Anley and Department of Education and Training - Western Sydney Institute of TAFE [2010] NSWIRComm 140 - NSWIRComm 2010 case summary — Zoe

NSWNSWIRComm

Anley and Department of Education and Training - Western Sydney Institute of TAFE [2010] NSWIRComm 140

[2010] NSWIRComm 140

Industrial Relations Commission (NSW)|2010-07-01|Before: Sams DP

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Court

Industrial Relations Commission (NSW)

Decision date

2010-07-01

Before

Sams DP

Source

Original judgment source is linked above.

Judgment (113 paragraphs)

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CITATION: Anley and Department of Education and Training - Western Sydney Institute of TAFE [2010] NSWIRComm 140

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APPLICANT Bronwyn Helen Anley PARTIES: RESPONDENT Department of Education and Training - Western Sydney Institute of TAFE

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TERMINATION OF EMPLOYMENT - applicant directed to resign - constructive dismissal - no dispute as to jurisdiction - unfair dismissal application - dismissal of TAFE Counsellor - applicant highly qualified and experienced psychologist - significant absences - referral to HealthQuest - allegations of unsatisfactory performance - inappropriate behaviour - poor communication skills - failure to satisfy annual reviews in 2005, 2006 and 2007 - appeals against failures rejected - applicant's medical condition - Type 1 diabetes - difficulty with applicant's interpersonal relationships with staff and supervisors - discrimination claim - request for a transfer - request for new supervisor - complaints against supervisors - no complaints upheld - applicant placed on formal Performance Improvement Program (PIP) - failure to satisfy PIP - independent review - 'reasonable adjustment' policy - applicant given various reasonable adjustments - not possible to transfer employee with unresolved performance issues to another College - whether respondent failed to take action to address interpersonal difficulties - Australian Psychological Society (APS) Guidelines for supervision - whether APS Guidelines apply - whether respondent failed to take proper account of medical condition - whether respondent failed to provide reasonable adjustment by not transferring applicant to another College with a different supervisor - applicant given opportunity to put her position and mitigating factors - applicant unlikely to improve performance - applicant directed to resign - procedural fairness - whether dismissal 'harsh, unreasonable or unjust' - practicality of re-employment - principles considered. CATCHWORDS: UNFAIR DISMISSAL - applicant an unhelpful witness - applicant's toxic relationship with supervisor - unprofessional and unacceptable behaviour - supervisor was not biased, unfair or prejudiced against applicant - unwillingness of applicant to act with courtesy, dignity and respect towards supervisors and colleagues - sound basis for dismissal - applicant considered supervision unnecessary - numerous examples of applicant having relationship difficulties with supervisors and colleagues - transfer to another College inappropriate - supervision appropriate - no evidence of supervisor reciprocating the applicant's disdain of him - annual review processes fair and reasonable - independent reviews - PIP fair and reasonable - no issues of procedural unfairness - APS Guidelines on supervision not relevant - psychologist's supervision not of ordinary character - no breach of professional guidelines - respondent aware of applicant's medical condition - 'reasonable adjustments' made - applicant only wanted transfer and new supervisor - doubt as to medical reasons for her poor performance - medical evidence did not conclude transfer necessary or medical condition unstable - HealthQuest review not in doubt - applicant could have requested HealthQuest review - applicant's duties and requests to her not more onerous than other Counsellors - willingness to accept Counsellor-in-Charge allowance - management sought to assist and support applicant - three unsatisfactory annual reviews - unsatisfactory PIP - independent reviews - applicant given every opportunity to defend her position - numerous submissions in mitigation - direction to resign the only option in all the circumstances - dismissal not 'harsh, unreasonable or unjust' - application dismissed - further hearing as to costs.

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1 On 23 October 2008, Ms Bronwyn Helen Anley ('the applicant') was directed, pursuant to s 22J of the Technical and Further Education Commission Act 1990, to resign or be dismissed from her employment as a Counsellor employed by the Department of Education and Training - Western Sydney Institute of TAFE ('the respondent' / 'TAFE'). The direction was issued by Mr Ron Wright, Relieving Institute Director, on behalf of the Managing Director, TAFE NSW. The reason for this direction was as a result of Mr Wright having formed the opinion that the applicant's performance was unsatisfactory following the completion of a 10 week Performance Improvement Program (PIP). The applicant resigned on 6 November 2008. However, she strenuously maintains that she had no other option and had been unfairly dismissed by the respondent. At the outset, I note that there was no challenge to the jurisdiction of the Commission as it is obvious that the true effect of Mr Wright's direction was to dismiss the applicant. 2 On 10 November 2008, the applicant filed an application for relief in relation to unfair dismissal, pursuant to Pt 6 Ch 2 of the Industrial Relations Act 1996 ('the Act'), in which she sought reinstatement or re-employment with the respondent at another TAFE College and compensation. The application was listed for conciliation before McLeay C (since retired) on 13 November 2008. However, no settlement of the claim was achieved and the Commissioner issued directions for arbitration. For various reasons, the directions were not complied with by the applicant and the matter was subsequently listed before Staff J on 20 March 2009, pursuant to Practice Direction 17. On that day, his Honour issued self-executing orders with further directions, refused an adjournment application and fixed the dates for hearing as 28 and 29 April 2009: See Anley v Department of Education and Training [2009] NSWIRComm 39. 3 The matter was subsequently reallocated to me and, at the request of the respondent, was listed for further directions on 8 April 2009. While the respondent sought confirmation of the self-executing order, it complained that, given the amount of material filed and proposed to be filed by the applicant, it could not possibly reply in the period ordered by Staff J. Notwithstanding some reluctance, I re-listed the matter on 1 June 2009, for the fixing of new hearing dates and revised directions were issued. The parties subsequently agreed on hearing dates commencing on 19 October 2009 and continuing for three days. Additional hearing dates were scheduled on 14, 15 and 18 December 2009. However, at the conclusion of the evidence on 14 December 2009, the applicant's Counsel requested a significant adjournment for the filing of written submissions. Reluctantly, and over the objection of the respondent's Counsel, I issued directions for the filing of submissions to be completed by 1 March 2010. However, on 5 March 2010, the applicant's Counsel made an application to re-open her evidentiary case. This was refused in a decision I issued, ex tempore, that day, which I set out in full as follows: The Commission has been moved by an application made by the applicant in these proceedings, Ms Bronwyn Anley to re-open the evidence in her s 84 application for relief from alleged unfair dismissal.

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Finally, as Ms Anley's legal representative, you will be advised in due course when his Honour intends to publish his decision. A copy of your client's letter and this reply will be forwarded to the respondent's legal representatives. BACKGROUND 5 The following paragraphs are an abbreviated summary of the background to this matter. The applicant is a registered Psychologist and a member of the Australian Psychological Society (APS). She holds a Masters Degree in Clinical Psychology. She is also a Registered Nurse and Midwife. Prior to her employment with the respondent, the applicant worked for the New South Wales Department of Health. The applicant has Type 1 Diabetes and requires four insulin injections a day. After her dismissal in February 2009, the applicant travelled to the United States to adopt a child as a single parent. She returned to Australia in March 2009. 6 The applicant commenced employment with the respondent at its Mt Druitt College in January 2002 for two days a week with two days of induction and training at Nepean and Blacktown Colleges. At the beginning of Term 4 of 2002, the applicant was appointed as an Acting Senior Counsellor at Mt Druitt and Counsellor-in-Charge. Her probationary TAFE appointment was made permanent in March 2003. The applicant was transferred to Baulkham Hills College on 14 August 2003, as a result of another Senior Counsellor (Ms Sue Benney) being on work related stress leave arising from her not being able to work with the applicant. 7 In September 2003, the applicant requested a transfer to the Open Teaching Education Network (OTEN), but she made no mention of the transfer being requested on medical grounds. Her request was supported by the College Director, Mr Laurie McGowan (who was also having difficulties working with the applicant) and Ms Wendy Whittaker, Regional Manager, Human Resources. However, at that time, as OTEN had only one permanent counsellor and the position was occupied, her request was refused. 8 The applicant said that in late 2003, her diabetic condition became more unstable and she experienced several unpredicted hypoglycaemic attacks ('hypos') at work. During the period 19 December 2003 to 26 August 2004, the applicant had 73 days of sick leave and had exhausted her sick leave entitlement. She requested further sick leave from 27 August 2004 to 15 September 2004. This created operational difficulties for the College's counselling service (e.g. cancelled appointments) as she was the only trained Counsellor at the College. As a result, Mr McGowan requested she attend a Health Quest Assessment. On 23 September 2004, HealthQuest determined the applicant 'fit to resume work on normal hours and to perform the inherent requirements of her job'. It was concluded that 'the main reason for her absence from work arises from interpersonal relationship difficulties at work. She has a feeling of being undervalued by her employer. This problem does not seem to have been identified previously. Her diabetic management has improved recently, and is not likely to significantly affect her work capacity in the long term.' 9 At about this time, the applicant's General Practitioner (GP) and Specialist recommended she be relocated closer to her home so as to reduce her daily travel in order for her to have more time to exercise, which would assist in improving her condition. She appealed to HealthQuest to reconsider her treating doctors' recommendations. The request was refused and Health Quest recommended that any relocation be considered through TAFE's usual administrative procedures. Shortly thereafter, the applicant lodged a claim of disability discrimination with the Anti Discrimination Board (ADB). The respondent opposed the claim and it then proceeded to the New South Wales Administrative Decisions Tribunal (ADT). The applicant later discontinued the proceedings. 10 In September 2005, the applicant commenced reporting to Dr Allen Barlow, Senior Counsellor at Mt Druitt College. Dr Barlow had replaced Ms Benney who had been medically retired. 11 In early 2006, the applicant's 2005 annual review was conducted over several months with Dr Barlow as her professional supervisor and Ms Julie Fugaccia, Manager, Educational Programs, as her line manager. The applicant was rated as unsatisfactory and was subject to a Performance Management Plan (PMP). The applicant unsuccessfully appealed the review and was highly critical of the PMP. 12 In June 2006, the applicant was having increased periods of sick leave and in September 2006 she underwent an operation which required six weeks recuperation before she returned to work on 13 November 2006. 13 The applicant's 2006 annual review was due on 31 January 2007. It was conducted by Dr Barlow and Ms Fugaccia. The applicant was critical of Dr Barlow and Ms Fugaccia. At the review meeting, the applicant explained that she had been unable to complete all the required documents by the deadline, because of her illness. The applicant submitted her 14 page 2006 annual review on 21 February 2007. In April 2007, the applicant was advised her 2006 annual review was unsatisfactory. She unsuccessfully appealed the decision. 14 Two mediation and review meetings with Dr Barlow, organised by Ms Kerry Evans, Director Education, Western Sydney Institute, were held in October and November 2007, but they did not achieve any improvement in their relationship. At this time, Ms Evans and Dr Barlow supported an extension of the applicant's 2007 annual review. This was rejected by Ms Whittaker. All review documents were required to be submitted by 4 December 2007 with the review to proceed on 11 December 2007, with Dr Barlow and Mr Eoin O'Caoimh, Acting Manager, Educational Programs, Baulkham Hills College. 15 The applicant was unable to meet the 4 December 2007 deadline and had been counselled not to attend an APS Conference in Brisbane during this time. Nevertheless she attended the conference and then submitted a 16 page annual review on 10 December 2007. 16 The applicant was advised by Ms Louise Godwin, Director of Education and College Director, Baulkham Hills College, on 10 December 2007, that her failure to report by 4 December 2007, had resulted in her performance being assessed as unsatisfactory. The matter was referred to the Institute Director, Ms Susan Hartigan. 17 On 11 December 2007, the applicant asked Ms Godwin to reconsider her decision due to her diabetes affecting her ability to concentrate and complete tasks in an efficient and timely manner. She provided a medical certificate from her GP supporting her claim. Her appeal was refused. 18 On 5 February 2008, Mr Wright approved a recommendation that the applicant be placed on a formal PIP following the unsuccessful completion of her 2005, 2006 and 2007 annual reviews. The PIP was to be managed by Mr O'Caoimh and Dr Barlow and overseen by Ms Sue Westbrook, Relieving Associate Director, Western Sydney Institute. The applicant sought an alternative supervisor to Dr Barlow. 19 The applicant claimed that during her PIP, Dr Barlow provided no practical support and assistance and deliberately rated her performance as unsatisfactory. She believed the respondent's Procedures for Managing Unsatisfactory Performance were not followed, she had been treated unfairly and that Dr Barlow was biased against her, given their poor working relationship. She believed that Dr Barlow made no effort to meet with her.

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Ms Kerry Evans, Director, Education, Western Sydney Institute Dr Allen Barlow, Senior Counsellor Mr Christopher Miles, Solicitor Mr Ron Wright, Relieving Institute Director Ms Wendy Whittaker, Human Resources, Regional Manager Western Sydney Institute Mr Roland Brown, Manager Workplace Planning, Western Sydney Applicant's evidence 24 The applicant claimed that the difficulties began within six weeks of her starting work at Mt Druitt when a senior counsellor refused to supervise her and subsequently took work related stress leave (as did another counsellor). The applicant said she had reluctantly agreed to go to Baulkham Hills to accommodate the return to work of a colleague at Mt Druitt. She claimed that at Baulkham Hills she felt isolated and ignored and had felt more distressed and unable to return to work. 25 The applicant said that despite four letters from her treating doctors, all of which recommended she be relocated closer to her home, the respondent had consistently refused to do so. 26 The applicant said she had discontinued her ADT proceedings because she could not afford legal representation. She had only ever wanted to maintain a good working and professional relationship with her co-workers. However, within a few months of her dropping the ADT claim, the relationship with management deteriorated substantially. 27 The applicant claimed that in the three years of her supervision by Dr Barlow, he had scheduled less than five, 'one on one' meetings with her and mostly communicated by emails which were copied to other senior staff. She criticised Dr Barlow because he was not accredited to the APS. In her opinion, his supervision did not meet any of the standards required of his position, or as a psychologist. She was also concerned about the lack of professional supervision from Dr Barlow. She said he rarely spoke to her outside formal settings and there was rarely any casework discussion. She obtained an opinion from Associate Professor Bill Warren, a fellow of the APS and Chair of its Ethical Committee who had concluded that she had not been properly supervised by Dr Barlow. 28 The applicant said that during the numerous meetings about her 2005 annual review, she began to draw the conclusion that she would be assessed as unsatisfactory. She believed this review was not undertaken in accordance with TAFE Policy or its Implementation Guide. The applicant said that she was not able to get everything required for her 2006 annual review submitted in time due to her undiagnosed illness from late June 2006. She believed she was being asked to prepare considerably more material than was usual for other TAFE Counsellors. When her 2006 annual review was found to be unsatisfactory, the applicant believed she had not been provided with appropriate documentation or given any feedback. She said that throughout this time, her relationship with Dr Barlow was becoming increasingly tense and antagonistic. She admitted to becoming confrontational with him. However, this was because he did not schedule meetings and only communicated with her via email. He made no effort to mentor or support her and on four or five occasions he would randomly pull out clients' files to see if she was completing them adequately. 29 In late July 2007, the applicant wished to attend the annual conference of the APS. She said she emailed Ms Fugaccia four times seeking approval, without a response. She eventually received approval, but felt she was becoming increasingly obstructed and marginalised. 30 The applicant said that in September 2007, she sought to facilitate an improvement in her relationship with Dr Barlow through Ms Evans and a meeting was held in mid October 2007. However, at this meeting, Dr Barlow said he was putting all her abusive emails on her personnel file. She believed the meeting was doomed. The applicant claimed Dr Barlow's actions violated the New South Wales Psychologists Registration Board (PRB) Guidelines and the APS Guidelines. She said Dr Barlow had raised issues of a 'needs analysis' which he had not raised in the previous seven months. 31 The applicant believed that in rejecting her medical condition as a reason for the lateness of her 2007 annual review, the respondent had no regard for s 1.3 of the Procedures for Managing Unsatisfactory Performance which state: c) Supervisors should be sympathetic and take care to understand the reasons for personal difficulties experienced by their members of staff. 32 The New South Wales Teachers' Federation made representations to the respondent on the applicant's behalf. However, on 21 December 2007, Ms Hartigan responded by accepting the applicant's medical condition had resulted in her absences, but noting that in the period leading to the 2007 annual review the applicant was ill on two days and had attended a workshop on two days. The Federation's representations were rejected. 33 On 29 February 2008, when the applicant was advised that she was being placed on a formal 10 week PIP, managed by Mr O'Caoimh and Dr Barlow and overseen by Ms Westbrook, she sought an alternative supervisor to Dr Barlow. This was refused. 34 The applicant claimed that Ms Renshaw's independent review of her PIP had actually raised some procedural deficiencies, including questions as to why she was not able to be supervised by someone other than Dr Barlow. 35 The applicant claimed that when finally provided access to her personnel file, large sections of it were missing. She also claimed Ms Evans had reviewed some of the errors and lack of professional treatment identified by Dr Barlow and had found that the applicant had satisfactorily managed the cases. 36 The applicant stated that she had been systematically bullied by sections of management. This included being reprimanded twice by Mr O'Caoimh, in circumstances which could be overheard by other staff. He had also instructed his assistant to notify him of the times she had arrived for work and had adjusted her time sheets. This was despite her working back at no cost to the respondent. She claimed that Dr Barlow had 'marginalised' her. For four years she had sought, and was refused, 'reasonable adjustment' by the respondent. Once she had been deemed unsatisfactory, she was not eligible to be transferred to anywhere in TAFE. The applicant said she had unsuccessfully attempted to utilise the TAFE Complaints Procedure over her treatment by Ms Whittaker and Ms Fugaccia in relation to her 2005 and 2006 annual reviews. 37 The applicant insisted that there were always two counselling staff at OTEN and casuals were employed in the Unit. While she wished to maintain her substantive position at Baulkham Hills, or any other College, she believed she could work out of OTEN, which is situated at Strathfield. 38 In oral evidence, the applicant agreed that she had not been employed by the respondent as a Clinical Psychologist. She also agreed that when she had accepted a position at Mt Druitt after having been diagnosed with diabetes 12 years earlier, she did not make any complaint about the travel time affecting her condition. 39 The applicant was asked about her reporting lines at Mt Druitt and Baulkham Hills. She agreed that Ms Fugaccia and Mr O'Caoimh were her line supervisors and they reported to the College Director, Mr McGowan and later Ms Godwin. Her professional supervisor from October 2005 to her resignation was Dr Barlow. The applicant also had interaction with Human Resources personnel, Ms Whittaker, Ms Evans and Mr Brown. 40 The applicant acknowledged that she had interpersonal difficulties with Ms Fugaccia - although not initially. She said Ms Fugaccia became strident and unwilling to talk to her directly. She also agreed to having interpersonal difficulties with Mr McGowan, Ms Whittaker and Ms Benney. She conceded she was bitter towards Dr Barlow. 41 While the applicant said she had 18 years experience as a psychologist, she denied telling Dr Barlow she did not need any supervision because she was extremely well qualified and experienced. She agreed that part of her duties included keeping accurate surveys and investigations and keeping and analysing statistics. 42 The applicant agreed that when she applied for a position at OTEN in September 2003, Mr McGowan had supported her application. She was told that there was no suitable vacancy at the time. Her complaint was not that she was not transferred to OTEN, but that the respondent failed to grant 'reasonable adjustment' for her to be moved to a College closer to home. She could not recall if she had based her request in September 2003 on medical grounds. However, she did not believe it was because of her personal difficulties with Mr McGowan. She agreed she made reference to her diabetes in August 2004, when she complained to the ADB. She could not recall if she said in her ADB complaint that the only reason she was not attending work was because of personal and professional interactions with Mr McGowan. She denied discontinuing the ADT complaint because she was involved in negotiations with the respondent about her complaints. She had discontinued the complaint because she could not afford to continue and it was unwise to have represented herself. 43 The applicant agreed that she had lodged her ADB complaint the day after her HealthQuest examination. She conceded that HealthQuest's findings dealt with her interpersonal problems with Mr McGowan, which was the same reason she had relied on in her ADT complaint. 44 The applicant agreed that she was permitted to commence work at 9:30am and had a four day week. She did not accept that her workload was considerably less than for other counsellors despite evidence she conducted four or five interviews a week while others conducted 20. The applicant accepted that she was deemed unsatisfactory in her three annual reviews of 2005, 2006 and 2007, and that one reason was a failure to provide documentation on time. The applicant acknowledged that in June 2006, Ms Fugaccia had taken specific steps to advise her of where her performance was unsatisfactory and how it could be improved. In relation to her 2006 annual review, the applicant made a complaint about Ms Fugaccia and Ms Whittaker. The complaint was referred by Mr Wright for an independent review. The applicant accepted that an unsatisfactory review meant that she could not be transferred to another college. 45 The applicant said she did not believe she used the words 'I detest him' in reference to Dr Barlow. She agreed that Dr Barlow had scheduled more than five meetings with her, but she said these were not 'one on one', as required by the professional guidelines. Nevertheless, she accepted that TAFE was not subject to the APS Guidelines. Her complaint was not that Dr Barlow sent her emails, per se, rather, she did not consider they had a typical professional psychological supervisory relationship. The applicant accepted that one of the complaints against her was the use of inappropriate, offensive and insulting language in emails. She had objected when Dr Barlow had threatened to include these emails in her personnel file. She now accepted that some of her emails were unprofessional. However, she explained it was a response to Dr Barlow's unwillingness to have a professional supervisory relationship with her. The applicant conceded that in an email to Ms Hartigan on 26 July 2007, she had sought to give up her claim of 'reasonable adjustment', and instead, seek a review of her annual review. 46 The applicant acknowledged that in a meeting with Dr Barlow and Ms Evans on 11 October 2007, she had accused Dr Barlow of conducting 'surveillance' on her. She had also used a loud and angry voice to complain that he had not provided her with feedback on a project they were working on. She agreed that Ms Evans had told her that the consequences of another failure were very serious. She became upset, angry and agitated with Dr Barlow. When she was told she had failed her 2006 annual review because she had not provided 12 months of data, she denied being told of this requirement. She told Dr Barlow and Ms Evans she had been too busy to get her documentation in for the 2006 annual review. She acknowledged accusing Dr Barlow of being involved in the appeal process. She became angry when Dr Barlow said he had attempted to set up many meetings with her which were cancelled due to her unavailability. She argued with Ms Evans about the APS Guidelines. However, she could not recall using words like 'appalling supervisor, no skills, untrustworthy, unsupportive' to describe Dr Barlow or that she insisted on him being replaced. The applicant accepted that she got up from her chair and pointed her finger at Dr Barlow. She denied saying 'You don't know what support is, you are a liar, I don't trust you, don't talk to me'. Ms Evans told her she was out of control, to leave the room and go for a walk to calm down. She refused. The applicant agreed that Ms Evans told her to act professionally in her communications and in face to face meetings. She could not recall if Ms Evans told her to focus her energy on her review and not on fighting with others. She agreed she told Ms Evans she was not listening to her and intended to take the matter further. She demanded Dr Barlow not place her emails on her personnel file. She agreed Ms Evans offered her additional professional help. 47 The three of them met again on 27 November 2007. The applicant agreed that the meeting was to assist her with her annual review. She denied angrily restating her distrust and dislike of Dr Barlow. She agreed she became angry when discussing the APS Guidelines. She denied saying that it was Dr Barlow's fault that she had failed her two previous reviews or that she had said she was reporting him to the PRB for unethical practice. She denied getting more and more upset. She denied saying she detested Dr Barlow and denied calling him a liar. She denied saying she loathed him and that he was absolutely useless. 48 The applicant could not recall meeting Mr O'Caoimh on 29 November 2007, in which he confirmed the directions to her to prepare her documentation. Rather than doing so, she chose to go to a meeting to give feedback on her attendance at the Brisbane conference in September 2007.

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49 The applicant acknowledged that when she was placed on a PIP it was a very serious matter and that three unsatisfactory performance reviews might place her employment in jeopardy. She accepted that the PIP was managed by an independent chairperson, Ms Westbrook. The applicant was asked about the cancellation of the fifth PIP meeting, but then was found by Mr O'Caoimh preparing for a workshop the next day. She claimed she was really not well enough, but had stayed to complete the workshop which was part of the PIP. The applicant could not recall rescheduling 25 student appointments over 44 days since the start of her PIP. The applicant agreed that her PIP was independently reviewed by Ms Renshaw who had confirmed her unsatisfactory performance. 50 The applicant sent a lengthy submission to Mr Wright after being told he was considering disciplinary action. She provided another response to Mr Wright's decision to direct her to resign. She pleaded her case as a single parent, with no income. 51 On 10 October 2008, the applicant met Mr Wright and Mr Brown with her support person Ms Flohm from the Federation. She raised three matters in mitigation: · interpersonal relationship difficulties with supervisors and managers; · her diabetic condition; and · her pending adoption of a baby overseas. 52 The applicant agreed that, during the meeting, Ms Flohm had stated that she believed the PIP had been conducted in accordance with the policy. She agreed that she had asked Mr Wright whether the negative report would have an impact on her applying for promotion at another institution. Three days later, the applicant sent a further email to Mr Wright raising matters she wanted him to consider. 53 The applicant said she had worked eight or nine casual nursing shifts after her resignation and she left to go overseas to adopt a baby on 1 February 2009 and returned on 28 March 2009. The applicant said she had not had any work since 28 March 2009, although she had applied for a number of full time positions. She claimed that she had not earned any income from being self-employed as a psychologist. Respondent's evidence 54 Ms Evans is a registered psychologist with 30 years experience in the profession. She is presently the Director, Education (Equity and Aboriginal Services) of TAFE NSW - Western Sydney Institute. She was the functional manager of the four Western Sydney Institute Senior Counsellors, including Dr Barlow. 55 Ms Evans deposed that she had known the applicant since January 2002. On 25 February 2002, two job sharing Senior Counsellors (Ms Benney and Ms Carole Hamilton), who were responsible for supervising the applicant, reported serious concerns regarding her conduct, performance, communication skills and overall ability to fulfil her Statement of Duties. They could not discuss their concerns with the applicant because they found her style of communication intimidating. Ms Evans met the applicant on 26 February 2002, to discuss these concerns. Ms Benney and Ms Hamilton subsequently advised Ms Evans that they were not prepared to supervise the applicant. 56 On 19 March 2002, the applicant and Ms Evans met the Teachers' Federation Organiser to discuss her performance issues and to set up an action plan to ensure the applicant was appropriately advised of her duties and responsibilities. Another experienced counsellor, Ms Jan Davis, was asked to undertake the supervision of the applicant, but only fulfilled this role for a short period before advising Ms Evans she also had concerns with the applicant's performance and communication style and she discontinued her supervisory role. However, none of the three supervisors were prepared to put their concerns formally in writing. 57 The applicant was then supervised by two Senior Counsellors, Ms Norma Fakhouri of Nepean College and Ms Liz Van Staveren of Blacktown College. They both assessed the applicant as satisfactory for permanent appointment to TAFE. In 2003, Dr Barlow was appointed as an external consultant to help resolve service, staffing and performance issues at Mt Druitt. Dr Barlow subsequently assumed Ms Benney's substantive position as Senior Counsellor in 2005, following her retirement. 58 Ms Evans described how, since 2002, she had personally provided regular support and guidance to the applicant and on many occasions had told her directly and frankly that her behaviour and communications were inappropriate. The applicant had regularly phoned, emailed and made appointments with Ms Evans over this period. 59 In September 2007, the applicant asked Ms Evans to arrange a meeting with Dr Barlow in light of her unsatisfactory 2006 annual review and issues concerning her poor working relationship with him. Two meetings were held (on 1 October and 27 November 2007). In these meetings, Ms Evans was surprised at the applicant's abusive language directed at Dr Barlow and the physical way she expressed her anger towards him. She believed the applicant's behaviour was unacceptable for any employee; let alone a qualified professional psychologist. At the first meeting, she had asked the applicant to leave the room and regain some self-control. She was also concerned for Dr Barlow's welfare. Her notes of the first meeting described how Dr Barlow had told the applicant he would place her 'abusive threatening and intimidatory' emails on her personnel file, including her threats to charge him with a breach of privacy and professional ethics to the PRB and the APS. At the end of the first meeting, agreement was made to meet again on 27 November and 4 December 2007, to prepare the applicant for the 2007 annual review. This was designed to provide support and feedback on remediation and to assist the applicant with strategies to manage her workload and priorities. They also discussed regular supervision meeting schedules which were to be negotiated with Dr Barlow. 60 Given the applicant's level of experience and qualifications, Ms Evans did not believe her complaint that Dr Barlow did not provide sufficient support which led to her failure in her annual reviews was justified. Her own views of her professional qualifications and experience indicated that she did not require a high level of support and supervision. Ms Evans conceded that she had some sympathy for the applicant's request that her 2007 annual review be rescheduled. However, it was not her decision and, in any event, she believed the applicant had sufficient time to prepare and complete the tasks required. Ms Evans said that she did not believe the applicant was surprised by her unsatisfactory 2007 annual review. They had discussed this possibility many times, of the need to meet critical deadlines and the serious implications of not doing so. They had openly discussed relevant policies and procedures, which the applicant was familiar with. 61 Ms Evans believed it was entirely appropriate for Dr Barlow to communicate with the applicant by email, as it was standard TAFE practice. It was also reasonable and appropriate for Dr Barlow to include the Manager of Educational Programs as a recipient of these emails, as this was an additional operational reporting line of the applicant. This was not a breach of privacy, confidentiality or harassment. Ms Evans said that the emails she had seen revealed that when Dr Barlow would send a succinct email with clear requests or instructions, the applicant would reply with personal criticism, abusive language or a refusal to comply.

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62 Ms Evans believed that from her observations, Dr Barlow was always courteous, professional and objective towards the applicant, despite her provocation at the meetings on 11 October and 27 November 2007, in which he remained calm and professional. There was no evidence that Dr Barlow had breached any professional code of conduct. He displayed no bias towards the applicant. She observed that Senior Counsellors are required to supervise and manage a counsellor's work. They are not involved in a clinical relationship. The supervision guidelines of the APS and the PRB procedures relate to clinical casework supervisory practices, such as diagnosis and therapy. 63 Ms Evans believed that placing the applicant on a PIP was fair and reasonable. There had been two years of no improvement. The decision was made and applied according to TAFE's relevant policies and procedures, which the applicant was aware of. 64 Ms Evans agreed that in discussing a small number of selected case files with the applicant, she had found them to be handled satisfactorily. However, there were case note errors which required remediation. In response to the applicant's claims at par 88 of her statement, Ms Evans said there was no obligation on Ms Godwin or Dr Barlow to discuss with the applicant or seek her consent for grief counselling for staff. 65 Ms Evans said that since the applicant's resignation she has had several conversations with her. The applicant had requested that she not inform others that she had resigned and intended taking legal action against TAFE. She requested that Ms Evans inform others that she was away preparing for the adoption of a baby. Ms Evans believed that the applicant was asking her to act improperly and dishonestly. She had also made similar requests to Dr Barlow in an email of 4 December 2008. In reply 66 In two reply statements, the applicant made the following observations. As to Ms Davis raising issues of concern, the applicant said she had never received anything in writing about her concerns and, in any event, Ms Davis stood to gain from her being found to be unsatisfactory, because she was eligible to be appointed to the applicant's position, even though she was below her in the eligibility list. 67 The applicant said that the principal reason why she contacted Ms Evans to arrange a meeting with Dr Barlow was because of their poor working relationship. She wanted Ms Evans to act as a third party, but this did not happen. Ms Evans did not act as a mediator and adopted Dr Barlow's position. She believed Ms Evans was unwilling to question or criticise Dr Barlow's actions. She thought Ms Evans was sympathetic, but her position in the meetings had left her completely alone. The applicant questioned why Ms Evans chose Dr Barlow as her supervisor when others were available. Dr Barlow made no effort to meet with her to improve their relationship. The applicant queried Ms Evan's reviews of Dr Barlow's performance. 68 The applicant said that it was common for psychologists to engage in regular peer and/or mentored professional supervision though their professional life. Dr Barlow had failed to do so. The applicant said that Dr Barlow's principal and first means of communicating with her was by emails copied to others. She had never refused to comply with anything Dr Barlow asked of her. She was aware of critical deadlines, but management was aware of the impact her diabetes had on her and did nothing to help her. 69 The applicant said her conversations with Ms Evans about not wanting her colleagues to know she had resigned, was a complete misrepresentation of what she had asked Ms Evans to do. She simply wanted her privacy respected as she expected to be re-employed at another College and did not want others to know what had happened between herself and Dr Barlow. She agreed she had asked Ms Evans to tell her colleagues she was adopting a child and that Ms Evans was reluctant to do so. 70 In cross-examination, Ms Evans accepted she had prepared two statements for this case, but only the latest had been filed. She believed her filed statement was more comprehensive than the first and it did not significantly alter the first statement. 71 Ms Evans deposed that the usual workload of a counsellor is 20 direct contact hours and 15 hours incidental to, or in preparation for, counselling. Senior Counsellors have a 14 hour contact load. However, 20 hours does not mean 20 clients, as some may take longer than others. 72 Ms Evans agreed that supervision can be provided to counsellors by senior counsellors, who are not necessarily based at the same college. It was her role to determine, by way of recommendation, who supervises who. Ms Evans said that the applicant and Dr Barlow would have known each other prior to 2005 when he undertook direct supervision of her. When Dr Barlow was first brought in as an external consultant, it was to address staffing issues at Mt Druitt involving two counsellors. The applicant was also involved. Ms Evans agreed that it was not unusual for counsellors to work three or four days a week - it depends on the needs of each college. 73 Ms Evans said that she has had hundreds of discussions with the applicant since 2002, many of them about her performance, conduct and communication style. Two of the examples she attached to her statement involved breaches of the Code of Conduct and TAFE's email policy. One involved the applicant's views of Hillsong Church and another referred to gossip and threats made by the applicant which she had sent to all counsellors, without being specific. She said there were many other examples.

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74 Ms Evans agreed that she was required to supervise Dr Barlow and to do so required a clear delineation of their respective duties and responsibilities. She responded to a hypothetical situation where, if their relationship had broken down they would have sat down and negotiated a working relationship and used conflict resolution, if necessary. She agreed that one of the many strategies to resolve such conflict might be to have a different supervisor. 75 Ms Evans agreed that the applicant had formally apologised for her behaviour in the October 2007 meeting with her and Dr Barlow. Ms Evans denied that this meeting only concerned the applicant and Dr Barlow's poor relationship. It also concerned her failing her two previous annual reviews and the consequences of another failure. While the two matters were obviously very closely related, Dr Barlow's own notes record that the meeting had a dual purpose. 76 Ms Evans said she had discussed the applicant's problems with Dr Barlow before and after this meeting. She was aware their relationship was 'toxic'. At the meeting, the applicant was very upset and when she calmed down they discussed her abusive emails and what had to occur to achieve a productive outcome. Ms Evans actually suggested the applicant see a psychologist. She gave her unlimited access to talk to her about her review and her cases; indeed anything at all. The applicant actually did do so. At the same time, she spoke to Dr Barlow about strategies to manage the relationship to resolve conflict. The applicant understood what was required to get her through her annual review. Ms Evans gave her feedback on her behaviour. Ms Evans denied not putting in place strategies to deal with the poor working relationship between the applicant and Dr Barlow. The annual review was partly a source of conflict, as was her supervision by Dr Barlow. Ms Evans agreed that the applicant had raised Dr Barlow copying emails to other people and that she believed Dr Barlow's supervision was inappropriate. She had requested an alternative supervisor, on more than one occasion. Ms Evans had told her this was unlikely. However, she took her request to the Institute Director in October or November 2007 because she thought it was fair and reasonable. The request was refused and Ms Evans informed the applicant accordingly. 77 Ms Evans acknowledged that the 27 November 2007 meeting was 'highly charged' and the applicant was upset. The relationship between the applicant and Dr Barlow had not improved since the October 2007 meeting. As the November 2007 meeting was very close to the annual review and time was running out, Ms Evans had wanted to support the applicant. She said that annual reviews are conducted in the calendar year to which it refers. She said that while it was extraordinary for the annual review to be concluded in the following year, she and Dr Barlow agreed for it to occur in January 2008. However, this extension of time was not supported by the Acting Manager of Education Programs, Ms Louise O'Sullivan or Human Resources. Dr Barlow subsequently informed Ms Evans of this decision. Ms Evans did not know if the applicant was consulted about the changed timetable.

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78 Ms Evans insisted that the requirements outlined in the review were no different to what all counsellors would be expected to demonstrate. Ms Evans said she was not aware of Dr Barlow asking the applicant for additional material to the standard statistics, i.e. monthly statistics. If this was so, Ms Evans agreed this was an additional requirement. She said every member of the team is required to provide input into the operations and outcomes through their senior counsellor. A single counsellor college would be responsible for preparing and analysing all the information from that College. The counsellor is offered professional development training about what is required. While it is not mandatory, everyone is offered the same opportunities. Ms Evans noted that annual reviews are conducted differently depending on the experience, skills and qualifications of the counsellor and are negotiated with the senior counsellor. However certain essential components are standard. 79 Ms Evans said that each of the requirements for the applicant's review fell squarely within a TAFE counsellor's statement of duties. The applicant was not undertaking tasks outside her statement of duties, although some duties were senior counsellor duties. Ms Evans acknowledged that in 2007 some counsellors were a bit slow in getting their reviews in. This was to be expected in any large organisation. However, reviews are meant to be fairly informal and are designed to be supportive and helpful. The applicant's 2007 annual review was more formal because of her two previous failures. Ms Evans conceded that throughout 2007, the applicant had told her of an increase in the instability of her diabetic condition. This was demonstrated by her increased sick leave with medical certificates and reports. Ms Evans said that she had actually witnessed the applicant having a 'hypo' and it was very upsetting. 80 Ms Evans agreed that the applicant was required to put her documents in by 4 December 2007, for a review on 11 December 2007. Notwithstanding all of the circumstances, Ms Evans believed this was sufficient time for her to prepare and complete her annual review. It was not onerous. She was a very experienced counsellor with two Masters Degrees and she was quite capable of getting reports in on time. Nevertheless, Ms Evans said she was not at all surprised, given the applicant's history since 2002, that she had not submitted her reports in time. 81 Ms Evans said that the Code of Conduct and Supervisory Guidelines are those applying to the Public Service and TAFE. There are no specific supervision guidelines in respect to counsellors. Supervision is management supervision according to the Statement of Duties. It is not clinical supervision. The applicant had two supervisors, Dr Barlow and an Operations Supervisor, Manager, Educational Programs. Ms Evans said that there is no requirement, under TAFE NSW, to comply with the APS Guidelines. 82 Ms Evans accepted that if the applicant was reinstated, it was possible to place her somewhere, other than at the Baulkham Hills College. However, the TAFE's transfer policy does not apply, if the employee is subject to an unsatisfactory review. 83 In questions from the Commission, Ms Evans said it was her understanding that the decision not to allocate a new supervisor to the applicant was that Dr Barlow's suprevision had reached a point where it was near conclusion, and it would be inappropriate to change supervision at that time. Ms Evans described the reasons for maintaining statistics as an accountable document used for audit purposes and as means of identifying trends and needs for future resources. 84 In re-examination, Ms Evans believed that the applicant had been paid a Counsellor-in-Charge allowance in recognition of her additional responsibilities. She had also acted as a Senior Counsellor in 2003. Ms Evans said was not aware of any other counsellor being late in submitting their annual reviews two years in a row. Ms Evans said that the applicant had never asked for additional training to assist her completing her annual review requirements and added that it was no more difficult to provide monthly statistics than term statistics. 85 Ms Evans said she did not discuss her notes of the meetings with either the applicant or Dr Barlow. She conceded that the only times she witnessed the applicant behaving abusively was in the two meetings of October and November 2007. 86 Ms Evans concluded her evidence as follows: Staff that she had worked with had reported to me that they found her intimidating, that her body language was intimidating, the way she spoke to them was rude, intimidating and often threatening. An example that comes to mind straight away is another member of my tea, Beverley Leicester, the teacher consultant for students with intellectual disabilities who is co-located with Bronwyn was faced with an, I believe, maybe nine, maybe ten post it notes on the door that were quite rude and threatening and intimidating in nature, and this was a person who was co-located in the unit with Bronwyn. That formed a complaint that became formalised that was sent to myself and one of the college managers to review. That is a fairly typical example of the sort of threatening communication that I had had reported to me by other people that I had discussed with Bronwyn. I discussed with Bronwyn her threatening emails to Allen, threatening to have him deregistered from the Psych Registration Board for example, having emails that she sent to people with legal defamation comments at the bottom of the emails which people found to be threatening, and that would be the sort of thing I had talked to Bronwyn about, about her inability to establish and maintain good working relationships with people and, you know, her comments around thinking people were gossiping about her and accusing people of lying, and we talked about that in terms of her inability to maintain relationships generally and the way she came across to people and we discussed that very openly. 87 Dr Barlow is a Registered Psychologist with 30 years experience. Dr Barlow denied a number of claims made by the applicant including:

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Performance Management and Development Policy; and Management of Conduct and Performance. Training was provided to senior staff on these policies and this occurred in April 2007. 90 Around March 2007, steps were taken to find a suitable person to be the Improvement Program Manager for the applicant and to provide her with feedback on areas for improvement. 91 Dr Barlow said that in May 2007, he and a Mr David Wallace prepared a draft PIP for the applicant. However, on 18 June 2007, the Relieving Institute Director agreed to a request from the applicant for an appeal of her 2006 annual review. Ms Anne Ford, Relieving Associate Director, and Mr Chris Dighton, Acting Manager Personnel, Human Resources, were to conduct the review and the PIP was put on hold pending the outcome of the appeal. Dr Barlow provided all relevant documentation to the appeal, and the appeal was rejected in October 2007. This was around the time the 2007 annual review was due. 92 Dr Barlow made his own notes of the meeting with the applicant on 11 October 2007. He deposed that it was convened as a means of providing support and assistance to the applicant so that she might achieve a satisfactory outcome for the 2007 annual review. A section of these notes is extracted as follows: Bronwyn was angered by the fact that her appeal against her failed A/R had not been successful and demanded to know what I had said to Anne Ford (I had not spoken at all to Anne Ford about that Review prior to the final report). Bronwyn objected to the 5 elements mentioned in the official response to her appeal and demanded an explanation from me. Neither Kerry nor I was able to answer this as neither of us had been given a copy of the final formal response to Bronwyn re her appeal. Bronwyn again objected to the fact that I had not sought to help her and support her throughout this year (2007). I pointed out that on as many as 6 or 8 occasions I had tried to set up an observation/meeting with Bronwyn and a client/student counselling session but all but two were cancelled because of "hypos", student cancelled immediately prior to the meeting, or student supposedly did not show up. I explained that I was only successful in observing 2 student counselling sessions in 2007. Furthermore, I explained that as her emails became more and more abusive, intimidating and threatening, it became more and more difficult to maintain a safe and successful relationship. I reminded Bronwyn that I was committed to lodging any documents I felt as threatening or abusive on her personnel file as these were in breach of TAFE policy on the use of electronic communications and more. She objected strenuously and threatened (again) to report me to the NSW Psychologists' Registration Board and APS and she would seek my deregistration. She at this point became increasingly aggressive and loud - yelling at times. Also, she said my supervisory skills were non existent and whilst she acknowledged that my time in the university was reputed to be good (she said this in a sarcastic tone) she did not know whether I had clinical oversight of the counselling unit there. Irrespective, she wanted me replaced as a supervisor (professional) forthwith because she had no respect for me and she insisted that Kerry or someone else be brought in to replace my current role. Kerry maintained that there would be no change without the Institute Director making that determination and that her own position was not able to accommodate a supervisory role for Bronwyn. Bronwyn continually referred to the fact that she felt unsupported and unappreciated by me. She became teary at one point. I responded that it was getting virtually impossible to support her because there were so many factors related to her performance which required rectification. To substantiate this notion, at one stage I read an extract from an earlier email (email Allen Barlow to Bronwyn Anley 06/03/07) "You question my support for you. The best way for me to demonstrate support for you is for you to produce the material etc required and not leaving me exposed to trying to defend performance which by any standards is severely lacking. Please give me something of substance whereby I can support you rather than letting me down by ignoring and breaching schedules, dates, timeframes etc." Again, Bronwyn was informed that she could make a real effort to meet the demands of her SOD by simply undertaking many of the simple clerical aspects of the job and to read the SOD and instructive emails and understand what was required of a TAFE counsellor --- something that should have been done quite some time ago. Bronwyn gradually became more and more out of control. She started to speak in a very loud voice accusing me of "...being a liar, ... I have no time for you, ... you don't need to talk to me ever again," (and more). Such was her demeanour, I felt it best to take care in not antagonizing her in any way and sat quietly, and leaned back in the chair. I also felt upset and threatened by her physical presence and actions as she became red in the face, started yelling in my face (perhaps a few centimetres) and waving her fingers in front of my nose. She was "foaming" at the mouth and such was the harassment and intimidation that Kerry voiced her objection (emphatically) to Bronwyn's behaviour. Kerry told her the behaviour (yelling, waving figures, shouting in another's face) was inappropriate in the extreme, and to desist from treating me (or anyone else for that matter) in that manner. Furthermore, Kerry urged/suggested Bronwyn go outside for 10 minutes and have a drink and to calm down. This intervention by Kerry broke the tension somewhat and Bronwyn did retract somewhat from her previous unacceptable behaviour. Bronwyn was urged by Kerry to be more circumspect in her behaviour and to desist from writing the inflammatory and abusive material she has been producing for quite some time. Kerry suggested that if Bronwyn was to invest her energies into productive SOD tasks then the problems she was experiencing would more than likely disappear. Bronwyn would not be convinced on this point and notified Kerry and me that she was protecting herself and would take the matter further. 93 Dr Barlow said that at this meeting it was agreed to allow the applicant to undertake her 2007 annual review. He believed this was preferable to her being placed on a formal PIP, which could not be implemented given the time of the year. The applicant was to meet with him and Mr O'Caoimh on 11 December 2007 and to submit specified documents by 4 December 2007. 94 Dr Barlow referred to his notes of another meeting with Ms Evans and the applicant on 27 November 2007, as follows: BA largely ignored this, and opened up with an array of heated criticism with specific anger directed at my decision to have all abusive, harassing, threatening and intimidatory emails sent on to HR for lodgement on her personnel file. AB reiterated the fact that some of the BA emails contravene TAFE policy and any I regard as such, could be submitted to HR. I made it clear that I am perfectly happy to have my emails similarly lodged so that any reasonable adjudicator can ascertain the sequence of emails and the extent to which they would be regarded as unsatisfactory in nature and content. BA would not accept that view, insisted that I was "not allowed" to lodge her emails without her consent, and indeed it was me who was contravening policy and her rights. Be that as it may, BA was informed of my intention is to have these documents lodged. BA's response, articulated in heated raised voice mode, amongst other verbiage, "...(you) do not have a clue re professional supervision." KE again suggested that we were here to support BA get her material prepared for the A/R to be conducted on the 11th Dec., and the written support material to be reviewed was to be submitted by the 4th Dec. 2007. BA indicated that she took exception to having been the recipient of unsatisfactory assessments for the previous two A/Rs, notwithstanding two appeals which supported the original unsatisfactory "grade". BA indicated she took great exception to the previous two unsatisfactory decisions, and directly blamed me for her failures, "...thanks to my friend there, I have failed now twice". BA asked whether her counselling was substandard and I responded by stating that we had had considerable difficulty in getting counselling observations in place because of her "hypos", clients mysteriously not showing up, and cancellations at a late juncture. Effectively this meant I had observed her direct counselling on only two occasions but had had the opportunity to review her case notes on 6 or more occasions throughout the year. AB offered the opinion that the two counselling sessions had been good to very good with only minimal feedback necessary. There had been significant improvement in the record keeping and case notes. BA reiterated the stance that she did not want me assessing her saying explicitly, "I refuse to have him on the Review Panel". BA went on to say that she had been in contact with the NSW Psychologists Registration Board and the Australian Psychological Society, asking for their intervention in the situation, and asking that my registration be reviewed. I did not respond to these statement, expressed in heated and loud tones, other than by taking notes and sitting as calmly and relaxed as was possible given the heightened tension. This quiet, non demonstrative demeanour seemed to infuriate BA because I was not responding in a manner she would have imagined I would. BA drew particular attention to me sitting back in the chair and making very brief notes rather than responding in an overt manner. KE intervened with the notion "Lets say that the institute director says Eoin and AB would do the review". BA became even more animated, emotive and red faced stating that she did not want me involved in another A/R. KE reiterated that at this time "we are not here to entertain complaints. Essentially, there is no one else who can take over as senior counsellor, and the ID may well decide to leave the supervisory arrangements in place and that BA would be wise to start to concentrate on that rather lodging complaints and agitating for new arrangements". BA response was "...my contempt for him is enormous, I detest him, get him out of here and out of my review". KE again asked for the meeting to get back to the A/R. There was some discussion of the needs analysis and a research project which had not been able to be done. BA yelled that "you are supposedly an intelligent man... Why do you lie about that needs analysis (she had previously offered to send it to KE and myself but it had never arrived)...he is very good at telling us what he had done but I think he hasn't done these things and I bet he didn't even oversee the counselling unit in the university." KE, "for the fourth time Bronwyn, we are here to address the requirements of the A/R". BA "I loathe him, professionally he is useless, he wants to take control by wanting my stats every month, no one else has to do it, it is humiliating for me to have to do the things he wants, he is not a compassionate counsellor to me". 95 Dr Barlow said he was advised the applicant had failed to submit her review documentation. While it was provided on 10 December 2007, there was no explanation as to why it was late. 96 In February 2008, Dr Barlow was requested to prepare a draft PIP for the applicant in view of her unsatisfactory 2007 annual review. Ms Westbrook was appointed the applicant's Performance Improvement Manager. Dr Barlow, Ms Westbrook and Mr O'Caoimh prepared a PIP which was agreed to by the applicant. There were eight regular meetings with the applicant between 4 March and 17 June 2008. During these meetings positive and constructive suggestions were made to the applicant as to how she might improve her performance. Dr Barlow said he was very aware of the need for Mr O'Caoimh and Ms Westbrook to form their own independent opinions of the applicant's performance and he did not discuss with them his previous experiences with her. At the last meeting, the three of them concluded the applicant was not performing to the minimum standard required of a TAFE counsellor. Dr Barlow said he had no further involvement with the applicant after this time. 97 In a supplementary statement, Dr Barlow described that when he first met the applicant she had forcefully told him that she had come from a senior position in New South Wales Health to a lower paid and lower status position in TAFE. She said she had many years of experience, possessed excellent academic qualifications, which outranked virtually everybody in TAFE, and did not need supervision. She indicated that her outstanding professional experience and performance had been recognised by TAFE when she was an Acting Senior Counsellor and Counsellor-in-Charge and she was ready to take a senior role in TAFE. Dr Barlow said she had actually asked him for a reference and he provided it to her on two occasions. 98 Dr Barlow said that he had attempted to have many, many meetings with the applicant, but this was difficult due to her elusiveness and variable work patterns. They had spoken on the phone scores of time. She had cancelled many meetings at short notice. She insisted she did not need to be observed in a counselling mode, because her seniority and expertise were beyond reproach. 99 Dr Barlow observed that, despite placing her abusive and derogatory emails in the applicant's personnel file, he did not initiate any investigation into her breaches of TAFE policy in this regard. Her abuse started in the second or third month of his supervision and initially included allegations that he was in an inappropriate relationship with Ms Fugaccia. 100 Dr Barlow believed that the specific requirements of the PRB and the APS style of supervision are not applicable in the TAFE environment. In any event, neither professional organisation acknowledge the need for supervision of experienced practising psychologists. He said that supervision pertains to psychologists seeking registration or who are subject to disciplinary procedures. Dr Barlow noted that the applicant's request for formal supervision had only emerged when she had sought to disqualify him as a supervisor. She had explicitly outlined her own confidence in her professional standing many times. 101 Dr Barlow believed that the applicant's assertion that her 2005 annual review process was not undertaken according to TAFE policy, was incorrect. An appeal by the applicant found no irregularity or issue with it, notwithstanding that it took over five months and six meetings, because the applicant could not produce the most basic of professional material required. 102 Dr Barlow conceded that he was aware of the applicant's diabetes, because she constantly reminded him of it. However, he was not aware that she had become increasingly unwell. She also took strong exception to others, inquiring about her welfare. He was not aware of any request for further 'reasonable adjustments' and he knew of no documentation to support such a request on medical grounds. Dr Barlow said the applicant's case load was adjusted given her long periods of ill health. Nevertheless, she was paid a Counsellor-in-Charge allowance to reflect a higher level of responsibility, which also required additional material to be produced. 103 Dr Barlow acknowledged that Ms Fugaccia told the applicant her 2006 annual review may be unsatisfactory. However, this was because so little material had been presented. Nevertheless, Dr Barlow said an independent appeal review of the documentation and procedures had provided significant and specific feedback on her performance deficiencies. 104 Dr Barlow deposed that, despite the applicant becoming increasingly antagonistic and abusive in her communications, she was treated with respect, dignity and fairness, at all times. Even when she had agreed to produce monthly figures within five working days, none were ever provided within the agreed time frame. He said it was such a simple task, it was difficult to see why she was so intransigent. She continued to be unresponsive to his requests and reminders and ignored, or otherwise disregarded, his requests. 105 Dr Barlow rejected the applicant taking exception to the scores of professional inaccuracies in her case notes, for which he had provided feedback. He also rejected the applicant's claim of having been 'marginalised'. 106 Dr Barlow said that the applicant was granted more leave than any other counsellor in Western Sydney Institute to attend professional development courses or conferences, including APS conferences. 107 Dr Barlow said that the applicant was well acquainted with TAFE's annual review process and what was expected of her. She knew the importance of producing performance data within an agreed designated time frame. Her client case notes were continually inaccurate, incomplete or lacking professional credibility. Despite advice to the contrary, she gave priority to a counsellor's meeting, rather than concentrating on her annual report. 108 Dr Barlow insisted the applicant was always treated with scrupulous fairness and respect. Enormous time and effort was expended in providing guidance, support and direction from both himself and Ms Evans. She could not have been shocked by the outcome of her PIP, as she had been directly informed of the consequences of her refusal to compile and produce material in a timely manner.

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112 The applicant claimed that Dr Barlow's preferred means of contact, by email, was so he could copy in others about her failures. She denied speaking on the phone to him 'scores of times' and denied cancelling meetings at short notice. 113 The applicant said that because of the deterioration in their professional relationship, she did not confide in Dr Barlow as to the deterioration in her health. She provided all medical documentation to her line supervisor. The applicant added that it was irrelevant whether other counsellors had less conference leave than she did. 114 The applicant tendered an email from Dr Barlow (19 June 2006) which stated that her client notes were satisfactory. Ms Evans had also told her so. Nevertheless, she believed the deterioration in her performance was directly related to her diabetes control and poor work environment. 115 In cross-examination, Dr Barlow agreed that the applicant had two supervisors; he was her professional supervisor and Ms Fugaccia was her line supervisor. His professional supervisor was Ms Evans. He currently supervises 42 people. TAFE also has a Principal Psychologist which the applicant had access to and did have meetings with. 116 Dr Barlow agreed that the role of supervisor and supervisee is very important so as to ensure the proper and effective performance of the supervisee's roles and responsibilities. It was desirable that there is a clear delineation of roles and that they enjoy a good relationship. He said that difficult relationships need to be resolved. However, it may not necessarily involve a change in supervision. Dr Barlow said that he had never experienced such a difficult relationship between himself and another employee. Dr Barlow insisted his communications with the applicant over two and a half years were regular and consistent. They had spoken weekly and sometimes many times in a week. 117 Dr Barlow said that while he was an academic, he had had a clinical case load and had maintained a small case load throughout his 30 years as a psychologist. However, he was primarily a senior administrator, academic and researcher. Dr Barlow re-emphasised that the APS Guidelines are not specifically applicable to his role as a supervisor at TAFE. APS membership is not a requirement for employment at TAFE and he is presently not a member. He conceded that the APS Guidelines may be applicable in a general sense. 118 Dr Barlow said the Counsellor-in-Charge at Baulkham Hills has minor duties in addition to their role as a regular counsellor. Before commencement, a counsellor is briefed on these additional duties. The Counsellor-in-Charge is not isolated and there is contact and fraternisation with other teachers, consultants and students. Dr Barlow said he had been very concerned with the applicant's absences at Baulkham Hills because of the impact on the efficiency and effectiveness of counselling service delivery. Rescheduling and inconvenience became a problem and a number of contingency plans were implemented.

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119 In questioning from the Commission, Dr Barlow agreed that supervision in the psychologist context, is more of a professional dialogue between very well qualified and experienced people. This is different to a supervisory role for a less experienced or unqualified graduate psychologist. 120 Dr Barlow said the annual review process had one component focussed on the administrative aspects of the applicant's role. Punctuality was also an issue. Dr Barlow understood that by March 2008, a contingency plan was necessary to accommodate the applicant's illness. However, this was only one aspect of the plan. He agreed the plan did not work. He said the applicant 'point blank' refused to be referred to HealthQuest because she said she could not afford a medical retirement. Dr Barlow believed that all of the applicant's requests to accommodate her illness were negotiated to her satisfaction. He recalled that she requested a half an hour gap after each client. Dr Barlow said the applicant was not required to provide him with medical certificates or call him to let him know she would not be in. However, she was required to contact the clerical support person and medical certificates would have been provided to her line manager (Mr O'Caoimh). 121 Dr Barlow denied having any animosity towards the applicant or that their relationship had broken down, from his perspective. He believed that there were very few people willing to work with the applicant. She had told him she was forced to transfer to Baulkham Hills because staff at Mt Druitt were not prepared to work with her. Dr Barlow acknowledged that there were other significant staffing problems at Mt Druitt in 2003. Dr Barlow said that the applicant first started criticising him in early 2006 and even suggested he was having an affair with another supervisor. However, his personal feelings were irrelevant to his professional supervision of her. From September 2005 to January 2008, he provided her with a step by step approach to meeting a satisfactory performance outcome. There was no bias against her and he treated her with absolute respect from the beginning. 122 Dr Barlow conceded that, in some circumstances, it may be appropriate to change supervisors. It was not appropriate in this case as what was asked of the applicant was not particularly difficult for someone of her ability and qualifications. Providing statistics was but one of the issues. All counsellors provide monthly statistics which go to the Central Office. These are used to identify trends in needs at each campus so as to provide a basis for sound planning and service delivery. All counsellors have an input into the annual report which he collates and prepares. Dr Barlow acknowledged that as Counsellor-in-Charge the applicant's duties were greater than the ordinary counsellor. He agreed that the applicant's Statement of Duties makes no distinction between the two. 123 Dr Barlow was questioned about the two meetings in October and November 2007 with the applicant and Ms Evans. He said he was not upset by the applicant's confrontational and aggressive behaviour. He agreed she had apologised after the October meeting by indicating that some of her behaviour may have been inappropriate. 124 Dr Barlow believed his supervisory relationship had been successful; he had provided excellent advice, feedback and direction which, he believed, could have been satisfied without too much difficulty. He had never considered it appropriate to have her change supervisor. He agreed that Ms Evans shared his view that the working relationship with the applicant could be improved. Nevertheless, the applicant questioned his doctoral qualifications, doubted he had been a senior university administrator and alleged he somehow infiltrated the email system to add words into her emails in order to make her look bad. 125 Dr Barlow described the many meetings he had with the applicant in 2005, 2006, 2007 and early 2008, in respect to her annual reviews and other matters. These included communications on the phone and by email. Dr Barlow also described his supervisory relationship with other counsellors. Dr Barlow understood that as annual reviews always occur in November / December of the year in review, he could not have moved the applicant's 2007 annual review to January 2008. The delegation to do so does not lie with him or Ms Evans. While he had suggested the date of January, it was not up to him or Ms Evans to finally determine it and he had not been consulted as to the date of 11 December 2007. In any event, Dr Barlow did not consider it of concern that the date was set at 11 December as this was common practice which the applicant had understood and had in earlier years complied with. 126 Dr Barlow insisted that the applicant's case load was 'extraordinarily low'. In March / April and April / May 2008, it was 1.6 and 1.9 people respectively, per day. The average for other counsellors was five. He would have expected that someone undergoing a PIP would have attempted to demonstrate a higher commitment than the applicant had. Dr Barlow did not believe the applicant's own figures for January 2006 to December 2007 were correct. 127 Mr Miles is the respondent's in-house solicitor, instructed by Ms Whittaker. His statement was admitted into evidence without him being required for cross-examination. Mr Miles traced the history of TAFE NSW's discipline provisions applying since 1991. Attached to his statement were the following documents:

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d) Procedure for Managing Unsatisfactory Performance 2006. 128 Mr Miles deposed that Ms Fugaccia was presently on workers' compensation as a result of psychological injury. In August 2007, Ms Fugaccia submitted a claim for workers' compensation and ceased duty. The respondent's insurer had accepted liability and Ms Fugaccia remains off duty. Mr Miles said that he had been informed that the substantive cause of Ms Fugaccia's injury arose following her supervision of the applicant. Attached to Mr Miles' statement were three WorkCover medical certificates which contain the restriction that Ms Fugaccia not be required to supervise the applicant. Mr Miles said that her injury had not been rehabilitated and any exposure to the applicant would likely exacerbate her injury. As a result, the respondent had serious occupational health and safety concerns as to requiring Ms Fugaccia to give evidence in these proceedings. 129 Mr Miles also attached to his statement the respondent's Annual Review Policy and Complaints Policy, the applicant's sick leave record, details of payments made to her on termination and various documents relating to the complaint lodged by the applicant with the ADB. 130 Mr Wright was the Relieving Institute Director who made the final decision to direct the applicant to resign or be otherwise dismissed. Mr Wright said that on or about 5 February 2008, as a result of being advised by Ms Whittaker that the applicant had failed her 2007 annual review, he approved a recommendation that the applicant be placed on a formal PIP and also approved the appointment of Ms Westbrook as an external independent program manager of the applicant's PIP. He believed that these actions were appropriate and reasonable given the applicant's unsatisfactory reviews in 2005, 2006 and 2007. Up to this time, he had very few dealings with the applicant and said he had no preconceived outcome in mind. He had hoped the PIP would assist the applicant in improving her performance. The PIP was extended slightly longer than normal as the applicant had requested an extension due to the holiday period. 131 Mr Wright deposed that after the PIP, when the applicant's performance was rated as unsatisfactory, he had considered all of the PIP material and meeting notes. An independent review was undertaken by Ms Renshaw. Ms Renshaw had concluded that the PIP had been appropriately managed according to TAFE's policy. Mr Wright said he then took some time to consider all of the material he had before him and concluded that if the applicant was performing satisfactorily, she would be able to demonstrate her ability to do so, as the PIP objectives were not complex or difficult and given the applicant's experience, easily achievable. She could not achieve even such simple matters as getting a report in on time and providing statistical analysis. 132 Mr Wright was particularly concerned at the applicant's inability to design and implement a contingency strategy for providing a reliable service. Of significant concern was her failure to turn up on time which resulted in the rescheduling of client appointments. This adversely affected the reliability of the service. Mr Wright said that even during the 44 day PIP, the applicant was late or absent on 25 occasions. This indicated to him that she did not appreciate the impact and significance of her unreliability. Mr Wright said that he had read and considered the applicant's three written submissions and met with her and a Teachers' Federation representative, Ms Flohm on 10 October 2008, for about an hour and a half. During the meeting, Ms Flohm had stated that the PIP had been conducted in a fair manner.

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134 Mr Wright said he was surprised and shocked that when he told the applicant that termination was a possibility she had replied 'How long would a negative report stay on my file, particularly because I am considering applying for promotion to other institutes'. Mr Wright believed that this response was astonishing. It demonstrated a level of unreality and inability to understand the seriousness of her situation. 135 After the applicant had sent Mr Wright a further email on 13 October 2008, he had considered all the mitigating factors and concluded that there was little likelihood of the applicant ever reaching a satisfactory standard. She had been given many opportunities over an extended period to improve her performance. Mr Wright believed that the respondent had provided many concessions for her diabetes, but she continued to be 'manifestly unreliable in her attendance at work'. He concluded that the applicant should be directed to resign or be dismissed. 136 Mr Wright maintained that it was clear that there had been a breakdown of trust and confidence between the applicant and the respondent. There was no reason to believe that she would be able to perform satisfactorily. In particular, he believed that the applicant blamed others for her poor performance, notably, whoever happens to be her immediate supervisor. She could not even follow simple directions and took every direction or supervision as an opportunity to attack or complain about that person. Given Ms Fugaccia's situation and the applicant's temper outbursts, inappropriate email distribution and her contempt and disregard for her supervisors, Mr Wright was also concerned about the psychological safety of other employees. 137 In cross-examination, Mr Wright deposed that prior to placing the applicant on a PIP he had a verbal briefing from Ms Whittaker. He did not know, at the time, that the applicant had a complaint against Ms Whittaker. Mr Wright believed the options of doing nothing or placing the applicant on a remedial program were not appropriate, given her failures in 2005, 2006 and 2007. He said the PIP would be put in place, irrespective of the fact that the employee had a medical condition. However, that would be a consideration in preparing the PIP and in consideration of what the outcome of any further unsatisfactory assessment might be. At the time, Mr Wright did not know of the applicant's claims of poor supervision and relationship problems with Dr Barlow. However, it was Ms Westbrook's role to ensure the PIP was fair and reasonable. Mr Wright had not been aware that Ms Evans had recommended Dr Barlow be replaced as the applicant's supervisor. In hindsight, he agreed it should have been brought to his attention, but it was not absolutely essential to a finding that the PIP had been fairly conducted. 138 Mr Wright acknowledged that Ms Renshaw's review had raised some procedural concerns. However, she had sought further information which resolved those concerns. Mr Wright said he was aware of the applicant's medical condition and the HealthQuest assessment which did not recommend a transfer on that basis. Mr Wright did not accept there were any significant inaccuracies in the reports and documentation he had before him which would have altered his decision. Mr Wright said that placing the applicant on a probationary period was no longer an option under the respondent's policies. Mr Wright agreed that the applicant may have passed her 2002, 2003 and 2004 reviews and had no issues with her supervisors at that time. He said that it may have been a coincidence that her problems only arose after Dr Barlow became her supervisor. 139 In re-examination, Mr Wright deposed that in the five and a half years he had known and worked with Ms Whittaker, he had always found her to be professional and her advice to be reliable. He did not believe that the applicant's complaint against her would have made any difference to her involvement in the PIP. Mr Wright said he was aware of the applicant's diabetes, but not the extent of it. He added that even if he had known of her doctor's advice to move her closer to home to manage her diabetes, this would not have made any difference to his decision. This was because the PIP was about managing her performance, not her health problems. Mr Wright also believed that changing the applicant's supervisor would not have made any difference. Ms Westbrook had told him about the animosity between the applicant and Dr Barlow. However, he had told Ms Westbrook that her role was to ensure that the PIP had proceeded in a fair and equitable manner. Mr Wright said that when he raised the issue of extending the applicant's PIP it was Dr Barlow, Mr O'Caoimh and Ms Westbrook's opinion that there was insufficient improvement and to extend the PIP would make no difference to the overall unsatisfactory outcome. In reply 140 The applicant claimed that although a PIP is meant to be supportive, she had received no support from any of her reviewers. She added that she could not prepare a contingency plan to see clients, because if she had a 'hypo' she would be unable to contact the workplace. She believed she should have been moved to another College, with other counsellors, so any impact of the cancellation of appointments could be covered. The applicant denied not appreciating her lateness for work and its impact on clients. She was experiencing increased diabetic instability and stress. She relied on her treating endocrinologist Dr Sogi Swaaj's report of 17 October 2009, in which he said, in part: I understood at the time that she was under significant emotional distress from a dispute with her employer and had been requesting a transfer to a TAFE closer to her home in Ashfield. I supported (and continue to support) her application for such a transfer as she had poor diabetes control (as evident in her HbA1c blood test results), frequent hypoglycaemia (low blood glucose / hypos) and it is clear that less travel time to and from work would permit her more time to better manage her diabetes regime, including regular insulin, meals and exercise. 141 The applicant explained that she had asked about promotions in her final disciplinary interview 'for her information' and not because she was planning to apply for more senior counselling positions at that time. She said she was very aware of the 'severity' of the meeting and maintained that her performance would have improved if she had:

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a) been moved to a College closer to home; b) been provided with a professional supervisor; and c) not been bullied or 'marginalised' in the workplace. 142 The applicant denied she was the direct cause of Ms Fugaccia's or Ms Hamilton's WorkCover claims. She said Ms Hamilton had told her that the Mt Druitt College Director was the cause of her claim. She denied having animosity to people who supervise her and she believed she could be reinstated. The applicant claimed that her complaint against Ms Whittaker had only been superficially investigated. The applicant said that her working a four day week was not in recognition of her medical condition, but because Ms Fugaccia felt the client demand in 2006 was not there to justify a five day week. 143 The applicant rejected HealthQuest's conclusions two years earlier because she said that diabetes is a lifelong chronic disease, which does not remain static. She had also been told that she could not submit new evidence in her appeal of the HealthQuest decision. 144 Ms Whittaker has held a number of human resource management positions and is responsible for overseeing procedures relating to staff performance at the Western Sydney Institute. Ms Whittaker said that while it was now a requirement for TAFE counsellors to be eligible for registration as a psychologist, they are not employed as clinical psychologists, nor are they required to diagnose and treat psychological illnesses. 145 Ms Whittaker said that when the applicant had applied for a position at Mr Druitt College in 2002, she was living at Ashfield and made no representations to the respondent to suggest that she would automatically be entitled to transfer to a position closer to home. In any event, this would be inconsistent with the respondent's policies. Ms Whittaker was not aware of any issues relating to the applicant's assertion of her not being properly inducted at Mt Druitt in 2002. In any event, this was irrelevant to her performance in 2006 to 2008; nor did it prevent her from acting in the position of Senior Counsellor in Term 4 of 2002. Ms Whittaker said that when the applicant was transferred for operational reasons to Baulkham Hills in 2003, the College was actually closer to her home than Mt Druitt. 146 Ms Whittaker said that the respondent accepted the clear and unambiguous medical advice from HealthQuest 'that it was not medically essential that a change of work location was necessary for Ms Anley'. Ms Whittaker believed that the applicant's subsequent request to transfer to OTEN at Strathfield could not be accommodated because there was no vacant permanent position available. Ms Whittaker strongly denied that the respondent had discriminated, in any way, against the applicant. Ms Whittaker emphasised that, from the time the applicant's performance was deemed unsatisfactory in 2006, she ceased to be eligible for transfer to any other work location. This was TAFE policy. 147 Ms Whittaker further denied any personal animosity towards the applicant and rejected the applicant's complaints that she had been treated inappropriately. Ms Whittaker noted that the applicant had withdrawn her discrimination complaint in the ADT. Ms Whittaker denied that the applicant's discrimination complaint affected her dealings with the applicant. Moreover, the respondent had given the applicant 'wide latitude' in recognition of the limitations caused by her medical condition. 148 Ms Whittaker believed that it was to the applicant's advantage to have Dr Barlow supervise her as he was a new employee. The applicant had claimed other staff had already formed a negative view of her, whereas Dr Barlow would not have.

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154 Ms Whittaker denied the applicant's claims that she was not given access to her personnel file and that documents were missing. The applicant viewed her complete file in December 2008, and extracts were copied for her. 155 Ms Whittaker summarised the respondent's position as follows: The Respondent dismissed the Applicant from her employment as a TAFE Counsellor because the Applicant failed over an extended period of time (at at least two annual reviews) to meet the minimum standards of performance and efficiency required of a TAFE Counsellor. The Respondent complied with the relevant policies and procedures in place to deal with its concerns about the Applicant's performance. The process followed by the Respondent that lead to the Applicant's dismissal was included a Performance Improvement program ("PIP"). The PIP was conducted by the Applicant's supervisor, who had appropriate professional qualifications to supervise the Applicant's work, and to inform her of the work standards required. None of the staff involved in the supervision and assessment of the PIP had any personal bias or animosity to the Applicant, and performed their roles in a professional and objective manner. At the conclusion of the PIP, the Respondent arranged for the process to be reviewed by a senior and experienced officer from outside Western Sydney Institute. The reviewer endorsed the process and findings of the PIP. The Respondent had clear and cogent reasons for not meeting the Applicant's request for a transfer to a different work location, and that in the circumstances the Respondent did not discriminate against the Applicant by declining her request for a transfer. 156 In cross-examination, Ms Whittaker said that with the requirements for counsellors to be registered as psychologists, there would be an expectation that APS Guidelines, applying to supervision, would be a requirement. In re-examination, she clarified this to mean where clinical work was involved, and this did not generally apply at TAFE. In any event, Ms Whittaker emphasised that TAFE policy and guidelines take precedence. 157 Ms Whittaker agreed that in 2006 TAFE's discipline policy had changed. The applicant's performance was judged on her 2006 and 2007 annual reviews and that matters relevant to her earlier reviews would not necessarily be considered in the PIP. Ms Whittaker said that the 2006 annual review highlighted the applicant's failure to submit work on time and meet deadlines set two months in advance. Ms Whittaker said she was not aware that the applicant, Ms Evans and Dr Barlow had agreed to defer the 2007 annual review to January 2008. Nor was she aware that Ms Godwin overruled their recommendation. 158 Ms Whittaker said that she was unaware of what specific matters might be taken into account when transferring a counsellor to a single counsellor unit. However, they are paid a Counsellor-in-Charge allowance while not actually supervising anybody. 159 Ms Whittaker deposed that she was aware of the applicant's diabetes since 2004 because she had cited her condition when applying for a transfer. Ms Whittaker said that medical certificates might not necessarily be placed on the employee's personnel file. Ms Whittaker was aware of the extent of the applicant's sick leave after being told of it by Ms Fugaccia and then by Mr O'Caoimh. 160 Ms Whittaker believed that before each semester there was a lot of discussion about the applicant's program and changes were made, such as a four day week, breaks for meals, half hour breaks between counsellings, restrictions on the numbers of clients and start and finishing time adjustments. Ms Whittaker was aware that it was the applicant's view that her poor performance was directly related to her diabetes. 161 Ms Whittaker further agreed that a good supervisory relationship was important and if a supervisory relationship broke down, something should be done about it. Ms Whittaker said she was aware that Ms Evans and Dr Barlow were meeting the applicant to support her for her 2007 annual review. 162 Ms Whittaker stated that the employer could instruct an employee to attend HealthQuest and, while that happened in 2004, it did not occur in 2006 and 2007. Despite the large amounts of sick leave taken by the applicant, it was not considered necessary to send her for further assessment because HealthQuest had already determined that her condition would not significantly affect her work capacity in the long term. Working closer to home was not considered necessary. Ms Whittaker acknowledged that it was open for the employer to have sought another HealthQuest assessment after 2004. 163 Ms Whittaker also agreed that, in rare circumstances, alternate supervisors may be appointed when there is a breakdown in the supervisee / supervisor relationship. Ms Whittaker gave the example of where an allegation against a supervisor is proven, then a new arrangement would be put in place. Ms Whittaker did not agree that it was reasonable to change supervisors in this case. 164 Ms Whittaker accepted that it was her recommendation to Mr Wright that the applicant be placed on the 10 week PIP. In extenuating circumstances, this might be extended to 16 weeks. It may also be extended if the employee shows some improvement. She deposed that, as there was no improvement in the applicant's performance, the PIP was not extended. Transfer was not an option given the applicant's history of difficult working relationships with a number of people. In any event, it was not an option in disciplinary circumstances. Demotion was not an option, because she was at a base grade position. The direction to resign was the only available option because the applicant had demonstrated no improvement. Ms Whittaker conceded Ms Westbrook's report reflected some improvement, but these were minor and not critical to a TAFE counsellor's performance. Ms Whittaker said that when she made her recommendation (to direct the applicant to resign) she had Ms Westbrook's report, the documentation in respect to the various annual reviews and the PIP. Ms Whittaker agreed that there was nothing in the final report about the applicant having requested a different supervisor. Ms Whittaker added that while Dr Barlow supervises a number of counsellors, there had never been any other complaints about him. 165 Ms Whittaker believed that there had been a breakdown in the employer / employee relationship. She accepted, nevertheless, that if the applicant was successful in this case, she could be reinstated to another campus which did not involve supervision by either Dr Barlow or Mr O'Caoimh. Ms Whittaker said there was no permanent full time vacancy at OTEN, but there were a number of part time positions due to the operational requirements of that Centre. 166 In re-examination, Ms Whittaker deposed that there was no basis to challenge the applicant's sick leave record if the entitlement had not been exceeded and it would not be appropriate to refer to that matter in any recommendation for the imposition of a penalty. Ms Whittaker said that she was not aware of any of the applicant's medical certificates between 2005 and 2007 which stated that she was unable to do her job due to her diabetes or that her condition was unstable. It was only said that it would be more advantageous to have moved her closer to home. However, it was not a medical requirement. 167 Ms Whittaker said it was not correct to assert that the applicant's own views were not reflected in the final recommendation. She had expressed her views continually throughout the PIP which had been recorded in various documents. 168 Ms Whittaker believed that the disciplinary policy applied in 2005 was irrelevant because no disciplinary action was considered at that time. Ms Whittaker explained that transfer is not a disciplinary outcome, because transferring for unsatisfactory performance or conduct, merely transfers the issue to another work location. 169 Ms Whittaker stressed that she did not believe the applicant's behaviour would improve with another supervisor, because she had complained about every supervisor who had supervised her while at the Western Sydney Institute. Accordingly, Ms Whittaker did not consider it would be appropriate to transfer the applicant to any other campus. 170 Mr Brown provided a statement in the proceedings, but was unavailable for cross-examination. I intend to apply the usual weight to Mr Brown's statement, although I note it is largely corroborative of the evidence of other of the respondent's witnesses. 171 Mr Brown has worked in the respondent's Human Resources Unit for approximately 25 years. Mr Brown was relieving in Ms Whittaker's position from 6 October to the end of October 2009. 172 Mr Brown said that he attended a meeting on 10 October 2008, with the applicant, Ms Flohm (Teachers' Federation) and Mr Wright. He was standing in for Ms Whittaker because the applicant had made a complaint against her. The meeting was to discuss whether, and what disciplinary action, should be imposed and for the applicant to put forward any matters she believed Mr Wright should take into account before making his decision. Mr Brown said the applicant put forward a number of matters, including her dissatisfaction with a number of supervisors, her medical condition and that she was about to adopt a baby. Mr Brown confirmed that Ms Flohm had stated her view that the PIP had been conducted in a fair manner. 173 Mr Brown said that when Mr Wright emphasised that termination was a real possibility, the applicant asked as to how long a negative report would stay on her file. Mr Brown believed her response indicated that she did not realise the severest of penalties was being considered. Mr Brown had told her that any application for transfer to another institute, or Government Department, would involve a performance and conduct check, including information in a restricted access file. She had replied that she did not realise her performance could have such a long term effect. Her response was to say she was considering applications for more senior roles in TAFE. Mr Brown said he was surprised by the applicant's responses, as they demonstrated a level of 'flippancy' or lack of appreciation as to how serious the matter was. 174 Mr Brown believed, from his knowledge and experience, that it would be inappropriate to reinstate the applicant. He said her file indicates a history of unsatisfactory performance in the face of concerted efforts by her supervisors to assist her. From what he had learnt, her level of personal interaction with other staff had been very inappropriate, even insulting and offensive. Her level of volatility also posed a health and safety risk for other employees. He said, more importantly, the applicant had shown no sign of acknowledging any responsibility for her conduct and poor performance. In reply 175 The applicant rejected the notion that she was 'flippant' in the 10 December 2008 meeting and said she could not recall making inquiries about more senior roles in TAFE. 176 The applicant maintained that she had received no assistance from supervisors since 2005. While she acknowledged her interactions may, at times, have been inappropriate, it was because she had been 'marginalised' and 'harassed' while having unstable diabetes. She further conceded that, at times, some of her emails may have appeared offensive, but she was frustrated and upset that no action had been taken to change her supervisor or relocate her closer to her home.

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SUBMISSIONS Primary Submissions of the Applicant 177 In written submissions for the applicant, Ms L Goodchild of Counsel outlined the applicant's history of employment with TAFE which is dealt with elsewhere in this decision. I do not repeat it here. She emphasised, however, the impact of the applicant's medical condition on her performance, as referred to in various doctors' reports, in particular that of Dr Soji Swaraj. She noted that HealthQuest's 2004 report did not mention the physical factors relating to her diabetic management and the respondent consistently refused repeated requests for the applicant to be transferred to a location closer to her home. 178 Ms Goodchild referred to the applicant's unsatisfactory annual reviews for 2005, 2006 and 2007 and submitted that the respondent failed to take account of the increased instability in her medical condition, her interpersonal difficulties with Dr Barlow, his inappropriate supervision of her and that the criteria in her assessment did not relate to her Statement of Duties. The respondent had also failed to take account of the various medical opinions that she may have had an inability to concentrate and complete tasks in a timely and efficient manner, which seemed to be the main reason why her reviews were deemed unsatisfactory. 179 Ms Goodchild detailed the issues relevant to the applicant's PIP, in particular, that she had requested a different supervisor to Dr Barlow. Ms Goodchild said the 'independent' review of the PIP dealt with matters of process, not substance. She said the Commission should pay close regard to the notes of the six PIP review meetings, Dr Barlow's comments in his review of her case notes and the applicant's own evidence - all of which demonstrate a clear improvement in the applicant's performance. Despite the PIP guidelines providing an extension of up to six weeks for the PIP, where improvement is demonstrated, this did not occur. 180 Ms Goodchild referred to the applicant's insistence that the APS Guidelines as to supervision should have been applied, but were not, and relied on the professional opinion of Associate Professor Bill Warren in that regard. 181 Ms Goodchild's submissions then dealt with the applicable law to be applied by the Commission in this case. She referred to the provisions of s 88 of the Act; the primacy of reinstatement where a dismissal is found to be 'harsh, unreasonable or unjust': See Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; Little v Commissioner of Police (No 2) (2002) 112 IR 212; Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Limited (2003) 128 IR 37 and Plummer v Stannard Bros Launch Service Pty Ltd [2005] NSWIRComm 301; the determination of the question of whether a dismissal is unfair: See Burge v NSW BHP Steel Pty Ltd; Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 and Port Macquarie Gold Club Limited v Stead and anor (1996) 64 IR 53 and the meaning of 'harsh, unreasonable and unjust': See Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 and Metropolitan Meat Industry Board v Australian Meat Industry Union, New South Wales Branch [1973] AR (NSW) 231. 182 Ms Goodchild relied on the standard of proof in civil cases as spelt out in Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, and submitted that most of the respondent's evidence was scurrilous, scandalous, emotive and controversial accusations which had been used to distract the Commission from considering all of the probative evidence. Ms Goodchild noted that Ms Evans' evidence was that the applicant could be reinstated to somewhere other than Baulkham Hills, and not under the supervision of Dr Barlow or Mr O'Caoimh. 183 Ms Goodchild submitted that the applicant's dismissal was 'harsh, unreasonable and unjust' because she had a reasonable expectation that a formal request for a HealthQuest reassessment would be made by the respondent. She said a number of events triggered the respondent's actions in 2004, including her diabetes becoming unstable and management having concerns with her numerous days of absence and her inability to perform her duties due to ongoing health issues. At this time, Dr Derek Lee had also recommended she be transferred closer to home. 184 Ms Goodchild put that these 'trigger' events were a protocol which should have prompted the respondent to seek a further HealthQuest assessment in 2006 or 2007, particularly given the later deterioration in her health and further 'trigger' events, including additional doctors' reports. Rather, the respondent chose to focus solely on the applicant's performance issues, to the exclusion of her health problems. 185 Ms Goodchild submitted that there was simply no evidence of the applicant engaging in sending 'abusive' emails and she strongly refuted that allegation. The applicant had admitted her behaviour, at times, may have been inappropriate, but she had not sent abusive emails. Ms Goodchild relied on the definition of 'abusive' to contrast it with what the applicant actually put in some of her emails. Moreover, the respondent never sought to address this alleged concern through its email policy. 186 Ms Goodchild said that the respondent failed to address the poor relationship between the applicant and her supervisor, Dr Barlow, despite her protests and claims that he failed to meet the standards of a psychologist's supervisor. The respondent provided no evidence of Dr Barlow performing, even a fundamental role, of 'one on one' supervision. There was no special or onerous condition by applying the profession's Code of Conduct. Ms Evans misunderstood the profession's requirements (see Associate Professor Warren's letter) and failed to address the working relationship, as she had agreed to do, and after recognising the importance of a good and effective supervisory relationship. She had even agreed that the appointment of an alternative supervisor was an option. Ms Goodchild noted that Dr Barlow's evidence that he had not denied a breakdown in their relationship or that the applicant had no faith in him. Ms Evans did not put any mechanisms in place to address the issues, except recommending the applicant seek professional help and confirming she was available to assist her. Ms Evans said that the only occasions she had observed the applicant and Dr Barlow's poor relationships was in the two meetings in 2007. 187 Ms Goodchild said that Ms Evans was unaware Dr Barlow had requested monthly statistics from the applicant, despite counsellors usually providing term statistics. As a sole counsellor, the applicant was required to undertake a greater workload than other counsellors and that she was given no training in satisfying the requirements of these additional duties. Her position description did not recognise these differences. Moreover, there was no clarity in what the applicant was required to complete. Even so, there was no evidence that the applicant's tardiness in supplying statistics caused any real, or actual prejudice, to the respondent. 188 Ms Goodchild submitted that the evidence disclosed that the applicant was required to perform additional duties at Baulkham Hills as compared to her duties at Mt Druitt. Ms Goodchild noted that the Counsellor-in-Charge is a discrete position having duties different to a single counsellor. Counsellors have 20 face to face contact hours and Senior Counsellors have 14 hours. There was no recognition for sole counsellors at a single campus who perform a role similar to that of Senior Counsellors. Nevertheless, the applicant was expected to perform up to 20 hours, over and above her administrative duties. The applicant continually informed Ms Evans and Dr Barlow of the difficulty she had in meeting deadlines due to the time and work involved, combined with her illness. Ms Goodchild said the applicant was never going to pass her 2007 annual review because she was asked to comply with criteria which were not part of her Statement of Duties. Despite the respondent's refusal to extend her review, Ms Evans found some of her material satisfactory. 189 Ms Goodchild said that the applicant should be given a further opportunity to improve with the assistance of an alternate supervisor. The only reason why Dr Barlow was kept on was because the respondent considered that as he had started the process, he should continue. This was despite the applicant's complaints and the respondent's continued failure to address the breakdown in their relationship. She noted that Mr Wright had agreed it would have been a good idea for him to have been made aware of this issue. 190 Ms Goodchild claimed that a new policy was put in place in 2006 which resulted in unfairness to the applicant in 2007. The applicant received no adequate warning that her termination was a real and imminent possibility. 191 Ms Goodchild submitted that there was no evidence of any express consideration given by the respondent to the applicant's medical condition. She was not provided an appropriate level of assistance and support. The respondent underestimated the applicant's difficulties (Mr Wright wasn't even aware of its extent) and failed to appreciate the impact it had on her performance. The applicant relied on her various doctors' reports. Mr Wright should have relied on all the information before him, not just concentrating on the performance issues. He did not seek any appropriate independent advice to assist him in his decision making. 192 Ms Goodchild concluded by putting that there were insufficient grounds for the respondent to request the applicant's resignation or, due to mitigating factors, her termination was 'harsh, unreasonable and unjust'. For the respondent 193 Ms K Nomchong of Counsel provided a chronology of events. She submitted that the applicant's employment was characterised by:

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f) the applicant blamed everyone but herself for her own performance and failed to appreciate the adverse effect she was having on her colleagues and students. 196 Ms Nomchong noted that the applicant accepted a position at Mt Druitt in 2002 knowing she had Type 1 diabetes and was directed to transfer to Baulkham Hills due to interpersonal difficulties with other staff. The applicant made no complaint about travelling time until August 2004 at the point she had developed significant interpersonal difficulties with Mr McGowan. 197 Ms Nomchong rejected the significance of the applicant's medical certificates up to 2007, which had said little more than it would be beneficial for her to work closer to home. There was no medical evidence to the effect that her diabetes precluded her from carrying out the requirements of her position. HealthQuest had confirmed this in 2004 and that the reasons for her absences were her interpersonal difficulties with other staff. Ms Nomchong said that the applicant's attempts to divert attention from her poor performance by relying on her medical condition was misplaced. The medical reports were obtained subsequent to her termination; even Dr Swaraj's report is dated 17 October 2009, and is predicated upon the applicant's own version of events and no other. 198 Ms Nomchong said that the respondent had applied its 'reasonable adjustment' policy. She noted, in particular, the following: · her starting time was 9:30am; · she worked a four day week; · she had 30 minutes break between each 'face to face' contact; · she had significantly lower 'face to face' contact than other counsellors; and · she had not been placed on a formal PIP, despite failing her 2005 and 2006 reviews. 199 Ms Nomchong noted that the applicant never invoked the grievance procedure under the 'reasonable adjustment' policy. She had not demonstrated that her request for transfer to OTEN would result in any improvement in her work performance. In any event, the applicant knew she could not be transferred to any other location while she had outstanding performance issues. Ms Nomchong submitted that the real reason she wished to transfer was to remove herself from the interpersonal disputes she had caused and to avoid implementation of the PIP. 200 Ms Nomchong observed that the applicant attempted to characterise her failed annual reviews as being about pedantic compliance with deadlines and the provision of statistics. Both of these matters were significant to the operational requirements of the respondent. Moreover, the documentation she did submit was poor in quality, replete with incomplete details or erroneous contact information of students or potential students. Ms Nomchong noted that the applicant was only working 1.6 to 5 hours 'face to face' contact per week in comparison to others who had 20 hours. 201 Ms Nomchong said the applicant's work attendance was unreliable leading to cancelled appointments and an increased workload for other staff. She failed to provide a plan to address this problem. Ms Nomchong noted the applicant's poor communication style with other staff. 202 Ms Nomchong detailed the applicant's hostile and unco-operative attitude to most of her supervisors, particularly Dr Barlow. In meetings with him, she was abusive and irrational. When confronted with her own failings, she blamed others. She lodged formal complaints against Ms Fugaccia and Ms Whittaker after her failed 2006 annual review. The complaints were investigated and found to be without foundation. 203 Ms Nomchong submitted that Dr Barlow was professional, calm and had tried to assist the applicant. The applicant believed herself to be his equal or better. It was not appropriate to replace him as supervisor because he was the last in a long line of supervisors who the applicant had issues with and it was highly unlikely any other supervisor would have achieved a different outcome. 204 Ms Nomchong referred to each of the applicant's unsatisfactory annual reviews which the applicant unsuccessfully appealed. She had been given due notice of the reviews, met regularly with Dr Barlow and Ms Evans, had complained about Ms Whittaker, Ms Fugaccia and Mr O'Caoimh and still failed to provide documentation in time. Ms Nomchong said that the applicant's excuse for failing to meet deadlines because of her medical condition does not explain how she had the capacity to prepare other documentation such as complaints, appeals and submissions in relation to her unsatisfactory performance in the PIP. 205 Ms Nomchong noted the following in respect to the applicant's PIP:

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Ms Nomchong put that there was no substantive unfairness which would render the dismissal unfair. 208 In addressing procedural fairness issues, Ms Nomchong submitted that the applicant did not attack the validity or appropriateness of the annual review policy and was well aware of what was required of her. Ms Nomchong said there was never any satisfactory medical evidence to support her transfer to OTEN and she had never requested a second HealthQuest assessment. In any event, the TAFE Policy does not permit a transfer while performance issues are unresolved. 209 Ms Nomchong said there could be no criticism of the respondent's Unsatisfactory Performance and Discipline Policy. The Teachers' Federation had endorsed the PIP as being conducted according to the Policy. The applicant was, at all times, informed of the steps taken in the procedure, given opportunities to respond and did so. Ms Nomchong noted Mr Brown and Mr Wright's surprise when, in the last disciplinary meeting, she inquired as to seeking a promotion. There were no issues of procedural unfairness: See Abboud v the State of New South Wales (Department of School Education) (1999) 92 IR 32; Starr v Commissioner of Police [2001] NSWIRComm 226 and Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385. 210 Ms Nomchong submitted that the applicant was given a 'fair go all round'. Her dismissal was not unfair, either substantive or procedurally. She put that the issues in this case were similar to what the Commission considered in McMullen and New South Wales Department of Education and Training [2009] NSWIRComm 83. However, if the Commission found the dismissal unfair, Ms Nomchong said reinstatement or re-employment would be impractical. 211 On her own evidence, the applicant is unable to perform her duties or comply with reasonable directions. The Commission could not have any confidence the applicant would not develop a significant degree of recalcitrance to anyone who supervised her (see the evidence of Ms Whittaker and Mr Wright). Ms Nomchong noted the deleterious effect on other staff arising from the applicant's conduct and behaviour and that there was a risk of other staff developing psychological injury if the applicant was re-employed. In any event, the applicant's continued poor performance, inability to recognise her own failings, her blame of anyone else and the respondent's lack of success in the measures put in place to support her, means there has been a manifest loss of trust and confidence between the employer and the employee. 212 Ms Nomchong said there could be no basis to compensate the applicant for lack of notice, given the likelihood of her termination when failing her annual reviews three years in a row and her PIP. In addition, the applicant has made no effort to mitigate her loss. 213 The respondent sought an order that the application be dismissed and that the respondent be heard on the question of costs. In reply 214 It is unclear to me who prepared the applicant's submissions in reply, so I will refer to them by reference to the applicant as putting them for, and on behalf of, herself. 215 The applicant submitted that the respondent had, on a number of key matters, overstated or misrepresented the evidence such as to draw the inferences sought by the respondent. For example, the respondent failed to point out that there was no evidence that the applicant had any difficulties in her relationships with three professional supervisors at Blacktown and Mr Guy Bently at Mt Druitt. In addition, the respondent failed to call Mr O'Caoimh (Jones v Dunkel (1959) 101 CLR 298). 216 The respondent claimed the applicant was guilty of offensive, insulting and inappropriate conduct in the two meetings with Ms Evans and Dr Barlow. Yet, Dr Barlow said the applicant did not cause him offence or insult. The applicant observed that she had been providing medical certificates in August 2004 prior to her performance being found to be unsatisfactory. She contended that despite the respondent's allegations, she had a clear and consistent insight into her behaviour and had apologised when her behaviour was inappropriate. 217 The applicant denied that the three annual reviews and the PIP constituted multiple warnings that she may be dismissed. The applicant said that any interpersonal difficulties at Mt Druitt had not been put to her. 218 The applicant contended that the difficulties which arose with her performance were substantially due to her chronic and unstable diabetes. The criticisms of her were not directed to key or substantive aspects of her role as a counsellor. She noted that senior members of staff supported her request for an extension of time to complete her review in 2007. 219 The applicant submitted that considerable weight should be given to Dr Swaraj's report, given the respondent did not require him for cross-examination and did not advance any contrary medical opinion. She said that the failure to invoke the dispute resolution procedure under the 'reasonable adjustment' policy was never put to her. 220 The applicant said she had a smaller case load than other counsellors because it was a smaller campus. The applicant submitted that it was incumbent on the respondent to seek further medical advice as to the appropriateness of further 'reasonable adjustment'. There was no evidence that the applicant was seeking to avoid an improvement program by transferring to another college. The respondent did nothing to resolve the relationship difficulties with Dr Barlow. The applicant insisted there was no evidence her documentation was poor in quality and replete with incomplete details or erroneous information. She said that it was up to the respondent to work with her to put in place a system to deal with last minute cancellations. 221 The applicant emphasised the importance of the key supervisory relationship between herself and Dr Barlow and his failure to provide the level of supervision required by APS guidelines. The respondent failed to manage this issue. She noted that she had never refused to meet with Ms Evans or Dr Barlow. 222 The applicant submitted that the respondent had made serious allegations against her, without substantiating them. The respondent failed to appreciate and take into proper account her chronic and unstable diabetes as an explanation for her failure to submit documentation in time and for her absences. 223 The applicant strongly objected to the submission that her return to work would adversely affect other staff. This was nothing but second hand hearsay with no evidence to back it up. The evidence was that the applicant could be re-employed at another campus with another supervisor. She further submitted that the evidence disclosed that she had taken steps to mitigate her loss.

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CONSIDERATION 225 A finding by the Commission that a particular dismissal was unfair is a mixed question of fact and law: See Burge v NSW BHP Steel Pty Ltd and Hollingsworth v Commissioner of Police (No 2). The often used expression 'harsh, unreasonable or unjust' are the words used in the statute and each word has come to be defined, in the employment context, in a slightly different way. The much referred to authority is that found in Byrne & Frew v Australian Airlines Ltd, where the High Court said at p 450: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. See also other Full Bench authorities in Bankstown City Council v Paris ; Outboard World Pty Limited t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167; National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 and Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288. 226 The question of the 'harshness' of a particular dismissal has been discussed in many authorities on the question. In Alexander v Commissioner of Police [2009] NSWIRComm 3, a recent decision of the President, Boland J, his Honour encapsulated the principle in the following passage: 39 Reference should also be made to what Watson J said in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233. His Honour articulated what has become a fundamental guiding principle that even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal and to intervene where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence: I fail to see why in applying this test ["was the termination ... so unfair as to warrant interference by the Commission?"] to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J., in Loty's Case ([1971] AR 95 at p 99), the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

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The requirements on the applicant were more onerous than for other counsellors. 232 Before turning to these claims, I intend to make some general comments on the applicant's evidence, because it is, in my view, indicative of her behaviour and conduct throughout her employment at TAFE. In my opinion, the applicant was an evasive and unhelpful witness. Questions about events or incidents which she perceived to be adverse to her interests were invariably answered by the words 'I don't recall'. She would frequently answer questions by qualifying it by a defence of her position. Some of her evidence was contradictory, confusing, irrelevant or was omitted if it did not fit the scenario she was attempting to create. It was also evident that the applicant wanted Ms Evans to lie for her if she was questioned as to her whereabouts after her dismissal. She wanted Ms Evans to tell her colleagues that she was on leave and adopting a child. She claimed she requested this for reasons of privacy. I reject such a claim. In addition, she asked the Commission, in her final submissions, to suppress her name because she did not want her family to find out she had been dismissed. Notwithstanding this request had not been previously raised in over 12 months of hearings and two earlier published decisions, I find there is no basis for suppressing names in public proceedings such as this. 233 Given the applicant's conduct and behaviour (in some instances not seriously disputed by her), I find myself unable to accept her evidence where it conflicts with the respondent's evidence, particularly that of Ms Evans, Dr Barlow and Ms Whittaker. That said, I turn now to the details of the applicant's case which she must demonstrate warrants intervention by the Commission as to her dismissal.
The Relationship with Dr Barlow 234 There is no doubt that the applicant had a toxic and contemptible view of Dr Barlow, both as to his professional competence and relationship towards her. One might be forgiven for thinking that this was a classic case of two highly qualified professionals, one of whom resents being supervised by the other, who she considers to be her professional inferior. However, the evidence makes clear, particularly from her acknowledged behaviour in their meetings with Ms Evans on 11 October and 27 November 2007, that the applicant detested and loathed him; did not trust him; believed him to be a liar; considered him to be absolutely useless and totally unsupportive. These comments were more than strongly held professional differences of views; these were direct attacks on Dr Barlow's professional and personal competence and behaviour. 235 Most employees do not relish the prospect of being placed on a formal improvement program. The supervisors involved are often regarded with suspicion and are hardly likely to be warmly embraced by the supervised employee; a fortori in a situation where a highly intelligent, well qualified and experienced professional employee is the subject of a review. However, the applicant's behaviour and conduct in meetings involving Dr Barlow and Ms Evans, was nothing short of appalling. It ill behoved anyone; let alone a person of the applicant's experience and profession. I cannot accept that the applicant's medical condition was any excuse for her completely unacceptable behaviour. The toxicity in the relationship between the applicant and Dr Barlow was, I should say, all one way. For his part, Dr Barlow always remained calm, reserved and highly professional. There was no evidence that Dr Barlow behaved inappropriately or was biased against her. Despite awful provocation, he acted with commendable restraint. This was in the face of the applicant's aggressive and angry attitude towards him, her threats to report him to professional bodies and seek his deregistration and her contempt for his competence and professionalism. She even accused him of having an affair with another supervisor. This was a supervisor offering professional guidance and support. Yet, he was the subject of such gross insubordination and contempt, that one may wonder how he was able to restrain himself in such circumstances. There was no evidence that Dr Barlow acted, in any way, biased or unfairly towards the applicant. 236 At this juncture, I would wish to make it perfectly clear that a dismissal based on unsatisfactory work performance may well include an employee's inability or unwillingness to treat his/her supervisors and fellow employees with courtesy, dignity and respect. Even on its own, such behaviour, having regard for its severity and frequency, may constitute a firm basis for dismissing an employee for misconduct. This case may well have been decided on this basis alone. However, coupled with the applicant's unacceptable behaviour were unsatisfactory performance reviews for three consecutive years. 237 Taken in isolation, the applicant's poor relationship with Dr Barlow might well have been a relationship issue, in which two highly professional people just did not get on. This is not an uncommon experience in many workplaces. However, the evidence is that, almost from the commencement of her employment with the respondent, the applicant was unable to maintain a professional relationship with most of her supervisors, let alone a decent and respectful one. It is no doubt why Ms Goodchild sought to expunge any evidence related to the applicant's behaviour and conduct before 2007/2008, and why she objected to the views of senior management, as being irrelevant. It is difficult to see how such views could be anything other than entirely relevant. These objections were rejected by the Commission for two reasons. Firstly, because if the applicant's record had been exemplary, or even reasonable, when dealing with her other supervisors, such evidence would have been justifiably relied upon by her to demonstrate that Dr Barlow was the real problem. Secondly, the applicant's history of employment with the respondent reveals a most regrettable and entirely consistent theme of refusing to accept the direction, advice and support of supervisors. 238 Dr Barlow's evidence - which I accept - was that the applicant had often told him that she was so highly qualified and experienced that she did not need supervision. Moreover, her own evidence is replete with over stated views of her own experience and ability which she believed was superior to almost every other counsellor in TAFE. I found it incredible that in the disciplinary interview with Mr Wright on 10 October 2008, she inquired about promotional opportunities. This was the comment of a delusional person, completely absorbed with her own self importance and shut off from the realities of hierarchical supervision and discipline. 239 Returning to her earlier history, it is plain that Dr Barlow was not the only person she had interpersonal problems with. The evidence disclosed at least 11 other persons with whom the applicant had personal difficulties. In 2002/2003, Ms Benney and Ms Hamilton refused to supervise her because of her attitude and behaviour. Ms Fuggacia was so stressed by the applicant's conduct that she suffered psychological injury and WorkCover insisted that any return to work plan include no contact with the applicant. In 2004 HealthQuest found that the applicant's absences were explained by her interpersonal difficulties with Mr McGowan. There is little doubt that the applicant's transfer to Baulkham Hills from Mt Druitt was because other staff were not prepared to work with her, as the following note from Mr Dennis Burke reveals: Yesterday, I met with Sue Benney and Carole Hamilton regarding the proposed appointment of Dr Alan Barlow (ex-UWS) as supervisor to Bronwyn Anley. Both Sue and Carole were adamant they did not want Bronwyn in the same working unit at Mount Druitt College, with or without Dr Barlow as Bronwyn's supervisor. The reason for this email to you is my major concern on the health issue of all parties, namely Sue, Carole and Bronwyn. I have known Sue Benney for probably 10 years. As a non medical observer, and as a witness to yesterday's 90 minute conversation with both Sue and Carole, I would state Sue is in ill health. I also bring to your attention that in my opinion, Carole is not a well person either. Sue mentioned that in addition to her other medial complaints, her eye sight is now becoming affected, and her spine is also suffering ill affects, cause by the Bronwyn Anley stress. It should be remembered that Sue had a negative experience with another staff member for a number of years in the past. She is trying to get her working life back to reasonable normality, which is commendable and should be fully supported by management. Having another imposition at this time, so quick on the heels of the previous experience, and during this recovery phase, is weighing her down. She looks around, and there are very few people supporting her.

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240 Sadly, there were numerous other examples of the applicant's rude, intimidatory and threatening behaviour, such as the email broadcast to all counsellors threatening defamation against unnamed persons she believed were gossiping about her. Even in Ms Evan's case, the applicant initially believed her to be supportive but as soon as Ms Evans questioned her professionalism, the applicant 'turned on' her as well. It did not assist the applicant's case that Ms Goodchild questioned Ms Evans about the utility and fairness of changing the applicant's supervisor. The respondent could have no confidence that the applicant would not adopt the same confrontational attitude towards anyone who was supervising her, particularly as she believed that no one was of her professional equal. Almost every person she came into contact with, in a supervisory sense, had serious problems dealing with her. I have the same reservations as the respondent. At least, to his credit, Dr Barlow did not abandon his duties when he might have easily have sought to be relieved of having anything to do with the applicant. 241 In addition, I would add that it is no answer to suggest that the applicant should have been transferred to another College, even having regard to medical opinions, and that this would have assisted her. I shall come back to this claim shortly. However, in my view, there is a sound and rational basis for TAFE policy of not transferring an employee with performance issues. To have transferred the applicant would have merely transferred the problem to another unsuspecting group of supervisors. Moreover, she had already been transferred from Mt Druitt to Baulkham Hills because staff were not prepared to work with her. It was entirely inappropriate and unjustified to transfer the problem to someone else as a means of appeasing the applicant's failure to perform her duties. Given her past record, I have no confidence that she would not have behaved in exactly the same way. In this regard I refer to what I said at par [250] of McMullen and New South Wales Department of Education and Training: 250 In my opinion, the applicant's offer to transfer to another school and undergo a second TIP was no more than a hollow and disingenuous gesture, designed, yet again, to avoid or postpone an inevitable assessment of her teaching performance. Interestingly, when the applicant first proposed a compassionate transfer there was no suggestion by her of undergoing a second TIP. It wasn't until the Federation's attempts to salvage her situation that the offer of undergoing a second TIP was made. Even so, it was conditional upon the applicant undergoing a period of 'settling in'. In my view, to transfer the applicant to another school, would do no more than transfer the problem of the applicant's belligerent and unco-operative attitude to another set of unsuspecting supervisors. That such an outcome is very likely, is no better demonstrated than by the applicant's emphatic insistence that her teaching performance was really not open to criticism. Any suggestion or genuine criticism was seen by her as 'nit picking' and unfair. In any event, I consider it an entirely appropriate and sound educational proposition that a compassionate transfer should not ordinarily be approved while identified performance issues are being addressed through a TIP. 242 In my judgement, it was appropriate and essential for Dr Barlow to continue to supervise the applicant for the following reasons:

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The applicant's claims that Dr Barlow was biased and treated her unfairly, sits rather oddly with his recommendation to extend the applicant's 2007 annual review to January 2008. Notwithstanding that this was not within his authority, it was hardly the act of a person who harboured animosity towards or bias against her. It is an undoubted and commendable example of Dr Barlow's concern to give the applicant every opportunity to satisfy the requirements of her annual reviews. 243 There was undisputed evidence that the applicant's own Union considered the process undertaken during the PIP was fair. I am satisfied that the annual review process and the disciplinary process were conducted according to the respondent's policies and guidelines. There was even a degree of flexibility in the process in the applicant's favour. 244 Dr Barlow was not the only person who had considered the applicant's annual reviews as unsatisfactory. There were numerous other independent persons who either participated in the reviews, or the applicant's appeals and who had formed the same conclusion. The applicant brought no evidence to challenge the professional views of these persons. Nor did she bring any cogent evidence to substantiate any of her claims of bias or unfairness towards her by any of her supervisors. Indeed, all the evidence pointed in the opposite direction. Accordingly, I can find no basis for a claim that the applicant's dismissal was procedurally unfair.
Dr Barlow's supervision was inappropriate and did not comply with APS Guidelines 245 In my assessment, the applicant's claim of the inadequacy of Dr Barlow's supervision was no more than a 'red herring' thrown into the mix by the applicant as part of her campaign against him and to deflect attention from her own shortcomings during her annual reviews and the PIP. The reality, as corroborated by the applicant's demeanour in the witness box and in her detailed documentary material, was that the applicant resented any supervision - be it from Dr Barlow, or anyone else. Her views were predicated on an unjustified, but unshakeable belief, that her qualifications and experience were far greater than anyone else's and she questioned why she should be supervised by persons she regarded as her professional inferiors. These beliefs sit rather curiously to her continued reprise that Dr Barlow had not conducted himself appropriately as her supervisor and had failed to apply the APS and PRB Guidelines as to what constituted appropriate psychologist supervision. She had even threatened to have him deregistered for this alleged failure. It also sits in rather curious juxtaposition between the applicant insisting Dr Barlow did not give her sufficient supervision and support, while at the same time insisting she did not need any supervision because she was so well qualified. 246 Nevertheless, the applicant's reliance on professional psychologist guidelines is both misconceived and wrong. There was no requirement for Dr Barlow to apply these guidelines in the TAFE context. Moreover, at the relevant time, there was no requirement for counsellors, with psychologists qualifications, to be members of any professionally recognised bodies. In addition, it seems to me that the applicant's definition of supervision (that it must involve 'face to face', 'one on one' meetings) is just plain nonsense. The applicant claimed in her first affidavit that, in two and a half years, Dr Barlow only met with her about five times. When faced with the overwhelming evidence that since 2006, he had met with her weekly, if not more frequently, the applicant defended her earlier position by stating that she meant meeting as per her own definition. The earlier evidence was, in my view, disingenuous if not deliberately deceptive. To my mind, supervision, in the psychologist context, must be seen as operating on two levels. At one level is the ordinary meaning of supervision in the sense of a senior psychologist mentoring, supporting and guiding a recently graduated psychologist with little experience. On another level, is the ongoing professional interaction between two senior, experienced, well qualified professionals which is more akin to a professional dialogue or an exchange of views, which seeks to broaden each person's professional experience. 247 Professor Warren's opinion, justifying the applicant's complaints as to her supervision can, in my opinion, be disregarded as having little value. His advice was based solely on the biased and prejudicial information the applicant had given him. It is little wonder that he would give such an opinion. In any event, the APS Guidelines were not applicable to TAFE, nor relevant in the context of managing TAFE's disciplinary process. 248 I find the applicant's claim that Dr Barlow's supervision was either inadequate, or inappropriate, or in breach of the profession's guidelines, to be without foundation.
The respondent's failure to recognise the applicant's diabetic condition 249 The applicant maintained that the respondent did not comply with its own 'reasonable adjustment' policy in respect of her request for a transfer to a College closer to her home. TAFE's policy defines 'reasonable adjustment' as: Reasonable Adjustment is adjustment made in relation to the appointment of a person with a disability to ensure the best possible use is made of their skills. The adjustment may involve changes in responsibilities in a particular team or office which does not change the level of work value of the position in question and the inherent requirements of the job. It may also involve the purchase of equipment which will enable job performance of the staff member.

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Did not do enough to accommodate her medical condition. 251 While accepting that the applicant may have genuinely felt this way, I cannot conclude, in light of the following, that her complaints against the respondent were justified. 252 In my view, the applicant's disdain and contempt for HealthQuest's assessment in 2004 was based, not on any clinical objection, but because she did not convince the HealthQuest review, and her subsequent appeal, that the real reason for her continuing unsatisfactory performance was her medical condition. It is noteworthy that HealthQuest found as follows: CONCLUSION The main reason for her absence from work arises from interpersonal relationship difficulties at work. She has a feeling of being undervalued by her employer. This problem does not seem to have been identified previously. Her diabetic management has improved recently, and is not likely to significantly affect her work capacity in the long term. RECOMMENDATIONS HealthQuest's assessment found that it is not medically essential that a change of work location was necessary for Ms Anley. It is recommended that any change of work location for Ms Anley be considered through usual administrative processes provided by her employer. 253 Moreover, I do not believe that the applicant's request to transfer to OTEN in 2003 was based on medical grounds. There is no reference to the request being on medical grounds. In my opinion, it was made because of the personal difficulties she had with Mr McGowan. It is curious that a year later when she made her discrimination claim to the ADB, she raised her medical condition as the reason for the request to transfer to OTEN. 254 On the basis of the evidence, I find it absurd for the applicant to claim that she could not complete the requirements of her annual reviews in a timely or satisfactory manner because of her accelerated and unstable medical condition. Strangely, at the very same time, she could churn out pages and pages of well crafted excuses and explanations for her failure to complete even the most simplest of tasks, such as providing an analysis of client statistics. 255 In reality, the respondent made a number of 'reasonable adjustments' to accommodate the applicant's claims of a deterioration in the stability of her diabetes. The applicant: · was working a four day week; · was allowed a half hour buffer between each client consultation; · was permitted to utilise a blanket medical certificate for each hypoglycaemic episode; · had a significantly lower case load than other counsellors; and · was not placed on a formal PIP despite having unsatisfactory annual reviews in 2005 and 2006. 256 I do not believe the respondent was in breach of its reasonable adjustment policy and did as much as was reasonable to accommodate the applicant's medical condition. Notwithstanding that the applicant knew full well the seriousness and possible ramifications of not satisfactorily completing her PIP, she was either late or absent on 25 occasions during the 44 days of the PIP. In the context of the added scrutiny she was under, it was inexplicable and extraordinary that this degree of absenteeism would have been evident. 257 If the applicant believed it was so vitally necessary to her medical condition that she required 'reasonable adjustments' it is curious that she dropped this claim in July 2007 to pursue an appeal of her unsatisfactory 2006 annual review.

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Other medical evidence 258 In my view, the medical evidence relied on by the applicant must be treated with considerable caution. The applicant said that there were no fewer than four letters from her medical practitioners which recommended she be relocated closer to home in order that she would have more time to manage her diabetes. This assertion misrepresents the position and has been given a status far beyond that which the medical reports themselves disclose. I say this for the following reasons: Firstly, all bar one of these letters are short two or three sentence opinions by the applicant's doctors. These contain no detailed medical justifications for the doctors' opinions. Only one letter, that of Dr Swaraj, gives a detailed background of the applicant's condition. However, significantly, none of the medical certificates between 2005 and 2007 make it a medical requirement for the applicant to be relocated - they are only recommendations. In addition, none of the letters refer to the applicant's diabetic condition as 'unstable' or as 'having become unstable'. It would seem the applicant chose to diagnose herself as having developed an unstable diabetic condition. 259 Secondly, I do not consider that the applicant's claim to be transferred closer to home was a means of better managing her diabetic condition, to be genuine. There was no evidence that the applicant was engaged in managing her condition through exercise (on the three days she had off in the week) or some other means. I note that the applicant had ample opportunity to have regular meals and take insulin while at work. There was no evidence from her doctors and specialists as to recommended exercise regimes. 260 Thirdly, and most importantly, I do not believe that the doctors' recommendations were based on their knowledge of the true extent of the reasons why the applicant was having difficulties at work. There was no evidence that the doctors were aware of, let alone took account of, the applicant's long history of interpersonal difficulties with almost everyone who supervised her. In view of the applicant's own failure to acknowledge any responsibility for her unsatisfactory performance and poor conduct, I doubt very much that any of the other side of the equation would have been told to the doctors. She only told them what she wanted them to know. There was no other basis for the doctors' conclusions that the applicant's problems were not her fault, but all of the respondent's own making. In this respect, I am reminded of what Peterson J said in Stonham v Speaker of the Legislative Assembly of NSW and anor (No 5) [2003] NSWIRComm 30, where an applicant relied on doctors' evidence which was based on insufficient or incomplete background information. At paras [20] and [21], his Honour said: 20 Four psychiatrists gave evidence in the proceedings. Three of them formed the opinion that the difficulties the applicant was experiencing were causally connected to the stress imposed upon her in the workplace and in her private life, essentially by excessive demands and requirements of Ms Harrison. Those difficulties included illness, whether described as depressive illness, anxiety disorder or personality disorder and alcohol and drug abuse. In the cross-examination of each of those witnesses it was demonstrated that the history provided to them by Mrs Stonham was inadequate, in that it did not refer fully to her family history and to her prior drinking habits.

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21 A major difficulty arising from the evidence of the psychiatrists is their formation of an expert opinion based upon the history which is provided to them. That history is not subjected to any testing and is accepted without regard for any contrary view which may be expressed by a person involved in any allegations made by the patient. An illustration of the risk in this approach, from the point of view of later proceedings, arises in the evidence of Dr Edwards, who was called in the applicant's case. He accepted that the ability of a person to accurately recollect events would be severely affected by the condition of depression and also alcohol and drug abuse; there would be muddled thinking and memory loss and it would be inconceivable that a person ingesting alcohol and drugs at the maximum level of intake of the applicant would have a clear recollection of events. While one can readily understand the need for medical advisers to take that approach in the interest of the patient, this case is an illustration of the danger which can arise from too ready an acceptance of the view of only one person in a series of events involving many persons. 261 Fourthly, the applicant strongly criticised the 2004 HealthQuest report and appeal decision as having not recognised that her diabetic condition had deteriorated in 2006 and 2007. Noting firstly, that there was no actual medical evidence that her condition had become more unstable or chronic in 2006 and 2007, the applicant herself could have initiated a further HealthQuest assessment. She obviously did not do so. If she truly believed another HealthQuest review would have established a sound basis for her medical transfer, it beggars belief why she would not have sought to do so. It is no answer to submit that the respondent should have initiated another HealthQuest review. It had no conclusive alternative medical view that such a reassessment would produce any different result from that obtained in 2004. 262 Putting aside the practical TAFE policy of not transferring employees with unresolved performance issues, and whether or not vacant positions existed in other Colleges, I do not accept that the applicant's medical condition was of such magnitude as to expect the respondent to do more than it was already doing to address her concerns, particularly as I believe her claim for a transfer was for reasons totally unrelated to her medical condition.

[108]

The requirements on the applicant were more onerous than for other counsellors 263 True it is that the applicant was the only permanent counsellor at Baulkham Hills, however, she did not baulk at receiving a Counsellor-in-Charge allowance for doing so. The applicant's claim that she was required to do more than other counsellors in her reviews is dispelled by this fact. In addition, the applicant had acted as a senior counsellor earlier in her TAFE career. I ask, rhetorically, why would someone accept a Counsellor-in-Charge allowance, and even ask for a promotion in a disciplinary interview, if he/she was not able to fulfil simple administrative reporting requirements? Ms Goodchild attempted to portray the requirement to provide monthly statistics (as distinct to term or yearly) as some awful onerous burden on the applicant, not required by any other counsellor. This was ridiculous. 264 There was also some suggestion that there was more burden on the applicant in her annual reviews than other counsellors. Obviously, there was and needed to be. The applicant had failed to satisfactorily complete three reviews. She knew her performance was being closely monitored and she knew the seriousness of the ramifications, if she faltered. It beggars belief that someone in such a precarious position would not apply themselves diligently to their obligations and even go 'that one step further' in demonstrating a desire to keep their job. 265 It must not be lost sight of that, even though the applicant may have been an outstanding counsellor with excellent academic credentials and long experience, these criteria are not the only requirement of her job. Collation of statistics, analytical analysis and identification of trends were not difficult or new aspects of her job and constitute a professional requirement to fulfil a broad range of a counsellor's work. It goes without saying that punctuality and decency in relationships with supervisors and other employees are a requirement of any job. For reasons best known to herself, the applicant failed to comply with these requirements. Management was perfectly entitled to attempt to manage and improve her conduct and performance in these respects. When all these efforts failed, there should have been no surprise at the outcome. 266 The findings of Boland P in Reid-Frost and Commissioner of Police (No 2) [2010] NSWIRComm 86, might well be applied to this case. His Honour said at paras [154] to [158]: 154 With regret, I am led to the conclusion that the removal of the applicant from the Police Force was not harsh, unjust or unreasonable.