van Wessem v State of Queensland (Queensland Health)
[2021] QIRC 407
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- Unreported Judgment
- van Wessem v State of Queensland (Queensland Health)[2021] QIRC 407
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van Wessem v State of Queensland (Queensland Health)[2021] QIRC 407
van Wessem v State of Queensland (Queensland Health)[2021] QIRC 407
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | van Wessem v State of Queensland (Queensland Health) [2021] QIRC 407 |
PARTIES: | van Wessem, Suruj (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/273 |
PROCEEDING: | Public Service Appeal – Fair treatment decision |
DELIVERED EX TEMPORE ON: | 30 November 2021 |
HEARING DATE: | 30 November 2021 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – APPEAL – appeal against a fair treatment decision – staff complaints about behaviour of appellant – no disciplinary action taken – decision noted long history of similar complaints – decision to implement Performance Improvement Plan – whether decision was fair and reasonable – decision fair and reasonable |
LEGISLATION: | Directive 15/20 – Positive performance management cls 7.2, 7.3 Industrial Relations Act 2016 (Qld) s 562B, 562C Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32 |
CASES: | Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) |
APPEARANCES: | Ms S van Wessem the appellant Mr S Mulholland and Mr S Porter for the respondent |
Reasons for Decision
Delivered ex tempore on 30 November 2021
Background
- [1]Ms van Wessem is a supervising scientist with Queensland Health ('the Department'). She has been employed with the Department since approximately 2010.
- [2]On 13 April 2020, Ms van Wessem was the subject of a formal complaint by a subordinate staff member. The complaint was in respect of numerous alleged incidents and behaviours of Ms van Wessem. For the purposes of this decision, it is not necessary for me to descend into the particulars of that complaint. It is sufficient to simply note that the complaint makes multiple criticisms of conduct by Ms van Wessem that relate predominately to her management style. The dates of the alleged conduct extend from approximately October 2019 until April 2020.
- [3]The complaint from that subordinate employee was accompanied by a written statement from another employee setting out similar allegations of similar behaviour. It would further appear that during the process of investigating that complaint that two further complainants were identified. The additional complainants made similar allegations with respect to Ms van Wessem's conduct.
- [4]In total there were complaints directly or indirectly from four individual employees ('the most recent complaints').
- [5]The further allegations were apparently put to Ms van Wessem in an email from Mr Tony Sunner on 21 December 2020. Ms van Wessem was invited to respond to the allegations on 8 January 2021. It would appear that this response time was extended and Ms van Wessem eventually submitted responses on 22 March 2021 and the 4 April 2021.
- [6]In correspondence dated 8 July 2021, the Department wrote to Ms van Wessem to advise of the outcome in respect of the most recent complaints ('the decision'). Under the heading 'DECISION', the author of the correspondence informs Ms van Wessem:
I have fully and carefully considered all of the information available to me in relation to the complaints, including your responses. On this occasion, I have decided to take no further investigative or disciplinary action in relation to the complaints.
- [7]There is no accompanying rationale for this aspect of the decision contained in the correspondence. There is no indication whether e.g. the complaints were wholly or partially substantiated. There is no specific conclusion about the most recent complaints at all.
- [8]During the hearing of this matter there was a suggestion that the investigation was either interrupted or not completed due to the emergence of a Workers' Compensation claim made by Ms van Wessem. Ultimately that is not a matter that requires further consideration in this appeal.
- [9]Following this portion of the decision advising of no further action being taken in relation to the most recent complaints, the decision letter then pivots in an unannounced and unexpected direction. The correspondence shifts to address a much broader history of complaints about Ms van Wessem (dating back to 2012) and proceeds to particularise six previous complaints about her conduct extending over that period ('the historic complaints').
- [10]Based on the outlined extensive history and the consistent nature of the historic complaints, the decision-maker then determines to take management action in the following manner:
Therefore, to support you to achieve the required expectations, the management action outlined below will be taken.
- A performance improvement plan and one-on-one coaching, in relation to appropriate interpersonal communications, your management style and building effective relationships in the workplace, to achieve the following objectives (amongst others):
- To understand how to effectively manage staff and build professional relationships with other staff, including those who may have less experience or technical knowledge than you; and
- To understand the potential impact your workplace behaviour has on other staff.
- Complete the online Code of Conduct for the Queensland Public Service ('Code of Conduct') training within 7 days of your return to work.
- Immediately read and familiarise yourself with the Code of Conduct (enclosed) and ensure that you comply with the principles set out in that document in the future.
- [11]It is this aspect of the decision that Ms van Wessem seeks to appeal.
Statutory framework for public service appeals
- [12]The jurisdiction of the Queensland Industrial Relations Commission found in the Industrial Relations Act 2016 (Qld) ('the IR Act') in respect of these appeals provides that an appeal of this nature is a review of the decision and not a rehearing.[1] The purpose of a review of the decision is to determine whether the decision was fair and reasonable.[2]
- [13]The IR Act limits the powers of the commission with respect to such appeals and in terms of the orders that can be made, namely:[3]
- (a)confirm the decision appealed against; or
- (b)for an appeal against a promotion decision - set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
- (c)for another appeal - set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Submissions of the parties
- [14]The parties have filed extensive written submissions in relation to this appeal. I do not propose to summarise those submissions in these reasons for decision, save to observe that Ms van Wessem's submissions repeatedly (and erroneously) characterise the decision regarding the most recent complaints against her as being 'unsubstantiated' or alternatively, submits that 'no adverse findings were made'.
- [15]Contrary to this submission, the decision does not descend to any finding, adverse or otherwise, and nor does it conclude whether the allegations were substantiated or not. The highest that the decision rises is that it informs Ms van Wessem that no action will be taken regarding the most recent complaints that are made against her.
- [16]The Department inter alia sets out in their written submissions a much longer and more particularised list of historic complaints made by Ms van Wessem's subordinates dating back to September 2011 and continuing through until August 2020. The larger list includes the six matters itemised in the decision.
- [17]During the course of oral submissions at the hearing, Ms van Wessem repeatedly made submissions to the effect that she was unaware of many of the listed complaints and/or that the Department's reliance on them in this way amounted to a denial of procedural fairness as she had not had an opportunity to respond to these complaints. For the reasons set out below I reject both of these submissions by Ms van Wessem.
Consideration
- [18]At the outset, it must be observed that the correspondence dated 8 July 2021 containing the decision is a less than ideal example of an appropriate manner by which to communicate the implementation of a Performance Improvement Plan.
- [19]What initially purports to be a letter dealing with most recent complaints quite suddenly stops with no disclosed outcome or evaluation of the substance or otherwise of those complaints. The correspondence then inexplicably segues into a discussion about an entirely broader (albeit related) issue, namely the historic complaints and the theme of Ms van Wessem’s management style. The decision is then to implement management action to deal with that issue.
- [20]While I appreciate that it may have been convenient for the Department to conflate these issues into one correspondence, it was liable to confuse and potentially distress Ms van Wessem when delivered in this way. On a cursory first read, the correspondence appears to suggest that Ms van Wessem is being held to account over the historic issues in response to the more recent complainants notwithstanding that the Department has concluded to take no action on those matters.
- [21]The decision is an awkward piece of writing. I can well understand that receiving such a poorly structured piece of correspondence was, and apparently continues to be, confusing for Ms van Wessem on some level as to the basis of the decision to have her undergo a Performance Improvement Plan.
- [22]However, a poorly executed administrative process will not of itself render the decision unfair or unreasonable.
- [23]I would hasten to add that consideration of reasonableness in the context of a public service appeal under the IR Act is a wholly different exercise to that undertaken when considering matters of reasonableness for the purposes of section 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). They are considerations that occur in starkly different statutory settings.
- [24]The decision in this instance was prompted in response to the most recent complaints. It is important to be clear that the decision is not a consequence of any finding in respect of the most recent complaints but rather, relies on the fact that the complaints were made.
- [25]It would appear on a more considered reading of the decision that the Department has elected not to deal with the complaints per se, but instead have elected to deal with the 'bigger issue' namely, the concerns of the Department arising from the consistent pattern of complaints over many years about Ms van Wessem's management style. There is merit in this approach in my view.
- [26]While the correspondence was less than ideal, it does ultimately set out in clear terms the basis for the decision. The Department could (and probably should) have simply closed off the more recent complaints in one letter, and then started the performance improvement process in another. Had that been the case, it would be difficult to find any fault with the decision to instigate a Performance Improvement Plan. And while I have found fault with the style and structure of the decision letter, it does not amount to unfairness or unreasonableness.
- [27]The extensive complaints history against Ms van Wessem is undeniable. During submissions at the hearing, Ms van Wessem was asked to respond to numerous questions regarding her knowledge and understanding of the historic complaints. During this process Ms van Wessem was evasive and non-responsive to questions, often seeking to obfuscate the issue by referring to matters unrelated to the question. She seemed, at times, genuinely unable to accept that clear and direct critical comments in emails from former subordinates sent to her constituted complaints about her.
- [28]It is not entirely surprising that Ms van Wessem perhaps misunderstands, does not recognise or mis-characterises the historic complaints. Most of the historic complaints that have been relied on by the decision maker to instigate the Performance Improvement Plan were either not investigated or were not substantiated.
- [29]It must be stressed that neither the decision-maker (nor I) have reached any conclusions about the accuracy, fairness, or veracity of the historic complaints made against Ms van Wessem. Ultimately that was not necessary given that the basis for the decision to have Ms van Wessem undergo a Performance Improvement Plan relies entirely on the sheer volume of complaints and the common theme arising from each of them, namely Ms van Wessem's alleged poor people management skills.
- [30]Were it the case that there had only been two or possibly three complaints over a 10-year period, I would have more concerns about whether a Performance Improvement Plan could be fairly initiated by the decision maker in those circumstances. But there are at least seven complaints (and probably more) that were readily identifiable in the decision and subsequently in the submissions of the parties that arose in the last eight to ten years.
- [31]The decision to implement the Performance Improvement Plan was taken in accordance with Directive 15/20 – Positive performance management ('the Directive'). Clause 7 of the Directive relevantly provides:
7. Decision to commence a structured process to manage unacceptable work performance in a supportive way
…
7.2 The chief executive may initiate a performance improvement plan (PIP) as a structured process to address unacceptable work performance where the chief executive considers it fair and reasonable in the circumstances.
7.3 Prior to determining whether it is fair and reasonable to initiate a PIP, the chief executive must ensure the following conditions have been met:
- (a)the expected level of work performance for the role was documented and provided to the employee and the employee had a reasonable opportunity to demonstrate the expected level of work performance
- (b)the expected level of work performance was relevant and appropriate to the role
- (c)the unacceptable work performance or the gap between actual and expected work performance was previously raised, documented and discussed with the employee
- (d)the employee was offered appropriate support and allowed a reasonable period of time to self-correct.
…
- [32]In the circumstances, having regard to the provisions of the Directive, I am satisfied that the large volume of similar complaints from many different and unconnected employees over nearly 10 years would be sufficient grounds for the decision maker to form a reasonable view for a need to initiate a performance improvement plan in accordance with the requirements of clause 7.2 of the Directive.
- [33]Further, I am equally satisfied that the criteria of clause 7.3 are met in that, having regard to those criteria, there are numerous references to maintaining a respectful workplace environment contained in performance development plans. There was also a warning letter issued to Ms van Wessem in respect of one complaint that dealt with expectations regarding conduct. I am satisfied that over that period of time, with the multiple interactions with management around the historic complaints (including Performance Development Plans), the expected level of work performance for the role was documented and provided to her in one form or another during the relevant period.
- [34]As an aside I note there was something of a conflict in the position of the parties with respect to a meeting that took place on 25 August 2016 between Ms van Wessem and Ms Dwyer and Mr Stringer. There was a contrasting position of the parties with respect to a file note of the meeting signed by Ms Dwyer that set out (extensively) the details of complaints that were allegedly discussed with Ms van Wessem at that meeting. The nature of complaints allegedly discussed at the meeting were well particularised and very consistent with the complaints that are otherwise particularised in the respondent's submissions.[4]
- [35]Ms van Wessem, when directly pressed on the issue during submissions at the hearing of this matter vacillated between denying that those complaints were raised with her, and not being able to remember what took place at the meeting. I was thoroughly unimpressed and unconvinced by her responses in this regard.
- [36]In the circumstances nothing turns on this particular matter alone. As I have noted above, there are numerous references in other documentation supporting the fact that Ms van Wessem had communicated to her the expected level of work performance. But to the extent that I am required to reach a conclusion on the facts around the meeting in August 2016 I am satisfied as to the accuracy of the contemporaneous file note maintained by Ms Dwyer (a human resources professional) as opposed to the somewhat self-serving efforts to recall what took place at the meeting that were offered by Ms van Wessem at the hearing (some five years after the fact).
- [37]I am further satisfied that the role description provided to Ms van Wessem equally sets out the expected level of work performance and that work performance expectation was relevant and appropriate to her role as a manager. Further, there is no doubt that the unacceptable work performance was previously raised with Ms van Wessem in various meetings and in the warning letter issued to her historically.
- [38]Finally, I am similarly satisfied that Ms van Wessem has been offered appropriate support and allowed a reasonable period of time to self-correct. I consider that the decision-maker proceeded on a sound basis given all of the information available and acted in accordance with the Directive.
Conclusion
- [39]A Performance Improvement Plan is confidential and has no impact upon future job prospects within the public service. It is ultimately a matter that will be kept between Ms van Wessem and her line managers. Further, provided it is satisfactorily completed, the Performance Improvement Plan proposed in this instance is not an onerous or long-term exercise.
- [40]Importantly, a Performance Improvement Plan is not disciplinary action. It is remedial, and it is designed to improve performance where performance has been demonstrated to be lacking. There was more than ample evidence in the material before the decision-maker to suggest that Ms van Wessem is in need of intervention with respect to her management style.
- [41]The starting point for Ms van Wessem now would be to learn to the accept criticisms so often made about her and learn from them. If she can achieve that, it is likely that the Performance Improvement Plan as proposed will improve rather than impede her career.
- [42]In all of the circumstances, I consider that despite the poorly executed manner in which the decision was conveyed to Ms van Wessem, the decision itself was fair and reasonable.
Order
- [43]In all of the circumstances, I make the following order:
- The decision appealed against is confirmed.