellant's submissions in this regard were not particularly coherent. In trying to establish excessive workload he relied on various circumstantial factors which while they point to a very busy work environment do not establish that he had been treated differently and subjected to an excessive and unreasonable work load. The factors relied on were:
(i)The evidence of Ms Bullions that she thought that the appellant's role was very intense and that there were lots of meetings (T3-82);
(ii)The evidence of Ms Johnson that there was an outstanding number of customer service projects at the time (T3-44);
(iii)The evidence of Ms Bullions that she could not cope with the number of outstanding projects nor the substantive operational parts of the role;
(iv)The evidence of Ms Bullions that the workload in the call centre project was getting too much for her.
[103]The appellant also tried to elicit support from Ms Heather for the notion that his workload was excessive. Ms Heather had relieved in the appellant's role from time to time. She said that the job was very busy but that this view was expressed in a context where she was doing both the appellant's job as well as her own (T7-17). She said that both her role and the appellant's role involved a "lot of meetings". The effect of Ms Heather's evidence was that the appellant's workload was unexceptional in that everyone was working under similar conditions. In a context where QUU was both a developing business and a business that was formed from the amalgamation of water facilities extracted from five local government areas, she accepted that the work environment was very challenging.
[104]In more direct terms the appellant submitted that it was an unreasonable expectation for Ms Harding to expect everything associated with the call centre to be operating perfectly within the first three weeks of its operation, and that Ms Harding acted unreasonably in pressuring him to take the lead role in the meter replacement project, which was a project outside of his skill-set.
[105]The appellant articulated the view that his excessive work load amounted to reprisal on the part of Ms Harding in response to the appellant putting to her that she was badly treating some staff members. It was the appellant's view that after this Ms Harding started to give him more work, a predicament which was worsened by Ms Harding's refusal to allow the appointment of a BIM. The appellant canvassed his predicament with Ms Harding during cross-examination at T5-88 when putting a question to Ms Harding:
"- - - wasn’t getting the BIM, okay, and I was doing Don’s job as well as the substantive role, as well as trying to get everything sorted in terms of the launch and do a lot of the strategic thinking related to some of the systems problems, and you were making a lot of accusations about various issues and demands on me for even more information. Did it ever occur to you that I might have needed some additional assistance through that period? ---There were a lot of new roles brought in during that period. You know, there was a new team leader - call centre manager. There was, you know, the forecasting. So there was a lot of roles brought in to - to provide coverage, a lot of the new capability, and the - I still saw a lot of spare capacity in your bandwidth, as I said, two-plus hours each day for lunch plus long periods of time where, you know, staff would mention that you’ve gone off to buy a television and - you know, so there - there was a lot of capacity there too."
[106]While the appellant complained in his testimony about the scale of the job associated with the review of over 70 training manuals, he said in his written submission that this assignment was insignificant in the overall scheme of his work. This concession was warranted on the evidence. It was Ms Reeves evidence (T3-24) that the appellant's role was limited to a final approval or signing off of the work completed by trainers who had the responsibility for the completion of the modules. She said that the work of completing the modules was running behind time and that two additional trainers were recruited to complete the modules. It was her view that the appellant had limited involvement with the modules and that Ms Bullions had the main responsibility as the project lead.
[107]It was Ms Bullions' evidence that three trainers were given the job of developing 72 training modules. It was Ms Bullions' responsibility to oversee the work and provide feedback on the draft modules before they were circulated to various senior managers, including the appellant, for sign-off. She accepted that the appellant would have had to read the modules that were assigned to him before giving his approval.
[108]The appellant also complained about his work load in circumstances where one of his direct reports, Don Crook, was absent from work for six weeks on sick leave. The appellant said that it was during this period when he was burdened with Mr Crook's work that Ms Harding asked him to take on the meter replacement project. The appellant said that he had no expertise in the area and that he was fully stretched in attending to his substantive duties as well as covering for Mr Crook. On the chronology available to me however Mr Crook's absence occurred during April and May 2012 and did not coincide with the request to take on the meter replacement project which was made in July 2012. In any event the appellant's work load was not added to by the meter project because he ultimately got his way and was withdrawn from the project team.
[109]It was Ms Harding's evidence that when a contract providing for meter testing and meter replacement services came up for renewal she discussed the matter with the appellant who informed her that the demand for this service was more operational than complaints based and that the lead person for the contract renewal process should come from operations. Ms Harding said however that when she investigated further she established that the demand for the service was predominantly complaints based and that in this circumstance she informed the appellant that he would need to lead the project. Ms Harding said that the appellant's lack of technical expertise was not an impediment to him taking on the lead role. She pointed out that this role was supported by a technical specialist and a procurement specialist, and that these persons would perform most of the work associated with the project.
[110]It was Ms Harding's evidence that despite having directed the appellant to take on the lead role she was subsequently informed to the contrary (T4-76):
"Yes? ---And Bernard didn’t like that answer but didn’t really – didn’t – well, didn’t tell me anything different. Just I thought, okay, well Bernard’s leading it and then I was at an executive team meeting a little while later and someone said to me – whether it was Robin had a box or the lady that was overseeing procurement as well said no – I said no, we’ve got the lead on that and they said no, Bernard refuses to do it and I said I didn’t know anything about that."
[111]The appellant however challenged the proposition that the meter project fell within his scope of work (T5-83):
"Our involvement in that, okay, was purely that when a customer had a grudge about a meeting - a meter reading and/or their bill, okay, from - we would send someone out to do, first of all, just a basic meter read, and then ultimately we would send them off to a lab to have a full destruction test, okay? And our numbers were, you know, a couple of hundred a year, okay? And the distribution guys’ fleet-testing was in the thousands. And it was an area, realistically, in terms of, you know, my retail experience versus understanding meters that I had absolutely no expertise in."
[112]Whether responsibility for the lead role should have fallen within the retail team or the distribution team is a question I do not have to answer. What the evidence does establish however is that despite being asked to take on the role, the appellant refused to do so and ultimately never did perform the role. In balancing the merits of Ms Harding's request against the appellant's conduct in refusing to do the work, I am unable to conclude that unreasonable management action has come into play.
[113]The appellant's complaint of over-work is considered in a context where he typically worked from 8.30 am to 5.00 pm and usually was absent from the office for two hours each lunch period. It was not clear whether some work was performed during the two hour lunch break. If his time off work duties was one hour, the appellant was discharging his duties for around 37.5 hours each week. Ms Harding's perspective on the matter was expressed at T5-83 in the following terms:
"… it was a very busy time for the whole business. There’s no - no doubt about it. In regard to your capacity, you were still taking two-plus hours at lunch every day. You were still missing for significant periods of time during the day in addition to that, and - and certainly, you know, not arriving before 8.30 and were gone by 5. So - so within your personal bandwidth, I’d suggest there - there certainly was some spare capacity there. Overall, the business was a very busy time though."
[114]There was some suggestion of work being performed during travel from home to work, but it was difficult to measure the extent of this contribution. Ms Harding rejected any significant involvement on the appellant's part while travelling (T5-84):
"Well, just deal with the - what Mr Wright’s putting to you is that, notwithstanding what period of time he was in the office, that he was given the
equipment or the facilities to work while he was on the train? ---Right. I never saw any evidence of working outside those hours that I mentioned before. Never an email from you. Never a phone call. Never - never anything. Well, sorry, I can’t recall ever receiving it."
[115]Everyone accepted that the QUU work environment during the period of the appellant's employment was both demanding and challenging. The appellant entered an organisation which was experiencing challenges as a start-up business, in the transitioning of services from pre-existing entities to QUU, and in the amalgamation of services extracted from five former entities, with both operational and political implications for the QUU management team. The evidence does not establish however that, in terms of work load, the appellant was treated differently or that the allocation of work to him amounted to an act of bullying.
Resources
[116]The appellant said in effect that a decision rescinding an earlier decision to appoint a Business Improvement Manager (BIM) significantly compromised his efforts to manage his workload efficiently and effectively. This additional or new position would have reported to the appellant had it eventuated. The creation of the new position had been approved by the former CEO in May 2012 at the expense of two front line customer service roles. The appellant expected to have the successful applicant commence in August 2012. The appellant blamed Ms Harding for the decision not to make the new appointment. He gave the following evidence at T1-30:
"What, in fact, happened was that Helen Harding denied me that role and I questioned her as to whether that had been her own denial or whether it had been a denial from the CEO. I never got a proper response to that question."
[117]At T-1-20 he said:
"…So we're in - we're in kind of July and Helen's delaying the hiring of this business improvement manager and I desperately needed that person on board at that time."
[118]The effect of the respondent's evidence on the subject was that the decision not to create the BIM role had little direct impact on the appellant's workload. The effect of the decision was felt primarily by Ms Heather and Ms Johnson who continued to complete functions that would otherwise have been undertaken by the BIM. Ms Heather said that the decision not to make the appointment did not have any effect on the appellant's work load (T7-9):
"Yes. Now, did you – can you comment whether the fact that that business recruitment (sic) manager position wasn’t formally filled, from your observation, did that mean any more work for Mr Wright?---No."
[119]Ms Reeves gave similar evidence about the matter (T3-15):
"Can you describe what the impact of not having that role was?---The impact of not having that role was that the roles that would have reported to that role were divided between Chris Heather and myself and that Chris Heather then had to manage most of the projects that that role would have done.
That’s your recollection. Yes? ---Yes. Yep.
Yes. So would you say that that put an additional workload across the existing staff? ---I saw that workload fall to Chris Heather and Meheret not to myself because I was in start-up so I was kind of given the leeway to focus on the contact centre. Other than a direct report – two direct reports that came additional to me."
[120]It was Ms Harding's evidence that Ms Dudley's appointment as CEO in July 2012 led to a significant emphasis on efficiencies and that Ms Dudley made it clear to the executive after her appointment that very few additional management positions would be approved. In the circumstances she knew that Ms Dudley would be unlikely to approve the appointment of the BIM and she encouraged the appellant to look at other options. This view was passed on to the appellant in an email which is in the evidence as Exhibit 34. Ms Harding's evidence on the subject was recorded at T5-73:
"I think what I - I said, Bernard, was Louise Dudley had indicated across the organisation that she was only looking at putting, I think it was an additional two, sort of management roles into the business. One of those was in a customer experience manager, which obviously was going to come into retail, and it did, and one other in another part of the business. But it – Louise spoke about she wasn’t looking at putting any more sort of senior management roles on other than those in the business."
[121]It appears to me that the arrival of a new CEO did result in the suspension of the recruitment process for the BIM and subsequently led to the abandonment of the proposal. A review of all the evidence around this subject does not support a finding that the decision by Ms Harding or by QUU to rescind an earlier decision to appoint a BIM constituted unreasonable management action.
Conclusion
[122]While the medical evidence provides prima facie support for a determination that the appellant's employment was a significant contributing factor to the development of his injury, the respondent cautioned that the relevant medical opinions were based on a history provided by the appellant and that such opinions did not prevent findings being entered to the effect that the stressors claimed to exist by the appellant either did not exist or, if they did, they did not exist to the extent claimed by the appellant. Given the doubt around the veracity of the appellant's version of events the respondent argued that it was open to the Commission to conclude that the employment was not a significant contributing factor.
[123]While I accept that in general terms the appellant's version of events was not made out on the evidence, it was clear that he did involve himself in a series of workplace events that could give rise to stress and anxiety and potentially lead to the development of a psychological injury. While the appellant's interpretation of these events or the implications arising from these events may have been flawed, setting aside questions of degree, it was not in dispute that certain events did occur. It followed that some of these workplace events may have contributed to the development of a psychological injury.
[124]It was unsurprising that the appellant may have been distressed by the outcome of his performance review or by the commencement of the performance management process. It might also have been a stressful encounter when he complained to Ms Harding about her treatment of co-workers. In the circumstances I consider there to be a sufficient factual basis to some of the designated workplace stressors to warrant a finding that the statutory test of association between the employment and the development of the appellant's psychological injury has been satisfied. Given this finding the fate of the appeal hinges on findings related to the management action associated with the stressors relied on by the appellant.
The appellant presented his case logically on a continuum which started with Ms Harding resenting his feedback about her management style and her treatment of other staff. As the relationship between the two deteriorated the appellant said that Ms Harding's supervision of him became characterised more by reprisal activities than by good management. Over time the appellant said that the reprisal action escalated beyond the delivery of negative feedback about the appellant's performance to vindictive behaviour manifesting itself in a performance review which yielded a marginal pay increase and no bonus, and ultimately culminated in the commencement of a performance management process which the appellant construed as the first step in a termination process.
However Ms Harding maintained that her performance management of the appellant was motivated by her desire to correct and improve his behaviour and performance. Ms Harding said that she first raised concerns about the appellant’s performance in May 2012 with informal counselling continuing through until November 2012. Given that the evidence supports a finding that the informal counselling occurred, the conclusion to be drawn is that either continuing deficiencies in the performance of the appellant’s work required the taking of corrective action by his supervisor, or alternatively the appellant's work was free of blemish and that Ms Harding, in instituting counselling, was acting vindictively with a probable purpose of managing the appellant out of the organisation. This stark contrast in the competing positions arises primarily from the manner in which the appellant conducted his case.
[127]The appellant prosecuted his case on the basis that his service was entirely unblemished and that Ms Harding's behaviour toward him was not explainable other than to the extent it was motivated by her resentment toward him. In the proceedings the appellant made no concession in respect to any of the performance deficiencies alleged to exist by Ms Harding. Even in areas of the evidence which were less disputed, the appellant continued to refuse to acknowledge any shortfall in his behaviour. For example it was reasonably clear on the evidence that the appellant did fail to model appropriate leadership behaviour in certain instances. This was demonstrated by his openly disrespectful behaviour toward Ms Harding in meetings which included junior staff, his open criticism of the executive leadership team's decision on "hot desking", and his lunch time indulgences.
[128]A major difficulty for the appellant was his failure to adduce evidence from QUU witnesses which supported his fundamental complaints. In circumstances where the appellant has to establish that it was more probable than not that his version of events was correct, and where ten co-workers were called to give evidence, it was important that the appellant secure some concessions which pointed to the truth of his position.
[129]While the appellant did not specifically put to any of the employer's witnesses that he was a victim of bullying or intimation or harassment at the hands of Ms Harding, none of the employer witnesses gave evidence that would support such an assessment. In the circumstances what was left was an outcome where the QUU witnesses were either critical of the appellant's contribution or did not support his version of events. While I accept that current serving employees would be reluctant to criticise their employer, I did not get the sense that any of the witnesses thought that the appellant had been harshly treated.
[130]It may have been the case that the appellant struggled in a challenging environment where he was confronted with the added difficulty of executing his work subject to a highly directive management style and an uncompromising approach which demanded a high level of commitment to work and to output. The appellant clearly had difficulty working under this type of regime given his previous senior executive experience and his preference for a more autonomous working relationship. But the appellant erred in choosing a response to this set of circumstances. Instead of acknowledging that he was the subordinate and bound to faithfully follow his superior's instructions, he elected to challenge her directions, her approach, and her management style. There is clear evidence of this in his refusal to take the lead role in the water meter project, in failing to accept the decision not to appoint the BIM, in failing to support the decision to implement "hot desk" arrangements, and in refusing to follow Ms Harding's directions about staffing and coverage of the call centre in November 2012.
[131]The appellant did not on the evidence sustain his claim that he had been singled out and burdened with an excessive workload. The appellant conceded that the workload associated with the review of training modules was not significant, he was not forced to take on the lead role on the water meter project, and his workload was not significantly impacted by the non-appointment of the BIM. While the appellant claimed that during the course of his employment he was required to manage numerous projects, he failed to establish that the allocation of responsibility for these projects was harsh or unreasonable.
[132]It was not in dispute that matters escalated significantly in October and November 2012 but the deterioration in the appellant's relationship with Ms Harding was partially of his own making. He was disaffected by the decision not to award a bonus and to allow a marginal pay rise; he elected to intervene in Ms Fryga's circumstances; and he encouraged Ms Bullions and two other general managers to join him in complaining to HR about Ms Harding. It is arguable whether the prudent course may not have been for the appellant to simply brief HR on matters of concern and leave it to HR to take whatever steps they thought were necessary or appropriate. Eventually matters came to a head in November 2012 when the appellant's management of the call centre immediately after the cut-over from the Brisbane City Council was questioned.
[133]In this regard I accept that the performance of the call centre in the period immediately after QUU assumed full responsibility for its functions was of considerable significance to senior management. The call centre was the key interface between the constituents of five local governments and QUU and it was important that the transition of call centre functions from the Brisbane City Council to QUU proceeded smoothly and without compromising standards of service. It was within this context that Ms Harding found it necessary to intervene in the operation of the call centre when it appeared that the month-end GOS result would not be achieved and direct that additional FTE's be deployed in telephone activities.
[134]The appellant however did not share Ms Harding's objective for call centre performance in November 2012. In his view it was not reasonable to expect a start-up call centre to achieve an 80% GOS result in the first few weeks of its operation. The appellant's preference was for a longer term view of call centre performance which contrasted with Ms Harding's preference for an immediate demonstration of competence and capability. In the end result the appellant erred in not implementing actions which mirrored the preferences or directions of Ms Harding. In these circumstances and in a context where Ms Harding had been consistently expressing some dissatisfaction with the performance of the appellant over the previous six months, it was understandable that the performance management process was raised to the next level.
[135]The approach taken by Ms Harding to performance management was conventional. She raised matters informally on a number of occasions. The commencement of the formal management process followed the appellant's mismanagement of call centre coverage. These developments led Ms Harding to conclude that her informal counselling of the appellant had not been effective and she formed the view that the counselling or disciplinary process should be taken to the next step. In this regard she consulted with HR and secured the agreement of HR to implement a formal performance management plan. Ms Harding then told the appellant on 27 November 2012 that his performance would be the subject of discussion at a meeting scheduled for 29 November 2012. She told the appellant that a representative from HR would also attend the meeting and invited him to bring a support person. On the evidence the implementation of the formal performance management process was warranted. It did not constitute unreasonable management action on either the part of Ms Harding or the organisation.
[136]QUU was a large organisation in which HR provided checks and balances to moderate unacceptable behaviour. The appellant's claims of bullying, unjust remuneration outcomes, and an excessive workload are to be weighed in a context where his grievances were able to be tested with HR staff. In this regard the appellant always had access to HR, and he did utilise this access. He complained to HR about his bonus and salary increase outcomes and about Ms Harding's treatment of certain staff. On the evidence HR commenced investigations into all of his complaints. It was not the fault of HR that the appellant decompensated before all the investigations were concluded.
The appellant also argued that unreasonable management action extended to deficiencies in QUU's management of his 12 December 2012 correspondence about the performance management process and his complaint letter dated 31 December 2012. He submitted that these deficiencies contributed to his decompensation.
[138]In the first instance the appellant said that QUU should not have allowed Ms Harding to commence the performance management process because of his request for a higher level review of his salary and bonus outcomes and his complaint about Ms Harding's treatment of certain members of staff, including himself. The appellant's submission is not without merit but I do not accept that the relevant management conduct was unreasonable for the following reasons:
(i)While Ms Harding's treatment of particular staff members had been an on-going issue for the appellant, there is no contemporaneous evidence that the appellant complained about Ms Harding's treatment of him prior to the 28 November 2012 email (Exhibit 7);
(ii)Ms Harding's treatment of other staff members should not have acted as a bar to the performance management of the appellant;
(iii)The appellant was told prior to the dispatch of his 28 November 2012 email that the 29 November meeting would discuss his performance and be attended by a representative from HR;
(iv)The appellant's 28 November email was sent to Ms Leis at 4.25 pm and may not have been read or considered prior to the 29 November meeting;
(v)The primary purpose of the 28 November email was to secure a review of the appellant's bonus and salary increase outcomes. There was no need to suspend the performance management process pending the outcome of a review of this nature;
(vi)Ms Harding's concerns about the management of the call centre by the appellant during November warranted an immediate response.
In retrospect, after consideration of the appellant's correspondence dated 12 December 2012 and 31 December 2012, it may have been the prudent course to resolve the appellant's complaints about Ms Harding before starting the performance management process. However for the reasons outlined above the commencement of the process on 29 November 2012 was not unreasonable and did not amount to unreasonable management action.
[140]In the second instance the appellant argued that QUU should have responded to explanations provided by him in his 12 December 2012 correspondence (Exhibit 4) where he refuted the quantitative data supporting Ms Harding's allegations and requested that QUU provide further detail on the allegations regarding values and accountability. The appellant maintained that QUU breached clause 12.6 of his contract by not responding appropriately to his 12 December 2012 letter. The appellant said that he had been wrongly accused of not doing his job and was denied a right of reply.
[141]In his submission the appellant said that:
"QUU have refused to respond to date to my response of the 12/12/12 and pleas to consult have been repeatedly denied. There was an obligation on Ms Harding and QUU to respond (to provide an opportunity to consult) within 14 days. Refer Exhibit 2 – point 12.6.3. Evidence in testimony from Mr Norris, the HR specialist assisting Ms Harding agrees that I should have received a reply."
[142]In the 29 November 2012 correspondence the appellant was given fourteen days to respond to the areas of performance deficiency identified. He provided this response on 12 December 2012. The appellant is not correct however in asserting that QUU was obliged to provide a written response to the matters raised in his 12 December correspondence. Clause 12.6(iii) of his contract states in effect that within fourteen days of receipt of the appellant's written response, QUU will provide an opportunity for the appellant to make representations to Ms Harding about how he will improve his performance to a satisfactory level. This provision did not require QUU to reply to matters raised by the appellant in his 12 December 2012 letter. What it did require was that QUU allow him to make representations about how he will improve his performance by 26 December 2012.
[143]As it transpired QUU did provide the opportunity for the appellant to make representations when Ms Harding informed the appellant that the performance management process would resume on 6 February 2012. However QUU did not comply with clause 12.6(iii) in that the meeting was not scheduled on or before 26 December 2012. The delay in resuming the process was however understandable in the following circumstances:
(i)Compliance within the fourteen day period after receipt of the appellant's response was made difficult by intervening public holidays;
(ii)The appellant was on annual leave during most of January 2013;
(iii)Ms Harding was on annual leave for a period of time in December 2012 or January 2012;
(iv)The content of the appellant's response was aggressive or belligerent and gave no indication that he accepted that there was any validity at all in the allegations made against him. Implicit in this response was the rejection of a proposition that he would make representations explaining how he would improve his performance; and
(v)Soon after the appellant returned from annual leave, and on 6 February 2012, Ms Harding tried to convene a meeting for the purpose of resuming the process. It was reasonably clear that this meeting would have given the appellant the opportunity to make representations about how he would address performance deficiencies. However the appellant declined to attend this meeting.
[144]In these circumstances, while it was desirable that a meeting should have been convened within the fourteen days specified in the contract, I am not of the view that QUU's failure to convene the meeting within time constituted unreasonable management action.
In the third instance the appellant submitted that QUU should not have allowed Ms Harding to attempt to re-start that performance management process at a point in time when the Savvy external investigation into his complaints of bullying by Ms Harding had not concluded. Again in this instance I think the appellant was entitled to put the question. However it was also understandable that the employer and Ms Harding would want to try to resolve the performance issues and to restore functionality in the relationship. Further, as the appellant points out, clause 12.6 (iii) of the contract required that representations be allowed in a timely manner. Given the competing considerations I do not consider that the employer acted unreasonably in attempting to convene the meeting on 6 February, 2012. Notwithstanding the intent to call the meeting however, as soon as the appellant objected to the meeting progressing, QUU responded immediately and postponed the meeting.
[146]Finally the appellant submitted that a number of matters associated with the external investigation into his 31 December 2012 complaint gave rise to unreasonable management action. He submitted that QUU acted unreasonably and breached the conditions of their own external review in refusing him access to the finalised Savvy report. He also complained that the Savvy investigation excluded consideration of whether he was deserving of a bonus and a salary increase. From the respondent's perspective the commissioning of the Savvy investigation was seen as an appropriate response to the appellant's complaint of bullying behaviour by Ms Harding and that the appellant was wrong in submitting that management had not adequately responded to his complaint.
[147]It was clear on the evidence that the Savvy report was not finalised until early March 2013 and some time after the date of the appellant's decompensation. As such the failure of the appellant to get access to the report, or the appellant's discovery of the restricted scope of the report, could not have been factors contributing to the development of his injury. Consequently these matters are not determinative in the decision making process.
[148]The appellant has failed to establish that his injury arose out of, or in the course of, unreasonable management action taken in an unreasonable way by his employer. The appeal is dismissed. I order accordingly.
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