QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: Khan v Workers' Compensation Regulator [2020] QIRC 095

PARTIES: Khan, Colleen Kay(Appellant)

v

Workers' Compensation Regulator(Respondent)

CASE NO: WC/2017/116

PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON: 24 June 2020

HEARING DATES:

WRITTEN SUBMISSIONS:

26, 27, 28 and 29 August 201911, 12, 13, 14 and 15 November 201924 February 2020

20 April 2020 (Appellant)22 May 2020 (Respondent)5 June 2020 (Appellant in Reply)

MEMBER:

HEARD AT:

Thompson IC

Townsville

ORDERS: 1. The appeal is dismissed.

2. The decision of the respondent of 6 June 2017 is confirmed.

3. The appellant is to pay the respondent's costs of and incidental to the appeal.

CATCHWORDS: WORKERS' COMPENSATION - APPEAL

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AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - where appellant bears onus of proof - where standard of proof on balance of probabilities - whether appellant sustained a psychological injury in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 - whether employment is the major significant contributing factor to the injury - whether reasonable management action taken in a reasonable way - whether implementation of the performance management plan was reasonable management action - whether the performance management plan was managed in a reasonable way.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 548A, s 549, s 550

Eric Martin Rossmuller AND Q-COMP - (C/2009/36) - Decision <http://www.qirc.qld.gov.au>MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101Allwood v Workers' Compensation Regulator [2017] QIRC 88Read v Workers' Compensation Regulator [2017] QIRC 072Watson v Foxman (1995) 49 NSWLR 315Cowen v Bunnings Group Ltd [2014] QSC 301Gilmour v Workers' Compensation Regulator [2019] QIRC 022Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305Ramsay v Watson [1961] 108 CLR 642Q-COMP v Hohn (2008) 187 QGIG 139Tabet v Gett [2010] HCA 12Delaney v Q-COMP [2005] QIC 11; 178 QGIG 197Qantas Airways Limited AND Q-Comp [2006] 181 QGIG, No 9

APPEARANCES: Mr J. Greggery, QC and Mr R. Armstrong, Counsel instructed by Ms T. Cox, Organic Legal for the Appellant.

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Mr C. Clark, Counsel, directly instructed by Mr M. Cutting, the Workers' Compensation Regulator, the Respondent.

Reasons for Decision

[1] A notice of appeal was lodged with the Industrial Registry on 29 June 2017 by Colleen Kay Khan (the appellant/Khan) pursuant to s 550(4) of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act) against a decision of the Workers' Compensation Regulator (the respondent/Regulator) dated 6 June 2017.

[2] The decision of the respondent was to confirm the decision of WorkCover Queensland to reject the appellant's application for compensation in accordance with s 32 of the WCR Act.

Relevant Legislation

[3] The legislation pertinent to this appeal is as follows:

32 Meaning of injury

(1) An injury is personal injury arising out of, or in the course of, employment if -(a) for an injury other than a psychiatric or psychological disorder - the

employment is a significant contributing factor to the injury; or(b) for a psychiatric or psychological disorder - the employment is the major

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 Regulator or an insurer in connection with the worker's

application for compensation.

Examples of actions that may be reasonable management actions taken in a reasonable way -

• action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker

• a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.

Nature of Appeal

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[4] The appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the appellant.1

Standard of Proof

[5] The standard of proof upon which appeals of this nature must be determined is that of "on the balance of probabilities".2

Evidence

[6] In the course of the proceedings, evidence was provided by seven witnesses.

[7] The Commission, in deciding to précis the evidence of the witnesses and submissions notes that all the material has, for the purposes of this decision, been considered in its entirety.

Witnesses

[8] The witnesses for the appellant were:

Colleen Kay Khan; and Dr Michael Likely, Psychiatrist (Dr Likely).

[9] The witnesses for the respondent were:

Melissa O'Brien (O'Brien); Allison Perry (Perry); Aubrey Murakami (Murakami); Chris Pittard (Pittard); and Kasey Tauti (Tauti).

Appellant

Khan

[10] Khan first commenced employment with the Oral Health Services, Townsville Hospital in 1991. She gave evidence of her previous employment history that included:

school dental service; dental nurse, Palm Island; women's fashion - manufacturing and retail; and

1 Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.gov.au>, [2].2 MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101.

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Telstra.

Khan returned to the Townsville Hospital in 1993 as a casual dental assistant and remained there employed in various capacities. The re-engagement saw her located at North Ward with a relocation to new premises in Douglas occurring in 2000.

[11] Khan's initial role was that of a dental assistant but she later acted in the role of senior dental assistant which included a 12 months' secondment to Mt Isa as the regional district senior dental assistant. After acting in the role of a Team Leader in 2007 she was appointed to the position permanently in 2010 as "administration team leader (ATL) for Oral Health Services".3 Since the appointment the area of work significantly expanded with coverage now including prisons and nursing homes.

[12] The role included the co-ordination of staff as well as recruitment and selection of staff which required her direct participation in the recruitment process for administrative positions in her team with the final approval being made by the service group. In May 2014 there was a change of manager when O'Brien took over that role and she remained in the position permanently except for two periods of maternity leave.

[13] The administrative staff under Khan comprised booking officers, billing officers and records staff who serviced Kirwan and North Ward dental facilities with eight and five dental chairs respectively. Kirwan was the central hub with two staff on reception taking enquiries from the hospital system, external and internal clients, patients and call centre staff. Khan's responsibilities also encompassed undertaking administrative functions for dental work done throughout the district which included generating rosters for the clinicians, organising and completing all paperwork, records and consent forms as well as filling any cancellations.

[14] Khan described the nature of work undertaken on a daily basis on the front desk at the Kirwan facility being at times "just mayhem".4 On the issue of telephone calls there were often over 100 phone calls per day and at one point in 2014 there were over 250 calls in a day. Appointments were required to be managed and in particular when someone didn't turn up they needed to try and fill that spot. The failure to attend rate had been an issue because it would leave a dentist and dental assistant without work for that period.5

[15] Khan gave evidence about experiencing difficulties managing staff at times, of staff shortages and of engaging with O'Brien regarding the recruitment of more staff. In August 2013 there was dialogue with O'Brien in which Khan informed her of concerns regarding her workload in the following terms:

3 TR2-20, L25.4 TR2-31, L19.5 TR2-32, LL15-18.

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Thank you for showing concern re: my wellbeing. I have on many occasions expressed to you my concerns re: work priorities etc., and I have also advised my work priorities would not be a concern should I be able to work in my own role. A huge percentage of my last 8 months has been covering reception whilst still trying to complete my own duties. The main priority which was continually advised by my previous Manager was manning reception. I have not had the manpower to do this without backfilling myself. I am aware of the EAP program, thank you and will certainly be following this up should the current trend continue. I also have medical conditions which are being maintained. An example of how frustrating it is to be able to fulfil my requirements to even my expectations is I have now spent 1 hour of the 2 hours I have had available today writing this email … to be followed by a meeting with yourself.6

[16] On 5 November 2013 Khan attended a Performance Appraisal and Development Plan (PAD) meeting with O'Brien at which she recalled feeling that she was belittled and intimidated by O'Brien.7 In an email (dated 5 November 2013) O'Brien informed Pittard that:

Colleen's PAD declined fairly quickly. The outcome of the PAD was that Colleen became verbally aggressive and that Colleen alleged that I belittle and intimidate her. As a result the PAD was terminated by me and Col when home sick.

Could you please have a look over before I send and make any comments? I am unsure about who Col should escalate and (sic) bullying and harassment concerns to. Advice would be appreciated.8

[17] In providing Khan with an overview of the PAD meeting on 5 November 2013, O'Brien also made the following comments:

During this meeting there were some issues raised by you which included:

Dramatic increase in workloads for yourself and the Booking Officer team; Lack of support and refusal of backfill; Withholding of information from yourself and your team particularly relating to waitlists.

I am concerned about the issues which you have reported and the impact they are having on service delivery. As noted in this meeting, I agreed that there are some issues that are occurring regarding bookings and waitlist management and I would like to formally review these issues so that we can work towards achieving improved outcomes. I am also concerned that there is a significant difference in perception between your understanding of the role and what Sarah and I believe is required from the Administration Team Leader role.

As a result I would like you to complete the attached priority list and return it to me by the end of this week. I will schedule another meeting to complete you (sic) PAD and as suggested, you might like to bring a support person.

In addition I would like to provide an opportunity for the administration team to provide input into the workload issues which you have outlined. I will send out a workload review tool in the very near future for completion by all members of your team and we will likely need to undertake a meeting to discuss any identified issues, causes and resolutions.

6 Exhibit 4.7 Exhibit 5.8 Ibid

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During this meeting there were also some serious allegations made by you in relation to my behaviour towards you and that you felt intimated (sic) and belittled on an ongoing basis by my management style. I am completely unaware of any occasion where I have demonstrated behaviour that could be identified as intimidating or belittling towards you. As noted at the time of our discussion, I would recommend that if you have legitimate concerns of this nature, that you escalate these by documenting these concerns and submitting these to ?? for review.

I have noted that the PAD was terminated by me at approximately 12.00 pm as a result of the allegations that you had made and the aggressive communication style and behaviour that you were demonstrating towards me and particularly at the end of the meeting.9

[18] Khan gave evidence that for some time there had been ongoing discussions with O'Brien about workload which were reflected in email exchanges between the two in November 2013. The effect of having insufficient staffing numbers in the reception posed a significant barrier to her completing the Team Leader role. The staff shortages continued up to and including when she left work in June 2016.

[19] A number of meetings were held in December 2013 and January 2014 to deal with roster and back filling arrangements for the receptions at both North Ward and Kirwan health campuses. A meeting held on 6 February 2014 generated a file note by O'Brien that recorded:

Operational issues had been identified by both myself and Colleen Khan which indicated that there were some unaddressed factors which were impacting on the ability for Colleen Khan to undertake core responsibilities of the Administration Team Leader role likely due to the amount of time that she was rostered on reception.

Several attempts to address the issues internally were not successful and the involvement of Allison Perry and Chris Pittard occurred in an attempt to move forward with resolution of issues.10

[20] Khan met with O'Brien on 1 April 2014, which was a vehicle for identifying "some of the technical administration functions"11 that were impacting on the scope of her role as Team Leader. In correspondence (dated 2 April 2014) O'Brien advised Khan that:

We determined that your role has been impacted by the movement or increase in amount of several activities which is interfering with your capacity to undertake the Administration Team Leader accountabilities. The impacts and agreed solutions are outlined below. We will use these over the coming weeks and months to monitor progress (and should free you up …).12

[21] On 3 April 2014 Khan emailed O'Brien stating:

9 Exhibit 5.10 Exhibit 14.11 Exhibit 21.12 Ibid.

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Thank you … I am appreciative of your support with these issues and your acknowledgement of the impact on my role.13

[22] Prior to commencing 12 months' maternity leave in June 2014, O'Brien sent an email to Khan regarding the Team Leader role which informed:

Please see attached the document which we populated to assist in clarifying the roles and accountabilities for the Administration Team Leader position. It was a pleasure working with you to develop this document.

As discussed in our final catch up I am handing this over to Chris and yourself to undertake the final sign off. As Chris has insight into your role I have also suggested that she undertake your PAD as soon as practical when you return to work. The PAD will assist in consolidating the planning and actions we have undertaken over the past 6 months to address some of the rostering and workload issues that have been experienced. It will also assist in further developing goals and future outcomes for your role and the role of your team.14

[23] On 2 February 2015 Khan forwarded an email to Karen Pardon (Pardon) who had acted as Team Leader in Khan's absence over the Christmas break in which she made the following comments:

I am really sorry things were so tough initially, however I did flag a lot of these issues at management meetings leading up to Christmas, and when I was told to take leave.

I am not sure if management truly know what is undertaken in my role and how hands on it really is, it is just so constant, and I am pleased to receive your input. Have you sent it on?15

[24] Khan gave evidence that in the period of the mid-year in 2015 there were numerous issues where backfilling was required, resulting in Khan having to undertake those backfilling arrangements and despite the disruption that occurred in this time, O'Brien sent an email to Khan on 7 September 2015 acknowledging the efforts of the administration team:

I think it is fantastic to acknowledge that the FTA rate has dropped. I am confident that this is directly attributed to the admin team efforts to confirm patients and this is very much a positive.

I think it is also important to acknowledge the success against the original KPI as well. It is important for staff to know that they will need to maintain current confirmation efforts and continue to strive towards the 80% confirmation as well. If 80% confirmation is consistently not being met then clear management and direction from yourself will be necessary until the behaviour is embedded within the team. You may then be able to ease back into weekly or fortnightly monitoring.16

[25] On 10 September 2015 Khan sent an email to O'Brien at 8.48 am in which she advised that:

13 Ibid.14 Exhibit 25.15 Exhibit 26.16 Exhibit 49.

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she was currently working on reception to cover for another staff member; there were backlogs of work; and there wasn't enough staff to cover reception the next day.17

[26] At 9.00 am the same day, O'Brien responded in an email:

Happy to discuss. When we do can you please advise your current arrangements and what additional support that you require.18

[27] On 14 September 2015 O'Brien informed Khan of requests she was making in regard to the recruitment plan. She was confident that the positions would be approved in three days' time so that Khan could ". . . work to these dates when undertaking your planning for staffing".19 This prompted a response from Khan in an email forwarded to O'Brien some 32 minutes later:

My main concerns with employing new staff to reception is the amount of training required and the impact on my own role and TL priorities. The internal Oral health processes and unique data system make it extremely difficult to become proficient and autonomous in this role quickly, and ongoing support is required.

I am also extremely upset at losing Fiona after investing so much time and training into her skill base. She has been an asset to my team.

Should a thoughtful and successful recruitment process provide suitable candidates I am sure I can provide enough support to uphold reception functions.20

[28] A meeting of the administration team was held on 9 September 2015 following which O'Brien generated a File Note (dated 18 September 2015) and referenced her disappointment to "workload review" not being on the agenda, given that it was a priority of Khan's role. At the end of the meeting she noted that Khan had burst into tears. She further recorded that:

The next day I asked how she was after the meeting. She said she was well but felt that the meeting was mostly about 'shifting blame' and the (sic) she 'knows where this is going' and that she would 'ride it out'. It was further raised by Colleen that she felt that the reception desk had unfair workloads, did not receive assistance from other administration staff and it was unfair that other administration staff could take breaks as they wished. I noted that addressing these areas were all within the scope of her role and before any further resources are shifted to provide further support to reception that she would need to undertake an administrative review as originally requested.

I suggested that we should put a plan in place and she was agreeable to organising a performance appraisal so that a plan could be implemented to address the issues of the administration team.21

17 Exhibit 54.18 Exhibit 54.19 Exhibit 55.20 Ibid.21 Exhibit 58.

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[29] In the month of September 2015 Khan was experiencing some difficulties with a subordinate employee, Fiona Schmidt (Schmidt) who had become difficult to manage, prompting Khan to generate an email to O'Brien on 29 September 2015 at 12.35 pm which stated:

Between you and me.Fiona is extremely hard to manage at the moment. I am in for a hell of a couple of weeks … and then new staff.She is so critical, negative, upsetting Kym and Bernie etc.I am not sure if she will continue to her end date even.Anyway.Just venting.22

Later that day at approximately 3.30 pm Khan held (at the suggestion of O'Brien) an impromptu meeting with Schmidt where the following outcome was recorded by Khan in a file note:

I believe Fiona to be a valuable and skilled member of the Oral Health admin team.Movement form to be submitted for contract extension to 25 January 2016.Fiona was advised of Open door policy for future discussions with Team Leader, and confirmation of ongoing mentoring and support.23

[30] Subsequently, the employment of Schmidt was terminated on or around 9 October 2015 in circumstances where O'Brien would not endorse a follow-up contract.

[31] At 7.58 am on 30 September 2015, Khan emailed O'Brien about the need to obtain backfill for reception coverage that day due to staff being off sick. O'Brien replied at 8.04 am stating:

Can you please consider your urgent priorities and those of yourself and your team and determine your preferred backfill based on workloads, deadlines etc.? If you cannot meet the requirements within your team or you have urgent workload that is required and are requesting additional resources let me know what you are requesting to support coverage.24

[32] On 9 October 2015 O'Brien sent an email to Khan requesting the provision of information by close of business on 14 October 2015 that related to "Urgent Attention: Administration Outcomes" and that the information "should be concise and provide a summary of events". Khan responded to the email on 12 October 2015 in the following terms:

I am required to backfill reception at present and don't feel I will be able to submit a comprehensive response within the timeframe requested. These issues have been ongoing for a long time and I would like to ensure all relevant information is provided.

I should be able to have this completed by Friday this week.

22 Exhibit 62.23 Exbibit 63.24 Exhibit 64.

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Is that ok?25

[33] O'Brien informed Khan on 13 October 2015 that an appointment would be made shortly for the purposes of discussing topics that included:

My decision to not support the recent request to extend Ms Schmidt; Administration staffing, recruitment and workload management; Performance issues raised recently yourself and staff within the administration team; Confidentially (sic) relating to staff recruitment and line management functions; and Feedback on communication including issue escalation.26

[34] Khan provided the following response later that day:

I will endeavour to be prepared for Thursday's meeting. Unfortunately I will be rostered on the desk again tomorrow which means I have barely had 1 day to prepare months and months of meeting notes, times, dates etc. for one of the topics you wish to discuss. I also have topics to discuss with you and would like to have suitable preparation for those and the other topics you have raised. I would also like to take you up on your offer of discussion notes re …

I would appreciate some time with you today to discuss reception coverage to allow for some time for meeting preparation and other priority tasks please.27

[35] The meeting between O'Brien and Khan was held on 15 October 2015 with meeting notes recording that discussion occurred about:

recruitment paperwork - Schmidt - reasons considered regarding proposed extension of her employment;

administration staffing and workload issues; performance issues - booking officer; recruitment and line management; issue escalation; and communication feedback - reports and informal feedback relating to Khan's

communication style.28

[36] On 27 October 2015 Khan completed a workplace incident report as a result of having attended the North Ward Campus on a Saturday to retrieve a recruitment package where she stepped in a hole that she "couldn't see" and broke her ankle. The incident occurred after she had made an unsuccessful attempt to enter a building on campus. A claim for workers' compensation was not accepted which meant that Khan had to apply for sick leave and then recreation leave for the time she was absent from the workplace. The absence was for just over six and a-half weeks in duration. Khan was placed on a suitable duties program upon her return to work which was scheduled to run from 14 December 2015 to 14 January 2016.

25 Exhibit 72.26 Exhibit 73.27 Ibid.28 Exhibit 75.

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[37] An email was forwarded to Khan on 11 December 2015 from O'Brien advising of a PAD meeting to be held on 13 January 2016 which contained the following advice:

I have also attached the Team Leader Success Profile that we had a quick look at during our discussion. As requested I would really like you to have a look at the different indicators across vision, results and accountability and highlight your strengths and areas where you feel you would benefit from additional development and support. This will form the foundation of your PAD plan.

Please also continue to have a think about what supports and training that you feel would benefit you in your role so we can also incorporate these into you (sic) development plan.

I have spoken briefly with Jean Rogers about looking at creating a link for you with the other Team Leaders in H&WBSG to grow your peer support networks and also provide some additional professional support. If you would like to touch base with Jean before your PAD I am confident that she would be able to have an appointment with you.29

[38] An administration meeting was held around January 2016 at which handwritten notes taken by O'Brien recorded:

CK 'flagged' concerns over admin resourcing; full capacity; less admin than 5 years ago; been asking for increased admin for years; MOB asked for clarification of what 'flagging' means; CK asked what do you do about it - MOB referred to Jean Rogers for further support.30

[39] On 14 January 2016 Khan attended a PAD with O'Brien where Khan interpreted a reference by O'Brien to a "performance management plan" to be that her "work was being managed, that I wasn't performing up to their - up to her expectations".31 O'Brien, according to the meeting notes, had "noted it did not but a management plan within the PAD".32

[40] In January 2016 the limited staffing in the administration area was impacting on Khan's performance of her functions having to constantly backfill and mentor staff. The front reception staff at that time were basically copping a lot of aggressive patients which required Khan as the Team Leader to de-escalate the situation. This caused Khan to become distressed with the "pressure parts of the role were ten times - tenfold harder, because we were all so under the pump all the time".33 It was said to be "upsetting, it was soul destroying".34 A recruitment exercise at that time for an EO1 Booking Officer was unsuccessful which placed more work on the staff causing further stress for Khan.

29 Exhibit 83.30 Exhibit 84.31 TR3-50, LL43-44.32 Exhibit 87.33 TR3-52, LL37-38.34 TR3-52, L46.

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[41] An administration team discussion held on 11 February 2016 was attended by O'Brien and Khan with the purpose of the meeting to provide Khan an opportunity to:

seek advice relating to administration matters; and enable opportunity for Khan to receive feedback relevant to her role and the outcomes of

the administration team.35

O'Brien in the course of the meeting raised with Khan a "potential incident" that may have occurred on 9 February 2016. The meeting notes recorded that:

Khan became very emotional and broke down in tears; language was perceived by O'Brien as aggressive, particularly towards other staff within

the administration team; Khan was upset that she was working hard without staff; Khan informed O'Brien at 3.15 pm she was going home sick however she re-entered the

office at approximately 3.20 pm and informed O'Brien she had rang another staff member about the incident then left the office at 3.24 pm; and

ultimately, Khan chose not to take sick leave.36

[42] Khan recalled being upset in the meeting of 9 February 2016 and of contacting the other staff member involved in the incident and then informing O'Brien that the incident had been resolved. The meeting notes also recorded that Khan:

noted dissatisfaction that training had been allocated to her without support; expressed dissatisfaction about being required to perform functions that should have been

carried out by the Principal Dental Officer; and noted workloads were extremely busy and the team was short staffed.37

[43] Khan forwarded an email to O'Brien on 19 February 2016 which stated:

I have just attended my doctor to assess the increased pain and aggravation to my ankle injury due to the constant demands of the reception functions. An x-ray taken two weeks ago confirmed healing was ongoing. I can no longer continue carrying out backfilling reception for long periods and during high impact periods.. . .I am always fully committed to Oral Health's Business needs, however, I need to firstly consider my physical health. My mental wellbeing is being affected, and my stress levels are also at an increased level due to the impact carrying out two roles has on my Team Leader role's functions and requirements.38

In evidence, Khan confirmed the two roles referred to in the email were that of Booking Officer and ATL.39

35 Exhibit 97.36 Exhibit 97.37 Ibid.38 Exhibit 99.39 TR3-68, LL28-29.

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[44] O'Brien responded later on 19 February 2016 to Khan's email which informed:

Thank you for raising your concerns with me about you (sic) pain levels. I agree that if you are experiencing pain then options will need to be considered in relation to appropriate coverage of reception and also the priorities of roles within the administration team that do not provide direct patient support.

My recommendation is to consider your rosters over the next four weeks, taking into consideration booked leave, organisational priorities within your team and the possibility of emergent leave and identify any gaps that might cause some issues with coverage on reception. The expected outcome will be to ensure coverage is achieved and also minimise rostered or emergent coverage for you.

Firstly consider coverage within your delegation to see what strategies can be considered. You might like to consider RDO swaps, additional shifts for part-time staff, renegotiating booked leave and other non-frontline positions in the team.

If you find there are still gaps I would recommend you consider liaising with other seniors regarding any support that might be available for the days of concern. It might also be worth getting in contact with Jean or Leila (not sure who is in the role at this moment) to see if there is any possibility of support.40

[45] On 23 February 2016 an envelope was placed on Khan's desk whilst she was absent which contained a Performance Management Plan (PMP). The plan commenced with reference to ongoing discussions regarding concerns about Khan's performance during the period from 15 October 2015 to 23 February 2016. Several informal discussions were said to have occurred as follows:

15 October 2015 - Performance Discussion; 14 January 2016 - PA&D Discussion; 4 February 2016 - PA&D Formalised and Signed; and 11 February 2016 - Scheduled Support Meeting.41

Khan gave evidence that meetings were not performance appraisals and development discussions, but had been scheduled as monthly meetings.

[46] Upon opening the PMP letter she was devastated and confused because she had previously received "some quite good feedback from her in the last six or eight months".42 She understood the consequences of the implementation and the failure to comply with the plan which could have included the termination of the employment. Khan thought she was in a "lot of trouble"43 and decided to contact the union.

40 Exhibit 100.41 Exhibit 101.42 TR3-74, L19.43 TR3-76, L45.

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[47] A meeting was scheduled on 25 February 2016 for the purpose of concerns O'Brien had about the standard of performance not improving after previous ongoing discussions. The correspondence stated:

To provide further ongoing support to you, a Performance Management Plan (PMP) is to be implemented. I wish to meet with you to discuss and develop this plan with you.44

[48] On 25 February 2016 at 10.55 am Khan forwarded an email to O'Brien in which she referred to a verbal complaint made against Kathren Stanley (Stanley), a fellow employee on 18 February 2016. The purpose of the email was to seek feedback. Later that day at 12.45 pm O'Brien responded to Khan suggesting she had no recall that the matter had been escalated to her as a complaint and thought the discussion "was more informal".45 O'Brien apologised if Khan had a different perception. O'Brien offered the following advice to Khan:

My first piece of advice for any situation involving staff is to encourage involved parties to resolve the situation at the most local and informal level. In this situation I would encourage you to speak with the staff member involved (Kath) to see if a resolution can be achieved between the two of you.46

Khan was dismayed with the response provided by O'Brien.

[49] A copy of the PMP was provided by O'Brien on 14 March 2016 accompanied by an email that included the following:

Please see attached the final Performance Management Plan. I have incorporated the areas of support requested in today's meeting in relation to meeting support and issue escalation.

I have considered the feedback relating to the timeframes of the period outlined in the plan which have included the timeframe that you were on emergent leave. The decision has been to proceed with the document as it has been outlined. This is because the expectations relating to communication had been clearly outlined during the informal meeting on 15th October 2015 and formally in your PAD. The decision to consider and then proceed with the Performance Management Plan related to a communication incident which occurred on 11th February 2016. This incident highlighted the need to consider formal support and was the foundation of the decision to proceed with the plan.47

[50] A PMP was agreed by O'Brien and Khan on 16 March 2016. The plan identified the review period being from 14 March 2016 to 3 June 2016 with meetings to occur on a weekly basis. The aim and the process of the plan were also identified which included three possible outcomes of the process being:

1. The PMP objectives are met within the review period and the performance management process is finalised. Employees are expected to maintain the required performance level.

44 Exhibit 101.45 Exhibit 103.46 Ibid.47 Exhibit 109.

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If this does not occur, the PMP may be reinstated or the matter referred to the Health Service Chief Executive for consideration of discipline action.

2. The PMP is extended for a further period to ensure performance is managed and maintained over a greater period of time.

3. The objectives are not met and the matter is referred to the Health Service Chief Executive (through the reviewing officer and Human Resources) for consideration of possible discipline action.48

[51] In a section titled "Employee Comments" on the plan, Khan wrote the following:

I have read and understood this document. However, I have concerns with the process.49

The concerns held by Khan regarding the process included:

she may not be able to achieve the requirements of the plan; the length of the plan; the impact the plan would have on her role as Team Leader; having to undertake the plan in her own time as she would not have enough time at work;

and there wasn't confidentiality.50

[52] A PMP review meeting outcome was documented and signed off by O'Brien and Khan on 1 April 2016. Under the title "Employee Comments" Khan recorded:

I have read and understood however I do not agree.51

O'Brien also added the following handwritten notation:

Colleen declined to elaborate on her concerns relating to this process.52

[53] A second document was signed by Khan and O'Brien on 1 April 2016. Khan recorded identical comments in the Employee Comments section but there were changes to the comments of O'Brien that now read:

Colleen was offered an opportunity to discuss her further concerns and it was declined.53

[54] A further document relating to the PMP review also signed by O'Brien and Khan on 1 April 2016, recorded O'Brien's comments that were again different, as follows:

I provided Colleen with an opportunity to elaborate on what aspects she did not agree with and Colleen declined.54

48 Exhibit 110.49 Exhibit 110.50 TR3-12, LL7-15.51 Exhibit 117.52 Ibid.53 Exhibit 118.54 Exhibit 120.

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[55] On 22 March 2016 O'Brien sent an email to Khan which identified a "training course that I thought might support you to continue to build skills required for some of the more complex human resource management and communication issues".55 O'Brien identified dates available in Cairns during April 2016 for the "Leading with Emotional Intelligence" course.56

[56] O'Brien forwarded another email to Khan on 22 March 2016 which identified additional information about assisting Khan with her Team Leader role:

This expands a little on the document I provided during your PAD and provides a bit more information that might offer some assistance in clarifying some of the leadership and communication issues we have been discussing. I think this format is good as it states the attributes of the level, and also describes quite well what those statements mean in the normal operational work environment. I am keen for you to understand that there are a number of attributes associated with achieving success in the team leader role that we can work on to improve, and I am doing this based on a framework, and not to make your life difficult.

Have a read of the document and maybe use it as a self-reflection tool for you to think about how you can use and adopt this framework throughout the improvement plan. We can discuss the (sic) your thoughts on how to integrate this into your management practice during your next review meeting, as I think this will be a useful tool to assist us in moving forward.57

[57] Khan recalled an exchange with O'Brien that was recorded in handwritten notes signed on 1 April 2016:

Colleen said that she felt she could prepare everything in the world and it wouldn't matter. This process was about managing her out of a job. I assured her that that was not the goal of the process.58

[58] It was further recorded by O'Brien in the same document that Khan said:

She said that she was upset about the whole process and that she had told me that. That she felt it was completely detrimental to her and she would never recover. I reminded her of EAP.59

[59] Having attended meetings associated with the performance management on 16, 22 and 29 March 2016 and the signing of the file note on 1 April 2016, Khan felt she was meeting the action plan yet there was nothing removed from the plan.

[60] On 5 April 2016 Khan generated a Grievance pursuant to the Queensland Health Grievance Policy E12 against the decision to initiate a performance management process with her that was said to "adversely" affect her, causing her a detriment. The correspondence identified a range of concerns that included:

55 Ibid.56 Ibid.57 Exhibit 120.58 Exhibit 121.59 Ibid.

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the timeframe used to inform and initiate the process; the inclusion of a period of time from 23 October 2015 to 14 December 2015 when she

was on emergent leave; the failure to provide training and support requirements to her pursuant to s 2, Queensland

Health Policy - Performance Improvement; and conduct of the performance management review meetings:

sole onus placed on Khan to provide explanations around meeting the performance criteria;

issues with meeting notes provided by O'Brien; and lack of opportunity to provide comments on the review minutes.60

[61] Khan sought to have the following implemented:

I request that this process be continued to be managed through the Performance Appraisal and Development Plan (PAD) processes and that I be provided with adequate and appropriate training and associated resources provided to me pursuant to section 2 of the Queensland Health Policy - Performance Improvement G11 (QH-POL-190) in order to support me to improve in regard to these issues that have been raised with regard to my performance.61

[62] Khan tendered numerous documentation which were accepted as having been taken by her to the PMP meetings and presented to O'Brien in those meetings. The material referenced issues including:

Escalation Framework; Management and Leadership; Incident at Kirwan reception; Mandatory training; Rosters; Emotional Intelligence training; Queensland Public Sector Capability and Leadership Framework; and Organisational Capability and Learning Course.62

[63] PMP Review notes for a meeting held on 5 April 2016 were tendered in the proceedings which included handwriting on the notes, stated in evidence by Khan to have been written by her in the meeting.

[64] A response to Khan's grievance in respect of the decision to initiate a Performance Improvement Plan (PIP) was generated by the Service Group Director, Health and Wellbeing (dated 26 April 2016) and dealt with the concerns raised by Khan in her decision on the grievance:

From the information you have provided, I am confident the above aspects and expectations have been appropriately met as part of the informal and PAD process, and the subsequent implementation of the PIP process.

60 Exhibit 122.61 Exhibit 122.62 Exhibit 123.

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As I have stated earlier, you had been provided with an opportunity to participate and note your concerns regarding your recent absence in the draft PIP plan (sic); and if that has not been done already, then you may add that comment as an addendum. I also note that your participation and ability to raise concerns and suggestions to assist your successful completion in meeting the objectives of the PIP is ongoing as part of your regular review meetings as per the guidelines of HR Policy G11. If you believe that you need a change of seating arrangement to successfully complete the requirements, then you have the opportunity to clearly articulate how that will positively benefit yourself and the team, and bring it forward for consideration in your review meeting.

I am therefore satisfied the current formal PIP process is appropriate to continue and I now consider this grievance closed.63

[65] On 13 May 2016 Khan attended a meeting with other participants including Tauti (Manager, Oral Health). The file notes of this meeting were written by Tauti on 18 May 2016 and recorded the following issues raised about Khan:

communication with the team not adequate; and aggressive manner when issues were raised.64

[66] In the file notes of the 17 May 2016 meeting it was recorded by Tauti that:

'There is further work required from you in relation to the Code of Conduct. Under 1.5 Demonstrate a high standard of workplace behaviour and personal conduct. The behaviour demonstrated by you in the meeting with Kathren on Friday was not appropriate'. CK became visibly upset and asked, 'Why does that form part of my PMP?' KT advised, 'These meetings are a reflection of the past week's activities. Your responses and attitude towards Kathren in the meeting were inappropriate responses from a team leader'.65

[67] Khan recalled becoming visibly upset during an exchange with Tauti at the meeting.

[68] At a scheduled meeting on 6 June 2016 with Tauti, the file note recorded Khan being advised the following:

Given that you attended the Emotional Intelligence Course only recently and there are further items for you to work on, I would like to extend this process by 6 weeks to allow you time to meet the requirements of the plan. At this time if the requirements of the plan are not met, at that point I will have to refer the matter to the appropriate delegate for consideration.66

[69] Khan gave evidence that she was "devasted" at the proposed extension because she had "done absolutely everything in my power to commit to meeting the expectations".67

63 Exhibit 129.64 Exhibit 137.65 Exhibit 138.66 Exhibit 144.67 TR4-57, LL1-2.

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[70] Also, in the course of the meeting of 6 June 2016, issues were raised with Khan in relation to a letter of concern with the conduct of Khan in the workplace. Khan found this topic distressing and felt a "little bit ambushed".68

[71] Khan attended a meeting on 24 June 2016 with Tauti, Rowena Wichman (Wichman) and Murakami which was also the last day she attended work. At the conclusion of the meeting her understanding was that she "didn't believe I'd met the plan and that it would be forwarded to a delegate".69

[72] A claim for compensation was lodged by Khan with WorkCover (dated 8 August 2016) which identified that Khan had suffered a Post-Traumatic Stress Disorder over a period of time.70

[73] Following the meeting of 24 June 2016, Khan attended a medical appointment with a general practitioner. There was also evidence that she engaged in counselling on 18 May 2016, 21 June 2016 and 1 July 2016.

[74] Under cross-examination, it was accepted that workload issues had caused Khan stress since late 2013 and also interactions with O'Brien in the same time period attributed to her stress. Khan conceded that being placed on the PMP on 23 February 2016 and suffering an ankle injury on 24 October 2015, for which a claim for workers' compensation was rejected, had also been stressful. A review of the decision to reject the claim for workers' compensation occurred whilst the performance management was being undertaken and this added to the stress. It was not accepted by her that performance management was needed in the first place and when the plan was extended by Tauti this caused her stress. Khan experienced problems with staff members (Stanley and Thew) and acknowledged these incidents contributed to the decision by Tauti to extend the plan. Khan refused to accept that O'Brien had been raising issues with her performance as far back as 2013, although there was evidence of O'Brien raising issues with Khan in August 2013 about rostering, staff coverage and emergent leave.

[75] Khan didn't accept that at a meeting on 2 September 2015, O'Brien raised concern with some of her work duties however suggested they were just routine points discussed on a monthly basis. It was conceded that on some occasions when issues were raised with her by management she would get defensive and challenge the manager's right to raise such issues and would claim persecution. Khan was taken to an email from O'Brien to Pittard on 5 November 2013, which contained a draft email for Khan stating:

During this meeting there were also some serious allegations made by you in relation to my behaviour towards you and that you felt intimated (sic) and belittled on an ongoing basis by my

68 TR4-60, L14.69 TR4-64, LL15-16.70 Exhibit 149.

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management style. I am completely unaware of any occasion where I have demonstrated behaviour that could be identified as intimidating or belittling towards you. As noted at the time of our discussion, I would recommend that if you have legitimate concerns of this nature, that you escalate these by documenting these concerns and submitting these to ?? for review.71

Khan was able to recall making the allegations but could not recall the comments attributed to O'Brien. Khan accepted she attended a general practitioner on that day where she complained of being threatened by a manager which had been going on for some time.72

[76] Khan conceded that there had been attempts made to assist her fulfil her duties and ensure she wasn't overburdened by work for the period from November 2013 to February 2014 when O'Brien commenced a period of maternity leave. Pittard replaced O'Brien as Khan's report with the evidence being that Khan had a meaningful relationship with Pittard. Khan was taken to a report prepared by Dr Likely where she was recorded as saying on 19 June 2017 that in respect of Pittard:

. . . the two never had a meaningful working relationship for reasons which she was unclear. She told me she was not allowed access to the Medicare machine, that she felt that her acting manager was, 'Acting like she was told to watch me.'73

Khan's evidence was "I wouldn't call the whole relationship - our time together not meaningful the entire time."74

[77] Khan denied that in mid-July/August 2015 O'Brien was providing assistance in respect of rostering arrangements. Khan was taken to correspondence from O'Brien (dated 29 July 2015) which referenced an incident involving her and Stanley and in particular Khan's conduct:

Colleen immediately became aggressive & defensive stating that it was not her fault Chris Pittard had not communicated this with Melissa. The conversation started to escalate as Colleen became more aggressive towards myself. I asked her three times to settle down at this point she had raised her voice stating 'I am sick of you putting shit on me Kath'. It was at that this (sic) point I ended the conversation, saying we are done.75

[78] Khan claimed that the incident did not occur as per the extract however an email from Khan to O'Brien (dated 5 August 2015) appears to contain a draft response to Stanley that was said by Khan to be unwarranted:

Hi KathrenI wish to be entirely honest and truly cannot recall every detail of what was said during our discussion re: W H & Safety officer role at the printer last week.

71 Exhibit 5.72 TR5-23, LL46-47; TR5-24, LL1-15.73 TR5-33, LL15-20.74 TR5-33, LL44-45.75 Exhibit 165.

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What I can say is I always follow up on all responsibilities of my role and this issue is no different.It is out of character for me to use "shit", "shits" in discussion with a staff member, however there may have been a slip of the tongue.I will endeavour to continue to maintain professionalism in any future conversations we may have.Thanks Kathren.76

[79] Khan was taken to an email (dated 7 September 2015) from Gabriello Tito (Tito) to O'Brien which included the following statement "I'm finding it difficult to talk to Colleen at the moment without her jumping down my throat".77 Khan evidenced that it would have been "highly unlikely" she behaved inappropriately towards Tito.78

[80] A number of issues were raised with her about the non-renewal of Stanley's employment contract where she recalled that Stanley's attitude was in decline. During or around October 2015 there were discussions about Khan's communication style, accompanied by "some complaints" from Stanley and another person, Michelle Maxy (Maxy) who had observed something.

[81] Khan was taken to a "Communication Report" compiled by WorkCover regarding an ankle injury suffered on 24 October 2015, where it was recorded that Khan visited the worksite on the Saturday for ten minutes to upload information on a memory stick for the purpose of completing a reference for a former staff member. Khan denied telling WorkCover that was the reason for attendance but claimed she had gone there to upload applications so she could shortlist on the weekend. The claim for WorkCover was rejected, which was upsetting for her and in particular the failure of O'Brien to support the claim, but she was not stressed by the refusal. Khan applied for a review on 9 February 2016 and there was a decision issued on 19 April 2016 rejecting the review on the basis there was no work related need for her to be at work on that day.

[82] Khan was questioned about a number of visits to her general practitioner between December 2015 and February 2016 where there was nothing recorded in relation to stress symptoms being experienced at those times. Khan accepted that "on paper"79 in October 2015 O'Brien was laying down stepping-stones in relation to steps that might be taken to address issues around her performance. It was further accepted by her that as at 14 January 2016 it was possible O'Brien was looking at her performance. Also, around the same time issues were being raised by O'Brien that included:

the need for Khan to be considerate in choice and use of language; development and improvement; communication; issues of escalation and de-escalation; and

76 Ibid.77 Exhibit 51.78 Ibid; TR5-42, L22.79 TR5-63, L21.

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decision making.80

[83] Khan accepted at this time there had been particular aspects of her work identified that needed improvement.

[84] On 4 February 2016 Khan signed off on her PAD meeting which identified issues of her work performance that were being looked at, although her evidence was that a "lot of them were routine".81 On 11 February 2016 she had a further meeting with O'Brien who raised an incident that occurred with Kim Parry (Parry) on 9 February 2016. Khan denied in evidence she had spoken aggressively to Parry or threatened to end her employment. Khan did not recall saying at the meeting "those bitches".82 O'Brien spoke to Khan on 17 February 2016, which she could not recall, although she did recall discussions with O'Brien about EAP. Khan did not recall getting upset at the meeting. Another meeting occurred with O'Brien on 23 February 2016 at which Khan could not recall the meeting or references to a PMP. It was put to Khan that there were any number of issues raised about her performance on 15 October 2015, 14 January 2016, 4 and 11 February 2016 to which she replied, "I'd also received some positive feedback during that period".83 Khan acknowledged there had "been some complaints and there were discussions in my performance appraisal and development and our monthly meetings about a lot of issues. Yes."84

[85] A meeting was held on 29 February 2016 to address Khan's performance issues at which time she had a support person in the form of her union representative. Khan accepted the following proposition put to her in cross-examination:

She also said:

This meeting has been scheduled as there have been informal attempts to manage outcomes, required outcomes of the expectations had been linked formally to the PAD.

Do you agree she said that?---Yes.

Okay. And paragraph 5, she said:

The decision to escalate to a formal performance management plan relates to a scheduled communication that occurred 11th of February 2016.

Okay. She goes on to note:

The meeting was scheduled as an agreed outcome of the PAD. The meeting was to allow Colleen an opportunity to escalate the issues for consideration and support, provide an opportunity for Melissa to provide feedback on outcomes.

80 Exhibit 87; TR5-65, LL33-45; TR5-66, LL1-32.81 TR5-70, L19.82 TR5-71, L32.83 TR5-79, L43.84 TR5-80, LL2-4.

24

Okay. She goes on to note as follows:

The communication ended in high emotion, perceived aggression relating to other members of the administration team, was cut short as Colleen reported illness, that she was leaving the organisation. Conversation resumed after Colleen informed me that she'd contacted the employee directly after the conversation, which is an action that could be perceived as aggressive.

Can I stop there?---Yes.

Were those issues all discussed?---I – this is with reference to the Kim Parry incident, I believe.

Yes. That's right?---I do not believe I would've said that I was leaving the organisation.

I think she probably meant leaving the premises for the day?---Okay. Sorry. My apologies. Yes. I did contact Kim directly on the telephone.

Okay. And Ms O’Brien said:

There was concern that these actions demonstrate a gap in the ability to effectively and professionally communicate with management and staff relating to issues within the workplace particularly and this was very recently formally linked to the PAD outcomes.

---Okay. That - - -

You see that? - - - was the very first instance that I knew that Kim had been upset about that discussion that day.

I see?---That was the first I'd heard of it.

She went on to note:

The expected outcome of this meeting is to develop strategies and supports that aim to assist Colleen in achieving required outcomes for (sic) role and the required outcomes of the administration team, including booking officers, billing officers and records officers.

Do you accept that she said that?---Yes.85

[86] Khan accepted that on 1 March 2016, O'Brien informed her of concerns she had about the recent performance discussions, as a result of the complaint made by Stanley, and assure her this was not the case but related back to issues outlined in their Monday discussion.86 It was further accepted that on 28 February 2016 at a consultation with a general practitioner, Khan stated she was "[h]aving a performance review tomorrow and was quite worried about it".87 At another general practitioner visit on 27 March 2016 Khan was reported as having been crying all the time at work and "[e]verything started after her broken right ankle".88 Khan evidenced that wasn't the truth but

85 TR5-81, LL5-47; TR5-82, LL1-18.86 TR5-83, LL6-19; Exhibit 173.87 TR5-84, LL26-27.88 TR5-85, L35.

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conceded if that was in the doctor's notes then she "must've said that at the appointment".89

[87] It was acknowledged by Khan her circumstances were compounded by her right ankle injury and the fact that WorkCover rejected the claim and it was rejected on review. She felt that O'Brien would have supported the claim resulting in her feeling unsupported. At a meeting with Tauti held on 3 May 2016, Khan signed off by stating that she remained committed to meeting the expectations of the PMP.

[88] An audio recording of a meeting held on 24 June 2016 was played in the proceedings.90

[89] In re-examination, Khan was taken to an email dated 24 October 2013 where a suggestion was made that it recorded O'Brien as seeking to provide guidance in respect of administration arrangements.91 Khan's evidence was that most of the arrangements O'Brien was requesting, required clarification by her to fill positions.92

[90] Khan gave an explanation for information given to Dr Likely about Schmidt being difficult to manage, indicating this behaviour had only occurred after the administration meeting with O'Brien when Schmidt's behaviour deteriorated. Khan was in tears when O'Brien informed her that Schmidt's contract would not be renewed.93 Apart from two issues with Pittard, she had no recall of Pittard raising issue with her performance in the 12 months she had acted as O'Brien's relief.94

[91] Khan was taken to an email (dated 7 October 2015) regarding a complaint against her where the following was recorded:

She will never have a sustainable workforce, and I know of many people who second-think applying because of to whom they would be answering to".95

Khan was extremely upset by a lot of the content in this email particularly as the daughter of the person to whom the content was attributed had applied twice for a position as a booking officer.96

[92] Khan recalled providing information to WorkCover about the injury to her ankle and mentioned the referee report because she thought there was a requirement to provide all the information. The person requiring the referee's report was a former staff member who was last employed 12 months prior.

89 TR5-85, L45.90 Exhibit 174.91 Exhibit 160.92 TR5-17, LL23-26.93 TR6-9, L4.94 TR6-9, LL43-45.95 TR6-11, LL13-14; Exhibit 166.96 TR6-11, LL18-25.

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Note: In a text exchange with the former staff member on 23 October 2015 (the day before Khan injured her ankle) she sent the following at 12.38 pm:

No worries kirsty. Will sort early next week. Well done and loverly (sic) to hear from you.97

[93] The dental records workload issues had been ongoing for a long time prior to her being a line manager with there being numerous attempts to resolve them.

Dr Likely

[94] Dr Likely, a consultant psychiatrist examined Khan on 19 June 2017 and subsequently generated a report on 18 July 2017. In responding to the specific question of "Details of the mental disorder diagnosed":

It is my opinion that as a result of the accumulative stressors outlined above in Ms Khan's place of work as an Administration Team Leader for Oral Health Service with Queensland Health between November 2013 and June 2016 that Ms Khan has developed a psychological injury. This is Major Depressive Disorder. This (sic) a severe disorder of mood, the symptoms of which can become more severe and treatment refractory with the passage of time if not effectively treated.98

[95] Dr Likely, upon taking a history from Khan, had been unable to identify any other stressors outside of the workplace.

[96] Under cross-examination, Dr Likely in the formulation of his opinions, relied upon the history given to him by Khan, the material supplied and the mental patient determination. Dr Likely proceeded upon the assumption that the information provided was accurate, reliable and correct.99 Dr Likely was taken to Health Link Family Medical Centre records and in particular an entry on 27 March 2016 which stated:

Crying all the time due to her workplace situation - has been working in QLD health for the last 25 years never had any problem everything started after her Rt ankle, still getting pain and swelling after the days work . . .100

[97] Dr Likely was then taken to a one page document from Optum Health and Technology (dated 18 May 2016) which reported on a session involving Khan where it was recorded:

Client reported that she had broken her leg at end of last year at her workplace and had seven weeks off but was gutted that she was denied WorkCover because she was at work on a Saturday.101

[98] Dr Likely evidenced that Khan had not conveyed in her history anything about the breaking of a leg or the denial of WorkCover, acknowledging that in a general sense he

97 Exhibit 178.98 Exhibit 188.99 TR7-4, LL35-36.100 Exhibit 176.101 Exhibit 154.

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would accept the proposition that events like that could have an impact on a person's psychiatric health.102 Dr Likely was taken to the Report he prepared for these proceedings and in particular pages six and seven.

[99] On page six in the third paragraph it was confirmed that Khan told him:

Ms Khan believes that one of the main factors with respect to the implementation of the Performance Management Plan, was that her Manager wanted her to terminate the temporary contract of a worker on what she considered to be vexatious grounds.103

Dr Likely accepted that in Khan's mind this was a "fairly focal event".104

At the last meeting, she told me, "I knew they weren't going to pass me".105

[100] In respect of some "Positive Feed Back" forms regarding Khan it was recorded as her informing that:

She presented these at the meeting but told me that they were 'ignored'.106

[101] On page seven of the Report it was recorded:

Ms Khan told me that after the meeting which lasted from 11.00 am to 1.00 pm on 24 June 2016, she worked until 4.30 pm and then attended her General Practitioner who issued her with a Medical Certificate.107

[102] Dr Likely read a transcript of this meeting which did not give him cause to alter his opinions. He accepted that he predicated his opinions on what Khan had told him.

[103] In re-examination the witness was taken to session notes108 partially quoted in the course of the cross-examination and given the full text from the notes:

Client reported that she had taken sick leave to come for session. Client reported that she had broken her leg at end of last year at her workplace and had 7 weeks off but was ghutted (sic) that she was denied Workcover because she was at work on a Saturday. Client reported that she was 'hit with a Performance Management Plan' in January, that she has had to have regular meetings in relation to this and that she has been having to do lots of extra hours of work to meet the high level demand of the KPIs. Client reported that a staff member (who she reported has been difficult to manage) had raised complaints about her and that she had been 'ambushed' in what she was told was a mediation. Client reported that at each meeting she has been told that she is 'failing' in the area of communication but that she is finding it very difficult to understand just what is wrong and how she can improve. Client reported that she is being treated for high blood pressure.

102 TR7-7, LL17-24.103 Exhibit 188.104 TR7-7, LL37-38.105 TR7-7, LL44-46.106 Exhibit 188.107 Ibid.108 Exhibit 154, p 65.

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Assessment:

Client reported that she is experiencing high levels of stress and anxiety and finding it difficult to not cry at work. Client reported that she has worked in this Dept successfully for over 20 years and is devastated that she is being treated in this way.109

[104] Dr Likely, after hearing the notes in their entirety, reaffirmed his evidence in chief that, "It is my opinion that, as a result of the accumulative - I think the 'accumulative' is there the operative word stressors outlined in Ms Khan's [indistinct] etcetera, etcetera, that she has developed a psychological injury".110

Respondent

O'Brien

[105] A business development manager with the Health and Wellbeing Service Group at Queensland Health, O'Brien had known Khan since 2007/8 having first managed her in May 2013. O'Brien commenced a 12 month period of maternity leave in June 2014 and upon her return in June 2015 continued in the supervisor role. The position held by Khan was that of an AO4 level Team Leader with responsibilities that included:

managing a team of administration officers; co-ordinating; and problem solving.111

[106] Upon her return in June 2013 from a period of maternity leave she met with Khan for a "fairly substantial catch up"112 and overview of all matters involving her duties in the workplace.

[107] Khan raised workload issues but when explored by O'Brien they hadn't been documented and in her opinion were anecdotal. O'Brien contacted Khan on 20 August 2013 for the purpose of catching up "about your plans for rostering the administration team and your proposed backfill arrangements"113 as she sensed that there were some issues around rostering and recruitment. On 28 August 2013 an email was sent to Khan requesting by close of business that day, O'Brien be provided with the following information:

send through your copy of the administration roster for the next four weeks; outline how you are planning to cover reception in the case of emergent leave; list any non-reception priorities that you or your team have that will need to be factored

into planning for next week; and

109 Exhibit 154; TR7-9, LL11-32.110 TR7-9, L43-45; TR7-10, LL1-6.111 TR6-21, LL19-21.112 TR6-22, L8.113 Exhibit 156; TR6-24, LL2-3.

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outline any additional resources which are in excess to your current Booking, Billing and ATL resources that you feel that you may require for the next four weeks.

I am sure that you appreciate that this is a priority to the service and your team.114

[108] The discussions around these issues at the time were not positive, due to Khan suggesting it was not her fault or putting up barriers. O'Brien indicated that during the PAD in the upcoming six to 12 months there would be routine communication about Khan's performance gaps. A meeting was held with Khan on or around 2 September 2013 when it was evidenced that Khan was explosive, making allegations about O'Brien and she subsequently left the meeting before it had been completed.

[109] Khan's role, historically allowed for a small allocation of backfill on reception but only for short periods and not long periods, however in the second half of 2013 she was spending more time than would have been expected on reception. O'Brien adopted an approach of assisting Khan in a collaborative environment to work through roster arrangements, business rules and leave management. A file note prepared after a meeting involving O'Brien, Perry and Khan that was held on 6 February 2014 included the following commentary:

Reception Roster Arrangements

Reception roster arrangements were initially addressed during discussions. The aimed outcome was to develop a roster pattern which optimally utilised the 3 FTE Booking Officers permanently rostered to the reception. The next goal was to identify the amount and required hours that would need to be supplied from the 'ISOH Audit' Booking Officer and/or Billing Officer. It was agreed that the Administration Team Leader should not have any ongoing scheduled roster requirements based on current administration FTE.

To address these issues the following factors were required to be considered and agreed upon by Colleen Khan and myself:

Cyclic roster patterns for 3.0 FTE Booking Officers allocated to the reception Service delivery requirements including patient arrival patterns Requirement and confirmation of amount of additional hours necessary outside of

3.0 FTE to be rostered on reception and identification of required position to undertake reception duties

Planned leave arrangements and business rules relating to leave approval and backfill

Emergent leave considerations

Prior to the meeting on 6/2/14 Colleen Khan had provided 3 options for roster arrangements which were discussed by Allison, Colleen and myself. A hybrid of two options was chosen and Colleen had indicated that she had discussed the proposed changes with staff and they were supportive of the new times. Colleen had indicated an implementation date of 17/2/14 would

114 Exhibit 157.

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occur. Based on the new roster patterns there would be no requirement for Colleen to undertake ongoing work on reception.115

The purpose of the arrangement was to allow Khan the opportunity to have time to do the supervisory aspects of her role.

[110] Upon returning from a second period of maternity leave in June 2015, O'Brien discovered there were a variety of things that had happened over the twelve months including:

anecdotal workload concerns; rostering leave; and Khan was still on reception duties.116

[111] At a meeting of the administration team on 9 September 2015, O'Brien asked Khan if it was intended to discuss a workload review, as it had not been included on the agenda despite an earlier request by O'Brien, that as a priority Khan undertake a review of workloads on reception. O'Brien approached the subject in the meeting but due to the conduct of an employee (Schmidt) she was required to de-escalate the situation by providing more information on what a workload review might achieve. A file note recorded O'Brien's recall of the meeting and discussions that occurred in the days following the meeting including this reference to Khan:

The next day I asked how she was after the meeting. She said she was well but felt that the meeting was mostly about 'shifting blame; and the (sic) she 'knows where this is going' and that she would 'ride it out'. It was further raised by Colleen that she felt that the reception desk had unfair workloads, did-not receive assistance from other administration staff and it was unfair that other administration staff could take breaks as they wished. I noted that that (sic) addressing these areas were all within the scope of her role and before any further resources are shifted to provide further support to reception that she would need to undertake an administration review as originally requested.

I suggested that we should put a plan in place and she was agreeable to organise a performance appraisal so that a plan could be implemented to address the issues of the administration team.117

[112] O'Brien gave evidence regarding a number of communications between Khan and herself concerning numerous issues including complaints about occurrences within the administration team. A communication table118 listed seven incidents between 26 June 2015 and 11 February 2016. In dealing with these issues Khan at times was defensive and had a different perception of the communication incident. It had been really hard to work with Khan because of denials and excuses with the expectation that a Team Leader was to contribute to the role.

115 Exhibit 162.116 TR6-37, LL14-15.117 Exhibit 164; TR6-42, LL4-18.118 Exhibit 175.

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[113] In relation to Schmidt's employment in the administration team, she raised issues not addressed by Khan either at the PAD or at the time of a request to extend her contract. Schmidt struggled for a long period of time expressing dissatisfaction about workloads, colleagues, opportunity to communicate as a team, Team Leader communication and communication with O'Brien herself, all of which may have led to consequences if a dissatisfied employee was to continue in the job. O'Brien was taken to an extract from Dr Likely's report where Khan alleged:

Ms Khan believes one of the main factors with respect to the implementation of the performance management plan was that her manager wanted her to terminate the temporary contract of a worker on what she considered to be vexatious grounds.119

O'Brien could "not possibly understand what those vexatious grounds could possibly be".120

[114] Khan was also recorded as having said:

Ms Khan alleges that the individual concerned was a single mum, a good worker and we've never had any problems with her.121

Khan had previously forwarded emails to O'Brien where she said that Schmidt was "difficult and disruptive".122

[115] In terms of Khan's claim for workers' compensation in October 2015 and her attendance at a secure employment work location on Saturday 24 October 2015 to obtain job applications, it was O'Brien's evidence that in conducting the process as efficiently as possible the interviews could not have occurred prior to the Wednesday. As it turned out, the interviews took place the following week with a contributing factor being the injury to Khan. Whilst she had a different perspective about the Workcover incident to that of Khan, the issue was not discussed by them.123

[116] In dealing with numerous communication issues involving Khan, there had not been any occasion when Khan acknowledged some responsibility for what had occurred.124 At a meeting held on 11 February 2016 with Khan, feedback was sought about an incident that may have occurred on 9 February 2016 when Khan became emotional and broke down in tears. This was the same time Khan was said to have used language perceived as aggressive towards staff within the administration team. At 3.15 pm on that day Khan left the meeting telling O'Brien she was going home sick but returned at 3.20 pm having contacted the other person in the incident again, leaving the office at

119 Exhibit 188; TR6-50, L41.120 TR6-50, LL46-47.121 TR6-51, LL7-11.122 TR6-51, L15.123 TR6-62, LL18-29.124 TR6-65, LL12-14.

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3.24 pm but did not go on sick leave. The language used was a reference to other administration staff as "those bitches".125

[117] A meeting was held with Khan on 18 February 2016 where discussion occurred around communication issues which prompted O'Brien to make the following file note "Considering moving to formal management of performance - will send letter with details to discuss considerations for improvement plan - consider support person + EAP support".126

These comments reflected the discussions between the two.127

[118] On 23 February 2016 a meeting was held with Khan where she was handed a draft PMP. A file note prepared by O'Brien identified the subject of the meeting as "Provision of Performance Letter to Colleen Khan". The note further recorded that:

'CK became emotional and asked if I knew the impact this would have on her personally'; 'Colleen challenged me on the reasons for the performance management. That she thought

it was just related to communication'; and 'I provided feedback that the issues were consistent against previous discussions and

against PAD agreement'.128

[119] A number of meetings were arranged to move forward with the PIP which took place on a weekly basis. In the first four meetings Khan attended unprepared which caused O'Brien to provide feedback about what she needed to bring to the meetings. Khan at some stage indicated that she was "not really interested in participating in this".129 O'Brien, upon being transferred, exited the process to be replaced by Tauti. In the "draft meeting" to discuss the PIP, the communication document130 was presented which brought a response from Khan in the form of, "I'm not proud of the document". "I'm not proud of this".131

[120] Under cross-examination, O'Brien gave evidence about the issue involving Parry and Khan on 9 February 2016 and of the telephone contact made with Parry, where it became clear that Parry was not going to make a complaint about the incident because Khan had apologised. O'Brien was questioned at length about various roles in the administration team that required backfilling in the period of 2013-2015. A number of temporary staff were contracted in this period which O'Brien acknowledged was "one of the things that we deal with but in my perfect world I'd love a stable workforce. The reality is most teams have temporary roles across administration services due to higher

125 TR6-70, L39.126 Exhibit 170.127 TR6-73, LL41-44.128 Exhibit 171; TR6-76, LL19-46; TR6-77, LL1-6.129 TR6-80, LL38-39.130 Exhibit 175, TR6-81, LL12-13.131 TR6-81, L28.

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duties and project roles".132 With her current team she has a temporary staff member in every team for various reasons.

[121] The booking officer role is a frontline position interacting directly with high volumes of the public and ideally whoever filled that role would need a high level of knowledge about the dental health services organisational workings, however there needs to be a level of development for any movement of an employee in any clinical service. O'Brien conceded that each time a temporary employee is put into that role the training needs to start afresh. In accepting that one of the booking officer roles had been filled by October 2015 on a temporary basis for over a year by Schmidt, she stated that her engagement occurred whilst she was on leave and she didn't know her start date. Part of a Team Leader's role was to have an ongoing awareness of when a contract was due to end. To fill a temporary position requires more paperwork than filling a position permanently, but that is "pretty normal for most teams".133

[122] For the 12 months from June 2014 to June 2015 when she was on leave, her role was undertaken by Pittard with whom in the handover process she communicated there were performance issues with Khan, even though in the first half of 2014 she had worked collaboratively with her and provided an assessment that "[w]e got there in the end. I thought it was reasonably okay from then onwards".134 The sustainability of moving forward with Khan had not been tested or demonstrated at the time of the handover to Pittard.

[123] O'Brien acknowledged that on 6 February 2014 a document recorded the accountabilities of the role going forward and another four months elapsed after that date where she observed how it all was working. The only specific improvement had been the communication and they were still "progressing with some of the foundational stuff".135 O'Brien could not recall creating any documents during the four month period about the performance issues. She was requested to recall the areas where Khan's performance had not improved in that period to which she identified that regular meetings were not occurring "with her team-mates"136 and she was still not resolving concerns that were being raised. Khan had come to O'Brien for guidance in respect of issues she could have resolved herself but it was conceded by O'Brien that she had a duty to manage and provide support and guidance within her own supervisory role.

[124] O'Brien did not accept that when Khan was performing the relief role of booking officer at reception she was not performing the core duties of her substantive role but "probably trying to juggle both".137 Time spent on the booking officer role formed a

132 TR6-93 LL37-39.133 TR6-95, LL38-39; Exhibit 180.134 TR6-97, L8.135 TR6-99, L19.136 TR6-103, LL20-21.137 TR7-11, L16.

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direct relationship with the reduction in time available for her core duties, resulting in a drop in performance. In respect of improvement in the waitlist for dental treatments in or around April 2016, O'Brien did not accept a core part of the improvement was Khan's administration team, but acknowledged there was an element of work directly from that time with two additional administration positions. O'Brien was unable to give specifics about the two additional staff. In the period 2012-2013 there was a jump in the treatment numbers which resulted in outsourcing of some treatments and an increase in resources to minimise the impacts on the reception.

[125] The outsourcing under federal funding arrangements created work for the administration team. O'Brien acknowledged in the period of increased workload that the team supervised by Khan played a role in achieving the organisational outcome. The majority of increase and improvements came from the federal funding with Khan's team role being minimal.

[126] On 7 September 2015 O'Brien in an email to Khan advised that it was "fantastic to acknowledge" that the failure to attend rate had dropped.138 At this time there had been a positive improvement by Khan in respect of the administration team, however this was not being consistently achieved. The administration team meetings were not happening regularly as requested by O'Brien. On 30 November 2015 an email was generated by O'Brien stating, "In October we have gone back up to 14% and this is most likely a reflection of being short staffed".139 This occurred whilst Khan was on leave with an injured leg. Khan previously expressed frustrations about being on reception. Whilst Khan was on leave and in her absence there may have been one administration meeting despite the expectation that these meetings happen monthly.

[127] Upon O'Brien's return from maternity leave in June 2015 there was no increase in resources or full time equivalent booking officer roles. She did not have a direct line of sight to the increase of workload issues for booking officers which she was trying to achieve by working with Khan.

[128] When the issue of increased workload was raised with her by Khan, she would rely on the knowledge that she had of how they maintained the level of clinics for a period of time, but did not access any evidentiary resources that would have been available to her.140 O'Brien at the time discussed with Dr Wilkinson, "the levels and the change and the cap"141 which she evidenced was because they worked in a partnership model and worked as co-leaders with the senior dentist. In 2015/2016 there were no changes in clinical usage which did not drive her to look at staff numbers, specifically because there were other indicators available to her that would indicate the clinical activity. In the same period, it was O'Brien's evidence that Khan was focused on ensuring the

138 Exhibit 49.139 Exhibit 81.140 TR7-25, LL18-21.141 TR7-25, L46.

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reception desk was staffed and she had a diligence around operating rosters for clinicians. Khan was also comfortable communicating with her, "via email or drop in or meetings".142

[129] The booking officer role was described as a "fast-paced AO3 role"143 requiring contact with members of the public who were frustrated about things that may not have been happening and could be difficult interactions.144 An email dated 28 August 2013 was tendered for the purpose of identifying "as relevant to the information that this witness had about that situation".145 Contained in the email was the reference to "not coping on reception" and the following:

I won't be coming in tomorrow, I don't care anymore if I have no sick leave. My family are the one's I talk to about how I'm feeling but obviously there is nothing they can do to rectify this, so I guess for my own sanity I need to look for another job in the meantime. I'll be going back to part-time hours and pray that with some counselling I can get through working out on reception.146

[130] O'Brien was taken to exchanges with Khan from December 2013 to February 2014 about resources in Khan's administration team in which they were "attempting to resolve roster and recruitment gaps"147 brought about by emergent leave and the temporary filling of positions. At a PAD meeting with Khan held on 5 November 2013 the notes of the meeting recorded that O'Brien had been reviewing possible workload reporting on management tools to assist in quantifying workload issues currently being experienced on the reception desk. Khan provided information as to staffing requirements for booking officers on a fortnightly basis which identified, "at least three days a fortnight shortfall, not factoring in emergent leave".148

[131] Depending on how part-timers were utilised, O'Brien's evidence was that there might not have been a shortfall and she refuted the proposition that there was an assumption Khan would fill in as a booking officer for the rostered days off which would be three full days. At one stage, O'Brien temporarily took over the line management of some staff in the administration team understanding that Khan would be disappointed. O'Brien accepted that Khan had good attendance at work but was not able to say that she started work before everyone else. O'Brien was unable to confirm when Khan started or finished work nor if she did work in her own time at home.

[132] In November 2013 Parry identified in an email to O'Brien that "there needed to be a solution to keep Colleen off the front desk"149 and for a formal review of resources.

142 TR7-28, L12.143 TR7-42, L6.144 TR7-42, L18.145 TR7-42, LL45-46.146 Exhibit 190.147 TR7-44, LL20-47.148 TR7-47, LL19-20.149 TR7-51, LL7-8.

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She did not accept that a formal review of resources would ordinarily look to whether resources were required. O'Brien gave evidence of recruitment activities that occurred in or around November 2015 to January 2016 for a number of temporary contract positions. In the ATL performance development notes (dated 14 January 2016) Khan was recorded as seeking more stability and skilled staff and wanting all positions in the administration team to contribute to the leave roster. Khan also noted that the Team Leader functions were impacted by backfill requirements on reception which impacts the development of business plans, relationship building, training and meetings. O'Brien believed that the right tweaking of rosters, roster duties and leave approval could have enabled Khan not to be on reception. On her return from maternity leave in June 2015 she observed that whilst Khan "was on reception, she wasn't doing her own role"150 and "it was a barrier for her undertaking her role".151

[133] In January 2016 there were a number of positions in the administration team that needed to be filled and in terms of Khan's conduct, it was accepted by O'Brien that "this is an example of good communication".152 The selection process had a sense of urgency due to time pressures. The position of booking officer was not filled because despite O'Brien being satisfied with one of the applicants, Khan and the other panel member vetoed the appointment with it being acknowledged that the view of the Team Leader was important. Overall, it was the case that Khan had been proactive and informative in the process and her leadership had been a positive sign on this occasion as was her management of rosters and staff at the time. Khan's effort was said to have been "a good demonstration of the role"153. On this occasion it was further accepted that Khan had:

showed good organisational skills in respect of the critical function of recruitment; demonstrated the prioritisation of the organisational requirements; and been proactive about working within the available processes for recruitment which didn't

involve additional interviews.154

[134] As a manager she was aware that in January and February 2016, "high levels of workload could be productive of stress in employees".155 Khan forwarded an email to O'Brien (dated 19 February 2016) in which she advised:

I am again experiencing a severe shortage of reception staff due to leave, emergent leave and sick leave taken by backfill options.156

150 TR7-56, LL46-47.151 TR7-57, LL2-3.152 TR7-62, L6.153 TR7-68, L30.154 TR7-69, LL26-33.155 TR7-70, L6.156 Exhibit 99.

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[135] O'Brien accepted that backfill options could defeat the best laid plans but suggested there was a lack of evidence supporting the advice.157 From time to time statements had been made which were different to the understandings O'Brien had or the knowledge she held at the time.

[136] O'Brien was aware that in January 2016 Khan was on a suitable duties plan due to having limited movement in one leg. Also, she had been informed by Khan that there was a relationship between the reception duties and an increase in physical pain from her injury. In an email to O'Brien on 19 February 2016 she stated:

My mental wellbeing is being affected, and my stress levels are also at an increased level due of (sic) the impact carrying out two roles has on my Team Leader role's functions and requirements.158

[137] O'Brien in responding to Khan, amongst other things, said:

My recommendation is to consider your rosters over the next four weeks, taking into consideration booked leave, organisational priorities within your team and the possibility of emergent leave and identify any gaps that might cause some issues with coverage on reception. The expected outcome will be to ensure coverage is achieved and also minimise rostered or emergent coverage for you.159

The recommendation was a reasonable response in that it redirected Khan to consider her Team Leader function particularly as she was not satisfied these tasks were done as instructed. Despite having performed well in January/February 2016, O'Brien did not give her the "benefit of the doubt"160 because there had been long-term patterns of Khan not undertaking her role. O'Brien did not accept she failed to address the question of Khan's mental stress as she "redirected her back to rehab to consider what other things might need to be considered in her suitable duties plan"161 and in doing so a general practitioner could look at any other matters. O'Brien accepted that her email referenced only "physical pain"162 with there being no reference to Khan's "mental wellbeing and stress levels".163 She conceded the communication could have been better on this occasion and could have included "mental wellness".164 O'Brien was aware that a person with mental wellbeing affected by stress would be less likely to be able to discharge their duties to their full capacity and their work performance would be adversely affected.

[138] On her return from maternity leave in 2015, Khan informed her of a difficult relationship with Stanley and there had also been an approach from Stanley which

157 TR7-70, LL38-40.158 Exhibit 99.159 Exhibit 100.160 TR7-75, L16.161 TR7-75, LL29-30.162 TR7-77, L15.163 TR7-77, LL8-18.164 TR7-77, LL43-47.

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resulted in an apology being given by Khan to Stanley, which was sufficient from O'Brien's view to consider the matter closed. A further incident occurred in September 2015 involving Khan and Stanley and a situation where Khan indicated to O'Brien she was reluctant to engage directly with Stanley. On 18 February 2016 Khan made a verbal complaint against Stanley to which O'Brien encouraged Khan to see if the issue could be resolved directly between the two. An email was sent to O'Brien by Khan on 1 March 2016 which included a reference to wishing to lodge a formal complaint about Stanley's "continued, and daily ongoing hostility and communications with myself".165 O'Brien responded to the email the following day with commentary that included:

Based on our recent discussions and the issues that have been raised my initial advice would be to consider a mediated discussion in the first instance. I recommend this because I would not consider that the instances that have been described to date are indicating bullying or harassing behaviour from either party but are potentially due to historical events which are continuing to add to the complexity of the professional relationship.. . .Finally I note that you have some concern that your recent performance discussions are as a result of a complaint made be (sic) Kathren Stanley. I want to again assure you that this is not the case but relates back to the issues outlined in our Monday discussion.166

The reference to the ongoing dispute between Stanley and Khan was to confirm that the decision to performance manage Khan had not been based on a complaint from Stanley.

[139] O'Brien was taken to a document167 that recorded a number of communications between Khan, O'Brien and others in the period 26 June 2015 to 11 February 2016 and formed the background to the performance management process. The document was given to Khan at a time when her union representative was in attendance (via telephone). O'Brien gave evidence of events leading up to the performance management process including presentation of the draft PMP. At the commencement of the process Khan became emotional and she witnessed the distress it caused Khan. O'Brien accepted that in the period immediately prior to implementing the management process, Khan had been operating under a stressful work situation as a result of workload impacts on her role, based on what Khan told her. O'Brien didn't "have enough insight now or then to understand if someone is more vulnerable".168 O'Brien prepared a table between 23 and 29 February 2016 to identify some chronological order of the issues that were occurring and to have better communications and give context to the background leading up to the decision.169 O'Brien accepted that she had not dealt with interpersonal issues involving Khan and others in a way that would decide who was more responsible than the other, but had "tried to resolve it by providing information around, you know, communication in the workplace and being aware".170

165 Exhibit 173.166 Exhibit 173.167 Exhibit 175.168 TR7-104, LL45-46.169 TR7-105, LL17-25.170 TR7-110, LL36-37.

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They were regarded as communication issues that were symptomatic of something that was occurring in the workplace.

[140] Before proceeding on maternity leave in 2014, O'Brien assisted Khan to put in place a workload assessment tool for Kirwan, however on her return from that leave there appeared to be no formal outcome. A similar process had been implemented for the Palmerston Street facility prior to the commencement of her maternity leave which identified the workload and workflow issues. At a meeting of the administration team on 9 September 2015 attended by O'Brien, Schmidt raised issues about the workplace including frustrations she had with other team members. O'Brien accepted that comments made to Schmidt were direct and she burst into tears although she held the view that Schmidt had been fairly emotional, saying things that were a "little bit unprofessional".171 O'Brien indicated at that time she moderated her tone and agreed that Schmidt went home sick after the meeting. O'Brien later apologised to Schmidt both in writing and in person.172

[141] There was a requirement for staff meetings to be held with the administration team, however there was an absence of proof of such meetings having been held which would have been attended by her in her role as the "one-up supervisor".173 O'Brien acknowledged she had no evidence that the meetings had not occurred but was "comfortable that they weren't occurring".174 The implementation of the PMP wasn't as a result of this "specific decision-making criteria".175 The communication document176 was intended to help Khan understand what actions had occurred over the period of time and was not used as the decision to implement the PMP. The document was said by O'Brien to paint a picture of what she "understood and believed to be the facts based on our interactions and her interactions with her team".177 The purpose of the document was to provide feedback around performance matters previously dealt with and it was conceded by her there were not "positive things"178 in the document. Further evidence was given in respect of the communication document where O'Brien stated:

it was about development areas for Khan; feedback had been provided to Khan in respect of the incident with Michelle Maxey; and verbal discussion about communication of escalation framework - formalised in a written

form on 29 March 2016 after the PMP had been implemented.179

171 TR8-7, L6.172 Exhibit 56.173 TR8-10, L16.174 TR8-11, LL11-12.175 TR8-11, L26.176 Exhibit 175.177 TR8-112, LL38-39.178 TR8-12, L42.179 TR8-13, LL24-25, 27-30; TR8-14, L6; TR8-16, L46.

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[142] The witness did not accept that the communication document was a retrospective attempt to justify the decision to performance manage Khan by selecting events that only reflected adversely on Khan over the preceding eight months.

[143] On Monday 26 October 2015 Khan attended O'Brien's office to report she had broken her leg attending the North Ward Campus. No file note was kept as she was concerned about Khan's wellbeing at the time. O'Brien was later required to provide a response on behalf of the employer on 13 November 2015 and in doing so, was aware that Khan at the time was involved in a recruitment process for frontline staff, which had the advertised timeframe reduced to reflect the urgency of filling the position. The interview needed to be conduced at the "earliest available opportunity".180 The applications closed on the Friday when Khan was absent (on an RDO) and she recalled that there were a bundle of applications that would have taken between 30 to 45 minutes to short list. According to the witness if there was backfilling required at that time she had the "capacity to help support considerations of options".181 O'Brien did not expect Khan to go to a campus on the weekend to do work and in these circumstances it was not reasonable. In response to a question from the Commission about the campus not being open, the witness replied:

So our best practice tells us that outside of working hours, we have - you know, a pre-approved TOIL or something like that, so that's part of it. Yes, the campus was closed to the public, closed to staff. Only certain access was allowed to be utilised at that time, so you had to have access granted, which I don't believe it was. So, yes, I don't think that - I do think it's a safety issue.182

[144] In this case there were access limitations and Khan would have needed approval from the organisation to have weekend access to the campus. O'Brien, who was also on the same selection panel, had intended to do her shortlisting on the Monday and would have prioritised her workload for that to happen. On entry to the premises in question, O'Brien had the capacity to enter on the weekend, but Khan did not.

[145] In early November 2015 O'Brien contacted Khan for a referee report for Parry in circumstances where Khan was on sick leave but then in doing so was consistent with regard to their policy for contacting people for referee reports.

[146] On 16 November 2015 O'Brien received an email from the Acting Team Leader, Workplace Rehabilitation, Occupational Health and Safety Department (Julie Augostis) seeking further comment on a statement by Khan to WorkCover. Later that day O'Brien provided the following comment:

From a management perspective there were no imposed or strict deadlines relating to the recent recruitment process. There were no appointments scheduled to undertake short listing of

180 TR8-19, L41.181 TR8-21, LL27-28.182 TR8-23, LL9-13.

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interviews on Tuesday however I do note there was discussions and planning to undertake actions relating to the recruitment over the week commencing 26/10/15.

There was no expectation that Colleen would be required to review applicants over the weekend or to undertake any work outcomes outside of rostered working hours.

I do not have knowledge or have observed behaviour that it is normal or unusual practice for Colleen to work on her rostered day off or over the weekend.

Colleen had not had a discussion with me prior to Friday relating to her concerns of recruitment timeframes or that she was considering working from North Ward or her home over the weekend.

Please let me know if I can provide any further information.183

[147] O'Brien believed the information was appropriate and didn't know of additional information she could have provided. She had no "opinion on what a WorkCover outcome should be".184 O'Brien refused to accept the proposition that she wasn't "particularly supportive of the application for workers' compensation".185

[148] In regard to an issue involving Khan and Parry in February 2016 where Khan offered an apology to Parry, it was accepted by O'Brien that Khan's conduct had shown initiative, ability to admit fault in a communication situation and allowed a positive framework for future conflict resolution. O'Brien made a note about that incident and of having perceived Khan's conduct in the meeting as being aggressive.

[149] On 11 February 2016 O'Brien met with Khan, during which time Khan left the room to talk to Parry on the telephone with O'Brien accepting that she didn't at that point speak to her about her conduct falling below an appropriate standard or that it be perceived as aggressive. Having provided the performance letter to Khan on 23 February 2016 it was recorded in a file note prepared by O'Brien:

Handed documents in envelope and noted that the draft PMP did not have the Action Plan modified.186

[150] The first meeting for the PMP was scheduled for 25 February 2016 by which time O'Brien decided to implement the PMP based on advice from human resources that it was ultimately her decision, as the accountable manager. O'Brien denied that her interactions with Parry at this time were an attempt to gather critical or adverse information about Khan in respect of the incident on 11 February 2016. She also denied that she had to change the basis on which the PMP was implemented because Parry "was okay with the outcome".187

183 Exhibit 182.184 TR8-29, L18.185 TR8-30, LL23-24.186 Exhibit 171.187 TR10-9, LL35-36.

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[151] In the preparation of talking points for the PMP meeting on 29 February 2016, O'Brien wrote "could be perceived as aggressive"188 based on the way Khan approached the situation and communications with her, but was not sure of making a file note about a conversation with Khan being aggressive although having said she "would imagine that I think I might have".189 In terms of the sequence of the Parry incident, it was O'Brien's evidence:

I know the sequence of events, and I know that I spoke to the team members first who came to report the incident. I did a check-in with Ms Parry. I rang HR. I got advice from that. They advised me to bring it up with Colleen, which I did in the routine meeting. Then Colleen went out and made the phone call, and then I had a follow-up phone call with Kim, because I felt apologetic that my conversation meant that she received a phone call while she was on reception about a matter that I wasn't progressing on her behalf.190

[152] The first contact with Parry was about what happened on reception when Khan said she could cut her contract if she had not done whatever procedure was in question at the time. In the second telephone call with Parry, she was informed that she did not want to pursue it any further because Khan had apologised. It was accepted by her that Khan apologised to Parry prior to 29 February 2016, however she was unaware how Parry perceived Khan's conduct as it wasn't reported that Parry felt it was aggressive. The resolution of the issue by Khan was the best thing for her to do in the situation which was the same advice given by O'Brien to Khan on 25 February 2016 about the Stanley incident. O'Brien evidenced that there was "no wording complaint raised" by Stanley against Khan but she thought there was "something informal at the end of the day in my doorway or something like - it wasn’t a meeting. It wasn’t - there was no complaint made."191

[153] In the Human Resources Policy G11 (QH-POL-190) 'Performance Improvement' (the PI Policy) O'Brien was referred to Performance monitoring:

Managers and Supervisors are required to effectively monitor employee performance and discuss performance concerns with employees at the earliest possible stage.

Consideration should be given to possible direct reasons and influences for performance concerns, including: faulty job design problems with co-workers unsuitable work environment ill health insufficient employee competencies personal circumstances indolence.192

188 TR10-9, L47.189 TR10-10, LL7-8.190 TR10-11, LL1-8.191 TR10-22, LL30-33.192 Exhibit 151, p 2, No 2.

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[154] In responding to some of the dot points aforementioned, O'Brien stated:

faulty job design - not applicable; problems with co-workers - these came to light more so after the plan was implemented.

There had been informal issues discussed with her from both colleagues; unsuitable work environment - Khan had previously requested relocation in the work area

but after considerations she was treated the same as supervisors and wasn't moved; and ill health - Khan's health, physical levels of pain and her reporting of mental stress were

taken into account. The gradual return to work plan did not have any limitations on her role and there were no limitations on communication or decision making. Advice was sought from Human Resources and Occupational Health and Safety.193

[155] As to the Human Resources Policy G3 (QH-POL-210) 'Reasonable Adjustment' (the RA Policy), O'Brien said there had been no indication on the graduated return to work for reasonable adjustment. On 23 February 2016 she handed Khan an invitation (may have been a draft PMP) to attend the meeting which was part of the process "where my thoughts, and then you get the employee’s thoughts and their support thoughts, and then you can adjust the plan from there and then you decide to implement it".194 On 19 February 2016 she was still considering the starting of the process. On the factors considered as direct reasons for the performance concerns she mostly focused on the pain aspect and directed her back to the general practitioner and workplace health and safety. O'Brien referred to the PI Policy before commencing the process and understood her obligation to document the process to demonstrate concerns and improvements. O'Brien would take notes of the meeting and then create a typewritten summary of the meeting and send to Khan.

[156] The PMP meetings were conducted on the basis that "anything that relates to the plan can be discussed in the meeting"195 and it was agreed by O'Brien that it was important to "identify, by reference to the plan, what criteria are being met and not met during the process".196 If all the objective and equitable documentations did not occur in the PMP, it was accepted by O'Brien that it would be a falling down on her part and further accepted it would create difficulties because the requirements are not clear to either party where there was non-compliance with the plan. O'Brien claimed to have documented as best as she could but did not know whether all the criteria had been met particularly in the early meetings because there "wasn't participation at the time".197

[157] Notes were taken in the PMP meetings for the purpose of maintaining a record of the process in compliance with those notes provided periodically to Khan to ensure there was a common objective understanding of what was being met and not met. Possibly there was a falling down on her part by not providing the meeting notes to Khan prior

193 TR10-24, LL32-46; TR10-25, LL1-42.194 TR10-28, LL2-4.195 TR10-31, LL42-43.196 TR10-31, LL45-46.197 TR10-33, L2.

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to the next meeting. The measurement of the plan was the dialogue at the meeting, knowing there was an opportunity for both parties to "reach a mutual understanding".198

[158] The handover to Tauti was described by O'Brien as having been done in three days and included "lots of different parts of things".199 She discussed the ongoing situation regarding the PMP and she thought that Tauti sat in on her last discussion with Khan before O'Brien left. Whilst she recorded at one time the plan for the handover was to be over weeks, that just did not happen. Khan provided documents to O'Brien in the meeting on 5 April 2016 which O'Brien conceded was a demonstration of her being fully invested in upholding her end of the plan, "[a]t this stage. Yeah"200 but did not accept she was fully invested in the process.

[159] In re-examination, O'Brien recollected that once the PMP commenced there were weekly meetings between the pair with a written note taken by O'Brien and a copy of the note provided to Khan. Mostly the notes were delivered on time except for one time when she was on leave and had to bring the notes in to work. Khan had not ever complained about not receiving any written record of the previous meetings, except for a time when she asked if the notes could be emailed, but as they were lengthy she continued to provide them the same way without any further query. On 18 February 2016 she had a discussion with Khan in which she advised she was considering moving to a formal management of her performance. Khan sent an email on 19 February 2016 raising issues about increased pain and aggravation to her injured ankle201 which was the first time she had raised any complaints about her ankle. On the same day, O'Brien responded to her by email which recorded advice on how to deal with the situation which included:

Given your reported pain issues it might be worth having further discussion with rehab about any changes that may be required for your suitable duties program.

[160] There was nothing forthcoming from Khan thereafter in respect of information from her general practitioner.

[161] In reference to a note made by O'Brien for the meeting on 29 February 2016 with Khan, she was taken to paragraph 5:

The decision to escalate to a formal performance management plan relates to a scheduled communication that occurred 11/2/16. The meeting was scheduled as an agreed outcome of the PAD. The meeting was to allow Colleen an opportunity to escalate issues for consideration and support and to provide an opportunity for Melissa to provide feedback on outcomes. The communication ended in high emotion, perceived aggression relating to other members of the administration team and was cut short as Colleen reported illness and that she was leaving the organisation. The conversation resumed after Colleen informed me that she had contacted an

198 TR10-34, L7.199 TR10-35, L26.200 TR10-37, L23.201 Exhibit 99.

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employee directly after the conversation which is an action that could be perceived as aggressive. There is concern that these actions demonstrate a gap in the ability to effectively and professionally communicate with management and staff relating to issues within the workplace particularly asd (sic) this was very recently formally linked to PAD outcomes.202

The reference in the paragraph to a communication was her perception over the contact with Parry when she left the meeting on 11 February 2016. The file note (dated 17 February 2016) mentioned O'Brien being contacted by three staff members informally about an incident at the reception between Khan and Parry. There was a record of Khan talking of "[t]hose bitches" and "needs to get in first and complain. But I noted that they are her team. She insisted that they are not".203

Perry

[162] Perry, the Business Services Manager for the Department of Medicine at the Townsville Hospital and Health Service (THHS), was taken to an email forwarded by her on 14 November 2013 to Khan and O'Brien which in part stated:

Subject: TL and Booking Officer workload

These issues appear to have been around for a very long time and certainly will not help to be addressed by long emails going back and forth. Could I ask that email communication regarding these issues is ceased for the time being? I believe they are not conducive to productive and healthy working relationships or real solutions.

I am wondering if the workload Management Tool has ever been utilised to document workloads and their impacts to escalate to management/institute?

Where to next … we need to move forward and quickly. The amount of time spent on the reception desk appears to be what you are describing, colleen, as a significant barrier to your completing work. I agree we need a solution for this.204

[163] At that time she identified one of the principal issues impacting the area and that there had been some meetings scheduled as a response to the problem. Perry saw Khan "quite a bit"205 on the front desk at Kirwan when her role as a Team Leader required "very minimal. If - if any"206 time to be spent on the desk.

[164] Perry recalled attending meetings on 5 December 2013 and 23 January 2014 at which time resources were devoted to alleviate the issue of Khan spending time on reception. Khan's behaviour was described as defensive and of being unable to articulate her issues. The responsibility for recruitment and rostering in the administration team belonged to Khan.

202 Exhibit 172.203 TR10-43, LL39,45-46.204 Exhibit 11.205 TR8-43, L15.206 TR8-43, L20.

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[165] Under cross-examination, Perry was taken to her email of 14 November 2013 and the comments:

As a Health Service we are getting used to the term 'doing more with less'. We need to find workable solutions to Oral Health's resourcing issues, and whilst I note Colleen that you have provided some suggestions for solutions, that there may need to be a more formal review of resources.207

[166] The witness accepted there were a finite number of resources available even for frontline positions and the comments were about how they could work within the existing resources. The reference to "a more formal review" was from a business services manager perspective about "ultimately putting forward a business case for more resources"208 which would have to demonstrate that all options for available resources had been exhausted. Perry acknowledged that an email to O'Brien from Khan209 on 14 November 2013, to which she had been copied in, contained a clearly articulated history of the problems Khan was describing and the current situation in respect of the areas controlled by Khan. In or about February 2016 she was asked by O'Brien to review the initial PMP which was the extent of her involvement in the process.

[167] In re-examination, the witness confirmed that the allocation of staff on a daily basis was the responsibility of a Team Leader. In the time period from late 2013 to early 2014 the aim of the exercise was to find a solution to enable Khan to undertake the tasks of her role and not reception work.

Murakami

[168] Murakami, a Senior Human Resources Business Partner at the THHS participated in a PMP meeting on 24 June 2016 with Khan, Tauti and another person. At a time prior to that meeting he had discussions with Khan about organising rosters and in particular helping with accrued days off issues. He described the discussions as being about "just normal operational issues"210 which were part of the ATL's role and his role was to assist the managers in understanding the issues. He also spoke to Khan about recruitment on a couple of occasions although it was not part of his role to assist with recruitment.

[169] Murakami recalled that at monthly catch up meetings with O'Brien there had been discussions on a range of issues that she had been helping Khan with over time. These included:

207 Exhibit 11.208 TR8-45, LL30-31.209 Exhibit 10.210 TR8-51, LL37-38.

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staff shortages and the roster; and performance issues, although he was unable to remember specifics.211

[170] He recalled specific instances being discussed that related to communication in general but not particular incidents.

[171] Under cross-examination it was acknowledged contact by Khan for advice was a normal business request.212 Murakami evidenced that in his experience if someone was the subject of performance improvement the manager "may" have conversations with the employee beforehand but in the formal PMP concerns have to be outlined with evidence to support.213 There was an obligation in accordance with the PMP that a manager should "review and discuss the PMP requirements with the employee and decide, against each criteria, whether the employee has met, or has not met the performance requirements for the review period".214

[172] It was described as a collaborative process with input from the employee, however the onus remains on the manager to demonstrate that something has been met or not met. Any improvement or indication of improvement should be recorded in a review meeting, although at the same time the reason a performance plan runs for a three month period is that it gives a reasonable time to show that there is ongoing sustained improvement. Murakami could not recall if he had any involvement in the formulation of the performance plan for Khan, but he did attend the meeting of 24 June 2016 when the conclusion of the plan was discussed and he was made aware during the meeting with Khan that the plan had been extended for a further six weeks. The manager should have communicated with Khan about not having met the requirements of the plan so far and of the intention to extend the plan. There was no obligation at the end of the plan to extend with other options available if it was thought that the person was not capable of meeting further objectives.

[173] The minimum mandatory standard practice at each review meeting was to get a snapshot against each criteria by reference to the evidence presented by the manager. There should be clear communication along the lines "you've met this standard or you're improving towards this standard" or "you need to improve in these areas".215 If the plan was to be extended the reasons should be clearly identified in the final meeting of the previous plan. There was a requirement to document a shared understanding of meetings with both parties signing the same set of notes. The process allowed for both parties to take notes and if the document was not signed on the day of the meeting, he was not "sure if it would frustrate the process",216 however it might confuse the issue a little if it was said "Okay, this is what we discussed last time".217

211 TR8-52, LL32-36.212 TR8-53, LL43-44.213 TR8-54, LL35-40.214 Exhibit 151, Schedule 1, No 2.215 TR8-58, LL20-21.216 TR8-59, L13.

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[174] If during a three month plan a manager did not generate notes until the last day of the plan then asked someone to sign them all, the witness accepted that it could possibly "frustrate the purpose of review meeting notes".218

[175] At the meeting on 24 June 2016, he recalled that Khan was emotional at points throughout the meeting and of her being accompanied by a support person. He did not recall asking a question of Khan about communication at the meeting, but agreed that communication should be objective and of a clear standard.219 Murakami interviewed Khan for the Team Leader position and had a collegial relationship with her, trying to promote her strengths.

[176] In re-examination, he recalled distinctly at the meeting on 24 June 2016 that there was mention of Khan having attended some emotional intelligence training and discussion in general about what support might be available to Khan including EAP.

Pittard

[177] Pittard, the current manager of employment services with the THHS, was previously the acting manager at Oral Health Services in the period from June 2014 to June 2015 at which time Khan reported to her whilst O'Brien was on maternity leave. In January 2014 whilst acting in the role of Business Service Manager, Health and Wellbeing she forwarded an email to Khan (dated 28 January 2014) that included the following:

The action item from our last meeting on the 23rd Jan was for you to prepare at least 2 scenarios (maybe 3 if possible) for the Reception roster that had the arrival area/s covered with your admin staff. This was to be without you on the front desk to allow for specific time to concentrate on your role.

We did discuss limited time for the other admin to assist in reception, to be rostered on a morning or afternoon but for specified time only. First thing was to look at the scenarios and then work with Mel from there.220

[178] In evidence, Pittard believed she had a meaningful working relationship with Khan and felt she could approach her and talk to her the same as any other team member. She did not recall that Khan had been excluded from using Medicare machines although it would not have been a priority because she was not on the desk. As a manager, Pittard was accountable for a lot of things but had no recall of "watching her, per se".221 She evidenced that she would have given Khan her advice on "various things at various

217 TR8-59, LL17-18.218 TR8-60, LL1-3.219 TR8-61, LL8-22.220 Exhibit 13.221 TR8-66, L13.

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times".222 Finally she had no recall of having refused to give Khan her mobile phone number.

[179] Under cross-examination, Pittard was taken to an email forwarded to a number of staff members on 4 March 2015 which stated:

I have had several discussions with staff this morning and can confirm the following for the Booking officers to May 22.

Gabrielle will continue in her current contract performing CDBS functions until the end of this contract. She will then revert back to her .5 hours but will continue in this role.

Kathren will commence .5 in the CDBS role also at this time.

Fiona's contact will be extended FTE.

Kylie van Krieken will now work Monday to Thursday and Tuesday to Friday weekly rotation until 2.30. She will now be in attendance at SDS records on Jacqui's rdo.223

[180] It was not accepted by Pittard that the communication had been for the administration team "but the booking officers, yes".224 She accepted that there was ongoing shuffling of staff in the administration team and in the period June 2014 to June 2015 the oral Health Services met all targets.

Tauti

[181] The role of manager, Oral Health at the THHS was taken over by Tauti from O'Brien in April 2016 with one of the duties being the continuation of Khan's PMP. On 3 May 2016 a meeting was held with Khan which was the first one-on-one meeting between the pair as part of the PMP process. Tauti confirmed that the meeting notes prepared by her were an accurate record of the meeting and included the following notation:

CK advised that she is going to meet the requirements of her PIP and KT advised she was looking forward to working with Colleen in meeting the requirements.225

In the Employee Comments towards the end of the first page of the document Khan wrote:

I remain committed to meeting the expectations of the PMP & embrace ongoing development.226

[182] A meeting was held on 13 May 2016 involving Khan, Stanley and herself for the purpose of resolving existing conflict between staff members. The meeting had "not gone very well" as Khan was "very, very defensive and it didn’t really resolve after -

222 TR8-66, L20.223 Exhibit 27.224 TR8-67, L22.225 Exhibit 130.226 Ibid.

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like, at that point, because it - the way Colleen had communicated back with Kath was quite - could be considered quite aggressive with her tone and manner."227

[183] Further exchanges occurred in relation to the situation between Khan and Stanley which prompted Tauti to record on 16 May 2016:

Colleen came to me today requesting that I attend the fortnightly meeting with Kathren and Colleen instead of a member from the hospital.

I advised Colleen that given we agreed that on Friday, I would confirm with Kathren when she is back tomorrow. Colleen advised that this could not continue and they must move forward and did not want it to blow out bigger than it is already.

Colleen advised that she did not appreciate criticism and that Kathren may as well had a book on a bad manager and read it out.

I advised her that I would discuss it with her at our meeting in the morning.228

[184] Tauti took the contact from Khan to mean that she did not want the conflict between Stanley and herself to get any worse. In a file note prepared by Tauti (not signed by Khan) of a meeting held between the pair on 17 May 2016 it was recorded:

KT advised, 'There is further work required from you in relation to the Code of Conduct. Under 1.5 Demonstrate a high standard of workplace behaviour and personal conduct. The behaviour demonstrated by you in the meeting with Kathren on Friday was not appropriate'.229

Further reference was made to a question from Khan:

'Do you think I was aggressive?' to which KT responded 'Yes, I believe you were as you were raising your voice'.230

[185] In a file note prepared by Tauti arising out of a meeting held with Khan on 6 June 2016 she recorded:

Given that you attended the Emotional Intelligence Course only recently and there are further items for you to work on, I would like to extend this process by 6 weeks to allow you time to meet the requirements of the plan.231

[186] The Emotional Intelligence Course attended by Khan was to develop strategies on how to have difficult conversations and Tauti was "extremely excited"232 when Khan presented her with the document, however when it came to actually practising it on a

227 TR9-6, LL34-37.228 Exhibit 192.229 Exhibit 138.230 Exhibit 138.231 Exhibit 144.232 TR9-14, L44.

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day-to-day basis, from her observations it didn't translate to the general interactions in the workplace.233

[187] In the immediate response from Khan to the extension of the plan, she was not "overly happy"234 and when asked on multiple occasions about what areas she needed to improve on she responded with "leadership and communication".235 In a meeting held on 24 June 2016, which was openly recorded by Tauti, the following comment was attributed to Khan in a file Note:

And so like what you have done here, 'I am extremely concerned about negative criticisms which I was required to listen to during this meeting. I felt these concerns were her personal views, at no time was there evidence provided for the accusation, she listed several pages and voiced during this meeting, I believe this ongoing criticism and scrutiny from Kathren is having adverse effect on my team, myself and my team, personally I feel that my work and self esteem are being eroded by this ongoing behaviour, I will strive to remain positive and embrace the opportunity to move forward with this staff member, I appreciate the efforts being made by Kasey to build and improve this relationship'.236

[188] In terms of Khan's general behaviour Tauti had not seen much of an improvement with her interactions with people, however she was committed to working with her to provide coaching and to get a good outcome at the end of the plan extension.

[189] Under cross-examination, Tauti explained that when she gave feedback it would be received as a criticism, although from her perspective "all of the communications would easily be able to be summarised in that way, that they are constructive feedback for improvement".237 The times Khan came across as defensive were not always documented but the files captured a majority of what happened. It was important in her view to document feedback and where in the performance process the behaviour had fallen below expectations, she documented every occasion for future development. Khan's behaviour improved in some areas which was also documented. As Khan's supervisor she had access to her performance development documents but held no meetings with Khan whilst the PMP process was being conducted.

[190] Prior to her involvement in the first PMP meeting she had not read the documentation as she had just "come in from an outside organisation into Health and Dental"238 and only had the benefit of a brief handover. There was an interaction with Perry in the first week or two of her employment and she was confident she could work with Khan to get her across "the line to meet all the requirements".239 Tauti approached the PMP process in a positive way.

233 TR9-14, LL40-47.234 TR9-15, L9.235 TR9-15, LL25-27.236 Exhibit 147, p 552.237 TR9-18, LL10-12.238 TR9-23, LL28-29.239 TR9-23, LL43-44.

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[191] Tauti accepted that the PMP was conducted under the PI Policy and she was required to comply with the PI Policy. A scheduled meeting held within the period of a PMP would be classed as a regular meeting with everything of significance recorded by her, although not every single thing in a PMP is going to come up every week. It was her understanding that it was not a requirement to deal with each PMP issue on a weekly basis. As to whether Khan would have been aware on 12 May 2016 that she had not met specific requirements under the PMP, it was Tauti's response, "Well, given that there's a timeframe of a plan, you can't say met or not met because things - you can't just change like an FTA thing overnight. It's an ongoing process . . .".240 If an organisational goal has not been achieved during the course of a PMP, it would only be at the end "that you would decide whether their efforts to achieve the goal met the performance standard".241

[192] Tauti accepted that as part of the fairness of the PMP process it would be ideal to provide notes of the meeting which were signed prior to the next meeting but "you wouldn't be able to do it every single time if certain things occurred. But that's why it's important to then go through and summarise and recall discussions which would then give an opportunity for clarification of anything".242 Tauti agreed there was less room for ambiguity about performance being met or not met if the PMP document was signed by both parties, however in this case she had given documents to Khan to sign and "there might have been one, maybe two that were signed by Colleen. The rest I wouldn't get back at all".243

[193] On the expectation of an onus on Khan to bring evidence to the weekly PMP meetings of her compliance with the process, it was according to Tauti, a mutual process and in a fast paced environment it was great that she did bring evidence. Tauti acknowledged that the PMP process could be considered stressful and she observed Khan to be stressed at times, however as Khan was not previously known to her, there was nothing to measure against. On the mediation she conducted with Khan and Stanley she provided each of them, prior to the meeting, a managing conflict checklist guide to assist with having a structured discussion. Tauti had not informed Khan at the time that she attended school with Stanley's sister and didn't see why she should have, because they were not friends or had anything to do with each other. The upshot of the meeting was that Khan and Stanley agreed to have fortnightly meetings with Tauti offering to be the other person present. Initially Khan objected to her attendance, however later forwarded her an email stating, "I am happy for you to be that person"244 which she accepted as a positive response and demonstrated a willingness to engage in the

240 TR9-27, LL39-41.241 TR9-29, LL12-14.242 TR9-31, LL22-25.243 TR9-31, LL31-35.244 TR9-38, LL44-45.

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ongoing process with Stanley. Khan's actions were prior to her attendance at the emotional intelligence training.

[194] At a meeting held on 17 May 2016 she noted that the behaviour demonstrated by Khan at the meeting towards Stanley had not been appropriate and there were some shortcomings in her emotional responses during the meeting. Tauti conceded it was a challenging situation for Khan and being confronted with the criticisms could have been perceived by her as inflammatory. Whilst there were expectations that Khan as a Team Leader would "be able to weather things a bit better than a - an employee"245 ultimately the Code of Conduct remained for everybody. In the course of the mediation there were instances where Khan and Stanley used inflammatory language and she let it run. The process was a learning opportunity for herself "because you can't do everything perfect all the time".246

[195] Tauti reaffirmed the decision to extend the PMP wasn't to do with the interaction with Stanley, but due to the fact that the emotional intelligence training had not been undertaken until the end and to do so would give Khan all the opportunity to implement the skills from the training. On the criticism of not providing the training course to Khan at the commencement of the PMP process, it was the evidence of Tauti that:

Training and things like an - when you're in a public health system and, you know, we're very conscious about spending the taxpayer's dollar, it is not regular practice to provide things like emotional intelligence training, etcetera. There's minimum available. So it actually is a - an above - an extra training available to Colleen. It's not something that's provided to other team leaders, hasn't been. So it would be an expectation that you would bring to that position, those skills.247

Tauti had not been there at the commencement of the process but thought it would have been ideal to have been done then. In her opinion emotional intelligence skill in itself at Team Leader level was critical for the Team Leader role.248

[196] As to the provision of meeting notes on 6 June 2016 for the meeting held on 17 May 2016, Tauti could not remember if the PMP expired on 3 June 2016 but she thought she had informed Khan of the extension (verbally) prior to 3 June 2016. She believed the extension advice had been documented but "just can't recall where exactly".249 Tauti conceded it was 6 June 2016 when she advised Khan of the decision to extend the PMP which was after the expiry of the review period. The extension of the plan was so that the "things that haven't, haven't, and the main areas around, and that's where Colleen had acknowledged that herself, was the communication and leadership".250

245 TR9-41, L8.246 TR9-41, L27.247 TR9-43, LL23-39.248 TR9-43, LL47-48.249 TR9-46, L2.250 TR9-48, LL25-27.

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[197] During the operation of the extended plan it had been the intention to go through the process from the start with the things met to be read out "because there might be something extra that can be added from Colleen's perspective".251 Tauti did not recall the level of detail presented to Khan at their last meeting but accepted that the extension was to enable her to demonstrate the application of what she had learned in the emotional intelligence course in respect of her communication. Tauti agreed there was an onus on her under the PI Policy to produce evidence of whether the requirement was met or not and there was an onus on her to demonstrate whether evidence relied upon was documented.

[198] In re-examination, the witness recalled having said to Khan at the meeting on 6 June 2016:

Given that you attended the emotional intelligence course only recently, there are further items for you to work on. I'd like to extend this process by six weeks to allow you to meet the requirements of the plan.252

Also, at that meeting Khan was given the opportunity to raise or present anything further and stated, "No there is not".253

Appellant's submissions

Introduction

[199] A psychological injury was suffered by Khan in the course of her employment as the ATL for Oral Health Services with the THHS. There was uncontested medical evidence from Dr Likely (Psychiatrist) that the injury was a major depressive disorder and that her employment was the major significant contributing factor. The application for compensation is one for acceptance subject to the potential exclusionary effect of s 32(5) of the WCR Act.

[200] The application of s 32(5) of the WCR Act is confined to the part of Khan's employment namely the placing of her on the PMP on 23 February 2016 which was later extended on 26 June 2016, the date she left the workplace. The employment otherwise had not engaged the concept of "management action" with Khan's work stress arising from the day to day operational requirements of the employment.254

[201] The question to be decided pursuant to s 32(5) of the WCR Act, is whether:

the implementation of the PMP was unreasonable management action; or

251 TR9-51, LL28-29.252 Exhibit 144.253 Ibid.254 Allwood v Workers' Compensation Regulator [2017] QIRC 88; Read v Workers' Compensation Regulator [2017] QIRC 72 and cases cited therein.

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the PMP was managed in an unreasonable way.255

Employment

[202] The role as Team Leader was demanding covering two health campuses, a separate records facility and mobile dental services over a large area. The extensive nature of her role was fully set out in the role description and further there had been a significant increase in the demand for services of oral health over time.

[203] There were challenges faced by the administration team in achieving the efficient use of dental resources which were compounded by staff shortages for permanent front line booking officer positions for the 2013-2016 period. The staff shortages were well known to O'Brien, who at this time in the Acting Business Manager role, created the situation where one of the booking officer roles was filled by acting short term appointments for over three years. As a result of the staff shortages, Khan was required to fill in on the front counter because other administration staff could not be sourced. This directly reduced the time she was able to perform the Team Leader role and this was known by O'Brien. Khan felt overworked, stressed and her evidence regarding the impacts upon her employment was unchallenged. Documentary evidence which accumulated over the years leading up to the PMP, confirmed an excessive workload or at least a highly demanding one because of staff shortages.

Standards imposed upon the employer regarding a PMP

[204] The implementation of a PMP and its continuation was regulated by the employer's PI Policy. Schedule One to the PI Policy establishes the "minimum mandatory standard practice, procedure or process to enable satisfactory compliance" with the requirements of the PI Policy prior to the implementation of the PMP.

[205] Pursuant to clause 2 of the PI Policy, O'Brien was required to:

effectively monitor Khan's performance and discuss performance concerns with her at the earliest possible stage;

give considerations to possible direct reasons and influences for the performance concerns; consider reasonable adjustment for Khan's impairments from her broken leg pursuant to the

relevant policies; and provide Khan (prior to commencing the PMP process) with an informal performance

process which includes: information of performance expectations in writing; appropriate training and associated resources; and feedback and counselling where concerns are identified.256

255 Appellant's submissions filed 20 April 2020, p 1, para 5.256 Appellant's submissions filed 20 April 2020, pp 3-4, para 13.

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[206] Once the requirements of clause 2 of the PI Policy were satisfied, the requirements for the formal process contained at clause 3 of the PI Policy came into effect as identified in Schedule One:

The performance improvement process should meet the requirements of natural justice and be objective, equitable, accountable and confidential.257

[207] Pursuant to clause 3 and Schedule One of the PI Policy, O'Brien was required to:

have an initial meeting with Khan; and hold regular review meetings.258

[208] The high standards fixed by the mandatory terms of the PI Policy were unsurprising because of the potential consequences for an employee who did not meet the requirements of a PMP that included disciplinary action which could lead to the termination of the employment. Whether O'Brien had reasonably implemented the PMP can be determined by an objective assessment of the documented process against the requirements of the PI Policy. O'Brien in her evidence accepted that it was her responsibility to comply with the requirements to document the process.

Deficiencies in the implementation of the PMP

No informal process to identify and improve unsatisfactory performance

[209] A letter was handed to Khan on 23 February 2016 by O'Brien annexing the draft PMP which clearly conveyed that "a Performance Management Plan (PMP) is to be implemented".259 The introductory words in the letter purported to reference "ongoing discussions regarding concerns about your performance during the period 15 October 2015 to current". Reference was also made to a number of "informal discussions" on specified dates with copies of notes attached. O'Brien went on to state, "I am concerned that after these ongoing discussions, your standard of performance has not improved". If the statements in the letter had occurred following which Khan's performance had not improved to the required standard, it may have satisfied the informal process set out in clause 2 of the PI Policy, however a mere assertion to that effect does not.260

[210] On examination of the process including the documentation up to 23 February 2016, there is confirmation that no informal performance management process was undertaken for the following reasons.

257 Ibid, p 4, para 14.258 Ibid, p 4, para 15.259 Exhibit 101.260 Appellant's submissions filed 20 April 2020, p 4, para 18.

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[211] Firstly, the discussions relied upon were routine and conducted in accordance with the obligations pursuant to the Human Resources Policy G9 (QH-POL-189) "Performance and Development" (the PAD Policy). They were not informal discussions about unsatisfactory performance with there being not one reference to unsatisfactory performance in any of the documents attached to the correspondence of 23 February 2016.

[212] The nature of PAD discussions are very different to the informal process contemplated by the PI Policy with the identification of two different management processes of performance that could not be clearer. In circumstances where ordinary PAD meetings identify unsatisfactory performance issues, the PI Policy is then engaged and is to be followed.

[213] A contemporaneous note by O'Brien of the PAD meeting on 14 January 2016 reflected two separate performance processes. O'Brien recorded "CK queried if the management plan noted in the meeting which occurred on 15/10/15 related to a PMP and MO'B noted it did not but a management plan within the PAD".261 There was no suggestion by O'Brien that the meeting was an informal PMP process under clause 2 of the PI Policy.

[214] Retrospectively re-characterising the ordinary and regular PAD meetings which every employee has with their supervisor irrespective of poor performance is the management equivalent of trying to "put a square peg in a round hole".262 The assertion that there was an informal performance management process is contrary to the contemporaneous documents.

[215] The failure of O'Brien to engage in the informal process required by the PI Policy had the consequence of depriving Khan of the requirement and opportunity afforded to her to be provided with:

information on performance standards and requirements in writing; appropriate training and resources relevant to the performance issue identified in the

informal process; feedback and counselling in respect of the identified concerns; opportunity to have the performance expectations determined in consultation with her; and a period of time to demonstrate compliance with the above requirements before the formal

process commenced under clause 3.263

[216] The failure to engage in the informal process creates ambiguity about the expectations of the employee and how those expectations can be addressed. It subsequently undermines the implementation of the formal process under clause 3 because the identification of the alleged unsatisfactory performance was rendered more ambiguous.

261 Exhibit 87.262 Appellant's submissions filed 20 April 2020, p 6, para 24.263 Appellant's submissions filed 20 April 2020, p 6, para 25.

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[217] Secondly, if the PAD process could in theory be substituted for the informal process required by the PI Policy, the process engaged in by O'Brien did not meet the standard required of an informal performance management process in a number of ways that included:

Khan was not provided with the information on performance expectations in writing as required by clause 2. The material provided recorded discussions on day to day operational matters which related to the functions of Khan, the administration team generally and the finalisation of the PAD;

Khan was not provided with appropriate training and associated resources which impacted any identified area of unsatisfactory performance. The general support strategies subject of discussion were not linked to performance concerns but to future development and strategic objectives; and

the PAD signed on 4 February 2016 identified only one area that Khan had not demonstrated a level of achievement against her key performance indicators.264

[218] The PAD in respect of Khan's performance showed she achieved and demonstrated 100% compliance with the values and conduct of the THHS values and the Code of Conduct.

No consideration of direct reasons and influences for performance concerns

[219] The requirements of clause 2 of the PI Policy were to give consideration to organisational factors or personal circumstances which affected the employee's performance to be taken into account in a decision to commence a PMP. It also requires an employee to be provided with information on performance expectations, appropriate training and resources, feedback and counselling prior to the commencement of a PMP.

[220] To the extent there were any genuine concerns about Khan's performance, the meeting notes and the PAD attached to the letter 23 February 2016 identified direct causal links between difficulties encountered by her in discharging her duties and factors outside of her control. They included:

administration staffing including the non-renewal of Schmidt's contract, increased workload and Khan's request for a more private desk;265

ongoing recruitment instability and the impacted functions of Khan's duties as a Team Leader and requests for support from O'Brien for enough fulltime equivalent staff to cover reception;266

identified challenges within the administration team relating to staffing levels which impacted across a variety of functions including both emergent and planned leave;267 and

264 Appellant's submissions filed 20 April 2020, pp 6-7, para 28.265 Exhibit 75.266 Exhibit 87.267 Exhibit 95, p 2 of PAD signed 04.02.16.

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'workloads … extremely busy … short staffed'.268

[221] O'Brien was well aware of the direct relationship between the time spent by Khan in the reception area and the possible drop in performance. On 19 February 2016 Khan reported ongoing difficulties with workloads and shortage of reception staff which impacted her ability to perform her own role and further additional difficulties by way of increased pain from the constant demands of reception duties. Tellingly, it was said by Khan:

My mental wellbeing is being affected, and my stress levels are also at an increased level due to the impact carrying out two roles has on my Team Leader role's functions and requirements.269

[222] It was not acknowledged by O'Brien of Khan's stress and the effect on her mental wellbeing or performance. At that time (January/February 2016) as a Manager, O'Brien knew a staff member was operating under sustained high workloads that could be productive of stress. It was also known by O'Brien that Khan had reported sustained high workloads over the preceding years.270

[223] O'Brien claimed to have regard to the pain described by Khan on 19 February 2016 by the referral back to her general practitioner for a review of the suitable duties plan, although it was not clear if that pain was taken into account in the considerations to which clause 2 of the PI Policy were directed.

[224] The decision of O'Brien not to take into account Khan's stress and her overwork in deciding to implement the PMP was a clear breach of the requirements imposed by clause 2 of the PI Policy. This omission by O'Brien is consistent with the language used by her in the letter of 23 February 2016 which contained the following references to the considerations required by clause 2 of the PI Policy:

Reasons for performance issues

You have advised me that your unsatisfactory performance is predominantly related to:

Organisational Factors

Impacts relating to a perception in increased workloads for Booking Officer staff rostered on reception;Difficulty maintaining a stable establishment of skilled Booking Officer on reception for positions that require temporary backfill; andThe high need to roster yourself on reception to cover planned and emergent

leave.271

268 Exhibit 97, p 232.269 Exhibit 99, p 235.270 TR7-70, LL5-17.271 Exhibit 101.

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The letter acknowledges that Khan reported the factors impacting on her performance but stopped short of accepting what had been reported was true. This along with O'Brien's evidence establishes a further deficiency in the implementation of the PMP.

[225] Although the issues described by Khan detracted from her ability to perform the role, her performance was still very good according to the PAD of 4 February 2016 and was testament to her highly effective leadership and delivery of key performance indicators despite the external factors. The inconsistency between the detail contained in the PAD and the broad assertions of unsatisfactory performance less than three weeks later cannot be rationally reconciled.

Letter and draft PMP did not identify the performance concerns

[226] Pursuant to clause 3 of the PI Policy there was a requirement to identify areas of unsatisfactory performance which should be documented and supported by evidence to demonstrate performance concerns, improvements and the minimum mandatory requirements. As a matter of common sense it was difficult to conceive that a PMP could reasonably be commenced without the clear identification of the performance concern sufficient to justify its implementation.

[227] The PMP in this case was deficient and a direct consequence of the failure to engage in the informal performance management process. The draft PMP did little to identify the basis on which it was implemented. The closest it came to identifying the basis of the decision to start was "[t]he performance concerns include: Communication; and Management and Leadership".272

[228] The reference to "Management and Leadership" was ambiguous and inconsistent with the PAD review of Khan's achievement against key performance indicators and her 100% compliance with values and conduct by her leadership together with the absence of any reference to unsatisfactory performance.

[229] The reference to leadership concerns in the draft PMP was also inconsistent with O'Brien's evidence that she decided to implement the PMP on the specific basis, namely the two factors identified in her speaking notes for the initial PMP meeting as:

perceived aggression relating to other members of the administration team; and appellant's communication with Parry during the meeting 'which is an action that could be

perceived as aggressive'.273

The perceived aggression relating to other members of the administration team was not ever identified or communicated to Khan by O'Brien which confirms the unreasonableness of the decision to implement the PMP.

272 Exhibit 101, p 1 draft PMP 23.02.16.273 Exhibit 172; TR8-37, L26; TR8-39, L17.

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[230] In the meeting of 11 February 2016 it was O'Brien's evidence that she had not told Khan her communication had fallen below an appropriate standard at the meeting, with a concession from her that it was important to document circumstances where communication could be perceived to be aggressive. The previously referenced speaking notes prepared by O'Brien did not contain any suggestion about Khan's unsatisfactory communication performance.

[231] On the assertion of O'Brien that she informed Khan her communication was unsatisfactory and she had decided to implement the PMP without documenting the conversation, it was said to be wholly unreliable. It was an example of the principle discussed in Watson v Foxman where McClelland CJ said:

Where the [alleged misleading] conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.274 (Underlining added by Appellant)

[232] At the time of making the speaking notes for the 29 February 2016 meeting, O'Brien already knew of Khan's apology to Parry and that Parry had not perceived Khan's communication as aggressive. O'Brien also agreed that the conduct of Khan in calling Parry and apologising demonstrated she:

met an expectation she could resolve the issue herself; showed initiative, an ability to admit fault in a communication situation; and allowed a positive framework for communication and future conflict resolution with

Parry.275

[233] The conduct of Khan was consistent with advice given by O'Brien in respect of communication difficulties that Khan experienced with Stanley. In an email (dated 25 February 2016) she stated:

My first piece of advice for any situation involving staff is to encourage involved parties to resolve the situation at the most local and informal level. In this situation I would encourage you

274 Watson v Foxman (1995) 49 NSWLR 315, pp 318-319.275 TR8-33, LL35-46.

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to speak with the staff member involved (Kath) to see if a resolution can be achieved between the two of you.276

[234] The cumulative effect of the deficiencies compels the conclusion that the PMP was unreasonably implemented.

Deficiencies in the management of the PMP

[235] The PMP was signed on 16 March 2016 for a fixed period from 7 March 2016 to 28 May 2016. Khan at that time noted her concern about the PMP process.

The PMP did not relate to any unsatisfactory performance of the Appellant

[236] The first consequence of the absence of any clear evidence of the performance concerns being provided to Khan was the inability to develop clear, objective and measurable job performance expectations relating to the unsatisfactory performance.

[237] The PMP attached table, "Action Plan" listed four columns which were identified as:

Objective; Strategies; Responsibilities; and Timeframe.277

[238] The specified objectives blandly referred to the employer policies and codes of conduct which applied equally to all employees. None of the objectives were linked to any unsatisfactory performance. The objectives were so broad they could not satisfy the requirements of Schedule One and it was unreasonable to have these objectives included in the PMP.

[239] The submissions referenced a number of other objectives relied upon in the PMP process which were addressed as follows.

[240] Objective 5 - "Implement regular, professional and effective communication frameworks/meetings for line delegates and stakeholders, which focus on sustainably achieving required organisational outcomes, work through organisational barriers and that improves the abilities and outcomes of teams and individuals within the administration team" combines communication frameworks, organisational barriers, individual and team outcomes. O'Brien did not provide or attempt to provide clear evidence of her performance concern about regular meetings and their effectiveness to Khan at the initial meeting. In cross-examination, when pressed, O'Brien conceded she did not have evidence that the meetings were not being conducted by Khan. It was unreasonable to include this objective in the PMP.

276 Exhibit 103, p 252(b).277 Exhibit 110.

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[241] Objective 6 - "Undertake effective and professional communication with line manager when seeking support, direction and advice on organisational issues which impact on administration team outcomes". At no time did O'Brien inform Khan that her communication with her was causing a performance concern and there was a lack of clear evidence to support this objective being reasonably included in the PMP.

[242] Objective 7 - "Undertake effective and professional communication with all staff and stakeholders in Townsville Oral Health Services which demonstrates a high standard of workplace behaviour and personal conduct". This objective was not identified by clear evidence at the initial meeting and as mentioned previously O'Brien had been complementary of Khan's interactions with Parry. A further deficiency arose as a result of the failure by the employer to provide adequate training to Khan before the commencement of the formal process which was a clear requirement of the informal process established by clause 2 of the PI Policy. Tauti said it would have been good for Khan to have undertaken the emotional intelligence course in the first week of the PMP and that it was an important aspect of work for a Team Leader and critical to a PMP which targeted communication. In the informal management process there was no identification of the fact that Khan had been provided training and resources on this critical part of the role. To target the communication style of Khan without providing the appropriate training was inequitable. There was no opportunity for Khan to demonstrate improved performance in respect of the emotional intelligence training.

[243] Objective 8 - "Fulfil the accountabilities of the Administration Team Leader role description and take responsibility of the outcomes that are required to be achieved both personally and within the administration team". There was no clear evidence from O'Brien of a performance concern about these topics in the initial meeting with Khan nor had she engaged with Khan in a process that addressed the fundamental problem of the ongoing appointment of temporary contracts to frontline positions of booking officer. In January and February 2016 Khan engaged in a truncated recruitment process along with rostering which lead to O'Brien accepting that Khan:

was proactive and informative; showed a positive sign of leadership and recruitment; gave no reason for complaint about management of staff and rostering; demonstrated independence in respect of staffing issues; ticked the communication box; and gave a 'good demonstration of the role'.278

[244] When these concessions were understood in the context of the PAD completed on 4 February 2016 they reflected positively on Khan's performance generally and it was unreasonable to have included this objective in the PMP.

278 TR7-66, L19; TR7-68, L30; TR7-69, LL6-40.

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[245] Objective 9 - "Support for the employee". O'Brien had not identified any performance concerns in respect of the strategies around her current roster, flexible work arrangements or leave approved in advance, therefore it was unreasonable to be included in the PMP.

[246] An analysis of the contents of the PMP show that it addressed every aspect of Khan's employment and was cast in such broad terms that it could not relate to an identified performance concern. It was immeasurable, ambiguous and unrelated to any clear evidence of a performance concern provided to Khan in the initial meeting.

There was no ongoing measure of Khan's performance

[247] Schedule One of the PI Policy required the employer to, inter alia:

(a) regularly review and discuss the PIP requirements with the employee and decide, against each criteria, whether the employee has met, or not met the requirements;

(b) provide objective evidence/examples to demonstrate the decision and to document that in the meeting notes; and

(c) sign the review meeting notes along with the employee.279

[248] The obligation to document the process in an objective and accountable manner remains at all times upon the employer. A failure to provide meeting notes which reflect the review discussion and agreement frustrates the process, creating ambiguity about performance measurements.

[249] O'Brien had not engaged in any decision in the regular review meetings about whether the criteria was being met, provided any documentation to Khan or provided meeting notes in a timely way. These deficiencies compounded an already impossible task for Khan to demonstrate performance improvement and compliance with criteria. The same process continued after Tauti took over the management of the PMP when Tauti said:

It is my understanding that is what Melissa has done. What I have been doing is alternating one week and we have a conversation and Colleen brings her bits and pieces and then the next week we go through each item one by one, that's what I've been doing.280

[250] The meeting held on 24 June 2016 was the first occasion when the requirement to decide whether each criteria had been met or not. That occurred after the PMP was extended without having decided whether Khan had not met any particular criteria and this was contrary to the spirit of the PI Policy in that an extension could be justified without such an assessment. The process had not been able to provide clear, appropriate and measurable expectations. This was a direct consequence of the failure

279 Exhibit 151, Schedule One, No 2.280 Exhibit 147.

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to identify unsatisfactory performance by clear evidence and to proceed with the PMP on the bare assertion Khan's performance had not been satisfactory.

Injury caused

[251] The decision to implement the PMP was described by Khan as devastating and her medical attendance provided a clear picture of the development of her injury:

(a) On 15 February 2016 the note records 'gets pain especially towards the end of the days work, has been doing a couple of people's job and gets exhausted at the end of the day';

(b) On 19 February 2016 'Highly stressed, crying, has pain and swelling of her Rt ankle, doing long hours and other works as lack of staff and that makes her pain and swelling worse';

(c) 28 February 2016 ' … having performance review tomorrow and is quite worried about it. Rt ankle feeling fine except after a long day …';

(d) 27 March 2016 'Crying all the time due to her workplace situation. Has been working in Qld health for last 25 years never had any problems everything started after her broken Rt ankle, still getting pain and swelling after the days work, adv continue light duties … Counselling done, has problem sleeping. No suicidal thoughts. Adv counselling from her workplace …';

(e) 26 June 2016 'Still feeling very stressed, has been seeing the Qld health psychologist, also was adv to take rest, seeing her again tomorrow …';

(f) 3 July 2016 'Off her work, has been seeing psychologist regularly, has been advised rest, getting headaches not sure whether due to BP, Sleep little better, looks quite stressed, crying, Adv Rest'.281

[252] In the final meeting on 24 June 2016 Khan was highly distressed and observed to be very upset which resulted in her leaving work the following day and not returning. Her general practitioner noted on 26 June 2016 that she was "still feeling very stressed".

[253] Dr Likely's evidence identified the cumulative effect of the workplace stressors which led to the injury and included the implementation and continuation of the PMP. The temporal proximity between the PMP meeting of 24 June 2016 and Khan leaving the workplace sustains the conclusion that the employment was the major significant contributing factor to her psychological injury.

[254] Orders sought:

(a) the appeal is allowed;(b) the appellant's injury is one for acceptance; and(c) the respondent pay the appellant's costs of and incidental to the appeal.282

Respondent's submissions

281 Exhibit 176.282 Appellant's submissions filed 20 April 2020, p 18, para 82.

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[255] The appeal before the Commission sought to overturn a decision of the respondent (dated 6 June 2017) which denied a claim for compensation in respect of an alleged psychiatric injury made by Khan on 8 September 2016.

Preliminary Discussion - Parameters of the Issues

[256] In respect of the implementation and continuance of a PMP on and from 23 February 2016, Khan argued that the PMP was unreasonable management action in that:

there had been no informal process to identify and improve the unsatisfactory performance; there had been no consideration of reasons and influences for any unsatisfactory

performance; the letter and draft PMP failed to identify the performance concerned; the PMP did not relate to any unsatisfactory performance; and there was no ongoing measure of Khan's performance.283

[257] The appellant's submissions were an exposition how various features of the PMP were in breach of the numerous policy descriptions as to how a PMP should be instituted and subsequently managed. The respondent acknowledged that whilst compliance with policy was important, a breach of policy was not necessarily tantamount to a finding of unreasonable management action with much depending upon the matrix of fact, employment setting and peculiar employment circumstances. The submissions indicated there was a failing on the part of the appellant in that all of her evidence be accepted without question, ignoring the broader context of what was occurring in the workplace setting. An example was the criticisms of the PMP process substantially towards O'Brien who ended her role in the PMP on or around 1 April 2016, when the responsibility for that process was handed over to Tauti who continued to interact with Khan until approximately 24 June 2016.

[258] In her Statement of Facts and Contentions Khan identified one of her principal stressors was the decision by Tauti to extend the PMP and whilst such an alleged stressor had to be of some potential moment given its close temporal connection to her departure from work, it was curious that no mention was made in her submissions to that particular event preceding her departure from work. The respondent in their Statement of Facts and Contentions contended that any psychiatric symptoms suffered by Khan were potentially attributable to non-compensable factors arising from an ankle injury. Khan was required to demonstrate that her employment was "the major significant contributing factor" to the onset of any potential compensable psychiatric condition.284

[259] The sole reliance by Khan upon the evidence of Dr Likely as establishing the fact of injury and that the employment had been the major contributing factor to that injury was the subject of question on the basis of:

283 Respondent's submissions filed 22 May 2020, p 2, para 5.284 Ibid, p 3, para 7.

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the history presented to Dr Likely was so at variance with the objective evidence that his opinions are necessarily brought into question; and

the allegations made to Dr Likely brought into question the credit and reliability of Khan's evidence.285

[260] Other medical evidence in the proceedings from Khan's general practitioner on 19 and 26 June 2016 and a psychologist on 18 May 2016 and 21 and 27 June 2016 was capable of establishing that Khan was suffering "rising levels of stress and anxiety" on 27 June 2016 as a result of what ensued in the review meetings with Tauti on 17 May 2016 and 6 and 24 June 2016. For that reason the respondent was prepared to concede that Khan was "suffering a psychological injury to which her employment was the major significant contributing factor".286 However, it was the respondent's contention that her broken ankle, more particularly the belief held by Khan as to the role played by O'Brien in the rejection of her WorkCover claim, was a factor that the preponderant weight of the evidence in the proceedings established:

there were obvious shortcomings in Khan's work as a Team Leader, especially as it related to her management, leadership and communication;

the shortcomings identified by O'Brien were brought to Khan's attention with steps taken to address those issues at a very early stage, perhaps as early as mid-2013;

in light of the continuing failure of Khan to address these issues and especially in the area of her communication with other staff, the decision to implement the PMP was amply justified; and

in view of the further deficiencies in Khan's communication skills thereafter, the decision by Tauti to extend the PMP was justified in the circumstances.287

[261] A chronology of matters relating to Khan's employment covering the period between 18 June 2013 and 27 June 2016 was submitted by the respondent. The chronology identified dates and particular events which correlated with exhibits tendered in the proceedings. The subject matter of the chronology can be categorised into the following areas with the relevant exhibits identified by the respondent as follows:

performance and communication issues;288

assistance offered to Khan regarding her performance;289

medical evidence concerning Khan's stress related condition;290

previous unsuccessful WorkCover claim;291

aggressive, challenging, evasive behaviour by Khan;292

Khan's credibility;293

285 Respondent's submissions filed 22 May 2020, p 3, para 8.286 Respondent's submissions filed 22 May 2020, p 4, para 10.287 Ibid, p 4, para 11.288 Exhibits 155, 156, 158, 159, 14, 25, 176, 165, 175, 58, 166, 65, 180, 69, 73, 75, 95, 168, 169, 185, 186, 120, 35; TR9-15, LL20-35.289 Exhibits 4, 157, 158, 159, 60, 7, 13, 14, 25, 58, 176, 185, 186, 120, 136, 137, 191.290 Exhibit 176, pp 11, 10, 7, 5-6, 5, 265; Exhibit 154, pp 65, 66, 67.291 Exhibits 67, 177, 182, 167, 168, 176, pp 5-6, 168.292 Exhibits 4, 5, 171, 137, 136, 191; TR 9-6, LL31-37.293 Exhibits 20, 21; TR 5-31, LL10-29.

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grievance lodged by Khan;294 and PMP process.295

Medical Evidence

[262] On the appellant's assertion that Dr Likely's expertise and opinion were not challenged hence her application for compensation should be accepted, subject to the exclusionary effect of s 32(5) of the WCR Act, it was argued the appellant ignored an important piece of legal principle in regard to the acceptance of expert medical opinion. The principle in question dictates that before an expert opinion can be accepted by a tribunal of fact, the factual basis underlying the opinion must be safely established by the evidence.296

[263] Dr Likely in his evidence accepted the premise that he had relied upon the account given by Khan in the formation of his opinions in addition to:

the general practitioner record of 27 March 2016 regarding the WorkCover claim; the psychologist's record of 18 May 2016 which recorded Khan had been "gutted" that her

WorkCover claim had been rejected; and a focal event of the history provided by Khan was that she was asked to terminate Schmidt

on alleged "vexatious grounds".297

[264] In the report prepared by Dr Likely it was recorded that Khan contended the employer engaged in unreasonable management action under the guise of meetings in respect of the PMP which were characterised by:

adopting a hypercritical approach towards her performance; artificially exaggerating the shortcomings alleged against her; allegedly confronting her with petty matters without warning; regularly pursuing responses from her until she was physically upset; intruding into her personal life; and unreasonably extending the PMP despite Khan having satisfied

requirements under the PMP.298

Further, Dr Likely recorded that:

it was only on 23 February 2016 that Khan was advised for the first time her performance was unsatisfactory;

294 Exhibits 122, 129.295 Exhibits 172, 112, 117, 118, 120, 119, 121, 130; TR 9-4, LL10-29; Exhibit 133, TR9-5, LL17-23; Exhibits 138, 144, 146, 174 (audio recording), 176 especially p 5.296 Respondent's submissions filed 22 May 2020, p 25, para 13.297 Ibid, p 25, para 14.298 Ibid, p 25, para 15.

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Khan was not informed at any time on 14 January 2016, 4 February 2016 or 11 February 2016 that her performance was unsatisfactory; and

staff were coerced into making vexatious complaints about Khan.299

[265] On an assessment of Dr Likely's evidence it can be fairly made:

there was importance accorded to the denial of WorkCover and O'Brien's role in the representations to WorkCover cannot be ignored particularly with the clinical note of 27 March 2016 where it was recorded that it "all started after her broken ankle";

aside from a consultation on 4 November 2013 for stress and on 5 November 2014 after some performance issues were raised, the first reference to any stress symptoms by Khan was on 19 February 2016, two days after O'Brien had initially warned about the imposition of a formal PMP;

if Khan had been overworked as claimed and further suffered resultant stress, it seems implausible that Khan would fail to mention such health factors in the various general practitioner consultations in the period 2013 until early 2016;

the reference to the psychologist's notes about being "gutted" by the refusal of WorkCover cannot be ignored;

the evidence about the discontinuance of Schmidt's employment was denied by O'Brien and she had no knowledge of any alleged vexatious grounds;

many of the factors as related to Dr Likely were not referred to in the evidence, let alone established;

the evidence amply establishes that a number of unsolicited genuine complaints were made about Khan's behaviour; and

Dr Likely's report made no reference to the crucial events of 9 and 11 February 2016.300

[266] The Commission ought to have some reservations accepting the evidence of Dr Likely in light of the demonstrated problems in respect of the factual basis as set out in his report not being established by the evidence.

Khan's credit and reliability

[267] The evidence in chief from Khan was given over a three day period relating to a number of events in the period from 2013 until 2016 during which she did not profess to have any problems recollecting any of the various events. However, in cross-examination the responses from Khan were quite different when on occasion she professed to have no specific recollection in respect of events which she could have perceived as being not necessarily favourable to her case.

[268] One of the most focal events of Khan's evidence was how she found out about the imposition of the formal PMP, with the evidence in chief being that she noticed an envelope on her desk marked "Private and Confidential" and had not been alerted to such a letter by O'Brien. This proposition was reaffirmed by Khan in cross-examination which was said to have caused her great stress.301

299 Respondent's submissions filed 22 May 2020, p 26, para 15.300 Respondent's submissions filed 22 May 2020, pp 26-27, paras 16-21.301 Ibid, pp 27-28, paras 25-26.

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[269] Evidence provided by O'Brien based on her carefully compiled contemporaneous records for the period 18 to 23 February 2016 as to what happened on 23 February 2016 cannot be challenged. This evidence alone from Khan as to what happened should be sufficient for the Commission to have reservations about accepting her evidence. In the same vein the statements by Khan to Dr Likely about her performance being under review was only raised for the first time on 23 February 2016 and that in meetings of 14 January, 4 February and 11 February 2016 no mention was made of any performance concerns, are not sustainable and hence additionally affect her credit. The allegation made to Dr Likely about being forced to terminate Schmidt on "vexatious grounds" falls into the same category.302

Breaches of Policy

[270] There were allegations made by Khan that requisite policies were breached in a number of ways without any clear factual basis in Khan's submissions that would allow the Commission to make such findings. The reliance by Khan upon each of the five alleged breaches of policy to show instances of unreasonable management action, even if the Commission was to make such a finding, it can be stated that such a finding does not necessarily establish an entitlement to compensation. This is because it still has to establish that any of the alleged breaches of policy had either alone or collectively amounted to a stressor or stressors which contributed significantly to her psychiatric condition. There was no evidence that established the particular alleged breaches, even if they occurred in the circumstances as alleged by Khan, had in anyway been specifically productive of stress.

No informal process of identifying and improving unsatisfactory performance

[271] It was argued that there must be a process quite separate from the PAD procedure which aims to informally identify and improve unsatisfactory performance. The relevant PAD policy provides:

1. Performance and Development Components

There are six major components of the performance and development (PDP) process. Employers and Managers are required to:. . .5. If necessary, manage unsatisfactory performance in accordance with the

Performance Improvement HR Policy G11.303

[272] In her own evidence Khan conceded that in a PMP "performance management … was part of - standard performance and appraisal and development".304

302 Respondent's submissions filed 22 May 2020, p 28, para 27.303 Ibid, pp 29-30, para 35; Exhibit 150.304 Ibid, p 30, para 36; TR5-64, LL 30-45.

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No consideration of direct reasons and influences for performance concerns

[273] It was argued that the employer had given no consideration to Khan's high, unsustainable workloads and consequent stress being suffered as an explanation for her unsatisfactory performance. There was a lengthy process of complaints by Khan about workload with the chronology providing details of attempts by O'Brien to assist and of a proposed solution produced by Khan in early 2014. It was known by O'Brien that Khan had been operating under sustained high workload according to Khan's submissions, however O'Brien only conceded that Khan "reported" high workloads and "that when she provided me with that information, I would try and get more information and direct her to support" in order to substantiate those claims.305

[274] Further, in response to the proposition that O'Brien had not taken into account the issue of workload in deciding to implement the PMP, there had been a response from O'Brien that she had no specific knowledge Khan spent an inordinate amount of time on reception in the precise period for her to be over stressed and over worked. It was the case in Khan's role that "it was not a requirement of her role for her to be on reception".306

[275] On the matter of physical symptoms relied upon by Khan to support the lack of consideration given to her circumstances, it should be noted that both the Suitable Duties Plan (current at the time) and the general practitioner's consultation note of 15 February 2016 did not reflect physical symptoms as bad as Khan was now raising, nor for that matter, were there any mental health issues. In any case, O'Brien gave Khan the clear option of providing evidence from her general practitioner in order to amend the Suitable Duties Plan if needed, but this was not taken up.307

The letter and draft PMP did not identify any performance concerns

[276] The letter provided to Khan on 23 February 2016 contained the following:

Dear Colleen

I refer to our ongoing discussions regarding concerns about your performance during the period 15 October 2015 to current.Several informal discussions have occurred on the following dates: 15 October 2015 - Performance Discussion 14 January 2016 - PA&D Discussion 4 February 2016 - PA&D Formalised and Signed 11 February 2016 - Scheduled Support MeetingDuring these discussions I clarified the nature of the performance concerns, outlined my expectations and informed you of any work-related support to assist you in improving your

305 Respondent's submissions filed 22 May 2020, p 30, paras 37-38; TR7-70, LL5-21.306 Ibid, pp 30-31, para 39; TR10-26, LL19-23.307 Ibid, p 31, para 40.

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standard of performance. In addition, we explored reasons for the performance issues as well as possible solutions. Copies of the meeting file notes are attached.308 (underlining by respondent)

[277] This allegation is unsustainable.

PMP did not relate to any unsatisfactory performance of the appellant

[278] Khan's complaint solely focussed upon what was specifically recorded in writing in the course of the PMP review meetings. It was apparent that in the meetings Khan had with O'Brien and later Tauti, that a range of performance concerns were discussed. Much of the documentation generated from the meetings reflected oral interchanges. Additionally, O'Brien would send written notes of each meeting to Khan with the content of those documents clearly showing that the PMP and the ensuing discussions covered issues of Khan's unsatisfactory performance. The written material compiled by Tauti was even more detailed in setting out the issues of unsatisfactory performance which were addressed at each meeting.

[279] A feature of the evidence further refuting this particular assertion by Kahn was the nature of the performance issues that she needed to address. These were identified by Khan to Tauti in their initial meeting of 3 May 2016 as "Communication, Management and Leadership". Tauti at the same time was also advised as to what steps had been taken up to that point and Khan at the meeting confirmed in writing that she was "committed to meeting the expectations of the PMP and enhance ongoing development".309

[280] This allegation was simply not sustainable.

No ongoing measure of Khan's performance

[281] Apart from supplying notes of the meetings late on occasions, O'Brien sought to comply with the objective of Schedule 1 of the PMP policy, as had Tauti, who recorded compliance with the same objectives. There were questions raised around a process developed in the PMP whereby the onus was transferred to Khan to produce evidence and examples to demonstrate performance and compliance with criteria, however the respondent submitted it was not unusual to ask an employee subject to review regarding deficiencies in their performance to produce examples of improved work performance. The alternative to that would be for a manager to supervise the employee throughout the working day which would be unacceptable.

[282] The assertion by Khan that the meeting of 24 June 2016 was the first occasion upon which it was "to decide whether each criteria was met or not" should be assessed against the following evidence:

308 Respondent's submissions filed 22 May 2020, pp 31-32, para 41; Exhibit 101, p 237.309 Respondent's submissions filed 22 May 2020, p 33, para 47-48.

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the PMP when first commenced was to continue until 3 June 2016; on 22 March 2016 Khan and O'Brien met where Khan provided "feedback" on a number of

issues; on 5 April 2016 O'Brien and Khan met for the last time where notes recorded that material

provided by Khan disclosed that attention was directed to her demonstrating improved performance in the stipulated areas;

in their 12 May 2016 meeting, Tauti's notes demonstrated that Khan was asked about a particular issue to which she responded as to what steps had been taken and on each occasion Tauti suggested how further steps may be taken;

by the time of the meeting on 17 May 2016, the unsuccessful mediation with Stanley had occurred. Notes reflected that in light of Khan's behaviour in that mediation, further work was required in respect of the code of conduct. Tauti provided advice to her on how inappropriate her conduct had been; and

in the meeting of 6 June 2016 Tauti noted that in light of the Thew complaint, the PMP was to be extended by a further six weeks and in view of the fact that Khan "had only recently attended the Emotional Intelligence Course" there were further issues for her to work on.310

[283] The Commission had the advantage of hearing the audio recording of the meeting held on 24 July 2016311 and it was the case that reliance by Khan on a small portion of a large conversation which took place that day ignored the proper context as to what occurred. Additionally, the appellant's submission misdescribes what occurred and completely ignored the passage regarding the communication issue quoted earlier in the meeting. The evidence readily discloses that it had been pointed out to Khan on many occasions that the numerous incidents which prompted genuine complaints from staff amounted to inappropriate conduct by her. A legitimate observation can be raised as to how much further instruction or guidance had to be given to Khan who had been in the public service for some time and risen to become a team leader as to how to communicate with her staff.

Conclusions

[284] There was a concession by the respondent that it was open for the Commission to find that Khan had suffered "stress and anxiety" to which her employment had been the major significant contributing factor. The particular employment factor identified in the nominated medical evidence from the general practitioner and psychologist was the decision of Tauti to extend the PMP for six weeks which was communicated in the meeting of 6 June 2016. The clear temporal connection between that event and her departure from work after the meeting on 24 June 2016 cannot be discounted.

[285] The case for the appellant focussed substantially, if not totally, upon her interactions with O'Brien and for reasons set out in the submissions, the respondent contends that the Commission accept O'Brien's evidence. All the actions were not only reasonable management action, but more importantly, not causative of the particular psychiatric

310 Respondent's submissions filed 22 May 2020, pp 33-35, para 54; Exhibits 119, 127, 128, 133, 138.311 Exhibit 174.

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condition suffered by Khan at the end of June 2016 when she left work. The interactions with O'Brien only provide some background as to what occurred.

[286] In the period from 18 February 2016 there were references to stress symptoms in consultations with her general practitioner but they were not sufficient for her to take any time away from work. On 3 May 2016 Khan informed Tauti that she understood the requirements of the PMP and expressed a positive attitude to meeting the PMP requirements.

[287] On 17 May 2016 Tauti raised with Khan an adverse appraisal on her behaviour in the mediation session with Stanley, noting that Khan seemed "very upset". The decision on 6 June 2016 to extend the PMP was adequately conveyed to Khan and she well understood that it was her communication failing which had prompted the extension of the PMP. She protested that she could not comprehend how her lack of communication skills was a problem. This was a product of Khan's usual defensive mechanism when performance issued were raised. Deficiencies in her communication ability had been a long-standing problem and it was well-established this problem was the factor which prompted O'Brien to embark upon a PMP.312

[288] In the circumstances the actions by Tauti in appraising Khan of her communication deficiencies on 17 May 2016 and the further decision on 6 June 2016 to extend the PMP by six weeks was reasonable management action, both in its conception and in the way it was conveyed to Khan.

Orders sought

[289] The appeal be dismissed with Khan to pay the respondent's costs of and incidental to the appeal.

[290] The respondent's Review Decision of 6 June 2017 be confirmed.

Appellant's submissions in reply

Compliance and non-compliance with employer's policy

[291] The submission of the respondent that the employer's breach of their own policies was not necessarily tantamount to a finding of unreasonable management action was accepted by Khan on the basis that a breach of policy or procedure may be trivial in the sense that operational efficiency reasonably dictates a departure from a policy without detriment or unfairness to an employee. Policy is however important with policies and procedures established by the employer forming an integral part of the employer and employee relationship. They reflect the processes and principles to which the employer and employee commit to in that relationship. This is particularly so in the context of

312 Respondent's submissions filed 22 May 2020, p 37, paras 63-64.

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performance management which is widely accepted to give rise to acute distress and in the case of Khan accepted as causing her stress.

Role of the extension of the PMP

[292] It was agreed by Khan that the respondent's position of the extension of the PMP "has to be of some potential moment given its close temporal connection with the appellant's departure from work".313 The submission of the respondent is consistent with that of the appellant.

[293] The related principle is that it is the responsibility of the tribunal of fact to determine the ultimate issues. In Cowen v Bunnings Group Ltd Wilson J said:

As Dixon CJ and others explained in Ramsay v Watson, a medical expert may express an opinion as to the nature and the cause, or probable cause, of an ailment, but it is for the jury to weigh and determine the probabilities; and, in undertaking that exercise, the Court is not to transfer the task to experts, but rather, to task itself: 'Are we on the whole of the evidence satisfied on the balance of probabilities of the fact?'.314 (reference omitted)

Role played by O'Brien in respect of Khan's ankle injury

[294] The respondent in submissions dealt with Khan's belief "… as to the role played by O'Brien in the rejection of her WorkCover claim for the ankle, is a factor of the evidence to be considered by the Commission" which is not contested by the appellant. If Khan's perception of the role played by O'Brien is found to be a stressor which contributed to her injury, then it adds to her claim for two reasons:

O'Brien's role in providing information to her superiors about the incident as part of the employer's requirement to provide information to WorkCover is an incident of the ordinary course of O'Brien's employment and is not management action of the appellant. It is not captured by the protection afforded to WorkCover or the respondent by s 32 of the WCR Act; and

Khan's belief or perception of O'Brien's role was not a feature which detracted from her application.315

Medical evidence

[295] There was no submission from the respondent that the evidence of Dr Likely ought not be accepted nor was it submitted there were any reservations about the history that detracted from Khan's case in proof of injury. The absence of such submissions was consistent with the earlier concession that Khan suffered an injury to which work was the major significant contributing factor and this accorded to the conclusion reached by Dr Likely.

313 Appellant's submissions in reply filed 5 June 2020, p 1, para 3.314 Ibid, p 1, para 3; Cowen v Bunnings Group Ltd [2014] QSC 301.315 Appellant's submissions in reply filed 5 June 2020, p 2, para 5; Gilmour v Workers' Compensation Regulator [2019] QIRC 022, [60], [61] and the authorities cited therein.

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[296] By calling an expert to provide an opinion, Khan discharged her onus and this was based upon a history which was substantially similar to the evidence adduced at trial in Makita (Australia) Pty Ltd v Sprowles where Heyden JA observed:

The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.316

Khan's credibility

[297] Whether there was a flawed recollection of the circumstances in which Khan was provided with the PMP is of no consequence to the outcome of the appeal as it was the effect that it had upon her which mattered. On that point there was common ground between Khan and O'Brien.

Causation

[298] The breadth of the respondent's submission that even if each breach was an instance of unreasonable management action "it still has to be established that any of the alleged breaches of policy have either alone or collectively amounted to a stressor or stressors which has contributed significantly to the appellant's psychiatric condition". It is the employment as a whole, not each individual stressor, which must be the major significant contributing factor.317

[299] It was undeniable on the evidence that Khan was stressed by factors about her day to day employment prior to the implementation of the PMP. Those stressors continued after the implementation of the PMP. None of the day to day stressors are captured by the exclusion to which s 32(5) of the WCR Act is directed. The test remains that applied in Q-COMP v Hohn.318

[300] The respondent's submission which asserts an evidentiary onus on Khan to establish a particular alleged breach was specifically productive of stress for her, overstates the principles cited in Tabet v Gett where Kiefel J, with whom Hayne, Crennan and Bell JJ agreed, observed:

316 Appellant's submissions in reply filed 5 June 2020, pp 2-3, para 7; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, [64].317 Appellant's submissions in reply filed 5 June 2020, p 3, para 9318 Ibid, p 3, para 10; Q-COMP v Hohn (2008) 187 QGIG 139.

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The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. 'More probable' means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.319

No informal process

[301] The submissions of the respondent blurred performance management in the context of the PAD and informal unsatisfactory performance management under the PMP policy. The passage of the PAD policy extracted by the respondent confirmed that the PAD process may identify unsatisfactory performance but it is not a substitute for the informal process required under the PMP policy.

No consideration of direct reasons and influences on Khan's performance

[302] It was Khan's submission that the obligations established by the PMP policy should be reversed as it was O'Brien's responsibility to give consideration to the other influences on her perception of Khan's poor performance before implementing the PMP. That obligation was not discharged by the dismissal of the content of Khan's ongoing complaints of matters impacting her ability to do her duties without taking steps to ascertain the position.

Letter and draft PMP did not identify any performance concerns

[303] The submissions of the respondent did not engage with the language of the PMP policy. In particular clause 3 and Schedule 1 which require the identification of "unsatisfactory performance" and within that context provide evidence of the "performance concerns" which constituted the unsatisfactory performance.320

[304] The umbrella descriptor of "performance concerns" to which O'Brien resorted to justify the implementation of the PMP is not a substitute for unsatisfactory performance sufficient to implement the PMP policy.321

PMP did not relate to any unsatisfactory performance

[305] The measure of whether the PMP complied with the minimum mandatory requirements of Schedule 1 of the PMP policy, is the written document itself which the parties were required to sign and not the broad ranging discussions of performance concerns which occurred subsequently.

319 Appellant's submissions in reply filed 5 June 2020, p 3, para 11; Tabet v Gett [2010] HCA 12, [111].320 Appellant's submissions in reply filed 5 June 2020, p 4, para 14.321 Ibid, p 4, para 15.

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No ongoing measure of Khan's performance

[306] O'Brien may have sought to comply however the question to be answered is whether she did in fact comply. The employer through O'Brien made the decision to implement the PMP and by doing so assumed the responsibility to comply with the obligations to demonstrate with evidence the unsatisfactory performance.

[307] The alternative postulated by the respondent was not the only alternative and even if it were it simply demonstrated the significance of the employer's obligation under the PMP policy. In the ordinary course of supervision the day to day communications are what was contemplated by the PMP policy in which the PMP supervisor must compile evidence to justify their position at each review meeting.

[308] Khan was subject to inequality in the PMP process. It was implemented because of O'Brien's perception of Khan's apology to Parry as aggressive which was not once verbalised to Khan and conceded objectively constituted a positive framework for communication and conflict resolution. It was not reasonably open to the respondent to distract its own obligations to comply with the specificity of the PMP policy by asserting that Khan did not need to be told how to communicate because of the duration of her employment.

Conclusions

[309] It was artificial to extricate the extension of the PMP by Tauti from the PMP implementation by O'Brien and the management by both of them. It cannot be reasonable to extend a PMP which was unreasonably implemented and unreasonably managed. The occurrence of other events in May 2016 relied upon by the respondent to justify its validity of the PMP do not operate retrospectively. Even Tauti conceded the interaction with Stanley was not the reason to extend the plan.322

[310] The clear picture painted by the evidence was of increasing distress and frustration during the PMP because it remained at all times an amorphous weight upon Khan with no end in sight.323

Conclusion

[311] In the course of proceedings it was not of contest between the parties that Khan was at the relevant time a "worker" for the purposes of s 11 of the WCR Act.

Medical evidence

322 Appellant's submissions in reply filed 5 June 2020, p 5, para 20.323 Ibid, p 5, para 21

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[312] The extent of medical witness evidence before the Commission was limited to that of Dr Likely, a consultant psychiatrist who had undertaken an examination of Khan on 19 June 2017 (almost a year after Khan exited her employment for the final time). A report was subsequently generated (dated 18 July 2017) in which he expressed the following opinion in regard to a mental disorder said to be suffered by her:

It is my opinion that as a result of the accumulative stressors outlined above in Ms Khan's place of work as an Administration Team Leader for Oral Health Service with Queensland Health between November 2013 and June 2016 that Ms Khan has developed a psychological injury. This is Major Depressive Disorder. This (sic) a severe disorder of mood, the symptoms of which can become more severe and treatment refractory with the passage of time if not effectively treated.324

[313] Dr Likely, based on the history provided by Khan, gave evidence of being unable to find any other stressors in her life outside of the workplace.

[314] In the course of cross-examination, Dr Likely was taken to clinical notes pertaining to Khan's medical circumstances and acknowledged that in the case of a leg injury suffered by her in 2015 it could have an impact on a person's psychiatric health. He reaffirmed his earlier evidence in re-examination that as a result of the accumulative stressors outlined by Khan she had developed a psychological injury.

[315] The respondent questioned the proposition advanced on behalf of Khan that Dr Likely's expertise and opinion were not challenged by alternate medical evidence adduced by Khan and should be accepted subject to the exclusionary effect of s 32(5) of the WCR Act. The basis of the objection lay with the legal principle as to the acceptance of expert medical opinion requiring that there be a factual basis underlying the opinion, established by evidence in the proceedings.

[316] Dr Likely took into account a significant number of contentions cited by Khan in the course of the examination conducted by him on 19 June 2017 to support a claim that she suffered a disturbance in her mental health from November 2013 to 24 June 2016. Khan informed him that due to increased workloads her ability to perform her role was impractical which subsequently led to her being placed on a PMP on 23 February 2016.

[317] She went on to inform him that her employer had engaged in unreasonable management action under the guise of PMP meetings which were characterised by:

a. adopting a hyper-critical approach towards her performance;

b. artificially exaggerating the shortcomings alleged against her;

c. repeatedly confronting her with petty matters without warning;

d. regularly pursuing responses from her until she was physically upset;

e. intruding into her personal life; and

324 Exhibit 188.

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f. unnecessarily extending the Performance Management Plan despite Ms Khan's satisfaction of the requirements under the Performance Management Plan.325

[318] There was stand-alone evidence from Khan in the proceedings that alleged her performance and conduct had been the subject of continued criticism which included artificial exaggeration of her shortcomings, regularly being confronted about petty matters and of intrusion into her personal life. Such evidence was not assisted by the lack of any corroborative evidence to support the allegations particularly in the face of witness evidence relied upon by the respondent from O'Brien, Perry, Pittard and Tauti which offered a totally different perspective of the management interaction in the workplace between Khan and themselves.

[319] On the matter of intrusion into her personal life, I note a signal example involved a telephone call being made to Khan regarding an inquiry about a recruitment issue whilst she was absent from the workplace on sick leave with an injured leg. The contact would hardly satisfy any reasonable test of significant intrusion into her personal life through this specific conduct and in any event Khan made no complaint at the time of any intrusion and in fact responded to the inquiry in a co-operative way.

[320] The view expressed by the respondent that the sole reliance upon the evidence of Dr Likely to establish the causative nature of her psychological injury being as a result of accumulative stressors outlined in the period from November 2013 to June 2016 would be an unsafe finding by the Commission is not without some merit, particularly as there is a reluctance by myself to accept the position advanced by Khan regarding such conduct as Khan's position was not supported by medical evidence or by any of the medical records tendered in the course of the proceedings.

[321] In the matter of Makita (Australia) Pty Ltd v Sprowles a Full Bench of the New South Wales Court of Appeal stated:

The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.326

[322] Further, the Full Bench identified the matter of Ramsay v Watson as a "classic illustration of one type of case in which the principle applies":

325 Exhibit 188.326 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, [64].

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One other important aspect of Ramsay v Watson is the following statement at 645:

'That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves "Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?".'

The jury cannot weigh and determine the probabilities for themselves if the expert does not fully expose the reasoning relied on.327

[323] With regard to other medical evidence available in the proceedings in the form of medical consultation notes emanating from Khan's visits to her general practitioner and psychologist, the respondent was prepared to concede that those records for 19 and 26 June 2016 (general practitioner) and 18 May 2016 and 21 and 27 June 2016 (psychologist) were sufficient to establish that Khan suffered "rising levels of stress and anxiety". On 27 June 2016 as a result of what emerged in the review meetings with Tauti between 17 May 2016 and 24 June 2016 the respondent further conceded that Khan "suffered a psychological injury to which her employment was the major significant contributing factor".328

[324] In respect of the medical evidence and the concession proffered by the respondent, I find that there was sufficient evidence and material available to the Commission to find that:

Khan suffered a personal injury in the form of a psychological injury; the injury arose out of and in the course of her employment; and the employment was the major significant contributing factor to the

personal injury.

[325] In terms of the evidence provided by Dr Likely that Khan developed a psychological injury as a consequence of accumulative stressors in the workplace between November 2013 and June 2016, I am not satisfied that it has been established to the requisite standard of proof in that the medical records pertaining to consultations by Khan at that time identified a causal link with the injury subject to the claim for workers' compensation. However, that is not the case for the period of time from 18 May 2016 until 27 June 2016 where clearly it was established that Khan suffered a psychological injury with a temporal connection to her employment.

Matters for determination

327 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, quoting Ramsay v Watson [1961] 108 CLR 642.328 Respondent's submissions filed 22 May 2020, p 4, para 10.

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[326] In their written submissions it was advanced by the appellant that there were two discrete questions for the consideration of the Commission pursuant to s 32(5) of the WCR Act, which had the effect of requiring the Commission to determine whether:

the implementation of the PMP was reasonable management action taken in a reasonable way by the employer; and

the management of the PMP was reasonable management action taken in a reasonable way by the employer.

[327] The position of the appellant was apposite on the premise that the medical evidence of Dr Likely would be accepted as being "uncontested" medical evidence, however as addressed previously there was a finding by the Commission that Khan suffered a personal injury in circumstances that differed with the opinion of Dr Likely. Nevertheless, this resulted in the acceptance of Khan having suffered a personal injury in the form of a psychological injury that arose out of and in the course of her employment with the employment being the major significant contributing factor to the personal injury.

[328] The finding by the Commission in terms of the personal injury sustained by Khan was not of a nature that would render void the proposal of the appellant regarding the matters for determination and as such the proposition is accepted.

Implementation of the PMP

[329] I am satisfied that Khan was first advised of the decision of her employer through the actions of O'Brien to implement a PMP when on 23 February 2016 she was provided with correspondence which disclosed the intent of the employer. A number of attachments to the correspondence included:

Performance Appraisal Notes dated 14 January 2016; Performance Appraisal and Development Plan dated 4 February 2016; Copies of meeting file notes dated 15 October 2015 and 11 February 2016; Draft Performance Management Plan; and Role of a Union representative and support persons in assisting employees

addressing workplace issues.

[330] The correspondence referenced ongoing discussions that had occurred regarding performance concerns held about Khan's employment in the period of "15 October 2015 to the current" and identified four specific informal discussions being:

15 October 2015 - Performance Discussion; 14 January 2016 - PAD Discussion; 4 February 2016 - PAD formalised and signed; and

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11 February 2016 - Scheduled Support Meeting.

[331] It was stated that during the course of the abovementioned discussions O'Brien clarified the "nature of the performance concerns, outlined my expectations and informed you of any work related support to assist you in improving your standard of performance. In addition, we explored reasons for the performance issues as well as possible solutions".329

[332] Further, it was stated that:

Reasons for performance issues

You have advised me that your unsatisfactory performance is predominantly related to:

Organisational Factors

Impacts relating to a perception in increased workloads for Booking Officer staff rostered on reception;Difficulty maintaining a stable establishment of skilled Booking Officer on reception for positions that require temporary backfill; andThe high need to roster yourself on reception to cover planned and emergent leave.330

[333] A meeting was to be convened as a result of concerns held by O'Brien that following "ongoing" discussions the standard of Khan's performance had not improved to the required level. The proposed meeting was to occur on 25 February 2016 however was rescheduled by agreement between the parties as a consequence of difficulties encountered by Khan in obtaining the services of a support person.

[334] In determining whether the decision to implement the PMP was reasonable management action taken in a reasonable way consideration must be given to:

the content and application of the employer's Human Resources Policies in operation at the relevant time; and

Khan's level of performance in the period stipulated in the PMP.

Policies

[335] There were two Human Resources policies in place with regard to the decision requiring Khan to participate in the PMP being:

Performance and Development (PAD) - G9 (QH-POL-189);331 and Performance Improvement (PI) - G11 (QH-POL-190).332

329 Exhibit 101.330 Ibid.331 Exhibit 150.332 Exhibit 151.

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PAD

[336] The purpose of the PAD process was to act as a vehicle to enhance the work performance and career development of employees by:

clarifying performance objectives and expectations for employees, ensuring feedback and guidance on performance; and

collaboratively identifying learning and development needs and activities.

[337] The policy mandated participation in the process for existing employees such as Khan, twice yearly with a structure that required:

formal documentation of discussions about performance feedback, learning strategies, obtaining and development of skills;

participation in a performance meeting to assess previous performance and clarification of the employee's role. This requires self-reflection and assessment across a range of relevant employment dimensions; and

participation in the ongoing management of workplace performance including work allocation, coaching and regular feedback discussions.

[338] There was a requirement to record on the appropriate form that the PAD process had been completed and where it was established that unsatisfactory performance existed, the PAD at s 1.5 states:

[I]f necessary, manage unsatisfactory performance in accordance with the Performance Improvement HR Policy G11.

PAD - Considerations

[339] The content of s 1.5 of the PAD when read in its ordinary terms provides for unsatisfactory workplace performance to be managed by the utilisation of the PMP, if deemed necessary

[340] The correspondence generated by O'Brien (dated 23 February 2016) which informed Khan of the intention to implement a PMP made reference to four "informal" discussions that occurred in the period between 15 October 2015 and 11 February 2016, in particular:

14 January 2016 - PAD discussion; and 4 February 2016 - PAD formalised and signed.

PAD discussion - 14 January 2016 - Notes

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[341] In the proceedings an unsigned File Note (handwritten)333 and PAD notes (typed)334 pertaining to this meeting were tendered. Both notes were prepared by O'Brien.

[342] The File Note amongst other things recorded issues that included:

complaints from an unidentified person that they had "issues with" Khan; Khan whilst concerned by the complaints had received "loverly (sic)

feedback from staff"; discussed the difference in personal and professional support. The personal

referred to "EAP appropriate agency". The professional made reference to "maintaining professional boundaries between CK and staff and Khan and O'Brien";

O'Brien discussed "areas that warrant further development improvement"; need to address escalation issues; workload management for self and team; and priority - "completion of tasks (effectiveness)". (underlining added)

[343] A number of issues in these notes (underlined) in my view refer to areas of Khan's performance where O'Brien identified a level of performance requiring improvement.

[344] The PAD notes amongst other things raised issues as follows:

Khan identified areas of development: busy role and constant workload; would like more stability and skilled staff - ongoing recruitment

requirements; impacted ATL functions include development of business plans,

relationship building, training and meetings; and believed that issues with past recruitment timeframes were not due to

actions of herself but from above. Khan requested the following support from O'Brien:

enough FTE to cover reception; increased information sharing based on historical concerns of being

left out of decisions relating to team outcomes; opportunity to advance and grow (i.e. CDBS), workbench training; support to increase ability to develop business case skills; and increased support (personal and professional). (underlining added)

[345] Issues contained in these notes (underlined) indicate areas of performance identified by Khan as requiring development assistance from her employer.

333 Exhibit 86.334 Exhibit 87.

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[346] In the section of the notes titled "General Discussion and Feedback" the following content was included:

Khan noted that the recent complaint from Michelle Maxy was unwarranted and demonstrated that she had issues with Khan but uncertain why. Khan raised concern of complaint from Kathren Stanley but noted that other staff gave her loverly (sic) feedback (i.e. jokes);

O'Brien provided feedback that many of the areas outlined under development improvement such as staffing and learning administration functions from staff (i.e. outsourcing) are within the scope and accountability of the ATL role;

Khan recognised that the request for additional resourcing would require a submission of a business proposal that work had been undertaken to compile data such as phone calls etc. Khan requested support in the area of business case development;

O'Brien and Khan discussed the difference in personal and professional support and the relevance to the professional relationship between O'Brien and Khan and Khan and staff within the ATL delegation. O'Brien noted the importance of maintaining professional boundaries and that personal support can be provided in the form of consideration to assist with dealing with personal issues and/or referral to support including EAP;

O'Brien and Khan discussed the need to be considerate in the choice and use of language;

O'Brien and Khan discussed impact on continual disruption from staff within delegation and the need to build up resilience, problem solving abilities and capacity within the team and focus on using these opportunities for ongoing team development; and

O'Brien and Khan discussed the importance on the separation of Khan from the AO3 technical duties and releasing time to concentrate on leadership and development outcomes. (underlining added)

[347] The underlined sections in my view identify further areas of performance either raised by O'Brien or Khan that warranted some form of continued redress.

[348] The meeting note reflected a number of development strategies, the subject of agreement between O'Brien and Khan that included:

incorporate into H&WBSG Administration Network and consider mentor arrangement with Jean Rogers;

monthly meeting with Manager (60 minutes) on performance outcomes and fortnightly catch ups scheduled for ongoing support;

EXCEL training; time management training; and business case development support - OHS specific needs from O'Brien and

ongoing support from H&WBSG Administration Manager.

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[349] Other areas of Khan's performance were identified under the heading of "Development and Improvement" in the following terms:

Communication - need to have effective meetings, remain professional with staff and clients at all times (email, phone, face to face) and to consider previous discussions on feedback raised by staff (Maxey and Stanley);

Issue Escalation/De-escalation - need to ensure all relevant information is included when dealing with issues, clearly identify the issue, considered solutions and recommendation of what action was being required from the officer dealing with the escalation. Ensure that appropriate escalation is also undertaken by staff within own delegation without including ATL when appropriate.

General Management - fulfilling the requirements of the role description, workload management for self and team, staff rostering and leave management across the team and the ability to complete tasks (effectiveness);

Decision Making - ability to consider priorities and identify issues within the scope of the ATL and take ownership in decision making relating to outcomes within scope. Understand the issues or request for additional support/resource outside of scope, consider effective solutions and effectively escalate for further consideration.

[350] It was evident, certainly as at 14 January 2016, that there was an agreed process for a continued response to areas of Khan's work performance which required ongoing development in areas critical to her role as a Team Leader, specifically including:

communication; issue escalation/de-escalation; general management; and decision making.

[351] It was not difficult therefore to mount argument that significant areas of Khan's employment at this date required a level of continued intervention by the employer to lift her performance to a standard that embraced the expectations and parameters of the Team Leader role.

4 February 2016 - PAD formalised and signed - Notes

[352] The employer relied upon these particular notes as having formed part of the considerations in the decision to implement the PMP. The notes were tendered in the

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proceedings, having been signed by both Khan and O'Brien on 4 February 2016.335 Upon examination of the notes it is obvious they contained a range of positive feedback in terms of Khan's performance, including:

was an active member of the senior team and provided advice on administration issues in collaborative settings;

demonstrated awareness of the need to undertake communication with staff and management;

had a good operational knowledge and a strong background in dental health which enabled her to identify current potential issues;

demonstrated ability to resolve most day to day operational or technical issues; and

was committed to work towards improving the ability to increase the autonomy of direct reports due to the reported impact on her senior workloads.

[353] It was also recorded in the document that Khan achieved 100% compliance within the area of "Values and Conduct" in that:

she lead by example the implementation of the THHS Values; and she lead by example the implementation of the Queensland Public Service

Code of Conduct.

[354] With respect to the section "Achievement against Key Performance Indicator" Khan was assessed as having successfully achieved:

capacity bookings, reduced FTA and referral management; implementation and management - new OH Guidelines; adequate staff feedback and response to feedback; and regular emergency bookings and co-ordinated bookings across sites.

However, a number of areas were also identified where Khan failed to satisfy the standard or they were areas still in progress, including:

record management, high staff morale, double handling and identifying areas of improvement;

maintaining skills in HR policies, ensuring development and mandatory training was upheld;

carrying out recruitment processes in a timely manner; preparing and implementing internal policies and rostering staff

appropriately;

335 Exhibit 95.

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oversight of records, archives, policies and guidelines for oral health; performance management of staff; monitoring staff performance and ensuring policies regarding

confidentiality, equity, respect and integrity were maintained; and ensuring rostering incorporated training requirements and complied with

mandatory training requirements. (underlining added)

[355] This document on the face as a stand-alone would unlikely be sufficient to support the implementation of a PMP, however the underlined areas demonstrate critical aspects of Khan's performance that were still "unsatisfactory". In any case, the document was not relied upon in isolation and it must be remembered that Khan signed off on the document.

Other informal discussions relied upon

[356] In the correspondence (dated 23 February 2016) Khan was advised that in addition to informal discussions under the PAD process, there were two other occasions where her performance was discussed and these were being relied upon as a basis to implement the PMP. These meetings were held on 15 October 2015 and 11 February 2016.

15 October 2015 meeting notes

[357] This meeting was attended by O'Brien and Khan with notes of the meeting taken by O'Brien and tendered in the proceedings. The notes contained references to a number of topics relevant to the administration team of which Khan was the Team Leader and of particular relevance were the following extracts:

Issue Escalation When escalating issues for decision or support within the Administration

Team Leader accountability the following should be considered:o Communication should be clear, concise and should contain all

relevant information;o Identification of issue/outcome that needs to be achieved;o What solutions and alternatives that have been considered; ando Specific information on what you are requiring to assist in issue

resolution. CK acknowledged that she feels a gap in having a network to discuss

issues. MO acknowledged there was potential for confusion to both parties around

discussions as to whether the discussion was about support, decision making, issue escalation or "venting".

There was an agreement from MO and CK to review options for increased peer and networking support.

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Communication Feedback There have been recent formal reports and informal feedback relating to the

communication style of CK. CK feels that these instances are unwarranted/unjustified. As a Line Manager there is a higher level of accountability relating to

communication such as:o Building networks;o Working collaboratively;o Being clear and concise; ando De-escalating potential conflict or using conflict to achieve positive

outcomes. In formal meetings the discussions should be structured and action focused. Regular scheduled meetings with relevant staff and appropriate backfill are

essential. CK sought feedback relating to recording of conversations and MO

confirmed that this would never occur without seeking permission and as such no recording of conversations between CK/MO had ever occurred.

[358] Arising from the meeting a number of actions were documented:

There was agreement that a PAD would be booked to develop a management plan.

MO provided CK with the Queensland Public Service Workforce Capability Success Profile for CK to undertake a self-assessment exercise against the Team Leader profile and this will feed into PAD plan/outcomes.

CK will consider and identify training and support requirements. CK requested MO to consider approving a physical desk move to a more

private location.

[359] The "actions" identified an agreement with Khan to establish a PAD to develop a management plan which would seem to have acknowledged that a level of development was required. In addition, Khan appears to have agreed to undertake a self-assessment exercise against the Team Leader profile and to consider training and support requirements all of which point to the conclusion that O'Brien held reasonable concerns about Khan's work performance at the time.

[360] Interestingly, the final notation records O'Brien providing information to Khan on how the EAP could be accessed for personal or management support.336

11 February 2016 meeting notes

336 Exhibit 75.

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[361] The meeting notes were provided in both handwritten and typed form and were said to form a record of a meeting held between Khan and O'Brien on that date. The purpose of the meeting recorded in the typed notes stated:

Provide Colleen an opportunity to seek advice relating to administration matters and outcomes; and

Enable timely opportunity for Colleen to receive feedback relevant to Colleen's role and the outcomes of the administration team.337

[362] Under the "Feedback Relating to Performance" section the following was included:

ISOH Training (Workbench)

Colleen noted her dissatisfaction that training had been allocated to her without support. Melissa thought that Colleen had been included in training sessions scheduled from OCDO in the past. Colleen confirmed she had not.

Colleen expressed dissatisfaction that she was required to perform functions that should have been carried out by the Principal Dental Officer relating to Outlook and Novell Access for the students. MO reiterated the outcomes discussed in Admin Support Meetings and thought this was appropriate delegation of work.

Consideration for organisational Improvement and Leadership

[363] The notes recorded the following issues that had been the subject of dialogue:

Referred to an example of an email from 27 January 2016 relating to DMDC.

Utilising the email to discuss multiple PAD goals relating to communication, leadership, ability to engage staff outside of delegation and ability to drive and support organisational change.

Feedback provided included:o Consideration of subject line;o Noted as a long standing issue (raised previously with Manager) and

that Colleen has attempted resolution but nothing had improved;o Melissa encouraged Colleen to consider different approached (sic) for

engagement (meetings, providing data, gaining buy in from stakeholders).

Colleen noted that she felt nothing would change but she would take the feedback on board. (underlining added)

[364] There were further references to communication, leadership, ability to engage with staff outside of delegation and the ability of Khan to drive organisational change which was

337 Exhibit 97.

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a continuation of concerns being documented about defects in Khan's performance previously raised by O'Brien.338

Administration incident - 9 February 2016

[365] The discussion section of the meeting notes referred to feedback sought by O'Brien relating to a potential incident which may have occurred on 9 February 2016. In terms of the response from Khan the following was documented in the notes:

Colleen became very emotional and broke down in tears. Language was perceived by Melissa as aggressive particularly towards other staff within the administration team.

Colleen was upset that she was working hard without support while other staff complained behind her back and in future she would complain first.

Colleen informed Melissa she was upset that every time she came in the office she was in trouble.

Melissa provided reiterated (sic) that these meeting (sic) were scheduled for feedback on performance goals outlined in the PAD could be discussed.

Colleen informed Melissa she was going home sick and left the office at 3.15 pm. Colleen re-entered the office at approximately 3.20 pm and informed me that she had rang

Kym Parry and that she could recall an incident. Colleen gave her recollection of the event that occurred on reception where the employee (Kym Parry) arrived (sic) a non-eligible patient and Colleen provided prompt feedback that this was not acceptable. Colleen left the office at 3.24 pm.

Ultimately Colleen did not choose to take sick leave and remained until 5.00 pm.339

[366] The handwritten notes recorded that Khan referred to members of her team as "those bitches" and that "she needs to get in first and complain". O'Brien also recorded "Col noted that every time she comes into my office she is in trouble. I reiterated that the intention of these meeting (sic) was about development particularly against the PAD outcomes".340

[367] Accepting that these notes are the sole recollection by O'Brien of what transpired in the meeting, this at the very least adds to her case for deciding that a PMP was the way forward in responding to Khan's ongoing performance concerns.

Background (prior to 15 October 2015)

[368] Whilst the Commission rejected the opinion advanced by Dr Likely that the psychological injury sustained by Khan had been as a consequence of stressors accumulated in the time period of 2013 until June 2016, on the basis of insufficient probative medical evidence to support such a finding, that period of time however assumes a level of importance in that the evidence from Khan and also O'Brien

338 Exhibit 97.339 Exhibit 97.340 Ibid.

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revealed to the Commission that areas of Khan's performance (whilst not relied upon for the purposes of the PMP) were the subject of dialogue well before October 2015.

[369] On the issue of workload, prompted by staff shortages, there was common ground this had presented difficulties for the administration team and in the case of Khan who had a preponderance herself to undertake the front desk role rather than the activities assigned to the role of Team Leader. In Khan's own evidence in chief, there was acknowledgement of having issues with the undertaking of her duties on numerous occasions that included:

late 2013; February 2014; April 2014; February 2015; and September 2015.

[370] At the same time O'Brien responded to those situations in a timely manner with offers of assistance to Khan, none of which were successful in having Khan remove herself from the front office role to concentrate on the Team Leader functions. The overall effect of Khan's performance was to expose deficiencies in the role and by all accounts this continued up to and including October 2015.

PI Policy - Considerations

[371] This policy regulates the implementation of a PMP with an obligation on a manager or supervisor to meet the standards identified at clause 2 of the PI Policy:

Performance monitoring

Managers and Supervisors are required to effectively monitor employee performance and discuss performance concerns with employees at the earliest possible stage.

Consideration should be given to possible direct reasons and influences for performance concerns, including:

faulty job design problems with co-workers unsuitable work environment ill health insufficient employee competencies personal circumstances indolence.

Reasonable adjustment should be considered for employees with an impairment. For more information on the requirement to provide reasonable adjustment refer to Reasonable Adjustment HR Policy G3.

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Prior to commencing a process to address unsatisfactory performance an employee should have been provided with:

information on the performance expectations, standards and/or requirements, in writing

appropriate training and associated resources feedback and counselling where concerns are identified with performance.

Where appropriate performance expectations, standards and requirements should be determined in consultation with the employee.

When an informal process does not lead to a satisfactory improvement in performance a formal performance improvement process may commence.341

[372] The appellant cited deficiencies in the PMP implementation and in particular the reliance by O'Brien on the PAD Policy which was claimed not to be informal discussions about unsatisfactory performance, but routine discussions conducted in accordance with the PAD Policy. It was also argued that in the PAD documents attached to the correspondence of 23 February 2016 there had been no reference of unsatisfactory performance.

[373] On the perusal of the two PAD documents in question it can be established that the words "unsatisfactory performance" do not appear per se, however the correspondence identified issues with Khan's performance that, in the circumstances, indicate her performance was considered to be below satisfactory.

[374] The document (dated 14 January 2016) gave such examples as:

maintaining professional boundaries between CK and staff and Khan and O'Brien;

O'Brien discussed "areas that warrant further development improvement"; need to address escalation issues; workload management for self and team; priority "completion of tasks (effectiveness)"; and O'Brien and Khan discussed the importance on the separation of Khan from

the AO3 technical duties and releasing time to concentrate on leadership and development outcomes.342

[375] Clearly, as mentioned early in the decision, these areas of Khan's performance required, in the view of the Commission, continued redress which would hardly be the case if Khan's performance was accepted as having been satisfactory. There was also reference in the document to an agreed process for ongoing development in the areas of communication, issue escalation/de-escalation, general management and decision making, which the Commission earlier described as critical in the role of a Team

341 Exhibit 151.342 Exhibit 87.

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Leader and again would such a process be required for an employee who had satisfied the appropriate standard of performance.

[376] In terms of the PAD document (dated 4 February 2016) there were a number of areas highlighted in respect of Khan's performance that had either failed to satisfy the standard or were still going through the improvement process. See paragraph [354] of this decision.

[377] In the decision to implement the PMP there was also reliance on meetings between Khan and O'Brien that occurred on 15 October 2015 and 11 February 2016. Perusal of notes emanating from these meetings confirms that there were still general concerns regarding the performance of Khan as the Team Leader requiring action by the employer to assist Khan in meeting an acceptable standard of performance in her substantive role. See paragraphs [357], [358] and [364] of this decision.

[378] At the end of the day it is, in the view of the Commission, reasonable for an employer who had become dissatisfied with the performance of an employee in the circumstances that were applicable in this instance to Khan, for a decision to be made to utilise the PI Policy and seek to implement a PMP. Grounds for such action were identified in the PAD and other meeting outcomes which were not successfully refuted in evidence before the proceedings.

[379] In the matter of Read v Workers' Compensation Regulator (Read), O'Connor DP (as he then was) stated:

Where an employee's performance falls below the standard expected of a person in that role, or when an employee's conduct does not accord with prescribed practices and procedures, it is reasonable, in those circumstances, for a disciplinary meeting to occur.

In this matter I am satisfied that it was reasonable for the appellant's managers to convene a meeting with her to discuss allegations relating to her conduct and professional standards.343

[380] The principle relied upon in Read in my view is also applicable in respect of Khan except that rather than implement a disciplinary process, the employer through O'Brien adopted a more conciliatory approach aimed at improving the standard of performance rather than going down the path of disciplinary action.

[381] The decision to implement the PMP on this occasion was reasonable management action taken in a reasonable way by the employer.

Management of the PMP

[382] In the correspondence (dated 23 February 2016) which informed Khan of the decision to implement the PMP there was a draft PMP attached which proposed that the plan would operate for the period 7 March 2016 to 28 May 2016. A meeting foreshadowed

343 Read v Workers' Compensation Regulator [2017] QIRC 072, [16]-[17].

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in the correspondence was held at a date later than originally specified where a formal PMP was executed by the parties.

[383] The period of review was identified to take effect from 14 March 2016 until 3 June 2016 with review meetings to occur weekly on a Tuesday morning or at a mutually negotiated time if the initial date could not be maintained.

[384] The background to the PMP was set out in the document as follows:

Colleen Khan has been employed as Administration Team Leader, Oral Health Services since 25th January 2010.

Since 15 October 2015, Colleen's work performance and conduct have not been to the standard required. These issues were addressed through a performance Appraisal and Development Plan (PAD) which was conducted 14 January 2016 and formally reviewed and signed 4th February 2016. A scheduled support and development meeting was undertaken 11th February 2016 which further highlighted the need to consider formal support and development strategies.

The performance concerns include: Communication; and Management and Leadership.

Colleen's performance has not improved to the required level. Therefore, a Performance Management Plan (PMP) is to be implemented as a final opportunity to manage the issue at the local level.344

[385] The aim of the plan was to formally clarify the nature of Khan's performance concern and the cause of the concern, whilst outlining expectations and identifying support mechanisms to improve her communication and leadership outcomes as specified in the role description.

[386] The process to be utilised included the following criteria:

These meetings will provide all parties with an opportunity to discuss and provide feedback on Colleen's progress. The review meetings will include Colleen and the line manager. Colleen may wish to bring a support person to the review meetings.

Individual issues will be addressed with Colleen as soon as possible. The review meetings will provide an overview of all issues addressed since the last review meeting. Issues that have not been addressed prior to the review meeting due to time constraints or other reasons, may be addressed at the review meeting.

At the end of the review period, a written evaluation will be prepared and the outcome conveyed to Colleen in the final meeting. The evaluation report will be forwarded to the reviewing officer for consideration of appropriate action.345

[387] Possible outcomes that may have flowed from the PMP were identified as:

344 Exhibit 101.345 Ibid.

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1. The PMP objectives are met within the review period and the performance management process is finalised. Employees are expected to maintain the required performance level. If this does not occur, the PMP may be reinstated or the matter referred to the Health Service Chief Executive for consideration of discipline action.

2. The PMP is extended for a further period to ensure performance is managed and maintained over a greater period of time.

3. The objectives are not met and the matter is referred to the Health Service Chief Executive (through the reviewing officer and Human Resources) for consideration of possible discipline action.346

[388] The PMP identified in precise terms the responsibilities of the employee, supervisor and the reviewing officer and additionally attached an action plan that identified the following nine objectives (achievements):

Compliance with the employer's policies and guidelines/work instructions; Adherence to the Code of Conduct specifically:

Principle 4 Accountability and transparency4.1 Ensure diligence in public administration;

Adherence to the Code of Conduct specifically:Principle 1 Integrity and impartiality1.5 Demonstrate a high standard of workplace behaviour and personal conduct;

Adherence to the Code of Conduct specifically:Principle 4 Accountability and transparency4.5 Commit to innovation and continuous performance improvement;

Implement regular, professional and effective communication frameworks/meetings for relevant employees;

Undertake effective and professional communication with line manager; Undertake effective and professional communication with all staff and stakeholders to

demonstrate a high standard of workplace behaviour and personal conduct; Fulfil the accountabilities of the Administration Team Leader role description and take

responsibility of the outcomes required to be achieved; Support for the employee.347

[389] The appellant took issue with the Action Plan presenting argument that the specified objectives were bland and not linked to any unsatisfactory work performance, therefore not satisfying the requirements of Schedule One of the PI Policy which recommended the following for the initial meeting:

provide clear evidence of the performance concerns to be addressed develop clear, objective and measurable job performance expectations and support

mechanisms in consultation with the employee assign responsibility of each requirement to the appropriate person establish the length of the performance improvement plan (e.g. usually three months) and

schedule review meetings (e.g. usually weekly or fortnightly) remind the employee about Employee Assistance and how to access advise of possible outcomes should the employee fail to meet performance expectations

(specifically disciplinary action which may include dismissal)

346 Exhibit 101.347 Exhibit 101.

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document the performance improvement plan in writing all parties should sign the performance improvement plan however where an employee

refuses to sign, this should be noted on document.348

[390] Firstly in respect of Schedule One of the PI Policy the process requires the information contained in the schedule to be considered as "the minimum standard practice" to enable satisfactory compliance with Queensland Health HR Policy. The process for the initial meeting is preceded with the following commentary:

The following process is recommended when implementing a performance improvement plan.349

[391] The term recommended is clearly absent of any mandatory connotations. The Australian Pocket Oxford Dictionary defines recommend as, "advise (course of action or treatment, someone to do, that thing should be done)".350

[392] The provisions of Schedule One of the PI Policy should be read with the understanding that all requirements of Schedule One are to be considered in the context of a direct relationship to them being a recommendation.

[393] In any event, in addressing the PMP agreed by the parties in terms of application to Khan, I make the following observations:

Provide clear evidence of the performance concerns to be addressed

The implementation correspondence of 23 February 2016 in my view provided through the attachment of four sets of various meeting notes was sufficient information regarding concerns with Khan's performance in the designated period to satisfactorily meet the requirements of this provision.

Develop clear, objective and measurable job performance expectations and support mechanisms in consultation with the employee

The Action Plan in terms of the Objective column identified the specific sections of the Code of Conduct required to be met by Khan with the Strategies column setting out "how will the objective be met". I am satisfied this provision of the Schedule had been met to a satisfactory standard.

Assign responsibility of each requirement to the appropriate person

The Action Plan through to the Responsibility column placed an onus on a particular individual for each objective, meeting successfully the required obligation.

348 Exhibit 151, Schedule One.349 Exhibit 151, Schedule One.350 The Australian Pocket Oxford Dictionary, Second Edition, Oxford University Press, Melbourne.

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Remind the employee about Employee Assistance and how to access

This facet was met in the correspondence of 23 February 2016 where Khan was advised:

Employee AssistanceEmployee Assistance offers a confidential counselling service which is free of charge to all employees of the Townsville Hospital and Health Service for up to six sessions per calendar year. Access to this service is by self-referral. Please contact PPC Worldwide on 1300 361 008. More information on Employee Assistance can be found at http://qheps.health.qld.gov.au/eap.351

Advise of possible outcomes should the employee fail to meet performance expectations (specifically disciplinary action which may include dismissal)

The employer, whilst advising through the content of the PMP that if the objectives were not met then consideration could be given to possible disciplinary action, had not mentioned dismissal and this accorded with O'Brien's evidence that the focus was on improved performance and there was no intention to use the PMP to terminate Khan's employment.

Document the performance improvement plan in writing

Completed with both parties signing off on the PMP on 16 March 2016.

All parties should sign the performance improvement plan however where an employee refuses to sign, this should be noted on the document

This was not applicable as Khan signed the PMP.

[394] I am satisfied, based upon the evidence and material before the proceedings, the previously mentioned Schedule One criteria had all been met in respect of the initial meeting.

[395] The initial meeting was attended by the following: Khan; Christina Snowden (Snowden), Together Union; O'Brien; and Perry.

[396] Khan and O'Brien signed off on the document on 16 March 2016 agreeing to the following term:

I understand the expectations of me and agree to work to satisfactorily complete this Performance Management Plan.352

351 Exhibit 101.352 Exhibit 110.

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[397] Under the heading Employee Comments, Khan wrote the following:

I have read and understand the document. However, I have concerns with this process.353

[398] A Suitable Duties Program had also been signed off by Khan, O'Brien and a Rehabilitation Co-ordinator on 16 March 2016 that specified:

Duties Normal duties working within physical limitations.

Medical Restrictions Lifting, Carrying/Holding & Pushing/Pulling restrictions (not more than 5 kg) Restricted/limit amount of use of stairs.354

[399] Upon the parties signing off on the PMP, meetings were held on 15, 22 and 29 March 2016 attended by Khan and O'Brien. Review notes of those meetings recorded the following:

15 March 2016 - the review notes recorded amongst other things: advice given to Khan relating to the scope of decision making by Level 4

Administration Officer; PMP signed by Khan noting issues with the plan but declining to elaborate

on the issues; discussion and advice occurred relating to planning for discussions with the

line manager; Khan declined offer for mediation at this stage; Khan noted ongoing concern with professional relationship with another

employee and that future issues are a likely outcome; O'Brien advised that relationship advice should be considered by Khan in

this case; Support offered to Khan:

o agreed Khan would consider a mentor;o Khan confirmed she had external support available to her;o Khan would review external training opportunities;o O'Brien to consider suitable external training programs.

The review notes were signed off by Khan and O'Brien on 1 April 2016 with Khan adding the following comment, "I have read and understood, however I do not agree".

In response O'Brien recorded, "Colleen declined to elaborate on her concerns relating to this process".355

353 Exhibit 110.354 Exhibit 113.355 Exhibit 117.

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22 March 2016 - It was uncontested that at the time of this meeting O'Brien had not provided notes of the meeting held on 15 March 2016 which was not helpful for Khan having to attend this meeting with only her own notes. The review notes tendered in the proceeding recorded amongst other things that:

Khan highlighted a concern about her ability to meet the requirements of the PMP for the week 21-25 March 2016 due to leave arrangements;

Khan raised concerns about the origin of the PMP becoming quite emotional on a number of occasions, declining an offer for a break;

O'Brien highlighted that stakeholder communication was a requirement of the role;

an offer of QHERS training was rejected by Khan as not being required at this time;

support offered to Khan:o Khan considering a mentor;o O'Brien to provide an overview of Emotional Intelligence training

available in Cairns in April 2016.

The review notes were signed off by Khan and O'Brien on 1 April 2016 with Khan adding the following comment, "I have read and understood however I do not agree".

In response, O'Brien recorded, "Colleen was offered an opportunity to discuss her further concerns and it was declined".356

29 March 2016 - The review notes included, amongst other items:

O'Brien requested approval for the meeting to be recorded to support any requirement to review agreed outcomes in the future. Khan sought advice from the Union and this was declined;

Khan confirmed she would seek support from a mentor in relation to meeting documentation;

Khan attended THHS training "Communication - Foundation Skills" - positive response;

Agreed to discuss "Communication/Escalation Framework" at the next meeting;

Support for the employee -o Khan continued to consider a mentor;o Khan expressed an interest in "Emotional Intelligence" course but

unavailable in April 2016 to attend in Cairns.

Khan and O'Brien signed off on 1 April 2016 with Khan recording, "I have read and understood however I do not agree".

356 Exhibit 118.

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O'Brien responded, "I provided Colleen an opportunity to elaborate on what aspects she did not agree with and Colleen declined".357

[400] A file note was tendered in the proceeding which was prepared by O'Brien arising from a meeting held with Khan on 1 April 2016 for the purpose of signing review documents. It recorded that Khan had made the following points:

raised concerns about O'Brien's role and influence in the PMP process; was "too scared" to bring anything to add; felt she could prepare everything in the world and it wouldn't matter as this

process was about managing her out of a job; and was upset about the whole process and felt it was completely detrimental to

her and she would never recover.358

[401] On 29 March 2016 O'Brien sent an email to Khan which was identified as providing "some support and direction" on outcome focused communication between Khan and herself. In dealing with other communication strategies, O'Brien stated, "I encourage you to continue to be open to training opportunities that might come along or that you seek out".359

[402] On 5 April 2016, pursuant to the Queensland Health Grievance Policy E12, Khan lodged a grievance against the decision to initiate the PMP which was said to have adversely affected her, being unreasonable and having caused her a detriment. The grievance identified what she believed was required to resolve the complaint:

I request that this process be continued to be managed through the Performance Appraisal and Development Plan (PAD) processes and that I be provided with adequate and appropriate training and associated resources provided to me pursuant to section 2 of the Queensland Health Policy - Performance Improvement (G11(QH-POL-190)) in order to support me to improve in regard to these issues that have been raised with regard to my performance.360

[403] Correspondence (dated 26 April 2016) was forwarded to Khan from the Service Group Director, Health and Wellbeing who advised in respect of the grievance lodged, "I am therefore satisfied the current formal PIP process is appropriate to continue and I now consider this grievance closed".361

[404] On 5 April 2016 the final PMP review occurred in which Khan and O'Brien participated. The review notes recorded, amongst other things:

357 Exhibit 120.358 Exhibit 121.359 Exhibit 123, p 357.360 Exhibit 122.361 Exhibit 129.

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Khan still required to consider and develop a plan for a communication framework across the team to ensure KPI's could be developed and reviewed on a regular basis.

positive feedback provided from O'Brien relating to staff consultation undertaken by Khan.

support for the employee -

o Khan continuing to consider a mentor;o Khan provided advice she could attend Emotional Intelligence Course

in Cairns. O'Brien would seek to gain approval.

[405] The review notes tendered in the proceedings were unsigned.362

[406] On 26 April 2016 Tauti had taken over the substantive role held by O'Brien and with it came the responsibility to continue with Khan's PMP. A meeting was arranged for 3 May 2016 between Tauti and Khan. A file note taken by Tauti recorded that Khan gave a perspective on what she needed to work on as being, "Communication, Management and Leadership" advising Tauti she had been on three courses the last six weeks. Tauti was recorded as saying, "[W]hat I would be looking for is for you to demonstrate how you are incorporating what you have learned in those courses back into your team in relation to communication and leadership". The file note was signed by Tauti with Khan adding, "I remain committed to meeting the expectations of the PMP and embrace ongoing development".363

[407] Shortly thereafter Tauti was involved in a meeting with Stanley and Khan where she considered the communication style of Khan to be "quite aggressive with her tone and manner" and on 17 May 2016 a meeting was held involving Tauti and Khan in which a file note taken by Tauti recorded Khan becoming "very visibly upset".364

[408] A further meeting between Tauti and Khan was held on 6 June 2016 where Tauti informed her, "Given that you attended the Emotional Intelligence Course only recently and there are further items for you to work on, I would like to extend this process by 6 weeks to allow you time to meet the requirements of the plan. At this time if the requirements of the plan are not met, at that point I will have to refer the matter to the appropriate delegate for consideration". The PMP would therefore be extended to 15 July 2016.365

362 Exhibit 127.363 Exhibit 130.364 Exhibit 138.365 Exhibit 144.

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[409] The final meeting in the PMP process was held on 24 June 2016 and in the file note listed as participants:

Tauti; Khan; Wichman; and Murakami.366

[410] The meeting was recorded for note taking purposes (transcript produced and tendered in the proceedings). Tauti in opening commentary stated:

Alright, ok so in my email I sent you Colleen earlier in the week I'd mentioned that we would go through the plan today and then follow up on anything that is outstanding from the notes that have been taken from the past few weeks.367

[411] An examination of the lengthy transcript confirmed that the meeting transversed the content of the Action Plan in significant detail with a high degree of participation from Khan who was offered every opportunity to present her view on matters, including responses to a multitude of points made in the course of the meeting by Tauti, which included:

conceding that it was a common error on her behalf that she took on all the actions rather than spread them out amongst the team and had been doing that for a 'long time to be honest';

conceding there were client reception issues that she needed to delegate or escalate on a daily basis;

agreeing that she needed to work on her communication with the Team Leader and in particular issues around being professional at all times and demonstrate a high level of personal conduct; and

apologising for her conduct in a recent meeting with Tauti.368

[412] In the course of the meeting Khan also made the following statement in reference to the PMP process:

Ok I haven't had a conversation with my line manager in 12 months that hasn't been documented, but if that is the way it is, that is the way it is I guess, I certainly would never do that to my staff, its just that I don't not (sic) have a regular meeting that is not part of this, I never have an opportunity to speak without it being part of this, everything that I do is part of this, everything, its just, but that is ok, I get that now.369

[413] Towards the end of the meeting the following exchange occurred between Tauti, Wichman (Khan's support person), Murakami and Khan:

366 Exhibit 147.367 Exhibit 147.368 Ibid.369 Ibid.

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RW asked, 'I was just wondering when Colleen has her meeting next week, do we start at the beginning and work through all of these again? Is this ongoing every week is it?'KT responded, 'It is my understanding that is what Melissa has done. What I have been doing is alternating one week we have a conversation and Colleen brings her bits and pieces and then the next week we go through each item on (sic) by one, that's what I have been doing'.RW asked, 'So anything that happens from one week to another it appears in here again so it's just an ongoing thing is it?'AM responded, 'It is just the way it is being done at the moment, you can do by exception if you want wherever you can say if that has been met and nothing has changed that you could if you wish'.RW asked, 'Is there anything in here that we can close off, or is closed off now?'KT advised, 'Well we talked about some of these things that they were met. I didn't specifically say met'.AM advised, 'I recall you saying something like this was met in the first two weeks this was met on meeting plans or something like that'.KT responded, 'Yeah'.CK advised, 'The only thing that isn't being met is the communication, that's it, how do you measure that?'370

[414] In determining whether the management of the PMP by the employer was reasonable management action taken in a reasonable way it is necessary in the first instance to consider the two stages of the process, being the initial carriage by O'Brien and later by Tauti upon replacing O'Brien in that role on or around 26 April 2016.

O'Brien

[415] From the outset of O'Brien's participation in the PMP it is undeniable that Khan approached both the implementation of the PMP and the involvement in particular of O'Brien with a level of trepidation, believing the intent of the process was to manage her out of a job. There was an absence of evidence adduced in the proceedings to support such perturbation held by Khan.

[416] Also of significance was the view held by Khan that because of an involvement by O'Brien in a previously unsuccessful application for workers' compensation by Khan in mid to late 2015, she held a prejudice against her which would affect the discharge by O'Brien of her role as line manager. The Commission was not required to determine the genuineness or otherwise of the unsuccessful claim for compensation, however notes the involvement of O'Brien in that matter being limited to the production of a response regarding whether the injury suffered by Khan was indeed connected to her employment.

[417] The circumstances of the failed claim appear to be that Khan suffered an injury to her ankle when attending a precinct of the employer on a Saturday (when the premises were closed) for the purpose of obtaining recruitment documents for a said to be pressing recruitment process. O'Brien pointed out Khan had not been engaged in paid

370 Exhibit 147.

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employment on the day. She had no authorised access to the then empty building and the recruitment process was not pressing as claimed. Additionally, the "hole" which Khan alleged caused her to fall was unable to be found in the location given by Khan. For O'Brien to provide information contrary to what was recorded would have been tantamount to failing to carry out her duties in a diligent manner. There was no evidence in the proceedings to support the allegation of a prejudice held by O'Brien in respect of Khan and I hasten to add or support a genuinely held perception of the same.

[418] The management of the PMP process by O'Brien had been well documented as identified in the proceedings and with the exception of the failure to provide at times copies of the review notes in a timely manner to Khan, the PMP process was conducted both professionally and with due care by O'Brien for the purpose of ensuring Khan was provided every opportunity to accomplish the desired outcome. O'Brien gave evidence of workload pressures being the reason for the lateness of the review notes and in the view of the Commission the lateness was at most a mere "blemish" in the process. Throughout the PMP process there were email trails which identified support and assistance given by O'Brien to Khan in meeting the required standards.

Tauti

[419] Unlike O'Brien, Tauti had no previous history with Khan and at the first meeting held between her and Khan on 3 May 2016 to discuss the PMP she was up front in telling Khan she only had the file for five minutes and sought Khan's perspective on what was required to finalise the PMP, with the response being, "Communication, Management and Leadership" issues. Khan, in counter signing the file note, made a positive notation of remaining committed to meeting the expectations of the PMP and to "embrace ongoing development" which was an indicative departure from the non-positive commentary entered on the earlier PMP review notes by her.

[420] In the limited time available to Tauti due to the end date of the PMP, the evidence supports that she undertook her PMP responsibilities in a diligent manner and had the benefit of being able to observe Khan in the workplace following her attendance at the Emotional Intelligence Course, after which she ascertained that further work was required to bring her work performance up to the required standard.

[421] On 6 June 2016 Khan was verbally informed by Tauti of the intention to exercise a prerogative pursuant to the PMP (signed off by Khan on 1 April 2016 - agreed on 15 March 2016) to extend the PMP for a further period to ensure her performance could be managed and maintained over a greater period of time. The conclusion reached by Tauti that the objects of the PMP had not been met enlivened the option of referring the matter for the consideration of possible disciplinary action but this was not desirable at the time. A final meeting was held on 24 June 2016 for the purpose of evaluating the PMP to date and during the course of the proceedings the Commission heard the audio

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recording of that meeting and had the benefit of a typewritten transcript of the recording tendered in the proceedings.371

[422] The PMP process itself was not without some difficulty as a consequence of the career changes for both O'Brien and Tauti which required the "handing over of the baton" from one to the other, shifting the responsibility to superintend the PMP. On my observation whilst not necessarily disruptive to any sizeable degree, the changeover may not have been seamless certainly at the point of handover as exhibited by Tauti at her meeting with Khan on 3 May 2016. However, despite any imperfection there was no evidence of a detriment to Khan who was requested to offer her perspective of what would finalise the PMP which for all intents was accepted by Tauti.

[423] The PI policy at Schedule One identifies the criteria with regard to the final review meeting:

Final review meeting

In consultation with the employee, decide whether the performance requirements have been met, or have not been met for the duration of the performance improvement plan

Document the final outcome of the performance improvement plan and advise the employee whether they have met or have not met the requirements of the performance improvement plan

Where the performance requirements have been met:- revert to the normal performance monitoring through the performance develop (sic)

process- advise the employee they are required to maintain the expected levels of performance

and failure to do so may result in disciplinary action, which may lead to dismissal Where the performance requirements have not been met, advise the employee the matter

will be referred to an appropriate delegate for consideration of any further action (i.e. disciplinary action).372

[424] The meeting held on 24 June 2016 had the appearance of genuinely meeting the criteria pursuant to Schedule One of the PI Policy in terms of consultation with Khan to decide whether the performance requirements of the PMP were met or otherwise. A further obligation to document the final outcome of the PMP and advise Khan of that outcome, in my view, was satisfied for the purpose of documentation by the production of the transcript taken from the audio recording. I acknowledged that the transcript was not made available to Khan for the obvious reason that upon leaving the workplace on the day of the meeting she did not return to the place of employment.

[425] The Commission with the benefit of having heard the audio recording and read the transcript understands that Khan was in no uncertain terms informed of deficiencies that existed with her performance at the completion of the PMP process and that a meeting would be held the following week as part of the continuation of the PMP. In

371 Exhibit 174.372 Exhibit 151.

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her evidence in chief Khan acknowledged at the conclusion of the meeting she understood that she "didn't believe I'd met the plan and that it would be forwarded to a delegate". (See paragraph [71] of this decision)

[426] The conduct of the PMP by Tauti was in all circumstances reasonable but on occasion not perfect in that she had initially informed Khan of the decision to extend the PMP on 6 June 2016 which was three days beyond the expiry and whilst that was a flaw in my view, it was not a fatal flaw.

[427] In the matter of Delaney v Q-COMP, Hall P stated:

Some issue is also raised about the content of the notion of reasonableness at s. 34(5) WorkCover Queensland v Kehl (2002) 170 QGIG 93 at 94 adopts the view that 'reasonable' should be treated as meaning 'reasonable in all the circumstances of the case'. In reliance upon the decision of the trial judge (Walker J) in Doyle v Manly Pacific International Hotel [1998] NSWCA 44 at [106], counsel for the Appellant seeks if not to subsume 'reasonableness' in 'industrial fairness' to elevate 'industrial fairness' a dominant consideration. The relevant passage in Doyle v Manly International Hotel, ibid, is:

'In Jackson's case I endeavoured to come to terms with the difficult concept of reasonable in s11A (11). My conclusion was 'reasonable' means reasonable in all the circumstances of the case. Because the employer's actions are in an industrial law setting, the test I applied was whether a reasonable observer of all the circumstances of the case would find the employer's actions fair.'.373

[428] In Qantas Airways Limited AND Q-Comp, Blades C stated:

. . . What management must do is be reasonable, not perfect, and if it be that before a meeting can be held with a worker, he has to be told specifically what it is about, I think it is placing too high a duty upon management. Surely management asking a worker what happened in an incident is not in breach of the principles of natural justice. Each case depends on its own facts and circumstances but what is 'reasonable' is 'reasonable in all the circumstances of the case' and 'reasonableness' does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant - Delaney v Q-Comp Review Unit (2005) 178 QGIG 197. In any event, the factual situation in this case did not arise in this way. . . .374

[429] I am satisfied that the management of the PMP was reasonable management action taken in a reasonable way by the employer.

Findings

[430] Having considered the evidence, material and submissions before the proceedings, I make the following findings:

Khan was for the purpose of s 11 of the Act at all relevant times a "worker";

373 Delaney v Q-COMP [2005] QIC 11; 178 QGIG 197.374 Qantas Airways Limited AND Q-Comp [2006] 181 QGIG, No 9, pp 301-307.

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Khan sustained a personal injury in the form of a psychological injury pursuant to s 32 of the WCR Act;

the personal injury sustained by Khan arose out of, or in the course of her employment, with the employment being the major significant contributing factor to the injury;

the personal injury is excluded from being compensable by the operation of s 32(5)(a) of the WCR Act, "reasonable management action taken in a reasonable way by the employer in connection with the employment";

the appeal is dismissed and the decision of the respondent of 6 June 2017 is confirmed; and

Khan is to pay the respondent's costs of and incidental to the appeal.

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