Caroline Anne Cunneen v Secretary of the Department of Transport

Industrial Relations Commission (NSW)|2018-12-17|Before: Mr J

J Zeng (Respondent) File Number(s): 2018/00319898

EX TEMPORE Judgment

Caroline Anne Cunneen, the applicant, was employed with Transport for NSW ("TfNSW") since 13 January 2014, although she had been employed in the NSW Public Service for approximately 31 years. On 28 September 2018 her employment was terminated on the basis of unsatisfactory performance pursuant to s 68(2) of the Government Sector Employment Act 2013 (NSW).
On 19 October 2018 Ms Cunneen filed an application for relief in relation to unfair dismissal, in accordance with s 84 of the Industrial Relations Act 1996 (NSW) ("Application"). In the Application Ms Cunneen seeks reinstatement, re-employment and compensation.
The matter first came before me for conciliation on 16 November 2018. A resolution between the parties could not be reached.
As I subsequently explored with the parties, on 16 November 2018, the directions that should be made for the purposes of proceeding to arbitration, Ms Cunneen submitted that she was currently in a defined benefits superannuation fund, and that if she remained out of relevant employment for more than three months she would lose for all time her ability to remain in that fund. She stated that this would remain the case even if she were reinstated through an order of this Commission. She requested on this basis that the matter be heard and determined prior to 28 December 2018, being the date 3 months after her dismissal.

Name of respondent

The application names as the respondent "Transport for NSW". Pursuant to s 68C(3) of the Transport Administration Act 1988 (NSW) the Secretary of the Department of Transport ("Secretary") exercises on behalf of the Government of New South Wales the employer functions of the Government in relation to the persons employed in Transport Service. The Secretary is the proper respondent to these proceedings.
The parties have indicated that they have no objection to me giving a direction to correct the name of the respondent, and I will do so.

Conduct of proceedings

Ms Cunneen represented herself in the proceedings. She presented as an intelligent person well able to formulate and advance her case. She was able to effectively set out her arguments both orally and in writing. Nevertheless, I regarded myself as bound to follow the guidance given by the Court of Appeal in Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [309]: "Courts have an overriding duty to ensure that a trial is fair… In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented…"
In these proceedings that approach led me to admit all of Ms Cunneen's material, even though they were mixtures of fact and submission, and to put her case at its fullest. I accepted her evidence over the objections of the respondent, acknowledging that ultimately it would come down to the weight to be given to Ms Cunneen's evidence. I declined a request by Mr Zeng that Mr Stevens be allowed to remain in court to instruct him, while Ms Cunneen gave evidence. I gave Ms Cunneen every latitude in questioning Mr Stevens and Mr Bowker in cross-examination. I took these procedural steps because I wished to be certain that Ms Cunneen had every opportunity to put her case in full, and to be certain that I had understood her case in full. I am satisfied that both these objects were met.
Ms Cunneen relied on a statement dated 25 November 2018 which she filed with the Commission on 30 November 2018. She tendered into evidence two other documents, but no great emphasis was given to either of those documents.
The respondent read two statements. The first was by Graeme Stevens, the Principal Manager Fleet and Workplace Services in the Corporate Services Division within TfNSW. The second was by Peter Bowker, the Manager Fleet Services for TfNSW. Both statements are dated, and were filed, on 14 December 2018. The respondent also filed a written outline of submissions.
In the interest of expediting this judgment I do not propose to summarise all of the evidence that has been filed by the parties. Similarly, I will not attempt to outline and address every submission and contention that has been made. Suffice it to say I have read and heard everything that has been put before me by the parties. I have given careful consideration to all of the evidence and submissions in coming to this decision.

Legal Principles

This matter is brought under s 84 of the Act, which relevantly provides as follows: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.
Section 88 of the Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
To be entitled to any remedy under the Act the onus is on the applicant to prove that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
It is now well accepted that each of the words "harsh, unreasonable or unjust" requires discrete consideration. As stated by the Full Bench of the Commission in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "[21] … It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: 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 NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25]-[32].
In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench made the following observations: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made."

Facts

Based on the material before me the paragraphs below set out the key relevant facts.
Ms Cunneen has been a NSW public servant since 29 June 1987.
Throughout her employment Ms Cunneen has been contributing to the State Authority Superannuation Scheme, a defined benefits fund.
On 13 January 2014 Ms Cunneen commenced employment with TfNSW. Her position was Shared Services Officer, Transport Service Grade 4 in the Transport Shared Services Fleet Services team ("TSS Team"). Her role was to assist in the management of the transport cluster's light motor vehicle fleet.
The tasks that Ms Cunneen was required to perform were the subject of some discussion during her cross-examination before me. On the evidence it would seem clear that over time Ms Cunneen's tasks included the administration of salary sacrifice vehicles, including managing requests for salary sacrifice vehicles, monitoring maintenance, reconciling usage of the vehicles for FBT purposes, ensuring that vehicle custodians were aware of and took action to comply with any manufacture recall notices and ensuring that vehicle custodians were aware of and dealt with any penalty or infringement notices issued in respect of a vehicle. Ms Cunneen reported to Mr Bowker who in turn reported to Mr Stevens.
In late October and early November 2017 there was a reallocation of tasks among members of the TSS Team, including Ms Cunneen. I will return to this.
By letter dated 22 November 2017 Ms Cunneen was advised that she was to attend a formal counselling session. That letter included the following: "The purpose of the session will be to discuss your performance which I have discussed with you informally on previous occasions and which have also been the subject of formal performance improvement plans. These matters include maintaining records and information relating to motor vehicle fleet management, behaviour towards fellow team members and responding to emails within agreed timeframes; however, your performance remains unsatisfactory. … The performance/conduct issues which will be discussed are: - Actions relating to fleet management functions have not been performed and records maintained as required on the Fleet team's shared L-drive in any systematic order. - Interaction with and behaviour towards fellow team members not meeting [sic] in keeping with the Transport for NSW organisational values and all acceptable and unacceptable behaviours outlined in the Finance, Assets and Workplace Services Team Charter. - Responses to email requests through the TSS Fleet inbox and MyTransport have not been made within agreed timeframes. At the session we will discuss how your performance is not meeting the standards expected and you will be provided with an opportunity to discuss any issues that may be affecting your performance. The purpose of the meeting is also to develop solutions to address your identified performance problems and as such we will be developing a performance improvement plan."
The counselling session took place on 27 November 2017. This was the commencement of a formal performance improvement plan ("PIP") under TfNSW's Managing Unsatisfactory Performance Policy ("Policy") and Managing Unsatisfactory Performance Procedure ("Procedure").
During the PIP process Ms Cunneen had performance review meetings with Mr Stevens, Mr Bowker and others on 8 December 2017, 15 December 2017, 21 December 2017 and 8 January 2018. In each case Ms Cunneen's performance was found not to have improved to the requisite standard. Each of these meetings was followed up with an email to Ms Cunneen confirming the matters that had been discussed.
Ms Cunneen was on leave from 15 January 2018 to care for her terminally ill father who had been in treatment for metastatic prostate cancer since November 2017. He died soon after.
Ms Cunneen returned to work on 14 May 2018. On the day of her return to work, Ms Cunneen received an email from Mr Bowker sent the same day. In that email Mr Bowker stated: "I thought I would refresh your memory of where we are up to in regards to your tasks whilst at work and remind you these tasks are part of the performance improvement plan that is still ongoing."
The email goes on to detail the tasks expected of Ms Cunneen and concludes with the words "[p]lease advise if any of the above tasks is [sic] not clear and I can explain in detail".
By email dated 28 May 2018 Ms Cunneen was called to a performance review meeting. The email was from Mr Stevens and contains the following: "I am now making arrangements to schedule the performance review meeting in accordance with TfNSW Managing Unsatisfactory Performance Procedures (originally planned for 17 December 2017). The following details are [sic]: ... - The performance issues to be discussed include: - Maintaining daily update of logbook sheets received on Fleet shared L-Drive. - Maintaining spreadsheet of recall notifications issued and responses received from coordinators on Fleet shared L-Drive. - Maintaining spreadsheet of all scheduled notifications in Fleet shared L-Drive."
The meeting took place on 7 June 2018. At that meeting Ms Cunneen was informed that her performance had not improved to the requisite standard.
By letter dated 8 June 2018 Ms Cunneen received a formal warning that her performance remained unsatisfactory. The letter informed her that the PIP process would continue. (Ms Cunneen claims that she did not receive this letter until 13 June 2018 when she found it in an unused pedestal drawer near her desk.)
Further performance review meetings were conducted on 15 June 2018, 22 June 2018 and 4 July 2018. Ms Cunneen continued to be informed that her performance was not of the standard expected of her. After each meeting Ms Cunneen was sent an email confirming the matters that had been discussed.
The final performance meeting between Ms Cunneen, Mr Stevens and Mr Bowker took place on 6 July 2018. Mr Stevens informed Ms Cunneen that the PIP had concluded and that her performance remained unsatisfactory. He told her that he would be preparing a report for consideration by the Executive Director Shared Services and the Executive Director People and Culture.
On 28 August 2018 Ms Cunneen met with Mr Stevens. At that time Mr Stevens handed Ms Cunneen a letter dated 24 August 2018. That letter included the following: "Additionally, during the final performance review meeting on 6 July 2018, you were advised that your performance continues to be unsatisfactory. The performance issues which are continued to be unsatisfactory are: - That your actions relating to fleet management functions including: - obtaining copies of missing vehicle log sheets from across the fleet; - issuing information and directions for action to agencies regarding vehicle manufacturers' safety recall notices; and - notifying cluster agencies when vehicles are overdue for service have not been performed and records maintained as required on the Fleet team's shared L-Drive in any systematic order. Attached is a report which details your unsatisfactory performance history. A copy of this report will be placed on your personnel file. I have reviewed the report and consider that you have been given all reasonable opportunities and assistance to improve your performance and to meet the standards required of the role including formal training, direction and step-by-step process guidance by your manager, Mr Peter Bowker... … Based on the material before me and after consultation with Craig Webster, A/Executive Director Shared Services, it is considered that your performance remains unsatisfactory and that extending formal performance management and counselling is not appropriate in this case. Consideration has also been given to the possibility of transferring you to another position including one at a lower grade, however no suitable vacancy exists. Accordingly, as delegate, I am considering terminating your employment as proposed performance management action. Prior to any final decision, you are being provided and have the opportunity to resign. Before a final decision is made on this issue, I offer you the opportunity to respond in writing." [sic]
From the documents, it appears that Ms Cunneen responded to this letter on 10 September 2018. That response is not in evidence.
By letter dated 28 September 2018 Ms Cunneen was notified that her employment would be terminated at close of business that day. She was given the opportunity to submit her resignation prior to her dismissal taking effect. Ms Cunneen did not resign. Rather it appears that she called her final interview forward and left her employment prior to the end of day on 28 September 2018.

Consideration

The basis on which Ms Cunneen contends that her dismissal was harsh, unreasonable and unjust can be distilled into four broad grounds.
The first ground is that there is no proper basis for the performance concerns alleged against her.
I note that Mr Bowker gives evidence that in her 2016 to 2017 performance development and review Ms Cunneen rated herself as "did not meet expectations" in all areas. This was the subject of some debate during Ms Cunneen's cross-examination today but overall I am satisfied that that was her own personal rating of her own performance. On that basis, it is difficult to see how she challenges the respondent's contention that her performance was not at that stage meeting expectations.
I also observe that the evidence on which Ms Cunneen relies to demonstrate that her performance was not unsatisfactory is not always convincing. For example, she attaches to her statement two emails she received from Mr Bowker dated 5 December 2017 and 9 January 2018. She relies on these as "demonstrating that [she] was performing all the tasks relating to the scheduled maintenance and logbook". On their terms, which it is not necessary to traverse, neither of these emails does so.
Both Mr Stevens and Mr Bowker provided substantial evidence as to the performance concerns alleged against Ms Cunneen.
On the evidence, I am satisfied that the performance concerns alleged against Ms Cunneen were legitimate. I also accept the respondent's contentions that the operational, safety and financial implications of non-performance of the tasks assigned to Ms Cunneen could have been significant.
The second ground to be discerned from Ms Cunneen's submissions is that the respondent failed to comply with the Policy and the Procedure. This failure is said to arise in three ways.
Firstly, Ms Cunneen asserts that it is a requirement of the policy and procedure that the respondent attempt early intervention and informal counselling. She claims to have had no prior informal performance or work-related conversations (related to performance) with either Mr Bowker or Mr Stevens.
Contrary to this submission, in his statement Mr Bowker deposes as follows: "33. Between March 2017 and until around June 2017, as part of annual performance development review discussions and process, issues with Ms Cunneen's performance were raised in writing and discussed with her. … 36. Since January 2017 and particularly following her performance development review in 2017, I have raised or attempted to raise performance issues with Ms Cunneen in the Burwood office when issues were identified and also tried to support her to help her reach the standards expected of a Shared Services Officer on at least 3 occasions. On each such occasion, Ms Cunneen would not accept the feedback provided and would challenge the feedback that I would try to provide. … 44. Prior to the commencement of the Performance Improvement Plan in November 2017, I recall a number of conversations I had with Ms Cunneen in which I raised my concern about her being unable to complete her assigned work, in words to the following effect: I said: 'Caroline, in relation to your tasks, you seem to be behind. Where are you up to?' Ms Cunneen: 'I haven't started them Peter.' I said: 'When do you think you will start them Caroline?' Ms Cunneen: 'I don't know Peter.' I said: 'It's important you start them Caroline, there are deadlines to be met. It is a becoming a performance issue.' Ms Cunneen did not offer an explanation as to reason why she had not commenced the tasks assigned to her."
This evidence was not challenged by Ms Cunneen.
Further, in his letter to Ms Cunneen of 22 November 2017 Mr Stevens made reference to "your performance which I have discussed with you informally on previous occasions". Once again this was not challenged by Ms Cunneen in her evidence.
Secondly, Ms Cunneen claims to have been denied procedural fairness in not being allowed to prepare feedback during work hours. She alleges that her personal circumstances made it difficult to prepare responses outside work hours.
While I recognise the personal difficulties that confronted Ms Cunneen, especially in late 2017 and early 2018, the fact is that the PIP was directed towards her failure to perform particular tasks in a timely manner, or at all. It would have been counter-productive for work time to be devoted to responding to correspondence (to the extent that the correspondence called for a response) as opposed to addressing the perceived deficiencies in her performance.
I note further that there is no evidence that this issue was raised at the relevant time or that Ms Cunneen requested extensions of time to prepare feedback based on her personal circumstances.
Thirdly, Ms Cunneen alleges a lack of confidentiality. She relies on an email meeting request sent to her by Mr Bowker through an email account to which all members of the TSS Team had access.
Mr Bowker addresses that in his statement as follows: "72. In response to paragraph 14 of Ms Cunneen's Statement, I acknowledge an invite was sent from the TSS Shared inbox titled 'Weekly progress meeting'. No further details were provided on the invite and as the title suggests, it could be progress on a number of subjects. An apology was offered to Ms Cunneen for sending through the TSS lnbox by mistake. Ms Cunneen['s] statement that all Transport for NSW employees could view the meeting invite is incorrect as it is only those who have access to the TSS Fleet Services Shared inbox who can view. This is restricted to the TSS Fleet Services team only."
While the incident is regrettable, it is by no means an egregious error. It certainly does not evidence any repeated, much less systemic, breaches of confidentiality.
Overall I do not accept that there has been any relevant breach of the Policy or Procedure.
The third broad ground to be discerned from Ms Cunneen's submissions as demonstrating the unfairness of her dismissal is that, even if her performance was unsatisfactory, she was not given a fair or reasonable opportunity to improve to the requisite standard. This ground incorporates three contentions.
Firstly, Ms Cunneen contends that the change to her duties in October and November 2017 placed her in a new position or at least required her to perform "unfamiliar tasks". She claims it is unfair for a PIP to have been instituted within only a short period of having commenced that work.
In the first place it has to be recognised that the concerns that were being raised by the respondent in the PIP process predated, to some extent, the changes that were introduced with effect from 3 November 2017. Further, both Mr Stevens and Mr Bowker deny that Ms Cunneen was being called to work in a new position or to perform unfamiliar tasks.
In his statement Mr Stevens says as follows: "12. I understand from reading her statement in these proceedings that Ms Cunneen considers the alterations to her tasks to be a change to her role. I agree that the scope of some of the tasks assigned to her changed, for example, instead of being responsible for the 110 salary sacrifice vehicle being a discrete group of vehicles, she would be responsible for all vehicles across the cluster fleet for those tasks that remained with her. However, she was still performing the same tasks, but for a broader range of vehicles across the Transport Cluster. Ms Cunneen had some tasks taken from her and reassigned to other members of the team to assist her manage her workload. Even though Ms Cunneen was looking after a broader group of vehicles, her workload remained the same or similar as vehicle custodians are responsible for attending to servicing, recall notices and inputting log sheets. … … 26. On 3 November 2017, tasks and responsibilities for members of the Fleet Services team were realigned following the introduction of a new shared services officer to the team. The changes followed discussion with team members and took effect on 3 November 2017. There were no substantive changes to any roles, in terms of Grade or Position Descriptions. 27. As outlined above, prior to this realignment, Ms Cunneen was responsible for tasks relating to a discrete group of vehicles - the salary sacrificed vehicles. Following 3 November 2017, the tasks assigned to Ms Cunneen were the same tasks as those previously performed except those tasks now related to the whole fleet. 28. On 7 November 2017, I am aware that Mr Bowker provided Ms Cunneen with instruction on how she was to complete the tasks relating to logbook data completion and vehicles overdue for servicing. 29. Despite the tasks being the same as she had been performing up to that time, Ms Cunneen sought instruction on how to do them. Mr Bowker provided such instruction so as to provide all possible support to Ms Cunneen to perform her role."
In his statement, Mr Bowker deposes: "60. At the start of November 2017 and to partly accommodate Ms Cunneen's request for job rotation and from my observations over the past 9 months, I amended the tasks for each person within the team as the original tasks that were assigned before I started in the role did not cover all the tasks TSS Fleet were responsible for. … … 62. In relation to the above tasks, these tasks were already being performed by Ms Cunneen but for salary sacrifice vehicles. Ms Cunneen was already responsible for all recall notices and I redistributed the task involving RMS Infringements which was combined for efficient and handled by one single Shared Services Officer. Reconciliations for salary sacrifice vehicles were also redistributed to another Shared Services Officer."
In cross-examination Ms Cunneen largely accepted that the tasks required of her remained the same. It seemed more to be a question of not being as familiar with the custodians of the vehicles. That is, the custodians may have been unfamiliar but the tasks should not have been.
I am not satisfied that the change of duties in October and November 2017 was of such significance as to have amounted to a new role or a fundamentally altered position.
Secondly, Ms Cunneen claims not to have been provided with sufficient support to meet the standards expected of her. This includes inadequate support from Mr Bowker, lack of training and not having email access to the TSS Fleet Services account.
In light of the findings I have made regarding any change to her duties in late October and early November 2017, it has to be questioned to what extent Ms Cunneen genuinely needed training (other than perhaps in Excel, which was provided, if not to the level Ms Cunneen wanted).
The emails between Ms Cunneen and Mr Bowker demonstrate that Mr Bowker was willing to and did make clear his expectations and expressed himself available to assist Ms Cunneen at any time if she had further concerns. Mr Bowker deposes in his statement that he provided ongoing assistance to Ms Cunneen. He did in fact provide the guidance and instructions that Ms Cunneen sought.
One of Ms Cunneen's objections is that she did not have access to the TSS Team email account until 4 July 2018. Obviously, any failure to send emails from that account prior to that date is not something for which she can be held fully accountable, however there is one matter arising of concern. That is, that she did not raise this on 27 November 2017, or it seems until 4 July 2018.
This gives rise to a concern that I consider runs through the entire proceedings. The impression from the evidence is that throughout the PIP process Ms Cunneen did not always act in her own best interests. There is more than a suggestion that she took umbrage at being put through the PIP process. She seems to have become distracted by the process rather than focusing on what was being asked of her.
By way of example, there is attached to Ms Cunneen's statement an email she sent to Mr Stevens on 28 November 2017, the day after the first counselling session. Without going into the detail, the tone of that email is intemperate and ill-advised. To my mind it serves to lend support to the second area of unsatisfactory performance, namely relationship with co-workers, referred to in the letter of 22 November 2017. However, the respondent did not seek to rely on that email either through the PIP process or before me. The restraint shown by the respondent, and Mr Stevens in particular, in relation to that email argues against an employer hell-bent on removing an employee from its workforce.
Ms Cunneen's disregard for process also came out in some respects during cross-examination, when asked about her personal performance assessment for the 2016/2017 year. She was critical of, if not cynical about, the performance appraisal process. The dismissive approach to the respondent's performance management process echoes her approach to the PIP process.
While I am on the point of the access to the TSS Team email account, I do note that while the lack of access prior to 4 July 2018 operates to excuse any non-compliance prior to that date (subject to my caveat about Ms Cunneen not having raised that with her employer) it does not explain why, after 4 July 2018, Ms Cunneen continued, contrary to instructions, to send emails from her personal account.
On these grounds I do not accept Ms Cunneen's submissions that she was not provided with adequate support during the PIP process.
Thirdly, Ms Cunneen contends that due to her absences from work the warning issued on 8 June 2018 was based on only a very few days at work. Mr Stevens confirmed that the warning was based on Ms Cunneen's performance from 27 November 2017 to 21 December 2017 and from 8 to 12 January 2018, noting that he accepted that Ms Cunneen was away from work on 9, 10 and 11 January.
There is no evidence before me as to the precise days on which Ms Cunneen worked during those periods. Ms Cunneen claimed it was six days although that evidence varied. Mr Stevens in cross-examination said that he thought it was more than that. Whatever the case, I have some concerns regarding the issuing of a warning in the circumstances, however I accept that the tasks Ms Cunneen was being asked to perform could have been assessed on a reasonably short timeframe.
The fourth ground to be discerned from Ms Cunneen's submissions is that regardless of any other considerations, the dismissal was harsh. This submission rests on four key assertions: 1. Ms Cunneen is in a defined benefits superannuation fund. If her dismissal is upheld she will lose her membership of that fund with a loss of benefits of $356,000 (assuming retirement at age 60). 2. Her husband pre-deceased her and she has nobody who can assist her to pay her mortgage. 3. Her father was in treatment for metastatic prostate cancer from November 2017 until his death in early 2018, after which she had to care for her mother and manage the process of obtaining probate over her father's estate. This not only had a personal impact but was relevant to an assessment of her performance at the relevant times. 4. She has been employed with the NSW Public Service for 31 years.
In his statement, Mr Stevens deposed as follows: "88. During the period between November 2017 and September 2018, when Ms Cunneen's employment was brought to an end, Ms Cunneen did not provide any medical certificates or medical information in relation to herself or her state of health. … 90. Ms Cunneen did not make any statement to me or in my presence during the Performance Improvement Program that she was incapable of performing her duties or participating in the PIP due to personal reasons. Ms Cunneen actively and vigorously participated in the performance review meetings and challenged each step of the process. Ms Cunneen also made a number of serious allegations against myself and Mr Bowker, including suggestions that I had engaged in improper conduct in relation to the performance management process. I deny any suggestion by Ms Cunneen that I have acted unlawfully or improperly."
Mr Bowker deposed as follows: 79. I believe that TSS Fleet Services has tried its best to accommodate Ms Cunneen through these challenging times in her personal life and I believe all managers have been very lenient and sympathetic to Ms Cunneen's situation. I was aware of Ms Cunneen's father's illness. However, Ms Cunneen did not provide any medical certificate, other than as outlined above, indicating she was not fit for work or unable to perform her role during the period whilst she was being performance managed. Ms Cunneen also did not indicate that she was unable to do the tasks because of her personal circumstances. In fact, I felt that Ms Cunneen understood the process and continued to challenge the process each step of the way. I am of the view that managers including Mr Stevens have provided Ms Cunneen with additional support and assistance and have been lenient in also permitting her time off work to deal with her personal matters. The failure to follow any type of direction and refusal to follow processes hurts the team and in turn breaks down the team work that the TSS Fleet Services team requires to function. The TSS Fleet Services team is a small team and the wellbeing of the rest of the team must be considered."
The approach to the assessment of whether or not a dismissal is harsh is set out in the following passages from the Full Bench decision in Department of Health v Perihan Kaplan: "[26] One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. [27] The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. [28] This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. [29] We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: 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."
In Wattie McColl JA made the following observations: "[156] I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was "harsh, unreasonable or unjust" as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be "harsh", (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to "weigh in the balance any 'mitigating circumstances' … including length of prior employment, the employment record and favourable character considerations." (Footnotes omitted)

Conclusions

I have some sympathy for Ms Cunneen. She has been through a difficult year. She has had a family bereavement and has had to deal with the ongoing challenges that followed. She has lost a position in the NSW Public Service she has held for 31 years. However, my decision cannot be based only on sympathy but on the evidence and on the inferences properly to be drawn from that evidence.
I have found that the respondent had legitimate concerns with Ms Cunneen's performance. These were addressed in an appropriate way through a performance improvement process in accordance with the policy and procedures that apply at TfNSW. Ms Cunneen was unable to improve her performance to the standards required of her.
Having considered the evidence and seen the parties, I repeat the view expressed above that Ms Cunneen did not always act in her own best interests. She seems to have taken issue with the process from the outset and focused on that, rather than seeking to engage with her managers to address the concerns they had raised. Her apparent unwillingness to accept the criticism levelled at her and her challenge to the process now undermines her claims that the outcome was harsh, unreasonable or unjust.
Ms Cunneen has not discharged the onus she bears. I find that the dismissal is not harsh, unjust or unreasonable.

Orders

I make the following orders: 1. Direct that the name of the respondent to the proceedings be amended to Secretary of the Department of Transport. 2. The application is dismissed. Damian Sloan Commissioner

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 January 2019

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