Ayoub v AMP Bank Limited

Proceedings before the Commission - the decision of the Arbitrator 15The appellant's application was registered in the Workers Compensation Commission on 4 th May 2009. The appellant had sought weekly benefits from 15 th November 2007, medical expenses and lump sum compensation. As permitted by the legislation, the parties attended a conciliation/arbitration hearing on 5 th August 2009. The matter was not completed on that day. The hearing continued on 2 dates later in the year, at the conclusion of which the Arbitrator reserved his decision. On 3 rd November 2009, the Arbitrator published his determination, finding in favour of the appellant. 16The Arbitrator, Mr McIlwaine, identified the claims made by the appellant as follows:- 4. Her major claim is that on 15 November 2007, as a result of psychiatric injury arising out of or in the course of her employment, she suffered a psychiatric, psychological injury being Major Depressive Disorder. 5. An associated claim by Ms Ayoub is that, since late February/early March 2007 she was bullied, harassed and intimidated by staff, including her manager. Ms Ayoub claims to have been exposed to racial, carer obligation and gender discrimination in the workplace, as well as sexual harassment and other forms of unfavourable treatment. 17The Arbitrator noted that the issues in dispute were as set out in the section 74 notices dated 16 th January 2008 and 30 th April 2009. However, he noted that, although relying heavily on all the issues raised in the notices, at the hearing the parties had "reduced" the extent of the dispute by emphasising that the section 11A defence would concentrate on the issues of "performance appraisal" and "retrenchment". Mr Perry of counsel had appeared for the employer on the hearing of the arbitration/conciliation. He had been granted leave to cross-examine the appellant and did so. No other witness was required by either party for cross-examination, although all of the written statements which had been prepared for the purpose of the hearing had been tendered in evidence. These included statements from Mr Stephen White, Mr Slocombe, Ms Taouk and Ms Nicol. At paragraph 38 of his reasons, the Arbitrator said:- Initially I found the written statements of Ms Ayoub not to be helpful. In many aspects the contents were argumentative rather than a factual outline of what occurred. In addition, some of the conclusions drawn by her and or suggested motivations but not necessarily supported by the factual situation. Ms Ayoub was more impressive when giving her oral testimony and being cross-examined by such an experienced and effective cross-examiner as Mr Perry. Ms Ayoub was direct in her responses, frequently making concessions against her interest. I was impressed with her oral evidence and am prepared to make allowance for the deficiencies in her statements as a result of this evidence. Based on my acceptance of her as a credible witness, I am prepared to accept her version of events where there is any significant difference between the parties. 18Some illumination of these comments is to be found on the immediately preceding page of the reasons, where the Arbitrator had been discussing the evidence of Dr Leonard Lee, who provided a report for the respondent. The Arbitrator said at paragraph 32:- Dr Leonard Lee... was unable to assign a DSM-IV diagnosis mainly on the basis that her reports of symptoms are unreliable. As will be seen, I have accepted her as a reliable witness and consequently I am able to discount his opinion in considering the question of her injury. Further, he acknowledged that the varying accounts are contentious, whereas on the two major issues I accept her version of events. 19It seems that the Arbitrator, in the last sentence, was referring to the events surrounding the performance appraisal meeting in March 2007 and the retrenchment meeting in November 2007. The Arbitrator found in favour of the appellant on the two major issues. He found that she did receive a personal injury in the form of psychological injury at the meeting on 15 th November 2007. He was satisfied that the injury, being a major depressive disorder, qualified as a "personal injury" within the meaning of that phrase in the Workers Compensation Act 1987 . The injury arose out of or in the course of her employment, and it was, in fact, sustained, according to his finding, because she had been called to a meeting without prior consultation to inform her of her retrenchment. He found that her employment was a substantial contributing factor to her psychological injury (section 9A of the Workers Compensation Act 1987 ). 20In relation to the section 11A "defence", the Arbitrator addressed the section which provides relevantly:- No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer in respect of transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. 21The Arbitrator noted that the employer had submitted that the management actions relied on were reasonable in respect of both the performance appraisal and retrenchment, these being the two main categories addressed by counsel for the employer in his submissions. In relation to the retrenchment meeting, the Arbitrator found:- 65. Taking these remarks into consideration I am satisfied that on the basis of the presentation of the fait accompli of Ms Ayoub at the 2:20pm meeting on 15 November 2007 of the termination of her employment that she was subjected to a personal injury by the failure to consult her before finalising this decision. 22It is clear that the Arbitrator was influenced by what he described as "a long line of established authority" to suggest that, where an employee is not "consulted about retrenchment", that will mean that the process was unreasonable. He said, after listing cases to support the proposition, at paragraph 71:- Based on this long line of established authority I have no hesitation in finding that the way in which Ms Ayoub was not consulted by her employer by her retrenchment was unreasonable and the defence of the respondent under 11A of the Workers Compensation Act 1987 fails. 23In relation to the second "major issue", the question of the performance appraisal, the Arbitrator said in his summary (paragraphs 93 - 97):- In this matter there are basically two main circumstances which contributed to the injury to Ms Ayoub: (a) the performance appraisal commenced by her former manager and not concluded before her new manager took over in late February/March 2007 and (b) retrenchment of the applicant on 15 th November 2007. ... I think I can conclude from an overall examination of the circumstances... that the performance appraisal did effect the applicant, in that she was taken by surprise regarding the reduction of her classification that was proposed to be given to her by her former manager, Ms Therese Matthews... In my view, the way in which the performance appraisal was handled was overall deficient and not a reasonable process. Unfortunately, it laid the groundwork for the applicant's subsequent injury when she was told of her retrenchment. 24A third topic dealt with by the Arbitrator in his determination was an issue he had identified at the outset. This was the allegation of bullying, harassment and intimidation by staff, including the actions of and remarks made by her manager. For convenience, I will refer to this topic throughout the remainder of this decision as " the discrimination issue ". The Arbitrator refrained from making any findings in relation to this topic. He said:- 66. For various reasons, including the privacy of the individuals involved, I have not found it necessary to embark on a process of individually considering each allegation of Ms Ayoub covering the period from "late February/March 2007 when a new manager, Robert Slocombe, commenced employment with AMP" to her retrenchment. 67. In taking his course of action, I have taken into consideration the fact that apparently there are two other proceedings in courts of different jurisdictions which will probably follow upon these proceedings. Those courts are in a better position to make determinations on an individual basis. 25And later, in his summary, the Arbitrator added:- 94. In relation to the other suggestions of racial discrimination, there are detailed allegations and rebuttals in the statements which have been exchanged between the parties. No attempt has been made by either party to take me through the details of those matters. I suspect to a large extent they will possibly be the subject of detailed submissions and oral evidence or cross-examination of both sides in other proceedings. Consequently, I do not think it would be helpful for the early resolution of those matters if I express any concluded view one way or the other on the conflicting statements. 26As a consequence of the principal findings he had made, the Arbitrator found in favour of the claim by the appellant and awarded her weekly payments of compensation. He referred the applicant to an approved medical specialist for an assessment of her whole person permanent impairment in relation to the psychiatric injury sustained on 15 th November 2007.

Appeal against decision of Arbitrator 27From this decision, the unsuccessful respondent sought leave to appeal pursuant to section 352 of the Act. The legislation (as it stood at the time) stated that an appeal under section 352 was to be by way of review of the decision appealed against (section 352(5)). Fresh evidence or evidence in addition to, or in substitution for, the evidence received in relation to the decision appealed from was not to be given except with the leave of the Commission (section 352(6)). On appeal, the decision might be confirmed or be revoked and a new decision could be made in its place (section 352(7)). The review was later to be conducted by the Acting Deputy President, Deborah Moore (ADP). 28The application instigating the appeal against the decision of the Arbitrator was lodged on 30 th November 2009. The solicitors for the employer noted in the form of the application that their client was "content for the appeal to proceed on the papers". The document annexed to the application contained the submissions in support of the appeal. They were comprehensive. First, the submissions accepted that the appellant had sustained a psychological injury. They noted the remarks by the Arbitrator (Red, 3):- In this matter, there are basically two main circumstances which contributed to the injury to Ms Ayoub: (a)The performance appraisal comments by her former manager and not concluded before her manager took over in late February/March 2007; (b)Retrenchment of the applicant on 15 November 2007. The submission continued:- Whether there be one or two factors in the production of the worker's psychiatric disorder, it is clear that the worker has reacted either to performance appraisal or to retrenchment or both, and it is this reaction, rather than in anything else in her employment, that has led to her decompensation. 29The submissions made clear that the employer did not seek to challenge the finding by the Arbitrator that the worker had sustained the injuries he had identified. Rather, the employer stated that it wished to challenge the findings that its actions in relation to the appraisal of the worker's performance, and in relation to her retrenchment, were unreasonable. 30The submissions then moved through a series of historical facts in relation to both the performance appraisal and the retrenchment. After a close analysis of each situation, arguments were advanced to suggest that the employer had acted reasonably in all respects. In the concluding section, the submission stated (Red, 10):- The Arbitrator's conclusion that the actions of the employer were unreasonable is based entirely upon the fact that the employer did not inform the worker, prior to the meetings of 15 November 2007, that her services were to be made redundant but the long line of established authority referred to by the Arbitrator is not authority for the proposition that it is unreasonable for an employer to reach a conclusion that a certain employee or employees are to be made redundant, as a result of a necessity to reduce staff, without consulting those employees. It may be unreasonable for an employer to inform a worker of his or her redundancy in an abrupt or callous way, but this is patently not the case in the present matter. 31The thrust of the submission in relation to the retrenchment was that there was "uncontested evidence" that the employer was obliged, for proper reasons, to diminish its staff (Red, 9). There were three Product Managers and the proposal was that these should be reduced to two. The employer had adopted a course of assessing all three of the Product Managers with the intention of reducing their number from three to two. The employer argued that there was no evidence to suggest that the assessment process had been conducted unreasonably. 32Ms Ayoub's lawyers filed a Notice of Opposition to the appeal. Importantly, the Notice indicated that she was content for the appeal to be decided "solely on the papers" (Red, 51). There was no application for leave to rely on fresh evidence. There was no application to lead evidence in addition to or in substitution for the evidence before the Arbitrator. 33Ms Ayoub's submission in support indicated that, in practical terms, the "real issue" was the section 11A defence raised by the employer. The submission noted that there had been no challenge to the Arbitrator's findings in relation to the psychological injury. It stated the employee's agreement that the appeal be "limited to a challenge to his finding that neither the way in which the performance appraisal was handled, nor the manner of retrenchment, was reasonable" (Red, 57). 34In relation to the performance appraisal, Ms Ayoub's argument was essentially that she had been given "contradictory signals" by her former manager and then later from Mr Slocombe. However, the propositions in paragraphs 11, 12 and 13 of the submission moved to a different matter. These addressed the discrimination issue. For example, in paragraph 11, the employee's solicitors state:- The case presented on behalf of the worker was that the events in her workplace, in particular the manner in which she was dealt with by superiors also contributed to her psychological condition. The Arbitrator did not make a positive finding in this regard. Yet it is clear that, having seen her give oral evidence, he accepted the worker's account to the extent of conflict (para 38 determination). Nevertheless, some assessment of these complaints is relevant , as it places the action of the employer in November 2007 in context (my emphasis). 35Paragraph 12 dealt with a number of statements of the witnesses which had been before the Arbitrator. It emphasised the complaints made by the employee that she had been harassed and discriminated against in the workplace. The submissions noted that the employer had contested these allegations of discrimination. They argued, however, that there was "some degree of conflict in the workplace and, at the very least, enough for the employer to see that the worker may be vulnerable". In paragraph 13, the submissions stated:- The matters recited above were all features of Ms Ayoub and her employment relationships were known to the employer's managers at the time that it informed her of her retrenchment... They knew she had complained about racial vilification. They knew she had been upset by Mr White's comments about her appearance. They knew that she had been distressed by the death of her father in September 2007. Moreover, Mr Slocombe had reassured her in response to a direct question that her job was secure. The impression that he left her with could only have been reinforced by his inquiry by email on 1 st November 2007 seeking details of her qualifications for the "initial development plan templates for next year". 36The discrimination issue also featured in that section of the written submissions dealing with the employee's "contention". Here, Ms Ayoub's solicitors argued that there were three features of her employment which had caused her major depressive disorder. First, there was the performance appraisal. Secondly, there was the redundancy itself. But thirdly, it argued, there were the "nature and conditions of employment between February 2007 and November 2007", this plainly being a reference to the discrimination issue matters. In this regard, the contention was that these matters had not attracted consideration by the Arbitrator for the purposes of section 11A. The submissions then argued that they should have been considered, and then continued:- 18. In the event that the Presidential Member decides that any part of the determination ought to be set aside, the respondent worker submits that there should be a finding that the workplace events between March and November 2007 contributed to injury and therefore that the injury was not wholly or predominantly caused by action in respect of performance appraisal and/or retrenchment (let alone reasonable action). 37The ADP gave her determination of the appeal on 14 th April 2010. She found in favour of the employer. The following orders were made:-

1. The decision of the Arbitrator dated 3 rd November 2009 is revoked and the following decision is made in its place: award in favour of the respondent.
2. No order as to costs of the appeal.

Decision by the ADP - reasons 38The decision given by the ADP is supported by lengthy and extremely comprehensive submissions. I will briefly set out some of the more significant matters contained in the review decision. 39First, the ADP determined that the review should be conducted on the papers. Having identified section 354(6) of the Act as enabling the Commission to exercise functions without holding any conference or formal hearing, the ADP stated (at paragraph 11):- Having regard to Practice Directions Nos 1 and 6, the documents that are before me and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed "on the papers" without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 40Secondly, the ADP noted that there was no challenge to the finding by the Arbitrator that Ms Ayoub had been diagnosed with a psychiatric illness. The ADP further noted there were no challenges to the findings made in paragraph 93 of the Arbitrator's decisions as to the existence of the two main circumstances which contributed to the injury, namely the performance appraisal and the retrenchment. The decision then continued:- 16. The focus of the Appellant's challenge is on the Arbitrator's findings that the actions of the Appellant in relation to appraisal of Ms Ayoub's performance and retrenchment process were unreasonable: "Whether there be one or two factors in the production of the worker's psychiatric disorder, it is clear that the worker has reacted to either the performance appraisal or to retrenchment or both, and it is this reaction, rather than anything else in her employment, that has led to her decompensation." 17. Ms Ayoub, however, claimed that her condition resulted from bullying, harassment and discrimination in the workplace. Notwithstanding these assertions, the Arbitrator concluded... that it would not be "helpful" if he expressed his view "one way of the other on the conflicting statements" and instead focussed on the Appellant's reliance on the provisions of section 11A of the 1987 Act. At [66] he noted: "For various reasons, including the privacy of the individuals involved, I have not found it necessary to embark on a process of individually considering each allegation of Ms Ayoub covering the period from "late February/March 2007 when a new Manager, Robert Slocombe, commenced employment with AMP" to her retrenchment." 18. Nevertheless, in order to properly consider and assess the claim of both parties, and in line with the Commission's objectives and guidelines, and the review process, in my view it is necessary to consider the totality of the evidence. 41Thirdly, the ADP set out very considerable detail of the evidence, including a summary of and quotations (where necessary) from virtually all of the persons involved, including Ms Ayoub herself, Mr White, Mr Slocombe, Ms Taouk, and Ms Nicol. Emphasis was also given to details of the medical evidence and to certain documentary evidence produced from within the records of the employer company. The reports and findings by Ms Gurton were also analysed extensively. In addition, the ADP examined and quoted the oral evidence of Mr Ayoub before the Arbitrator, both in chief and during cross-examination. 42Next the ADP analysed, once again in considerable detail, the findings made by the Arbitrator. Having made this extensive examination of all the evidence and the findings by the Arbitrator, the ADP stated:- 113. There are two main features at the heart of this dispute. On the one hand, Ms Ayoub claims that the reasons for what she saw as a "downgrading" of her performance ranking and her subsequent retrenchment were to do with various forms of discrimination and harassment in the workplace. On the other hand, AMP claims that performance appraisal was a standard procedure, it was conducted fairly and the redundancy was due to a restructure which was conducted fairly. 114. At the outset, I am not persuaded there is anywhere near sufficient evidence in support of Ms Ayoub's claim of bullying, harassment, racial, sexual or gender discrimination in her workplace. I also have some doubts as to the veracity of her evidence for reasons which will follow. 43The ADP then stated why it was she had come to this conclusion. Essentially, she thought that there was no other evidence (beyond that of the respondent) in support of her allegations. There was, for example, no evidence from Ms Matthews. There was no evidence from former colleagues at St George. Ms Taouk, who had been described as both the respondent's friend and colleague, had not supported her allegations of either sexual harassment, racial discrimination or bullying. In fact, the witness had described Ms Ayoub as having "issues with her perception of events" (paragraph 115). The ADP noted that the respondent had failed to follow up her 26 th March 2007 email complaint in any way. There was an absence of complaint between 26 th March and November 2007. The ADP also added that there was no reference in Dr Ong's notes to the respondent being distressed over any allegations of discrimination and bullying. Similarly, she had made no allegations of sexual harassment to Ms Gurton. 44By contrast with this absence of evidence from colleagues or former colleagues (as to the existence of the discrimination issue matters), the ADP noted that a number of employees had made statements either disputing outright those allegations, or offering explanations for certain "perceived instances" of possible discrimination. In addition, she concluded that the documentary evidence did not support Ms Ayoub's claim that the DBA was simply a "tool" adopted and used by Ms Nicol and Mr Slocombe for the purposes of terminating her employment. Finally, in relation to the discrimination issue matter, the ADP said:- 122. I acknowledge, as did the Arbitrator, that there are "conflicting statements". Nevertheless, I remain doubtful as to the veracity of Ms Ayoub's allegations on the basis of some of the examples I have outlined in the preceding paragraphs. Whether, as Ms Taouk observed, Ms Ayoub has merely misperceived events or remarks or has simply reconstructed them... or has created "an ex post facto rationalisation" in what she described to Dr Oen as "pursuit of her sense of justice" is a matter for speculation. In my view, however, her allegations are insufficient to establish as she claimed, that her "injury" was as a consequence of what she categorised as bullying, harassment or discrimination. The Appellant has conceded that Ms Ayoub suffers from a psychological condition, and does not challenge the Arbitrator's finding that her condition arose as a consequence of either the performance appraisal, the redundancy, or both. In these circumstances then, the ultimate issue is whether the actions of AMP in relation to performance appraisal and retrenchment were "reasonable" within the meaning of section 11A. 45Having rejected the discrimination issue matters, the ADP then examined, once again in considerable detail, the assertion that the actions of the employer in relation to the performance appraisal and retrenchment had been unreasonable. In this regard, she ultimately determined that she could not agree with the conclusions reached by the Arbitrator, and she found that the employer's actions in relation to each of these matters were reasonable. 46In relation to the 2007 performance appraisal, the ADP noted that Ms Ayoub had requested a meeting with Mr White and Mr Slocombe to discuss her 2006 performance appraisal. She did not dispute that Mr White had invited her "to open discussion" nor that she had been able to "table her concerns". She was, despite her claim to the contrary, clearly given "formal feedback". The ADP continued (at paragraph 131):- Indeed, in her "version" of that meeting, she states that, "Stephen White's feedback (my emphasis) ... was manifestly inconsistent with that of [Ms Matthews]". 47The ADP stated that it was clear from the evidence of Mr White, in his May 2009 statement, that the appraisal process had not been concluded following "one assessment" made by Ms Matthews. Indeed, the final assessment was made only a short time before Ms Ayoub was provided with her assessment in early March 2007. For that reason, it was neither necessary nor appropriate to provide "feedback" to Ms Ayoub, or comment on her "key performance factors", prior to her receiving her assessment. In addition, Mr White "had noted that Ms Ayoub had responded well to his feedback" (paragraph 131). The ADP's reasons continued:- 133. There was no evidence that the appraisal was conducted in an aura of hostility towards Ms Ayoub, notwithstanding that she may have preceived Mr White's and Mr Slocombe's attitudes to be otherwise. 134. It is entirely understandable that Ms Ayoub may have felt upset at what she regarded as a downgrading of her assessment. But that in itself does not make AMP's actions unreasonable. In my view, there is nothing to suggest that either the steps taken to appraise Ms Ayoub's performance, or the manner in which the results were communicated to her was in any way unreasonable. 48I turn now to examine the ADP's reasons for her finding in relation to the second major issue, the retrenchment process. The ADP first examined a number of authorities referring to circumstances that might demonstrate that a retrenchment process had been unreasonable. These included this court's decision in Manly Pacific International Hotel Pty Limited v Doyle (1999) 19 NSWCCR 181. There were four particular matters mentioned in that decision that were said to be of importance. They were, first, the general circumstances of the employment relationship between the employer and employee. Secondly, the suddenness or otherwise of the "fall of the axe". Thirdly, the period of notice given, if any. Fourthly, the existence of counselling or other services provided or available at the time of retrenchment, including consideration as to alternative employment. Dealing with each of these matters, the ADP said:- 148. Taking the issue sequentially... there is no evidence, other than Ms Ayoub's assertions of racial and gender discrimination (about which I have concluded there was insufficient evidence to support) that the antecedent relationship between the parties formed part of the process of Ms Ayoub's retrenchment. She had been rated "satisfactory" following her review in March 2007. The document I described as a 2007 Interim Performance Review... confirms that she had a "solid first half" and appeared to be progressing well following the 2006 appraisal. Irrespective of the merits of AMP's decision to reduce staff, that was clearly the basis for the retrenchment. 149. Turning to the issue of notice, the Arbitrator's conclusion that AMP's actions were unreasonable, is based solely on the fact that AMP chose not to inform Ms Ayoub prior to 15 th November 2007 that her position was to be made redundant. The issue here was not whether the retrenchment was "unlawful". The "well established Law" referred to by the arbitrator is, as the appellant points out: "not authority for the proposition that it is unreasonable for an employer to reach a conclusion that a certain employee or employees are to be made redundant, as a result of a necessity to reduce staff, without consulting those employees." 150. Although Ms Ayoub held a fairly senior position at AMP, it was not of the status of Mr Pirie (this being a reference to the situation of the worker in Manly Pacific International Hotel Pty Limited v Doyle ). Relevant to the circumstances in this case is Neilson CCJ's comment... that "Of course one cannot postulate that in every retrenchment a worker ought to be consulted beforehand. If a company's trading arm is losing money and the executives deem it necessary to close that trading arm or that division, then the input of an ordinary worker in a factory or a shop would be of no assistance whatever to the employer in coming to a decision. 151. Although clearly not "an ordinary worker in a factory" there is no evidence to suggest that Ms Ayoub's position was such that she should or ought to have been consulted over the issue of staff reduction. Indeed, the evidence is clear that she was one of three people being considered for retrenchment when the decision was made to reduce the product managers from three to two. 49The ADP then went on the consider the other factors she had mentioned. She found each of these in favour of the employer. She concluded:- 157. Having carefully considered all of the evidence, I have concluded that a "reasonable observer" would be satisfied that the process adopted by AMP in relation to Ms Ayoub's retrenchment was reasonable in all the circumstances of this particular case. 50In those circumstances, the ADP made the orders to which I have earlier made reference.

Grounds of appeal 51The Notice of Appeal was filed on 9 th September 2010. Section 353(1) of the Act permits a party to any proceedings before the Commission constituted by a Presidential Member an appeal to the Court of Appeal. The appeal is confined to an erroneous "decision of the Presidential Member in point of law. The grounds of appeal were, by leave, amended, and in their final written form were as follows:-

1. The Commission erred in law by denying the appellant procedural fairness by failing to notify her that it proposed to make a credit finding against her and thereafter to disbelieve her evidence without first giving her a reasonable opportunity to deal with it.
2. The Commission erred in law by not considering whether it had sufficient information to enable it to proceed to a final determination on the papers without the necessity for holding any form of hearing, as required by s.354(6) of the Workplace Injury Management and Workers Compensation Act 1998 . In particular, the Commission should have given consideration to the form of hearing when it decided to reconsider the credit findings of Arbitrator McIllwaine to embark upon findings of credit against the appellant, to depart from the issues raised by the parties in their submissions on appeal, when identifying deficiencies of information and when proposing to draw inferences against the appellant for leaving matters unexplained when the appellant had not been called upon to explain them.
3. If it is found that the Commission did give consideration to the form of hearing, it was not reasonably open to it to be satisfied that it had sufficient information to proceed to hear the matter on the papers. In particular, both the matters referred to in ground 2 above and the fact that without providing an oral hearing the appellant would be denied procedural fairness were reasons which would have required the Commission to afford an oral hearing to the appellant.
4. The Commission erred in law in failing to take into account a relevant consideration, being the industrial policies of the respondent and generally accepted standards of conduct in the workplace relating to redundancies. 52The appellant seeks orders that the decision of the Commission be set aside and asks that the matter be remitted for re-hearing before a Presidential Member (other than Acting Deputy President Deborah Moore).

Analysis and resolution of the issues 53In relation to the first ground, the appellant argued that, without affording an opportunity for the parties to be heard, it was not open to the ADP to determine whether the appellant had, in fact, been harassed or discriminated against and, in particular, it was not open to her to make findings on this issue adversely to the appellant's credit. Secondly, the appellant complained that the ADP had used the adverse credit findings she had made to make further findings against her on the section 11A defence (the reasonableness issue) once again without giving the appellant an opportunity to address their impact on that issue. In both these areas, it was submitted, the appellant had been denied procedural fairness and that, in the particular circumstances of this matter, the failure to afford a reasonable opportunity to address on the issues constituted an error in point of law. 54There is no doubt that, in general terms, procedural fairness must be afforded to the parties in the hearing of a review under section 354 of the Act. This is made clear by the decision of Basten JA in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; (2007) 5 DDCR 28. Here his Honour, in dealing with the nature of the appeal, said:- 65 The precise scope of a provision such as s 354 will depend upon the circumstances in which its operation arises. No doubt the Commission is required to apply substantive rules of law applicable to its jurisdiction and to comply with rules of procedural fairness, although the content of the latter may be affected by the terms of the provision: see generally Sue v Hill (1999) 199 CLR 462 at [42] (Gleeson CJ, Gummow and Hayne JJ); Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 (Gleeson CJ and Handley JA); Italiano v Carbone [2005] NSWCA 177 at [70]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [87]-[94] (McColl JA, Tobias and Giles JJA agreeing), and Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158 at [42]. (To the authorities mentioned by Basten JA, I would also add Fletcher International Exports Pty Ltd v Lott & Anor [2010] NSWCA 63 at 42, per Giles JA (with whom McColl JA agreed)). The critical question that arises in the present matter is this - was the appellant in fact denied procedural fairness in the manner she alleges? 55The first response to the arguments advanced by the appellant is that it was the appellant herself who invited the ADP to make an assessment of the discrimination issue. True it is that the respondent had isolated the primary issue for determination as the reasonableness or otherwise of the circumstances surrounding the performance appraisal and the retrenchment process. While the appellant accepted that this was the primary issue, she nevertheless contended in her submissions that the ADP should address the discrimination issue. I have earlier set out portions of paragraphs 11, 12 and 13 of the submissions filed on behalf of the appellant in support of her Notice of Opposition to the appeal against the decision of the Arbitrator. Those paragraphs made it clear that the appellant had invited the ADP to make an assessment of those issues which had not been determined by the Arbitrator ("nevertheless some assessment of these complaints is relevant as it places the action of the employer in November 2007 in context"). Further, the appellant required the ADP to address the discrimination issue and to make positive findings in her favour. This is clear from the "contention" referred to in paragraphs 15 to 18 of the submissions before the ADP. Paragraph 18 in particular effectively demanded that findings be made and, if they were favourable to the appellant, required a finding that the employer's defence must fail:- In the event that the Presidential Member decides that any part of the determination ought to be set aside, the respondent worker submits that there should be a finding that the workplace events between March and November 2007 contributed to injury and therefore that the injury was not wholly or predominantly caused by acts in respect of performance appraisal and/or retrenchment (let alone reasonable action) (my emphasis). 56In my opinion, there can be no doubt that the appellant herself invited, indeed demanded, that there be findings made in respect of the discrimination issue. In this regard, as on all the other issues, the appellant was content for the appeal to be dealt with "on the papers". The appellant did not seek leave for any oral evidence to be adduced. Nor did she ask that further evidence be placed before the ADP. 57The matter may be tested this way: had the ADP found in favour of the appellant on the discrimination issues, and determined that there had been racial and gender discrimination against her during the period between the end of March and mid November 2007, could the employer have argued that it had been denied procedural fairness because findings on issues not determined by the Arbitrator had been made against its interests without an opportunity to be heard? Could the employer have said, "we had no anticipation that findings of that kind might be made in favour of the appellant"? The answer to these hypothetical questions must clearly be "no". The issue of the existence or otherwise of the incidents relating to the discrimination issue complaints had been raised by the appellant for decision by the Arbitrator and, for it to be resolved, there had to be a finding, a resolution of the conflicting statements of the appellant on the one hand, and all the other witnesses on the other. The Arbitrator had effectively avoided this issue. The ADP correctly concluded that, having regard to the submissions before her, she could not take the same approach and that it was unnecessary for her to make a whether the events complained of had occurred, and, if so, whether they were causative of any injury to the appellant. Once it was determined that they had not occurred, they could no longer play any part on the issue of the section 11A "defence". This is precisely the way in which the ADP reasoned the outcome of the principal issue. Having found that the incidents leading to the discrimination issue complaints had not occurred, she then turned her mind to the resolution of the principal issue selected by the parties, namely whether the conduct of the employer in the performance appraisal process and in the retrenchment process were reasonable or not. 58Moreover, in my opinion, the Arbitrator did not use the adverse credit findings she had made on the discrimination issue either unfairly or at all when she came to consider the issue of reasonableness in relation to the performance appraisal and retrenchment process. Mr King SC, who appeared for the respondent, in his oral submissions, argued that it was simply not necessary for the ADP to make any finding relative to the appellant's credit in relation to the section 11A defence. Senior counsel submitted that what was surely in issue was the reasonableness of the employer's actions and, in this regard, the credit of the appellant played no part whatsoever. 59Mr Robertson SC (who appeared with Ms Welsh for the appellant) argued, however, that a number of findings made by the ADP suggested otherwise. A number of instances were given where, it was submitted, the ADP had used the adverse credit findings when resolving the reasonableness issue. First, it was said the ADP had described Ms Ayoub's account as "her version", thereby suggesting that her account should be disbelieved, or at least discounted. Secondly, the ADP had stated that, whereas Ms Ayoub had said that she had expressed "outrage" at the performance appraisal meeting, another executive, Mr White, had claimed that she had responded well to his feedback. Mr Robertson suggested that the ADP had "implicitly" accepted the executive's evidence in preference to that of the appellant. Thirdly, he argued that the ADP's finding that the appraisal was not conducted "in an aura of hostility" was contradicted by Ms Ayoub's evidence (including statements made by Mr White about her clothes, her hair and her use of lip-gloss at meetings which were irrelevant to the appraisal). This finding, it was said, constituted a rejection of her evidence. Finally, Mr Robertson maintained that the finding by the ADP that "there was no evidence (other than Ms Ayoub's assertion of discrimination in respect of which there was insufficient evidence) that the increasingly hostile relationship between Ms Ayoub and her employer was relevant to her retrenchment" could only be seen as a finding based "implicitly" upon an adverse view of her credit. Senior counsel for the appellant submitted:- It is clear that the adverse credit findings infected the ADP's reasoning process on the principal issue in the appeal. 60In my opinion, none of these illustrations support the conclusion sought to be advanced by Mr Robertson on the hearing of this appeal. First, the ADP's reference to "her version" does not, in my opinion, suggest a disbelief of the appellant at all. It was simply a short-hand but accurate method of referring to the manner in which she had prepared her statement. The appellant had taken Mr White's statement, and added by way of comment sentences and paragraphs to relevant parts of it, in a composite document that allowed the version of each party to be readily contrasted. The use of the phrase "her version" expressed no view whatsoever concerning Ms Ayoub's credit. 61The second matter relied upon was, as I have noted above, said to suggest an adverse finding on credit "implicitly". It certainly did not do so expressly. However, I think it is altogether too long a bow to draw to suggest that such an interpretation should be put, by implication, upon the actual expression used by the ADP. In fact, the ADP said (Red, 106 [W]):- In addition, Mr White noted that Ms Ayoub had responded well to his feedback (my emphasis). 62The ADP's statement goes no further than correctly recording that such a note was made by the Managing Director. In his initial statement given on 14 th of December 2007, Mr White had said (Blue, 426):- Prior to that meeting, I had a good working relationship with Ms Ayoub. Subsequent to that meeting, I observed that Ms Ayoub's dress was impeccable and that her behaviour in meetings also improved, indicating that she accepted the feedback provided to her and modified her behaviour accordingly. 63The third matter referred to by Mr Robertson was once again an "implicit" rejection of Ms Ayoub's account. The material referred to clearly indicated that Ms Ayoub had been upset about the references to the way in which she personally presented herself and behaved at meetings. Indeed it was her evidence that she was so upset that she demanded to leave the March meeting and did so (Blue, 131). There was no rejection at all of this aspect of her evidence and clearly it was accepted that, from her point of view, the "feedback" on these matters she had been given by the Managing Director upset her. Rather, read fairly, the ADP was saying no more than that the appraisal, objectively viewed, had not been conducted in an aura of hostility. This did not require any adverse findings regarding Ms Ayoub's discrimination issue complaints at all. Finally, the conclusion that there was no evidence that "the increasingly hostile relationship between Ms Ayoub and Mr Slocombe" was "relevant to her retrenchment" was, in my opinion, a conclusion open to the ADP based on her objective assessment of the situation, rather than a finding based in any way upon the rejection of the appellant's credit. 64The parties before the ADP agreed to a review of the decision of the arbitrator "on the papers". It was then known, by reference to the decision of the arbitrator from which the review was sought, that there were disparities between the evidence of witnesses for the applicant and the respondent. To the extent that either party was seeking a result which might require the resolution of such conflicts in the evidence, it was readily foreseeable that the ADP would seek to resolve those conflicts in the course of the review. In those circumstances, the request for review "on the papers" must have involved a conscious waiver of the entitlement to seek an oral hearing before the ADP. Unless the ADP adopted an approach which was not reasonably foreseeable on the material before her, the possibility that there could be a denial of procedural fairness by adopting the approach proposed by the parties is remote. It did not eventuate In this case. 65Ground 1 has not been established. 66The arguments in support of Grounds 2 and 3 are, in my opinion, largely answered by considerations that are related to those I have discussed in relation to Ground 1. Here, the principal complaint is that the ADP failed to fulfil a continuing duty to be satisfied during the course of consideration of the appeal, that it was appropriate to continue to act "on the papers". This was because it must have been apparent that it would be unfair and inappropriate to do so. The appellant argued that it must have become apparent during the ADP's deliberations that the resolution of the dispute between the parties required that an opportunity be afforded to the appellant to address the discrimination issue matters and, in particular, her credit in relation to those matters ( Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 per Beazley JA at [96] and Tobias JA with whom Giles JA agreed at [120] - [122]). 67Mr Robertson argued that neither party "had an inkling" that any credit issue in relation to the discrimination issue was in play. This was so because neither party had challenged Ms Ayoub's credit and, as a consequence, the ADP was obliged, if she intended to depart from the way in which the parties argued the case, to consider at that point whether she should continue to hear the appeal on the papers. She did not do so, and this failure constitutes an error of law. 68One answer to this submissions is, as I have indicated when dealing with Ground 1, that the appellant in fact invited the ADP to resolve the discrimination issue even though the Arbitrator had declined to do so. The employer, faced with this submission from Ms Ayoub's lawyers, offered no protest. It nevertheless maintained that the principal issue was the reasonableness of the bank's own actions in the retention process and the earlier performance appraisal. I can see no error on the part of the ADP in determining that she should continue to deal with the matter "on the papers". I can see no error in her determining that she would resolve the contention point (as she was invited to do by the appellant) by having regard to "the totality of the evidence". The situation is very different to that in Hancock's case, where a fundamental and central issue relating to causation of the plaintiff's injury arose. By contrast, in the present matter, the discrimination issue was one that the appellant asked to be addressed (while maintaining that the appeal could be determined "on the papers"), but it was, once dismissed, an issue that had no bearing on the issue of the reasonableness of the employer's actions in the two principal areas of dispute. Nor, as I have said, did the ADP use the adverse credit finding on the discrimination issue in her evaluation of the reasonableness of the employer's conduct. 69The final issue arising out of these two grounds related to a specific claim made by the appellant in her initial statement to the insurance company. This had suggested that the restructure was "bogus", and that the entire arrangement was simply an artificial means to fulfil a predetermined decision to get rid of her. This submission had found its genesis principally in three documents. There were other matters, of course, referred to by Ms Ayoub in her original statement. The first document was an email sent to her by Mr Slocombe on 1 st November 2007. I have earlier mentioned this. The appellant maintained it had given her assurance that her position was secure. More significant, however, was the second document. It was a "create retrenchment" quote internally prepared for Bianca Jovovic. The employee identified as the subject of the quote was the appellant. The retrenchment date mentioned in the request was 1 st November 2007, and the request itself was dated 11 th September 2007. The third document was an internal email from Gaebrielle Nicol to HR, "Enquiries re: Redundancy Costs". It was dated 25 th October 2007 and sought two quotes for redundancy for a projected date of 15 th November 2007. The employees mentioned in the document were the appellant and Steve Raftis. The attached reply provided the figures sought in the request. 70Mr Robertson's argument was that these documents (particularly the September retrenchment inquiry) ought to have alerted the ADP to the fact that the respondent had determined to retrench the appellant as far back as 11 th September 2007 (in contrast to the evidence of Mr White). It should have demonstrated to the ADP that the appellant's "bogus DBA" argument had substance. Senior counsel argued that this aspect of the appellant's case was simply not determined by the ADP. It was, in effect, overlooked, and accordingly, the primary submission in her case had simply not been examined. Secondly, he submitted Ms Ayoub's claim in this regard was overlooked precisely because her credit had been devalued by the ADP's findings on the discrimination issue. 71There are, I consider, a number of responses to these arguments. First, the ADP did deal with the appellant's claim that the restructure was a bogus mechanism designed to mask a predetermined decision to eliminate her from the company structure. At Red, 104 (para 120) the ADP said:- The documentary evidence does not support Ms Ayoub's claim that the DBA was simply a "tool" invented by Ms Nicol and Mr Slocombe for the purposes of terminating her employment. 72True it is that the ADP made no specific reference to the retrenchment quotes, but, given the abundance of other documents and statements before her, it was certainly open to her to find that the DBA and the process surrounding it was, despite the appellant's claim, a genuine one, and that there was no substance in the "bogus" argument. In any event, if the ADP were wrong in the conclusion she reached, it was, and could be no more than, a mistake of fact. 73Secondly, the finding that the documentary evidence did not support the appellant's claim had nothing to do with her credit. It was simply an assessment of the totality of the documentary material emanating from the respondent's business records. Such an assessment did not require any evaluation of the appellant's credit. Thirdly, I do not consider, in any event, that the "bogus DBA" argument was Ms Ayoub's primary submission before the ADP. Undoubtedly, it was one of the many matters about which she had made allegations. It had played, it seems, a very minor part in the proceedings before the Arbitrator. There was only one brief reference to it at Black, 92 in the submissions of the then-counsel for Ms Ayoub at the arbitration. Importantly, it was not raised at all in the written submissions before the ADP. Finally, if the respondent had wished to challenge the statements by Mr White, Mr Slocombe and Ms Nicol (which in considerable detail demonstrated that the retrenchment process was a genuine one), there was no application made at any stage of the entire process for leave to cross-examine those witnesses. It is hardly surprising that, on the papers, the ADP reached the factual conclusion that she did, namely that the process was a genuine one, and that it was reasonable in the circumstances. Given the overall thrust of the documentary material, and the forceful statements made by the executive and managerial witnesses, the retrenchment quotes and the email did not, on their own, advance the appellant's contention that the process was not genuine. 74I would reject grounds 2 and 3. 75The final ground of appeal is that the ADP appears to have overlooked an "important piece of evidence" in coming to her ultimate conclusion that the retrenchment process was reasonable. This was a reference to the respondent's own policy document on retrenchment and re-deployment. The policy was in evidence, both before the Arbitrator and during the review. The policy document dealt with "redundancy, redeployment and retrenchment within AMP". The "purpose and aims" were stated as follows (Blue, 81):- AMP may, when the circumstances arise, need to make some positions redundant. AMP aims, however, to find alternative employment for employees whose positions are redundant. Employees will be retrenched on the terms set out in this policy in circumstances where alternative employment is not available. 76The particular terms of the policy which Mr Robertson SC relied upon were the following:- Advising Redundancy/Redeployment If an employee's position is to be made redundant, the Manager must: Tell the employee as soon as practicable that their position has been or is to be made redundant. Advise the employee of the steps that have or will be taken to redeploy the employee. Consult with the employee regarding such steps and any other measures if any to mitigate the effect of the Redundancy. Redeployment AMP will assess Redeployment opportunities for the effected employee prior to Retrenchment. 77I have earlier set out the reasoning used by the ADP in coming to the conclusion that the process surrounding the retrenchment was reasonable. Those reasons recognised that the absence of notice on retrenchment might, in a particular case, be unreasonable, but that this was not always the situation. In the present case, the ADP determined that the appellant's position was not such that she ought to have been consulted over the issue of staff reduction. In those circumstances, she was not persuaded that the respondent's decision to inform her of the retrenchment on 15 th November 2007 was unreasonable. Further, she held that it was the fact of the retrenchment (rather than the lack of notice of it) that was causative of Ms Ayoub's decompensation. The ADP noted that the respondent had taken steps to have a counsellor present at the meeting on 15 th November 2007. She was also provided with access to the employee assistance program and to a career management consultant at the appellant's expense. The ADP considered that the various steps taken by the appellant at the meeting represented a "reasonable approach" in attempting "to cushion the impact of the retrenchment". A full redundancy package was made available to the respondent. There was no suitable position that would, at that time, have enabled her redeployment within the AMP Bank structure. 78The policy requirement ("tell the employee as soon as practicable") was, no doubt, a standard articulated by the respondent against which the reasonableness of its own conduct could properly be judged. It did not prescribe a precise course of conduct, as circumstances would no doubt be expected to dictate what was required in a particular case. The existence of such a policy, if applied, would tend to support the reasonableness of the employer's conduct. If the employer did not advert to it, that might tend to undermine the reasonableness of its conduct. However, the policy imposed no extraneous legal standard on the respondent and the failure of the ADP to take the policy into account (if that happened) did not constitute an error of law. 79I would reject ground 4. 80For these reasons, I propose that the appeal be dismissed and that the appellant be ordered to pay the respondent's costs. 81SACKVILLE AJA: I agree with WhealyJA.

Amendments 11 October 2011 - 'Sackville AJA at [3]' changed to 'Sackville AJA at [81]' Amended paragraphs: Covesheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2011