T13140
|
TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Wynde Mason
and
Minister Administering the State Service Act 2000
Industrial dispute – termination of employment – application dismissed
REASONS FOR DECISION
[1] On 24 April 2008, Wynde Mason (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000 (Department of Economic Development and Tourism) (the Minister) arising out of her alleged unfair termination of employment. [2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 9 May 2008 (Conciliation Conference), 25 June 2008 and 26 June 2008. [3] The applicant was appointed to the position of Head of Research with Tourism Tasmania on 15 October 2007, having gained the position on merit. The continuation of her employment was subject to her successfully completing a period of six months probation. Her employment was terminated on 14 April 2008 at the completion of the period of probation. [4] The Department of Economic Development and Tourism (the agency) asserted the applicant’s appointment to the substantive position was not confirmed on the grounds that her performance was unsatisfactory during her probation. [5] The applicant claimed her employment had been terminated because she had alleged misconduct on the part of her manager, Mr Rowan Sproule, Director, Organisational Development and Strategy. She asserted she was unfairly dismissed and sought reinstatement.
BACKGROUND
[6] The Research Unit interfaced with other Tourism Tasmania units to deliver various programs. Specifically the Research Unit had direct dealings with Marketing and Commercial Operations and Infrastructure Industry Development. Tourism Tasmania had distinct quarterly reporting cycles of March, June, September and December where statistical data in a number of formats was gathered, collated and disseminated in the form of reports and presentations. The timely generation of the various sets of data was essential to Tourism Tasmania functioning effectively. [7] During the applicant’s tenure the first reporting cycle occurred during December 2007. It was not disputed that for that cycle the previous incumbent and other staff took charge of delivering the required information while the applicant was ‘finding her feet’. It was expected by Tourism Tasmania that the applicant would take responsibility to deliver the requirements of the reporting cycles for the March 2008 cycle and beyond. [8] On 21 November 2007, Mr Sproule conducted an initial probation review with the applicant. No substantial issues were evident at that time. To complete the review process the applicant was required to formally sign off on the outcome. Mr Sproule expressed his frustration at having to ask for the return of the signed document on ‘two or three occasions’. The resulting documentation (Exhibit M5) was returned by the applicant to Mr Sproule on 21 December 2007, the Friday before Christmas. [9] Mr Sproule met with the applicant on 16 January 2008, on his return from Christmas leave, to review her performance to date, although not in a formal manner. Again there were no substantial issues requiring attention. Matters of style and form were brought to the applicant’s attention as aspects of her work which needed to be addressed.
[10] In the intervening period preceding and into the March cycle, Mr Sproule asserted he had witnessed the evolution of deficiencies in the applicant’s performance, particularly in meeting crucial deadlines. On 28 March 2008, Mr Sproule met with the applicant to discuss performance issues in light of the imminent completion of her probation. Ms Rebecca Kime took Minutes of the meeting. (Exhibit M6, Attachment 2) It should be noted the Minutes refer to Friday, 27 March 2008, this is clearly an error. [11] From the Minutes and his evidence, Mr Sproule informed the applicant at the meeting that there were substantial performance issues he saw necessary for her to rectify. Neither the Minutes nor Mr Sproule’s evidence were specifically challenged. He also provided her with a very detailed written critique of her performance over the then current reporting cycle. The document (Exhibit A2) which ran to seven pages detailed specific aspects of the applicant’s performance which did not meet the requirements of her Statement of Duties and were of concern to Mr Sproule. At this juncture it was more than five months into the applicant’s six-month probation period. It should be noted Mr Sproule’s evidence was consistent with the published Minutes. [12] In evidence, Mr Sproule asserted he had outlined his concerns and suggested the applicant take the weekend to consider the substance of the document and prepare for a review meeting on the following Monday, 31 March 2008. The Minutes reflected this conversation did take place and that the applicant agreed to such a process. Further the applicant was said to have agreed to provide Mr Sproule with a written response for consideration prior to the scheduled 12.30 pm meeting on the Monday. This was not disputed. [13] Mr S Arditto, for the applicant, asserted it was the applicant who sought to meet again on the Monday, not Mr Sproule. However, Mr Sproule’s letter (Exhibit A2) which was given to the applicant on Friday, 28 March 2008, at the second last paragraph on page 7 suggests:
“What I would like you to do now is to consider all the issues I have raised and meet with me again on Monday to discuss your response as part of the plan to move forward prior to the completion of your probation period.
Please accept these comments as legitimate concerns on my part in a genuine desire to enhance your capability and contribution to Tourism Tasmania.”
[14] Mr Arditto asserted the nature of the letter was non-threatening, in that it gave no indication of potential for dismissal. [15] Extracts from the Minutes of the meeting (Exhibit M6, Attachment 2) states the following:
· “Rowan presented a letter to Wynde detailing performance issues detected since the January mid term Probation review. He indicated it would be grossly unfair for Wynde to respond to the letter today and suggested to her that she take it home and read through it through carefully over the weekend. This would ensure she had enough time to evaluate the content and note any issues to raise in a follow up meeting arranged for Monday. She agreed with that scenario.”
[16] Mr Arditto further asserted that at this juncture the applicant had ‘no idea’ her employment was in jeopardy and further had she been aware, her response to Mr Sproule’s concerns “… would have been different in tone and it would have provided more information to counter any allegations specifically made regarding her performance.” (Transcript p.11 L.10) [17] Mr Arditto further asserted that “She honestly believed that Mr Sproule wished to bring to her attention a few matters to discuss.” (Transcript p.10 L.35) [18] However on the following Monday, 31 March 2008, the applicant failed to provide a written response to Mr Sproule as agreed. Also, she was not prepared for the arranged review. Ms J Fitton, for the Minister, asserted that on arrival at the meeting the applicant informed Mr Sproule “… I’m not paid to work over the weekends and I don’t have a response for you.” (Transcript p.61 L.15) This was not refuted. [19] In evidence Mr Sproule stated he then discussed the issues in detail with the applicant, however she gave very little response, as is evinced in the Minutes. The applicant’s lack of response was not refuted. [20] Mr P Baker, for the Minister, stated that the applicant had been informed at that meeting “… that she could use work time to prepare the report …” (Transcript p.25 L.40) and have one of the staff assist if she felt the need. The applicant was also offered more time to prepare should she require it. [21] There was no evidence educed to suggest the applicant had sought more time to prepare a response nor requested clerical assistance. It was asserted Mr Sproule and the applicant agreed to meet the following day and that she would provide him with a written response by 3.00 pm.
[22] The applicant failed to provide Mr Sproule with a written response by the agreed 3.00 pm deadline on 1 April 2008. The meeting, at which Ms Kime was present, was held at 4.30 pm, at which time the applicant handed Mr Sproule her written response (Exhibit A3) and asked him to read it before commencing discussions. The applicant sought the contents be kept private, to which Mr Sproule did not accede. [23] The applicant’s written response commented that Mr Sproule had the habit of emailing work-related matters in the early hours of the morning. She asserted this suggested insomnia and, as such, may be linked to bipolar disorder or manic depressive behaviour. She also asserted “Aberrant behaviour of a non-functional person is disconcerting to me.” and that “… a non functioning manager may not necessarily provide sound assessment, feedback and decisions.” She claimed that she had concerns about his resultant behaviour for herself and the Research team. [24] In Exhibit A3 the applicant alleged sexual harassment. She asserted that on “Friday 26 October 2008 (sic)” Mr Sproule allegedly referred to “boob enhancement” during a meeting. She further alleged Mr Sproule gave her an uninvited kissed on the cheek at the same meeting. She also alleged Mr Sproule used the term “boob enlargement” on 27 February 2008 at a meeting. The anatomical descriptors allegedly used by Mr Sproule were not, it appears, directed at the applicant. No evidence was adduced in support of the allegations. [25] Mr Arditto made the observation that the comments made by Mr Sproule were “at the lower end of the scale”. (Transcript p.2 L.10) [26] The applicant further accused Mr Sproule of verbal abuse on 20 February 2008, at a meeting where he was alleged to have asked her “… why is this taking so fucking long?” (Exhibit A3), and that he used the adjective ‘fucking’ throughout the meeting. She accused Mr Sproule of bullying her team. No evidence was adduced in support of the allegations. She also alleged Mr Sproule breach of the Code of Conduct by failing to treat everyone with respect and without harassment. [27] The applicant claimed there had been a deficiency in the number of staff to achieve the outcomes required. [28] Mr Sproule asserted that the applicant had more staff than the previous incumbent. [29] Mr Baker argued that as a Senior Manager it was the applicant’s responsibility to manage her unit with the resources available to her. Where she perceived there to be an issue, it should have been raised at the time it occurred. [30] The majority of the applicant’s written response was directed at matters other than her performance. She chose to respond to the performance issues raised by Mr Sproule in twelve brief dot points.
[31] Mr Arditto informed the Commission that Mr Sproule became upset by the contents of the applicant’s written response (Exhibit A3) and ‘ordered’ the applicant from the office. [32] Mr Sproule, in evidence and confirmed by the Minutes of the meeting, asserted that he said to the applicant that he found the allegations on page 2 of her response objectionable and terminated the meeting. [33] Mr Arditto asserted that the applicant:
“… believed at this point that there had been a full and frank exchange of views leading to the confirmation of her appointment, and that the decks had been cleared so that she and Mr Sproule, having a greater understanding of each others perspectives, could continue to work together in the future with a greater understanding.” (Transcript p.11 L.15)
[34] Mr Baker stated that given the nature of the applicant’s allegations the matter was immediately referred to the CEO of Tourism Tasmania and to the Secretary of the agency. [35] Mr Sproule wrote a detailed letter to Mr Mark Jones, Director of Human Resources, on 5 April 2008 (Exhibit A6) reviewing his assessment of the applicant’s performance and commenting on her response to his letter of 28 March 2008. In it he included statements from two senior managers, Dr Claire Ellis, Director, Infrastructure and Industry Development, and Ms Jan Ross, Director, Marketing and Commercial Operations, both giving adverse assessments of the applicant’s performance. He recommended the agency not appoint the applicant to the position of Head of Research at the cessation of her probation. [36] By way of letter on 7 April 2008 (Exhibit A7), Mr Jones informed the applicant that Mr Sproule had recommended termination of her employment at the conclusion of her probation period. The letter further explained that only the Secretary could make the decision to terminate an employee’s employment. To that end, she was informed a two-person review body had been established to gather sufficient information regarding her performance to assist the Secretary in making his decision. [37] Mr Arditto asserted that it was only when the applicant received the communication from Mr Jones at 4.00 pm on 7 April 2008 did she realised termination of her employment was contemplated. Mr Jones gave the applicant until noon on 10 April 2008 to respond to the adverse probation review. [38] The applicant provided Mr Jones with a written response to his letter by the nominated time on 10 April 2008 (Attachment 7 to the application). The following day, 11 April 2008, the applicant was interviewed for approximately three hours by Mr Mark Hastie and Ms Shona Muir, who constituted the review panel. Mr Arditto asserted the applicant did not receive a transcript of the proceedings denying her the opportunity to clarify, supplement or settle any of her responses. [39] The Secretary wrote to the applicant on 14 April 2008 advising:
“… I hereby notify you that it is my intention, pursuant to S.44(3)(d) of the State Service Act 2000 not to appoint you to the position of Head of Research (705922) and to terminate your probationary appointment, effective immediately …” (Attachment 8 to the application).
[40] It was asserted the applicant was not advised of the findings of the review panel. Further that “… she had no knowledge specifically where her performance failed to meet the required standard”. (Transcript p.18 L.20) [41] Mr Jones emailed the applicant on 17 April 2008 (Exhibit A10) in response to her request for a copy of the review body’s report. He explained the agency’s process, in that the review body was instructed to gather information to determine the substance of Mr Sproule’s adverse review of her performance. This data was then given to the Secretary for him to make the decision. It stated the review body was not required to produce a report or to make recommendations. The email confirmed the applicant was given copies of all submissions by Mr Sproule and that the applicant provided submissions of her own, in response. [42] At the onset of the hearing on 26 June 2008, Mr Arditto sought to make a statement:
“… we are asserting that Ms Mason was not afforded procedural fairness and natural justice in her termination by the respondent. We are not however, dealing with the merit of any claims of under performance or performance issues. …
We submit that the Commission should disregard matters solely raised on performance. … matters raised around the performance of Ms Mason in her role and concentrate solely on the substance of this application, that the applicant was fairly(sic) dismissed in that she was not afforded either natural justice of (sic) procedural fairness as required by the law.
… In this way we seek to assert that any performance issues raised per se are irrelevant to the matter at hand and will not specifically refute them.” (Transcript p.37 Ls.15/30)
[43] Mr Baker rejected the applicant’s position and asserted it was inappropriate for the Commission not to consider the entirety of the matter before it.
[44] Mr Arditto asserted that “… it was only after said allegations had been levelled that there was a turnaround on the employer’s part and active efforts were made to seek termination.” (Transcript p.8 L.25) He further contended that the applicant’s dismissal was solely due to her allegations against Mr Sproule. [45] Mr Baker rejected this assertion and averred the applicant’s dismissal was a consequence of deficiencies in her performance.
[46] It was Mr Arditto’s view that Mr Sproule should have removed himself from the applicant’s final probation review. He said:
“Now, we believe at that point the probation review should have been immediately referred to human resources in order that an objective impartial decision could be made after consideration of all relevant materials and to avoid the notion of apparent bias.” (Transcript p.14 L.35)
[47] Mr Baker asserted that Mr Sproule did immediately removed himself from the process of managing the applicant and that the Secretary saw fit to appoint a review panel, independent of Mr Sproule, to compile data on the applicant’s performance.
[48] Mr Arditto asserted: “… we submit that decision to appoint a review body to investigate the allegations made by Ms(sic) Sproule was unjust, procedurally unfair and unreasonable in light of the before-mentioned defects and the management of Ms Mason’s probation.” (Transcript p.15 L.20) He further asserted the investigation was tainted by the way some evidence was gathered. He accused Mr Sproule of actively soliciting negative comments from senior staff. [49] Mr Arditto further asserted that information submitted by Mr Sproule to the review body was inaccurate and he cited a Business Unit Update (Exhibit A9) as an example. He argued that the document which was presented as work by the applicant had been heavily edited by Mr Sproule and had incorporated a section by another employee. [50] Mr Sproule in his letter (Exhibit A2) brought to the applicant’s attention that the original paper she had prepared was not to the standard required and had to be worked on extensively to make it acceptable. At page 3 of the letter he states:
“The issues to be addressed are highlighted in the template you use and I am at a loss to understand why it was so poorly completed other than poor attention to detail or lack of consultation with your staff.”
[51] Mr Arditto put the proposition that the review body might have actually concluded the applicant had met the required standard of performance, but for want of a report this could not be established. Further, he argued that the matter before the Commission “ … revolves around the issue of procedural fairness and not work performance …”. (Transcript p.79 L.35) He also asserted that it was impossible for the review body to arrive at a fair and just decision on the basis of false evidence. [52] It was asserted the Secretary did not give any reasons for the applicant’s termination in his letter to her of the 14 April, 2008. [53] Mr Arditto cited an email (Exhibit A8) from Ms Jan Ross, Director, Marketing and Commercial Operations and one from Dr Claire Ellis, Director, Infrastructure and Industrial Development as proof of Mr Sproule’s influence over the decision to terminate. Both named officers gave evidence and both denied having been solicited by Mr Sproule to give negative comment about the applicant’s performance. I have no reason to doubt their evidence. [54] Mr Sproule explained the concept of Working, Learning and Achieving Together (WLAT) as the process used in developing employees. He asserted that this was the process he had followed during the applicant’s probation to engage with her. This was not challenged. [55] Mr Baker argued:
“… probation is about a time of review, a time of assessing the suitability of an employee’s ability to undertake the work at hand.” (Transcript p.82 L.1)
[56] And further:
“… the employee was not suitable for to undertake the duties; and secondly, that the process that was undertaken was indeed fair and it was in accordance with both the State Service Act and also the Industrial Relations Act.” (Transcript p.82 L.10)
[57] Probationary employment is defined within the Act at s.3 (1), Interpretation:
““Probationary or trial period” means a period of employment, for the purpose of determining an employee’s suitability for continuing employment, which – (a) Unless otherwise prescribed in an Act, an award or agreement, does not exceed 6 months from the date of commencement of employment; …” [58] Mr Baker cited Regulation 36 of the State Service Act 2000 (the SS Act) as providing for the termination of probationary employment as prescribed at 44(3)(d) of the same Act. [59] Mr Baker asserted that the applicant “… occupied the highest level of a position within the Administrative and Clerical Employees Award, and that is a level 12 position, and a level 12 position standard states, and I quote, is:
A principal adviser to government in relation to specific programs that have a direct and critical effect on governmental objectives. The highest level of professional and technical competency is required. The work is carried out in direct consultation with the chief executive or the government. Duties are undertaken without supervision and complete autonomy within the field of expertise that is exercised. The highest level of skill in relation to communication, conceptual and strategic skills, investigative research and analytical skills.” (Transcript ps.3/4 .L.40/5)
[60] Mr Baker asserted that the applicant missed crucial deadlines, failed to supply required information to the Director, allegedly submitted a document under her own hand but was actually generated by others and generally failed to meet the standards required of such a senior role. Mr Sproule’s letter of 28 March 2008 and his subsequent letter to Mr Jones of 5 April 2008 depict and specify the extent to which, in his estimation, the applicant was not achieving the required standard of performance. [61] The applicant responded to Mr Jones’ invitation to address Mr Sproule’s assessment of her capabilities in a letter dated 10 April 2008 (Attachment 7 to the application). She wrote:
“My capability includes a Masters of Business Administration (MBA), and a Doctorate in Business Administration (DBA) currently in review at Macquarie Graduate School of Management, Sydney … My professional experience includes over eight years in the public sector; Director of Marketing Department of Industry and Development (NT), Manager in DHHS and Senior Executive officer DIER and marketing advisor in Parliament house during an election campaign. My probation in the Northern Territory and in the Tasmanian (DIER) state sectors were entirely uneventful. Further I have experience in the private sector notably advertising, marketing and business.”
[62] Further, at page 14 of the same document, the applicant’s response to the adverse comments by Dr Ellis was:
“Dr Ellis may be uninformed about my two years experience as Director of Marketing at the Department of Industry and Development”
[63] And similarly of Ms Ross’s adverse comments:
“… may be uninformed about my qualification, current international standing as Doctoral scholar specifically in marketing academics, and my professional experience in advertising and marketing”
[64] Mr Arditto asserted that confirmation of a successful probation did not result in a new employment contract. He cited s.44 of the SS Act:
“… this clause allows for termination due to failure to satisfactorily complete a probation period …” (Transcript p.9 L.35)
[65] Section 44 does not in fact address probation specifically, but at (3)(c) specifies that termination may take place where:
“… the permanent employee is found under section 48 to be unable to efficiently and effectively perform the duties assigned to that employee;”.
[66] Mr Arditto asserted the applicant’s contract of employment stipulated that 14 day’s notice of termination is required and as that did not take place the termination was unlawful. The Contract of Employment, presented as Exhibit A1, does not stipulate a notice period, it does however refer to the Tourism Tasmania Award which stipulates at Clause 17 - Notice of Termination, unless otherwise agreed:
“… effected by two weeks’ notice given by either party at any time … or by the payment … of a fortnights pay …”
[67] Mr Baker sought to have the following put on record:
“… in relation to the termination itself. Ms Mason was afforded four weeks pay in lieu of notice and … the decision was taken by the department to afford to her a further $2000 for either retraining or seeking alternative employment elsewhere.” (Transcript p.90 L.40)
[68] Mr Arditto alleged the agency breached its Probation Policy (Exhibit A4) by failing to provide training, mentorship or support to address the applicant’s perceived deficiencies. He further asserted the Probation Policy and CD4 were implied terms of contract. [69] Mr Arditto asserted that the failure to provide a detailed report along with the unrealistic timeframes was an attempt by the agency to legitimise “… a flawed process … considered unfair, unjust and unreasonable”. (Transcript p.20 L.20) [70] Mr Arditto asserted the SS Act defines an employee:
“… means a permanent employee, or a fixed term employee … “ (Transcript p.6 L.15)
[71] Further he argued:
[72] Mr Arditto asserted that should there be any performance issues which need to be addressed, then the agency should outline them to the applicant and provide training to give her the opportunity to meet the standards. [73] Mr Arditto put the proposition that the agency was in breach of State Service Commissioner’s Directions, the State Service Code of Conduct and administrative law principles:
“… we further submit that Mr Sproule’s failure to conduct a proper probationary review, his recommendation to terminate Ms Mason, the agency’s decision to constitute a review body, the actions that body took in the conduct of the investigation, and lastly the Head of Agency’s decision to terminate were all in breach of agency policy, State Service Commissioner’s directions and administrative law principles. … these actions may have breached the State Service Code of Conduct.
Additionally, actions were taken contrary to State Service principles, specifically in State Service Commissioner’s Direction number 2, section 7(1).” (Transcript p.20 Ls.25/30)
[74] Mr Arditto asserted the State Service principles the agency had breached were: (Transcript p.80, Ls.5/15)
[75] Mr Arditto asserted that the investigation into the applicant’s allegations of Mr Sproule’s misconduct was not conducted according to CD5. He alleged the agency:
[76] Mr Arditto argued that:
“… that while there is a clause allowing for termination due to unsatisfactory completion of the probationary period, the termination would only result from an action on the part of the employer.
Without the employer activating that clause the contract would have continued to operate until some undetermined period in the future. … the agency, having failed to adequately monitor Ms Mason’s probation and manage her performance, should have confirmed her probation and immediately put into place a performance management process consistent with its own performance management policy …” (Transcript p.80 Ls.20/35)
[77] Mr Arditto further argued in regard to CD5:
“… that direction sets out a clear format for the investigatory process and allows the employee reasonable timeframes to provide information for consideration and to respond to allegations made …” (Transcript p.80 L.40)
[78] Mr Baker asserted that during this time The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. (the CPSU) made representations on the applicant’s behalf complaining that the process was too compressed. He averred the employer had met the test that is required of it within the Act at s.30(7):
“The employment of an employee must not be terminated for reasons related to the employee’s conduct, capacity or performance unless he or she is informed of those reasons and given an opportunity to respond to them, unless in all the circumstances the employer cannot reasonably be expected to provide such an opportunity.”
[79] Mr Baker asserted that the review body found that the applicant’s “… performance in the role over her probationary period has not been a level requisite with the position objective …” (Transcript p.5 L.10) [80] With regard to the Minutes of the various meetings presented as a true and accurate reflection of the proceedings, Mr Arditto had the following read into transcript:
· “We did basically just want it read into the record that Ms Mason was at no point afforded the opportunity to provide comment on that supposed true record of conversation prior to that record being finalised … There was certainly no opportunity afforded to Ms Mason to clarify, supplement, settle any of the points that were supposedly a record of conversation. That was really all we wanted to make comment on.” (Transcript p.74 L.30)
[81] However Mr Arditto did not specifically challenge the veracity of the Minutes. [82] Mr Arditto asserted that the deadlines for the applicant to respond to the allegations of poor performance and for the review body to make proper enquiries were unreasonable. [83] Mr Arditto further asserted that timing deadlines were imposed to enable a termination decision to be made before the expiry of the applicant’s probation period. As a result of the deadline the independent review had to be completed within five days, leaving two days for the applicant to respond. [84] Contrary to Mr Baker’s assertions, that the applicant had adequate time to respond, Mr Arditto asserted Mr Sproule sought a verbal response from the applicant on the day that she was first presented with his seven-page letter, the 28 March 2008. The content of the letter itself and the details of the unchallenged Minutes clearly do not support Mr Arditto’s proposition. [85] Mr Baker asserted that between the 4th and 14 April 2008 there were a series of meetings and other communications with the applicant. On 7 April 2008 the applicant was afforded some two and a half days to respond to Mr Sproule’s adverse assessment. [86] Mr Arditto asserted:
“We’re also concerned that while Ms Mason has a professional qualification in research specifically, she has a Masters of Business Research, neither Mr Sproule nor any members of the review body possess a similar qualification which would enable them to make an informed and objective judgment about the standard of her performance, or work output.” (Transcript p.17 L.45)
[87] With regard to matters other than those directed at the applicant’s performance which she raise in her letter of 1 April 2008, Mr Baker informed the Commission that they had been the subject of a further separate investigation and that they were found to be unsubstantiated. (Exhibit A11) [88] The letter of appointment (Exhibit A1) concluded by congratulating the applicant on her permanent appointment. It was asserted this created an expectation of ongoing employment in the applicant. However, the letter also stated at the fourth paragraph that the appointment was subject to a 6-month probation period and further “On satisfactory completion of the probation period your appointment will be confirmed.” [89] Mr Baker referred to s.30(1) of the Act defining “continuing employment’ as:
[90] And further, at s.30(3) of the Act it refers to “valid reason for termination”. In that context, Mr Baker asserted, the test of “valid reason for termination” is inherently bound up with the phrase that is contained in s.3 of the Act "Probationary or trial period" means a period of employment for the purpose of:
[91] It was the applicant’s opinion that if the agency put “appropriate” measures in place she and Mr Sproule could work together. (Transcript p.3 L.2) [92] Mr Arditto asserted that the applicant requested mediation and facilitation. However he acknowledged this was not to do with her alleged performance failure, but to deal with the allegations the applicant outlined in her letter of 1 April 2008 regarding Mr Sproule’s behaviour. [93] Mr Baker asserted the applicant had asked the Commission to reinstate her. The Act prescribes, at s.30(9):
“The principle remedy in a dispute in which the Commissioner finds that an employee’s employment has been unfairly terminated is an order for reinstatement of the employee to the job he or she held immediately before the termination of employment …”
[94] Mr Baker argued that any reinstatement would be to a position of probation and should that be the case, the statutory period of six months has already been exceeded. [95] Mr Baker referred to a matter before the Commission of David Robert Mounster v Minister Administering the State Service Act 2000 (Department of Primary Industries, Water and Environment), the decision dated 31 May 2006 (T12569 of 2006), and specifically to paragraph 51 of that decision in support of his argument; that it was legitimate to terminate the employment of a probationer who did not attain minimum standards of performance.
“The applicant was on a fixed-term probation period of six months. It is clear from the letter of appointment that continuing employment was to be based on the performance and conduct throughout the probation period. The applicant’s capacity to perform the required work and his overall performance was deemed to be unacceptable by his immediate supervisor and their mutual manager.” (Transcript p.83 L.25)
[96] Mr Arditto also referred to the decision in matter T12569 of 2006. He argued that under the specific circumstances of the case the dismissal was lawful for a number of reasons. At paragraphs 55 and 56 it stated:
“The applicant was made aware of his unacceptable performance within the first two months of employment. He was also aware that an adverse three month probation report would be written regarding his performance. He was counselled again using the three month report as a base. He was well aware his employment was in jeopardy.
At the six month review the applicant was informed his employment would not be continued. He was given the opportunity to respond at that meeting and again four days later. His response was not accepted. Throughout the period of employment the applicant had one-on-one supervision as well as training tailored to his apparent needs. Indeed, up to the time of his termination training was still being discussed. There can be no doubt the applicant was fully aware of the precarious tenure of his employment for the majority of the six month probationary period.” (Transcript p.89 Ls.25/44)
[97] And further at paragraph 64:
“It is clear the applicant had every opportunity to respond to criticism of his performance as well as the opportunity to reach the level of competence required.” (Transcript p.89 L.45) [98] Mr Arditto asserted the applicant was not afforded the process adopted by the agency and enjoyed by the applicant in matter T12569 of 2006. He summed up by asserting that “Their reckless allegations have resulted in significant injury to Ms Mason’s career, reputation and finances”. (Transcript p.81 L.15)
FINDINGS[99] Mr Arditto sought to have the Commission disregard any analysis of the applicant’s performance. He argued the Commission should only consider the procedural aspects of the applicant’s termination. The Minister, it was argued, relied on the review body’s assessment that the applicant’s performance was unsatisfactory as a valid reason for her termination. Mr Arditto chose not to directly challenge the assertions of unsatisfactory performance, but issued a general rebuttal. [100] At s.30(2) the Act charges the Commission:
“In considering an application in respect of termination of employment, the Commission must ensure that fair consideration is accorded to both the employer and the employee concerned and that all of the circumstances of the case are fully taken into account.”
[101] The Act is quite prescriptive, the Commission must consider all material presented to it. I do not accede to Mr Arditto’s proposition. [102] The Act provides clear guidelines with respect to the termination of employment; s.30(3) states:
“The employment of an employee … must not be terminated unless there is a valid reason for the termination connected with –
(a) the capacity, performance or conduct of the employee;”
[103] Fundamentally the onus is on the employer to establish a valid reason. We are told by the agency that the valid reason in this matter was the applicant’s failure to meet minimum acceptable performance standards during her probation period. [104] At s.30(6), the Act stipulates:
· “Where an applicant alleges that his or her employment has been unfairly terminated, the onus of proving that the termination was unfair rests with the applicant.”
[105] In the instant matter the applicant asserted she was unfairly dismissed solely as a result of her allegations of impropriety against Mr Sproule. [106] I turn to Mr Sproule’s letter of 28 March 2008. Mr Sproule meticulously detailed a series of significant issues which he wanted the applicant to rectify “… as part of a plan to move forward prior to completion of your probation period.” (Exhibit A2, p.7) [107] The letter clearly addressed each issue with an explanation of his concerns, what his expectations were and how it fitted with the applicant’s Statement of Duties. The language is measured and businesslike. Indeed, the last paragraph sums up the tenor of the letter.
“Please accept these comments as legitimate concerns on my part and a genuine desire to enhance your capability and contribution to Tourism Tasmania.” (Exhibit A2, p.7)
[108] It is also clear from the Minutes of the meeting of 28 March 2008, that Mr Sproule took time to go through each issue. The applicant could have been in no doubt as to the depth of his concern. Although it was acknowledged by both parties that the letter was non-threatening, in my view there is sufficient evidence to reasonably conclude the applicant was aware of the seriousness of the issues raised. [109] The applicant did not take the opportunity during the intervening weekend to develop the response Mr Sproule requested, although she had agreed to do so. She was also unprepared for the meeting on Monday, 31 March 2008. Despite the applicant’s seemingly lax attitude, Mr Sproule appears, from evidence, to have been willing to continue to support the applicant in attaining the required level of performance. [110] The applicant was offered more time and agency assistance to help her prepare a response. She did not avail herself of the offer. On the following day, Tuesday, 1 April 2008 the applicant again failed to provide Mr Sproule with her written response by the deadline they had both agreed on. [111] I turn to the applicant’s letter in response dated 1 April 2007 (sic). (Exhibit A3) Although Mr Sproule’s letter of the 28 March 2008 was specific and directed only to performance issues, the applicant saw it necessary to address a range of other matters in her response. [112] At the onset of her response the applicant launched a vehement attack on Mr Sproule’s personality. She left the reader in no doubt of her view that Mr Sproule was not in a frame of mind to provide sound assessment of her capabilities. She offered mental illnesses as the probable cause. There is no evidence to suggest the applicant was medically qualified to legitimise such inferences. The applicant continued her dissertation by accusing Mr Sproule of sexual harassment, verbal abuse and bullying. She made reference to incidents, but provided no evidence. [113] When asked by the Commission as to why the applicant had waited until this juncture to raise such serious allegations, Mr Arditto asserted the applicant was conscious of her probationary position earlier in her employment and did not want to ‘make waves’. However there was no explanation as to why the applicant chose this particular communication to raise the allegations. [114] Although Mr Arditto suggested that the alleged sexual harassment was at the ‘lower end of the scale’, it was the applicant’s assertion she was humiliated, embarrassed, shocked and upset by Mr Sproule’s actions. Yet the applicant waited until her competence was being challenged before formally raising the issue. Using the same logic as Mr Arditto suggests, one must ask why the applicant chose to ‘make waves’ at this point in time, some five months after the alleged initial incident and while still a probationer. I also find the applicant’s tardiness in raising the issues inconsistent with her expressed indignation. [115] With regard to the substance of Mr Sproule’s letter of 28 March 2008, the applicant responded to his seven pages of detail in 12 almost cryptic dot-point answers. In my view the applicant’s response to the serious performance issues raised by Mr Sproule could be described at best as dismissive. Mr Sproule had obviously put considerable effort into detailing his observations yet was not given the courtesy of a response which adequately addressed his concerns. [116] Mr Arditto asserted that had the applicant realised her employment was in jeopardy she would have provided more expansive answers. I reject that proposition on two grounds. Firstly, the Minutes of the meeting of 28 March 2008 and Mr Sproule’s detailed letter leave no doubt that the applicant was made aware of the seriousness of her performance failings. Albeit Mr Sproule did not directly say the applicant’s job was in danger, she was aware her probation was coming to an end. [117] Secondly, the applicant held a very senior position. Her status as a seasoned professional had been referred to on a number of occasions during the hearing and in correspondence. She referred to herself as having ‘international standing as a doctoral scholar’. One can reasonably assume the applicant had skills in academic argument. Yet her response in my view was disingenuous and lacked the professional rigor commensurate with her position, stated experience and qualifications, regardless of whether her employment was in jeopardy or not. [118] Taking into account the applicant’s array of academic achievements, her stated extensive experience in both the public and private sector and specifically her experience at senior levels in the public service, it is reasonable to conclude she had an adequate understanding of the mechanics of the probationary process. Indeed her admission that she did not want to ‘make waves’ during her probation certainly implies she had an appreciation of the process. It follows that the applicant was cognizant of the consequence of not successfully completing her probation and consciously chose to address Mr Sproule’s concerns in the manner in which she did. I refer here specifically to the applicant’s response to the adverse assessment of her performance. [119] I find Mr Arditto’s assertions at p.11 L.15 of transcript naive in the extreme; that it was the applicant’s belief, after labelling Mr Sproule with mental illness and accusing him of sexual harassment and bullying, that “… there had been a full and frank exchange of views …” and that the decks had been cleared so that she and Mr Sproule “… could continue to work together in the future with a greater understanding …”. It is simply incongruous to describe the attack on Mr Sproule as having ‘cleared the decks’, and more incongruous that the applicant believed the matter ended there and the relationship would just move on. [120] Mr Arditto asserted that the applicant’s dismissal was solely due to her allegations of sexual harassment and bullying made against Mr Sproule. He further asserted there was a ‘turnaround’ of the agency’s attitude to the applicant after her allegations were aired, and that an active effort was made to seek termination. [121] He further asserted the termination contravened s.30(4)(g) of the Act which states that the following are not valid reasons for terminating the employment of an employee:
“… the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.”
[122] The evidence showed that the specific details of Mr Sproule’s original evaluation of the applicant’s performance before the allegations were made against him were entirely consistent with the information he used as a basis in his recommendations to Mr Jones not to appoint her. There is no evidence so suggest that Mr Sproule embellished his views on the applicant’s performance as a result of the accusations against him. No evidence was educed which supported in any way that the applicant’s dismissal was initiated for anything other than her failure to complete the probation period successfully. [123] Mr Arditto argued that Mr Sproule should have removed himself from the final probation review. He also argued that the review should have been immediately referred to Human Resources. Evidence showed Mr Sproule, upon being confronted with the applicant’s allegations, immediately distanced himself from managing her and sought advice from Human Resources. The matter was then, appropriately, put in the hands of the CEO of Tourism Tasmania and the Secretary of the agency. [124] Evidence confirmed that Human Resources did take carriage of finalising the applicant’s probation review. To this end the Secretary had an independent review body critique Mr Sproule’s evaluation of the applicant’s performance. [125] Mr Sproule was the applicant’s direct Manager and presumably would have continued in that role beyond her probation period. He had carriage of her probation throughout. In my view it is unrealistic to argue that he should have no input into the applicant’s final review. [126] There was no evidence to suggest that there was another manager equipped to comment on the applicant’s overall performance. The agency acted appropriately in only accepting Mr Sproule’s input, once the independent review body had scrutinised it and provided the Secretary with the required data upon which a decision could be made. [127] I reject Mr Arditto’s inference at the commencement of page 79 of transcript, that the panel could not be independent: “Trains are independent, but they tend to follow the tracks that are laid in front of them”. Mr Arditto provided no evidence only opinion to support his inference. [128] It has also been shown that Mr Arditto’s proposition “… the probation review should have been immediately referred to human resources in order that an objective impartial decision could be made after consideration of all the relevant materials …” was in fact exactly what the agency did. (Transcript p.14 L.35) [129] I turn to Mr Sproule’s letter to Mr Jones (Exhibit A6), outlining the applicant’s performance and his evaluation of her response. It is my observation that Mr Sproule restricted his comments and recommendations to those matters which he had brought to the applicant’s notice during the meeting of 28 March 2008 and the subsequent letter. His comments to Mr Jones are entirely consistent with the detail of his letter of 28 March 2008. Further he supported his assertions by introducing statements from the applicant’s ‘clients’ in the agency. [130] Evidence from both Ms Ross and Dr Ellis categorically deny Mr Arditto’s assertion that they had been canvassed by Mr Sproule to provide adverse feedback regarding the applicant. Even had Mr Sproule canvassed opinions on the applicant’s performance, it is common business practice when assessing the performance of a senior employee to actively seek opinion from a range of people within that person’s sphere of influence. The technique is commonly known as 360 degree evaluation. [131] Mr Arditto asserted that the investigation was tainted by the way some of the evidence was gathered and misrepresented to the review body. Other than reference to the two other managers who had input, he referred to a Business Review Update (Exhibit A9) which was criticised by Mr Sproule. He asserted the document was heavily edited by Mr Sproule and contributed to by another employee. Mr Sproule’s evidence showed that his editing and the other employee’s input was necessary to make the original document generated by the applicant acceptable. The point being made was that the applicant’s initial endeavour was not acceptable. I do not accede to Mr Arditto’s interpretation of the ‘investigation’. [132] Mr Arditto argued that the creation of a review body to scrutinise Mr Sproule’s assessment of the applicant’s performance was “… unjust, procedurally unfair and unreasonable …” (Transcript p.15 L.20) I do not agree with his proposition. In my view the Secretary showed insight and commonsense in not relying solely on the views of a manager who was the subject of serious allegations. I believe the action did afford the applicant natural justice, offered an independent procedure and was indeed reasonable given the circumstances of the impending cessation of her probation. [133] I can understand Mr Arditto’s frustration at the absence of the review body’s report. However, I reject his speculation that the review body ‘… might have actually concluded Ms Mason met the required standard of performance’. (Transcript p.79 L.35) In this challenge, I read Mr Arditto to be inferring that the Secretary wilfully disregarded the review body’s work to orchestrate the applicant’s termination. There has been no evidence educed to, in any way, challenge the integrity of the Secretary. [134] Mr Arditto asserted that the agency had failed to follow it’s own Probation Policy in that:
“A manager is required to develop an action plan to address any issues where it is considered that the employee is not meeting the requirements of their position in terms of performance, behaviour or their development during the probation period.
In such cases, more rigour within the management process if expected by documenting a review of progress within each month of the probation ...” (Exhibit A4, p.3)
[135] Evidence showed that Mr Sproule had communicated with the applicant about her performance in November, December and January of 2007/8. It was asserted, and not refuted, that the agency followed a cycle of reporting and that the March cycle was the first time the applicant had the responsibility to deliver the required outcomes. Only in February, from evidence, did Mr Sproule recognise a pattern in the applicant’s performance of failing to achieve an array of outputs expected of her. [136] Mr Sproule asserted that he was hampered in addressing the performance issues earlier with the applicant for want of time. The applicant had been on leave during the period and the occurrence of an early Easter period limited the opportunity to address the situation until the last week in March. I find his explanation plausible and accept it. [137] It is my view that Mr Sproule’s meeting with the applicant on 28 March 2008 and his detailed letter were an attempt to establish “… an action plan to address any issues …” as is stipulated in the Probation Policy. (Exhibit A4) One can only speculate that from the tone of Mr Sproule’s letter and the Minutes of the meeting of 28 March 2008 the intent was to support the applicant in addressing her performance inadequacies. I do not accept Mr Arditto’s assertion, that Mr Sproule “… wilfully disregarded agency policy.” Nor do I accept that he “… failed to make Ms Mason aware of any issues …”, evidence clearly shows the contrary. (Transcript p.12 L.40) [138] The Probation Policy stipulates that during the remediation process monthly progress reviews should be held. This obviously could not eventuate since the issues manifested themselves and were addressed in the last month of probation. [139] The applicant occupied a position at the highest level within the Administrative and Clerical Employees Award, that of a Level 12. The position standard cites such accountabilities as “principal adviser to government”, “direct consultation with the chief executive” which should be executed “without supervision and complete autonomy”. Also the position requires the “highest level of skills” in communications, investigative research, analysis and strategic and conceptual thinking. [140] It is my view that at this level those requirements are not developed ‘on the job’ during probation, but are brought to the position by the candidate. Entry level recruits, on the other hand, are expected to learn and apply processes ‘on the job’ during their probation. It is unreasonable to expect the agency to teach an employee at Level 12 the basic functions of the role during probation. From evidence the agency did afford the applicant time to ‘settle in’, to become familiar with the agency’s particular way of working and to become familiar with their established processes. [141] The evidence also showed that when the applicant was challenged on her underperformance she cited her array of qualifications and her past experience as being indications of her competence. When responding to Dr Ellis and Ms Ross’s criticism she did not address the issues they had raised, but cited her qualifications and experience in defence of her performance. Similarly when requested by Mr Jones to demonstrate her capabilities for the role she again cited her qualifications and past experience. There is little mention of anything she had achieved. I note under the heading of ‘model personal drive, enthusiasm and integrity’ the applicant responded: “I demonstrate drive and enthusiasm for the role at all times.” (Attachment 7 to the application) One must question the applicant’s perception of her own performance in this area when she chose not to prepare for the crucial meeting on Monday, 31 March 2008 and persistently failed to meet deadlines to which she had committed. [142] Mr Sproule’s letter, his evidence and the evidence of Ms Ross and Dr Ellis as well as the Minutes of the various meetings show that the applicant had failed to meet the performance standard expected of her. The review body’s endorsement of Mr Sproule’s evaluation and the Secretary’s acceptance of this endorsement add confirmation. [143] The applicant’s sparse response to Mr Sproule’s evaluation of her performance and her less than convincing response to Mr Jones of 10 April 2008 do not persuade me that the agency’s evaluation of her performance is flawed. For want of contrary evidence or specific rebuttals, I accept the proposition that the applicant did not meet the performance requirements of the role. [144] Mr Arditto’s asserted that because the applicant was not given 14 day’s notice of termination, the termination was unlawful. The applicant was given pay in lieu of notice as prescribed in the Tourism Tasmania Award. The termination in this respect was not unlawful. Indeed the applicant was afforded four-week’s pay in lieu of notice, not two, and a further $2000.00 ex gratia payment. [145] Mr Arditto alleged the agency breached its Probation Policy (Exhibit A4) by failing to provide training, mentorship or support to address the applicant’s perceived deficiencies. I have addressed this allegation above and find the agency had complied with the Probation Policy. [146] Mr Arditto asserted that should there be any performance issues which need to be addressed the agency should outline them to the applicant and provide training to give her the opportunity to meet the standards. The agency, through Mr Sproule’s letter of 28 March 2008 and the meeting on the same day, did provide the applicant with a very detailed catalogue of aspects of her performance which needed to improve. She was given the opportunity of acknowledging her shortcomings, she did not. [147] For any form of training or coaching to be put in place and be effective, the recipient of such attention must actually accept the need for support. It is clear from the applicant’s response to Mr Sproule’s assessment and her response to the assessment of the other two managers, together with her response to the opportunity given by Mr Jones that she did not accept her performance was lacking. Further, from the applicant’s own assertions, it was her belief that she was well qualified and adequately experienced to function at the required level of performance. In my view the agency took the appropriate steps given the applicant’s probation was coming to an end. However without the applicant acknowledging the need for support there were limited options open to the agency. [148] I disagree with Mr Arditto’s assertion that the agency failed to conduct a ‘proper probationary review’. Evidence clearly shows the contrary. [149] Mr Arditto asserted that:
“… the agency’s decision to constitute a review body, the actions that body took in the conduct of the investigation … the Head of Agency’s decision to terminate were all in breach of agency policy, State Service Commissioner’s directions and administrative law principles. … may have breached the State Service Code of Conduct.” (Transcript p.20 L.25)
[150] And he further asserted the actions were:
“… contrary to State Service principles, specifically in State Service Commissioner’s Direction number 2, section 7(1).” (Transcript p.20 L.30)
[151] I address these individually as follows:
[152] Mr Arditto asserted that the investigation into the applicant’s allegations of Mr Sproule’s misconduct was not conducted according to CD5. However, Mr Arditto had asserted that the applicant’s probation was terminated because she had accused Mr Sproule of sexual harassment and bullying. Whether the allegations were proven or not did not form part of the applicant’s argument. There is no need for me to address this assertion by Mr Arditto. [153] Mr Arditto further alleged the agency summarily dismissed the applicant and as such the dismissal was unlawful. The Concise Oxford Dictionary defines a summary action as “done without formalities required by common law”. The applicant had her probation terminated in accordance with the SS Act; s10(1)(g), s44 (3)(d) and Regulation 36(a), the termination was clearly not unlawful. [154] Mr Arditto further argued that the time afforded the review body to investigate Mr Sproule’s recommendations was unreasonably compressed and rushed. [155] The applicant was made fully aware of her performance issues on 28 March 2008. They were again brought to her attention on 31 March 2008 and on 1 April 2008 she was given the opportunity to respond. [156] On 7 April 2008 she was asked by Mr Jones to respond to Mr Sproule’s assessment by 10 April 2008. On 11 April 2008 the applicant was interviewed by the review body for three hours. [157] Further, Mr Baker asserted that between the 4th and 14 April 2008 there had been a series of meetings and other communications, this was not challenged. On 14 April 2008 the applicant was notified of her termination. [158] A full two weeks had elapsed from the applicant being formally made aware of Mr Sproule’s assessment of her performance to the conclusion of the review panel’s work. The performance issues originally cited by Mr Sproule remained the basis of discussion throughout the final review process. Evidence was educed that the performance criteria was measurable and therefore readily verifiable given that, I believe the review body had sufficient time to verify Mr Sproule’s assessment. The applicant had adequate time to challenge Mr Sproule’s evaluation. [159] Mr Arditto made much of the agency’s apparent failure to have the Minutes of the various meetings ratified by the applicant. However he did not raise any significant matter where the applicant’s interpretation of the situation and the recorded Minutes were at odds. For want of contradiction, I accept the Minutes presented as being true and accurate records of the various meetings. [160] At page 17 line 45 of transcript, Mr Arditto asserted that “… neither Mr Sproule nor any members of the review body possess a similar qualification …” to the applicant and as such were unable to make an informed and objective judgment about the standard of her performance or work output. This proposition is simply nonsense. [161] Mr Sproule had set down clear measurable goals consistent with the Statement of Duties to be achieved by the applicant. It was demonstrated that the applicant did not achieve a significant portion of them. [162] Mr Sproule and the two other named senior staff members hold very senior management positions in the public service and one can reasonably accept they are capable of evaluating the performance of staff within their spheres of influence. To extrapolate Mr Arditto’s logic would suggest that no manager anywhere could effectively evaluate the performance of those working for them unless they possessed a higher level of academic credentials. This is clearly nonsense. [163] Mr Arditto asserted, that the applicant “… had no knowledge specifically where her performance failed to meet the required standard. ” and “… we submit the agency has not provided any evidence of her under-performance …”. (Transcript p.18 L.20) This is clearly erroneous. Mr Sproule’s interview of 28 March 2008 and his subsequent letter were quite specific in detailing the applicant’s underperformance against her Statement of Duties. [164] One example of this appears at the end of page 6 and over to page 7 of Mr Sproule’s letter:
“Looking at our work program I am also conscious that limited work has been undertaken of redefining the content and style of our Research web site and that is a major disappointment given its current approach. This has of course been regularly mentioned but I see no evidence of a work plan being developed.” (Exhibit A.2)
[165] Further, Mr Jones’ letter of 7 April 2008 again specifically detailed the applicant’s failings against her statement of duties. Albeit the letter of termination did not elaborate on the details, it is my view the applicant could have been in no doubt as to the substance of the agency’s evaluation of her performance. [166] Mr Arditto asserted the applicant was denied natural justice because she was not given the opportunity to respond to ‘adverse information’ and in particular that she was not provided with a transcript of the meeting she had with the review body, nor was she given the opportunity to challenge any conclusions derived from the meeting. [167] Mr Jones, in his email of 17 April 2008 to the applicant, somewhat contradicts Mr Arditto’s assertion, he wrote:
“… you were provided with all copies of submissions made by your manager …
As a party to the review process you also provided submissions in response as well as other matters that you thought were relevant to the process.” (Exhibit A.10)
[168] Mr Jones’ email further clarified the review procedure:
“This approach assessed your standard of work and your individual output in determining if you met the acceptable standards of the role as outlined in the statement of duties …
… there is no report per se that is relevant to the decision …” (Exhibit A.10)
[169] It is evident no formal report had been generated. However the information derived from the review body’s work must have gone to the Secretary in some form or other and it can only be concluded that the review body confirmed Mr Sproule’s evaluation of the applicant’s performance. [170] As stated above, the applicant had a number of opportunities to address the adverse views of her performance. The views expressed were consistent throughout the entire process. It appears her responses to Mr Sproule, initially, then to Mr Jones and finally to the review body were not adequate enough to persuade the Secretary to appoint her to the position. [171] I do not agree that failure to provide the applicant with an opportunity to interrogate the conclusions of the review panel constitutes a denial of natural justice when she had numerous opportunities to state her case. However as a courtesy to her and a demonstration of good management practice the agency, in my view, should have explicitly acknowledged in the letter of termination, that the review panel had concurred with Mr Sproule’s assessment. [172] Mr Arditto asserted there was no reason given for the applicant’s termination. The Secretary’s letter of 14 April 2008 stated:
“… established a review body to assist in the determination of your capabilities in the role through the probation process. The approach assessed your standard of work and your individual output in determining if you met the acceptable standards of the role as outlined in the statement of duties.
Following the review I herby notify you that it is my intention … not to appoint you to the position of Head of Research …” (Attachment 8 to the application)
[173] In my view it is clear from the Secretary’s letter that the reason for the applicant’s termination was that it had been established the applicant did not meet the required standard of performance for the role, albeit the Secretary did not specifically use those words. [174] Mr Arditto asserted there was no performance management in place for the applicant. In my view the evidence shows that in the early probation interviews of 28 March 2008 and subsequent meetings, together with Mr Sproule’s letter of 28 March 2008, that there was performance management in place. Mr Sproule’s evidence indicated he had brought the applicant’s attention to various issues throughout her tenure and had provided counselling, offered examples of acceptable contribution on her part and had re-written some of her work to illustrate how it should be presented. He also sought the applicant meet with an eminent practitioner in the tourism field to gain more exposure. I reject Mr Arditto’s assertion. [175] At s.3 the Act defines “probationary employment” as:
“… unless prescribed otherwise in an Act, award or agreement, means employment of an employee for a probationary or trial period;”
[176] Also at s.3 it defines “probationary or trial period” as:
“… means a period of employment, for the purpose of determining an employee's suitability for continuing employment ...”
[177] The probationary period is, by definition and common practice, a period of time where the employer evaluates the probationer’s performance and makes a decision to either offer ongoing employment or not. [178] Mr Arditto argued that the applicant’s appointment was a permanent appointment and as such she had an expectation of ongoing employment. From the applicant’s letter of appointment, as well as the accepted nature of probation, the applicant’s ongoing employment was dependent upon successfully completing the probation period regardless of her expectations. [179] Mr Arditto put the proposition that either: the probation period be extended to allow the applicant time to address deficiencies; or, that she be appointed in the role as Head of Research and mentored until she achieved the desired level of competence. [180] The State Service Commissioner’s Direction No.1, at 10.1 states:
“… the period of probation for permanent employees will be at the Head of Agency’s discretion but is not to exceed 6 months from the date of appointment.”
[181] And further at 10.2 it indicates exceptions to the six months, however the applicant’s position is not one catered for in this exception. There is no opportunity to extend probation in this matter. [182] The agency had two routes open to it, either appoint the person or terminate the probation. However it is my view that the agency does not have the discretion to appoint a person to a permanent position whom they are aware does not demonstrate the required level of competence during probation. [183] The SS Act at s.37(5) prescribes:
“A person is not to be appointed as an employee or a permanent employee is not to be promoted unless he or she possesses such qualifications and meets such other requirements as are determined by the Commissioner as being required for the duties to which the appointment or promotion relates.”
[184] Clearly ‘other requirements’ in the instant matter is the successful completion of the probation period. [185] Both parties cited the authority T12569 of 2006 as supporting their position. In my view the two matters are sufficiently dissimilar to the extent that the procedures adopted by the agency in the cited authority may not necessarily be applicable in the instant matter. [186] I agree with Mr Arditto that the applicant in the instant matter was not afforded the lengthy mentoring process enjoyed by the applicant in the authority to which he referred. I also agree that the applicant was not fully aware of her performance short comings until very late into her probation, unlike the applicant in T12369 of 2006. [187] In T12569 of 2006 the applicant was at the outset of his career and although not quite ‘entry level’ was inexperienced. He had to be instructed in the very basics of his role. [188] In the instant matter the applicant, by her own assertion, was well qualified, had functioned at levels similar and higher in both the public and private systems. [189] Further, in T12569 of 2006 the applicant’s lack of proficiency was apparent almost immediately from his engagement. By dint of the reporting cycles in the agency the applicant’s performance, in the instant matter, could only be comprehensively assessed towards the end of her probation. In both matters, the employees’ letters of appointment stipulated that probation had to be successfully completed before the substantive position would be offered them. In both matters the applicant’s were given the opportunity to argue against the evaluation of their manager. However in T12569 of 2006 the applicant’s input was throughout the duration of the probation while in the instant matter the applicant was afforded a more condensed timeframe.
CONCLUSION [190] At s.30(3) of the Act it charges the employer with proving that it has a valid reason to terminate an employee’s employment. In this matter the agency deemed the applicant’s work performance failed to meet the requirements of her role during the probation period. The outcome was that the applicant did not successfully complete her probation and as a consequence her employment was terminated.
[191] At s.44(3) of the SS Act it states:
“The following are the only grounds for termination:
[192] The State Service Regulations 2001, Part 7 - Termination, s.36 states:
“The following grounds are prescribed for the purposes of section 44(3)(d) of the Act:
(a) termination of probationary appointment;”
[193] There is certainly a legislated framework by which probationary appointments may be terminated. The agency has proven a valid reason for terminating the applicant’s employment, and I so find. [194] At s.30(6) of the Act an applicant is charged with proving termination was unfair. I am satisfied that the reason for the applicant’s termination was for her failure to attain the require standard of performance during her probation period. I found no evidence that the agency was prompted to terminate the applicant’s employment as a result of her accusations against Mr Sproule. [195] Further although the probation review process appeared rushed, in my view the agency afforded the applicant due process. [196] Once the agency determined the applicant did not attain the proficiency required of the role, it is my view that it had no option but to terminate her employment to comply with the SS Act at s.37(5). The applicant was not unfairly dismissed, and I so find. [197] The application is dismissed, and I so Order.
James P McAlpine
Appearances:
Date and Place of Hearing:
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