Henryk Dworzanski -v- Anne Nolan Director General Department of Industry and Resources [2009] WAIRComm 381 (16 June 2009)

APPEAL AGAINST THE DECISION MADE ON 31 DECEMBER 2008 RELATING TO TERMINATION OF EMPLOYMENT

ANNE NOLAN DIRECTOR GENERAL DEPARTMENT OF INDUSTRY AND RESOURCES

HEARD THURSDAY, 2 APRIL 2009, FRIDAY, 3 APRIL 2009

CITATION NO. 2009 WAIRC 00381

CatchWords Appeal against the decision to terminate employment - Substandard performance - Termination of employment - Performance issues - Performance assessment process - Qualifications of assessment panel - Requirements of the position - Public Sector Management Act 1994 s 79(3)(c) - Industrial Relations Act 1979

1. These are the unanimous Reasons of the Public Service Appeal Board (the Board).
2. The appellant, Henryk Dworzanski, appeals to the Board against the respondent's decision to dismiss him on account of substandard performance.

1. Mr Dworzanski originally applied for the position of Petroleum Engineer level 7 within what was then the Department of Industry and Resources but was unsuccessful in that application. However, soon after a position as a Production Engineer level 7 became available and Mr Dworzanski was offered that position in June 2002, he accepted that offer and commenced work on the 22 July 2002 (Exhibits R 21 and R 22). This position was within the Resources Branch of the Petroleum Division of the Department of Industry and Resources (the Department).
2. The role of the Production Engineer level 7 to which Mr Dworzanski was appointed is described in the job description form as having the following key responsibilities:

"● Reports on petroleum production operations and production tests, to ensure they are performed according to legislation, approved standards and good oil field practice.

• Analyses the results of data from production wells, and evaluates reservoir production characteristics.
• Prepares production forecasts.
• Prepares production of decline curve analysis for royalty income prediction."

1. The Context Statement in the Statement of Duties says:

"The Petroleum Division (of the Department of Mineral and Petroleum Resources) develops policy, information systems, a legislative framework and administrative processes for the Western Australian offshore and onshore petroleum industries in order to enhance and promote the petroleum prospectivity of WA, facilitate access to land, meet community standards in the management of risks to people and the environment, and ensure the community receives appropriate returns for the extraction of its petroleum resources."

1. The Summary of Duties sets out in general terms and in descending order of performance a list of reporting, monitoring, inspecting, analysing, reviewing plans and providing advice and recommendations duties. The essential criteria for the position include "(a) tertiary qualification, preferably in engineering or science"; "(e)xtensive experience in oil and gas production operations" and, importantly, "(h)ighly developed interpersonal skills" and "(h)ighly developed written skills including the ability to produce high quality, detailed technical reports".
2. A Performance Assessment for permanency was undertaken by Mr Dworzanski's manager Rod Dedman in January 2003. Mr Dedman's comment in the performance assessment form was "Henryk is meeting most of the tasks assigned to him but still requires considerable supervision and direction" (Exhibit R 23), and he was recommended for permanency.
3. On the 25 June 2003 a Performance Assessment was undertaken for the purpose of determining whether Mr Dworzanski should receive a salary increment. This was undertaken by his manager, Reza Malekzadeh (also referred to as Reza Malek). He did not recommend an increment. His Comment on Rating was that:

"Henryk has not been able to perform most of the requirements of his duties without close supervision. He was assigned a Barrow Island field reserves review and Perseus reservoir review and he did not meet the deadline and the results were not satisfactory."

1. A Performance Assessment for Increment Advancement was undertaken on 22 July 2004 also by Mr Malek and he recommended an increment although in two out of four standards he marked Mr Dworzanski as requiring improvement. Mr Malek's "(c)omments on recommendation and action to be taken" were:

"Henryk requires improvement to work effectively as a team member. On a number of occasions when he was supposed to complete his tasks on time he failed to do so such as the BI reserves project and Perseus review. However his performance is improving slowly + he has been involved in metering audits."

1. The salary increment was recommended and implemented (Exhibit R 25).
2. On 6 June 2006, Reza Malek sent a memorandum to Bill Tinapple the Director of the Division (Exhibit R 26). The subject of the memorandum was Mr Dworzanski's performance. In this memorandum Mr Malek referred to previous assessments of Mr Dworzanski's competency and the requirement to work with close supervision. He noted that he had tried to tailor the job to other skills claimed by Mr Dworzanski in his curriculum vitae. He said that he had initially refused to agree with Mr Dworzanski's pay increments since Mr Dworzanski's performance was not satisfactory. However he said that since "HR insisted for a closure later on I signed this paper reluctantly". His memorandum continues with comments that Mr Dworzanski is not able to perform his duties in a satisfactory manner and finishes in the following terms:

"Overall, he consistently failed to perform his assigned tasks to the requirements of his position or to perform them correctly without close supervision. This proves that he is not qualified for such position. L7 officers must be able to perform without close day to day supervision. The tasks assigned to him during his course of work with the Resources Branch were all in line with his claims of meeting such criteria during his interview and his application for this position. However, his performance clearly indicates that he has inadequate knowledge, exposure and experience in these areas of claimed expertise and in spite of several requests by Branch Management to further his knowledge in his relevant field he shows little or no interest to do so.

In conclusion since he has not been able to do his last task as production monitoring without large mistakes, he left me with no other option but to delegate this responsibility to another technical officer and I intend to assign this task to another person as soon as possible. Therefore he will not have any assigned tasks with the Branch anymore and it is recommended to abolish his position and make Henryk redundant."

1. Attached to this memorandum were various documents including comments regarding the performance assessments and Mr Dworzanski's responses, examples of Mr Dworzanski's work and copies of other communications within the branch.
2. On 6 September 2006 Mr Malek again sent a memorandum to Mr Tinapple regarding Mr Dworzanski's performance management (Exhibit R27). On this occasion he noted that Mr Dworzanski had had an opportunity to respond to the performance issues raised with him, that there had "been a great deal of leniency afforded to Mr Dworzanski in terms of the tasks required and the time allowed for him to complete them to the point it has significantly impacted the achievement of the Branch objectives". It notes that in line with policy the position benefited from the payment of an Attraction Benefit of $24,300 per annum. This Attraction Benefit is said to relate to the position not the employee. Mr Malek believed that given the time taken and the efforts during the management of the performance process, he did not believe that he could facilitate an improvement in Mr Dworzanski's performance. He requested that "a formal performance management action process is undertaken to determine if Mr Dworzanski is capable of undertaking the full duties of his position to the required standards".
3. Mr Tinapple gave evidence that given the length of time Mr Dworzanski's performance had remained an issue, the requirement for ongoing supervision, and the efforts made to overcome the issue, he endorsed the recommendation and forwarded it to the Director General of the Department on 6 September 2006. Mr Tinapple supported the recommendation for a formal assessment of Mr Dworzanski's performance (Transcript page 31 and Exhibit R 25). The Director General agreed and consequently an assessment was to be undertaken.
4. Mr Tinapple then met with Mr Dworzanski and Ms Carol Fuller, the Manger of Human Resources Services on 26 October 2006. Mr Tinapple proposed to Mr Dworzanski that there were four projects that were suitable for the purpose of assessing Mr Dworzanski's performance and his ability to meet the requirements of the level 7 position and Mr Dworzanski was invited to select one of the projects to undertake as part of his assessment. Mr Dworzanski chose the Barrow Island Enhanced Oil Recovery (EOR) Evaluation Project. The evidence indicates that during the meeting of 26 October 2006, a discussion was held as to how the assessment was to be undertaken and Mr Tinapple "would undertake the role of assessing the engineering component of the project" (Exhibit R 3) and an overall assessment would be made by Mr Tinapple with input and consultation with the Human Resources personnel. Ms Fuller made notes of the meeting of 26 October 2006 including that after Mr Tinapple left:

"I had further discussions with Henryk to ensure he was fully aware of the possible outcomes of this process. I advised that where there were gaps between expected and demonstrated performance standards there were several options the Department could consider. These could range from training and development through to demotion or dismissal in the worst cases, however he would have an opportunity to provide feedback and comments if there was an adverse report prior to any further action being taken. I emphasised the importance of the Performance Assessment as an opportunity for him to demonstrate his competencies, and confirmed he had the ability to ask for assistance and support during the project" (sic).

1. Ms Fuller recorded that Mr Dworzanski said that "he was comfortable with Bill (Tinapple) as the professional assessor, stating that he had considerable respect for him" (Exhibit R 3). Ms Fuller gave evidence that Mr Dworzanski had raised concerns about Mr Malek, and, as part of this process Mr Dworzanski was removed from Mr Malek's management and reported directly to Mr Tinapple, to ensure that if that situation had been a contributing factor to Mr Dworzanski's previous performance issues, it would not be so in this case. Mr Malek was not involved in the process.
2. Mr Tinapple confirmed his requirements regarding the project chosen by Mr Dworzanski in an email of 1 November 2006 (Exhibit R 29). Mr Tinapple described this project and its significance in his evidence at pages 33-34 of the transcript. The assessment process for this project was over a period of three months and during this time the assessment panel met with Mr Dworzanski six times. Mr Dworzanski's progress was monitored and discussed on each occasion.
3. Mr Dworzanski gave evidence that he has a lot of respect for Mr Tinapple, that "(h)e's (sic) nice man" (Transcript page 62) and that Mr Tinapple "was trying to be fair" and was very honest (Transcript page 63) but he says that "Mr Tinapple is very busy, and he didn't have probably time to assess my conclusion and the recommendations" (Transcript page 62). Mr Tinapple was on holidays for 20 days during the assessment process and was not always available. Mr Dworzanski says that he was completely alone in doing the project and did not have a chance to have discussions with anybody else.
4. Mr Dworzanski says that the process would have been better if he could have had some input from a person from Shell Texaco, but he says this was rejected. Mr Dworzanski says that the involvement of Ms Liu Jian Hua from within the organisation was not appropriate or helpful because her area of expertise was very narrow, and she was of no assistance to him.
5. Mr Dworzanski acknowledged that Mr Tinapple is very knowledgeable in the field of petroleum production in what he referred to as "the high level" but that at the level of technical detail, Mr Tinapple has people "to give him this specific engineering information and expertise", however he conceded that Mr Tinapple "understands it" (Transcript page 65).
6. Mr Tinapple has given evidence that the respondent would have preferred to have some external technical expertise involved in the panel. However, given the nature of the work, the areas from which that technical expertise might have been drawn and the potential for embarrassment at the standard of work performed, that it was not appropriate to obtain external expertise for the panel. In any event, it appears that notwithstanding his protests about the complement of the panel and that Mr Tinapple was the only person on the panel technically competent to assess his performance, Mr Dworzanski's evidence demonstrates that he has high regard for Mr Tinapple's expertise and approach.

"● HD (Henryk Dworzanski) completed assigned project sections within the specified and agreed timelines.

• Communication skills were appropriate. HD listened to feedback and sometimes adopted suggestions or options for improvement with the project.
• HD remained enthusiastic throughout the project, particularly about being able to contribute technically to the resolution of emerging issues in Enhanced Oil Recovery."

"● A large proportion of the EOR report covered background production history and information, rather than in-depth analysis of EOR options. Only 7 pages (of 45) were directly focused on EOR.

• Many conclusions or assumptions were stated, without direct reference to sources or evidence.
• A high degree of emphasis was placed on, and included information from published articles (eg, work undertaken by Chevron, and a 1999 APPEA Journal article) without reference or apparent independent analysis, acknowledgement, or broader comparative research.
• Graphs or Diagrams were not always relevant or supported by explanatory comments, or summary notes.
• From a professional or technical perspective:-
  • It appears that not all EOR options were considered and none were fully assessed, (sic)
  • There was no indication of the depth of EOR research (eg. world-wide search for options; literature reviews; etc) (sic)
  • EOR was the primary focus of the project, yet not the major focus or in-depth part of the resultant report.
  • There appeared to be inconsistencies between comments or statistics in different parts of the report.
  • Some issues raised (eg environmental impact) for EOR methods, were given only brief comment and were not discussed or evaluated for possible impact on the EOR method - for either the company or the State.
  • Conclusions and Recommendations did not include any discussion about possible cost-benefit analysis or the pros and cons associated with each EOR option, for balanced consideration by the Director as to the State's future strategies for EOR.
  • The quality of the project report was considered sub-standard in terms of layout, grammar & spelling, chapter or section numbering, and general pagination or lack of page numbering.
  • There were no references listed, even though - clearly - many of the figures came from other sources. As presented, the lack of referencing in this report would be unacceptable even at a basic university assignment level."

1. It also contained a "Summary Comments" and conclusions as follows:

"● Although the written quality of the EOR project report was not of a high standard, there was reasonable evidence, throughout this project, that HD demonstrated basic technical knowledge and experience as a Production Engineer, however, not deemed suitable for his substantive Level.

• From a professional perspective, the lack of emphasis on research and analysis of potential EOR methods, demonstrated limitations in HD's capabilities or skill base.
• In the above context, generic competencies for a Level 7 would lead to an expectation that HD would be able to recognise limitations; correctly identify all aspects of the project; identify resources necessary to complete the project; apply an understanding of government needs in solutions; and negotiate to achieve agreed outcomes.
• The standard of work, as demonstrated by this project, was assessed as being below the expected standard required for a L7 Petroleum Engineer with DoIR. The final report, as presented, would not be released or utilised in its current form, due to a wide range of inaccuracies and incomplete analysis.

1. After independent investigation of Mr Dworzanski's performance standard, the panel considers his performance to be sub-standard in relation to the requirements of the substantive position he was employed to undertake, at Level 7.
2. Given the above findings, feedback and a copy of this report is provided to Mr Dworzanski, who will have the opportunity to comment on the findings.
3. This report is also to be provided to the General Manager Human Resources for consideration of appropriate action to be taken.
4. Mr Dworzanski will also be informed of available employee support options."
5. On 4 April 2007 Mr Dworzanski submitted a response in which he:
   1. Said that there were serious behaviour problems within the branch (particularly identifying the Branch Manager and Senior Petroleum Technologist) including bullying, victimisation, threats and intimidation used against him. He claimed this was directed at him, and that he was "almost completely isolated from any meetings, presentations or conferences other than branch meetings". This behaviour towards him is said by him to be directly related to his Personal Planning and Performance Development Process. I take this to mean that his performance has been adversely affected by this behaviour.
   2. Commented on the previous assessments and comments regarding his work.
   3. Commented on the performance assessment process involving the Barrow Island EOR project. He says that the same project was then being undertaken by Chevron Texaco, referring to the resources available to it, and that finalisation of that project "is expected in a few years time".
   4. He provided some comments critical of the "performance report prepared by HR Consultant" in the following terms:

¾ Essential part of my project "Conclusions and Recommendations" was not assessed.

¾ Title of the project was repeatedly typed wrong (I have mentioned this during our meeting) (sic)

¾ None of specific technical issues were commented in details and only broad negative statement expressed.

¾ Final section of my report is different than stated in the HR report and should be: "Conclusions and Recommendation".

¾ Assessment of each part of the project is leading to confusion. Positive (verbal) comments I have received during the meeting are not mentioned in the report.

¾ During the assessment process satisfactory outcomes were notified many times in HR report. Final statements in the report are completely different and contradictory (sic)

¾ Comments (dot points) used in the columns of the report are not clear and very confusing. Some comments are repeated unnecessarily."

He expressed his "full" satisfaction with the outcome of his study;

1. Responded to comments made by the Senior Production Geologist on 29 July 2005 and commented on a memorandum prepared by the Senior Petroleum Technologist of 15 July 2003.
2. Claimed that his manager had asked non engineering personnel to write negative reports about him, and sought the removal from his personnel file of such negative reports.
3. In her evidence, Ms Fuller said that Mr Dworzanski had raised many of these issues before. However, there followed discussion and correspondence between Ms Fuller, Mr Dworzanski and Mr Mick Banaszczyk, the Executive Director, Corporate Support regarding Mr Dworzanski's complaints (Exhibits R 4, 5 and 6). Ms Fuller's memorandum to Mr Tinapple of 26 July 2007 (which was copied to Mr Dworzanski) sets out the outcome of that process in the following terms:

I have recently met with Henryk Dworzanski regarding the issues he has raised, and discussed with him whether he intended to pursue options for resolution under the DoIR Grievance Resolution policy and process.

Henryk has now signed off on his decision not to seek resolution through a formal grievance process for these issues. However he has requested that all of the documentation he provided is kept on file. He has also indicated he may lodge a formal complaint if there are future incident with his manager (Reza Malekzadel), or others, where he considers their behaviour is not in compliance with relevant DoIR policies in particular the Code of Conduct.

It was agreed that the documents Henryk discovered on his Personal File should be removed as requested. These have now been placed on a confidential file and will be kept in a secure place by the General Manager Human Resources.

As discussed with you, it is advisable to ensure Reza and other Petroleum and Royalties staff are made aware of their responsibilities and expected behaviours under various departmental policies. It would be appropriate to include discussion and agreement on staff management practices through the Performance and Accountability Framework process. I understand you have already commenced this process.

You are very welcome to contact me for any assistance, or clarification on the above information."

1. During the remainder of his time with the respondent Mr Dworzanski did not lodge a formal grievance.
2. Mr Dworzanski's response to the Performance Report resulted in the respondent engaging an independent person, Ms Kath White, to assess the situation to that point. In September 2007, Ms White produced a lengthy and detailed report. She had interviewed Mr Dworzanski; Mr Tinapple; Mr Malek; Mr Steve Walsh, the Senior Petroleum Technologist, Resources Branch; Mr Rod Dedman, former Senior Production Geologist; Ms Jian Hua Liu; and Mr Bert Linden, Human Resource Consultant. Ms White's Executive Summary states:

1. Mr Henryk Dworzanski does not have the skills to operate effectively in the Level 7 Production Engineer position. His performance in his current position is therefore substandard.

This is clear from the many reports and the assessment processes. Mr Dworzanski was assessed against the position JDF and the generic level 7 competencies and was not able to achieve the required standards.

1. Mr Henryk Dworzanski has very little understanding of his own ability or skill level

Throughout the documentation and at interview, Mr. Dworzanski has made many claims about his skills, and about his reports being valued and used by others. These claims are not substantiated. Any achievements that Mr Dworzanski claims seem to be either trivial or non-existent.

At interview Mr Dworzanski expressed a view that he should be in a more senior position with staff to supervise and to allow him to share his knowledge. This view is clearly unrealistic. Mr Dworzanski seems unable to make a connection between demonstrated performance and skill level. His claim to possess skills comes almost entirely from his qualifications dated over 30 years ago.

1. The Department has given Mr Henryk Dworzanski fair opportunity to address his performance issues

The Department has attempted to seek opportunities for Mr Dworzanski to address his performance issues, including investigating placements in other sections of the department, closer supervision and working with an outside consultant for skills transfer.

When issues have been raised by Mr Dworzanski as being detrimental to his work performance, they have been addressed. His final assessment by the Panel was totally separate from his branch where he claimed the manager's behaviour negatively affected his performance.

1. Mr Henryk Dworzanski's many comments and statements cannot, in the main, be substantiated

Mr Dworzanski was given the opportunity to provide both written comment and verbal comment at interview. His claims are generally not substantiated and in many cases appear to be inappropriate. He has taken the approach of criticizing most of the people and the aspects of his assessment in an apparent attempt to obfuscate the real issue of his inability to perform at the required level. Some of his comments border on the nonsensical. Many other comments are either inappropriate, clearly untrue or based on hearsay, extremely derogatory and in one case, possibly racist.

1. The Department has complied with the PSS Performance Management Standard

While the minimum standards have been met, the process for performance review did have an issue in that documentation was placed on Mr Dworzanski's personal file without his knowledge. This was however addressed when it came to light and other processes were implemented to ensure there was no disadvantage as a result."

1. The Director General then considered a number of options in respect of Mr Dworzanski.
2. Mr Dworzanski was receiving the attraction/retention benefit which was paid for particular positions of high importance in the organisation which were critical and which were difficult to fill. The allowance was not personal to the particular efforts of the individual but was to ensure that the positions remained filled. The attraction and retention benefit was removed following consideration of Mr Dworzanski's comments in that regard.
3. In an endeavour to find alternative employment options for Mr Dworzanski the respondent arranged for him to be assessed by Chandler McLeod for the purpose of examining Mr Dworzanski's "cognitive abilities, potential, interests, behaviour style dimensions and management style" (Exhibit R 10). The Review and Recommendation sections of the report dated 8 February 2008 includes the following comments:

"Mr Dworzanski's results across the measures of ability administered are not particularly strong and raise reservations regarding his ability to meet the problem solving language-based and technical demands of a professional engineering role."

"Mr Dworzanski's level of literacy was assessed and while his result is not strong, he has emphasised accuracy, indicating that he is capable of understanding basic written information, although he will require additional time."

"With respect to higher-level verbal reasoning skills, Mr Dworzanski is likely to struggle to convey information in an articulate and fluent manner, particularly to individuals who do not possess the same technical qualifications as he will tend to rely on familiar phrasing and terminology."

"Mr Dworzanski appeared to have difficulty on the assessment of numerical reasoning, although given that there is a language component to this assessment, it cannot be determined whether his slow reading speed impacted his ability to achieve success."

"When assessing candidates for professional engineering roles, a Verbal Critical Thinking assessment is typically administered to verify the individual's capacity to evaluate complex or intricate written material, however given Mr Dworzanski's poor performance on the assessments of verbal reasoning and literacy, he was not asked to complete this measure."

"Based on Mr Dworzanski's temperament findings, concerns exist regarding his ability to achieve success in a professional level role where he would be required to manage pressure, be self-managing in his work approach and capable of setting his own direction, and act decisively when faced with urgent requests or issues."

"With respect to his ability results, they consistently fall well below the standard expected of individuals having attained engineering qualifications and highlight significant concerns regarding his ability to manage the problem solving, communication and technical demands of the role."

1. In around February 2006, the respondent sought to place Mr Dworzanski in another work area. This was in the Geological Survey Division in Petroleum Geology, under the management of Mr Jeff Haworth, where he participated in the Canning Basin Tight Gas Project. This work was not performed to a satisfactory standard. Ms Fuller gave evidence that Mr Haworth indicated to her that there were significant issues and problems with Mr Dworzanski's performance, and that it was substandard (See Transcript pages 16-17 and Exhibit R 11). On 17 November 2008 there was a meeting between Mr Dworzanski, Mr Tinapple, Ms Carla Frayne as a support person for Mr Dworzanski, Ms Fuller and, for some of the meeting, Mr Haworth. Ms Fuller made a file note of this meeting (Exhibit R 13). Mr Haworth reported that Mr Dworzanski had been in the Geological Survey Division for approximately eight months, had produced an initial report, to which Mr Haworth had provided feedback and suggested amendments, the second draft of the report is said to have needed significant work done to complete it. Mr Haworth reported that the structure of the report was poor, the content lacked substance and in comparison with another employee at a lower level, Mr Dworzanski's work was slow. "In (Mr Haworth's) opinion the work did not meet the standard expected of a L7 officer" (Exhibit R 13). Ms Fuller's file note also recorded "HD (Henryk Dworzanski) provided comments that he considered the work to be good, reports were inconsistent across the industry and that it was quite complex".
2. Ms Fuller informed the meeting that the next stage was to provide the Director General with a range of options to conclude the process. She said that this was likely to include an option of dismissal of the grounds that Mr Dworzanski was unable to fulfil the requirements of his position as a Production Engineer level 7. Mr Dworzanski stated that he would like to access some assistance with applying for other positions and possibly apply for leave without pay if he gained a temporary contract position. Ms Fuller offered him assistance in reviewing his curriculum vitae and identifying positions for which he could apply, and Ms Fuller provided Mr Dworzanski with information on the process as it was from there. Ms Fuller says there were no further options in the Department for Mr Dworzanski.
3. In the latter part of Mr Dworzanski's employment, the respondent had concerns that Mr Dworzanski was raising what Ms Fuller describes as "fairly ambiguous information about his health" (Transcript page 16). Accordingly the respondent organised a medical assessment for Mr Dworzanski and he fully cooperated in that process, attending an appointment on 4 August 2008. The report of Dr Joel Silbert, Consultant Occupational Physician, of 17 December 2008, indicated there was no medical reason why he could not undertake his duties at work, however the report once again raised issues which Mr Dworzanski previously raised about his working relationships with his previous manager (Exhibit R 12).

"I confirm our discussion at yesterday's meeting that the performance assessment process has now been concluded and your performance has been assessed as substandard. In accordance with the Public Sector Management Act, 1994Section (sic) 79 (3), I also confirm that a report is now being prepared for the Director General. One of the options for consideration will be the termination of your employment in the Public Sector. A copy of the above section of the Act is provided for your information. You will be given an opportunity to comment on any proposed outcome."

1. Ms Fuller then prepared a report to the Director General, Anne Nolan (Exhibit R 14), in which the performance assessment process undertaken in respect of Mr Dworzanski was outlined and included recommendations for options following the conclusion that the performance was substandard. Those options included withholding an increment, reducing the level of classification or termination of employment. The recommended option was termination of employment and the Director General supported this outcome.
2. By letter dated 28 November 2008 the Director General wrote to Mr Dworzanski, referring to the outcome of the performance assessment, that his performance was found to be substandard, and advising that she had made a provisional decision to terminate his employment under s 79(3)(c) of the Public Sector Management Act 1994. Mr Dworzanski was given the opportunity to provide a written submission within ten working days if he thought this should not occur.
3. On 16 December 2008 Mr Dworzanski provided to the Director General a letter dated 15 December 2008 in the following terms:

"Thank you for giving me the opportunity to respond to your letter dated 28 November 2008 and related to my performance assessment.

I have seriously considered (sic) outcome of my performance assessment and definitely termination of my employment should not occur for the following reasons:

• As an Oil and Gas Production Engineer with Petroleum Engineering qualification (sic) (BS and MS) and over 35 years engineering experience in the Oil and Gas Industry I have significantly contributed to the Department of Industry and Resources.

I have conducted extensive study related to the Barrow Island Enhanced Oil Recovery, Barrow Sub-basin and Canning Basin unconventional gas development for WA market. My study should have significant impact for the creation of further projects, field developments and regulatory approvals process.

Together with (sic) external consultant I have conducted a number of audits related to oil, gas, LPG and LNG custody transfer as per Auditor General Office requirements.

Every month I have also generated a 35 page production report for all WA fields. My production report is frequently used for oil and gas fields' performance review, forecasting, planning and fields development.

• I have attended a number of DoIR coaching workshops related to Performance and Accountability Framework (PAF) and I am totally convinced that my performance assessments were never conducted according to basic DoIR PAF Work and Development Plan. I have raised and described this issue in writing on a numerous occasions.
• Report about assessment processes conducted by Ms Kath White should not be taken seriously. The report focuses strongly on negatives about myself and contains untrue statements. Some individuals that have been interviewed by her intentionally fooled her. This was unknowingly reported in her report and should never have been part of her report. I have raised my serious concerns about this matter. Competency, qualifications and work behaviours of some branch members and my assessors are also serious issues. Some of the projects that I have created have been blocked together with my access to the computer applications. Also expensive DOIR computer application (sic) have been deleted. A lack of understanding of engineering concepts by some of my previous assessors was clearly evident.
• Based on the above report sanctions against me have been imposed and my salary has been reduced by 30%.
• My health has seriously deteriorated during this process and I have made the choice to do everything I can to stop my health from deteriorating further. (OSH medical report attached for your information). I have also informed Ms Carol Fuller in writing that recently I have been diagnosed with cancer and I am recovering from (sic) very painful surgical operation. Ms Fuller asked me for another doctor's certificate to speed up my retirement process due to the ill health. I strongly believe that I am still employable and another stressful situation is not a part of my therapy.
• I am approaching my retirement age and I have received advice to postpone my retirement due to the current word (sic) financial crisis. My strong perception is that my negative assessments are not related to my performance and more sanctions against me should definitely not be imposed.

I am comparing my performance and amount of work with other members of Petroleum Resources Branch employed on the same level, and based on my comparison I am totally convinced that my performance should never be assessed as substandard.

I strongly believe that internal solution (sic) would be the best options especially during current DoIR restructure process. I am ready for confidential discussion for further clarification, suggestion or recommendations."

1. By letter dated 17 December 2008 the Director General thanked Mr Dworzanski for his response to her letter, noting the matters he had raised but saying that those matters had already been dealt with as part of the assessment process. The letter advised that the Director General had decided to terminate his employment under s 79(3)(c) of the Public Sector Management Act 1994 with effect from 31 December 2008.

1. During the hearing, Mr Dworzanski represented himself in this matter. Although as a lay person, he may not have experience or expertise in conducting his own case, he did not make the best of the opportunities which were available to him. His own case consisted largely of him adopting the statement attached to his Notice of Appeal to Public Service Appeal Board in the following terms:

"I strongly believe that I was unfairly dismissed based on harsh performance assessments and sanctions against (sic) should not be imposed for the following reasons:

¾ As a Petroleum Engineer I have significantly contributed to the Department of Industry and Resources (working in the office and in the oil and gas fields) (sic)

¾ My reports have been frequently used as a reference for other projects and approval processes.

¾ Basically negative comments were never expressed about my projects progress reports. However when reports were on preliminary stage, harsh and very controversial comments were always created.

¾ Some of my assessors are not possessing formal engineering qualifications and it was not possible for me to agree with their engineering comments.

¾ Report of Ms Kath White about my performance assessments processes contain untrue statements and should not be taken seriously. Based on this report 30% of my salary was reduced.

¾ My performance assessments were never conducted according to approved DoIR Performance Accountability Framework (sic)

After more than 30 years engineering and 6 years DoIR experience I strongly believe that my performance was absolutely not substandard, specially comparing my performance and amount of work with the other employees on the same level.

Definitely my employment termination should not occur and my pre retirement financial commitments urgently forcing me for (sic) seeking reinstatement to my job."

1. The Chairman endeavoured to encourage Mr Dworzanski to elaborate on his position, however, he gave limited responses, preferring to rely on his statement. He did not at all address the issue raised in his last ground of whether the performance assessments were conducted according to the respondent's own procedure.
2. Mr Dworzanski complains that the respondent has treated him unfairly in its termination of employment on account of substandard performance. We have had the benefit of observing Mr Dworzanski, Ms Fuller and Mr Tinapple as they gave their evidence and of examining the documents which have been submitted into evidence. Mr Dworzanski's evidence did not seriously challenge either Ms Fuller's or Mr Tinapple's evidence, and in particular in the case of Mr Tinapple, Mr Dworzanski described him as being honest and a man he respected. There was nothing in the way in which Mr Tinapple gave his evidence which would indicate to the contrary. We find that each of the witnesses gave their evidence openly and honestly however Mr Tinapple's and Ms Fuller's opinions differed from that of Mr Dworzanski.
3. We conclude that the respondent has undertaken a reasonable process and made several efforts to provide Mr Dworzanski with an opportunity to demonstrate a satisfactory standard of performance following a number of reports from Mr Dworzanski's manager that his performance was substandard and creating problems within the division. It is true that Mr Tinapple is a busy person however we are satisfied that he entered into an assessment process regarding Mr Dworzanski's performance in good faith, gave him the opportunity to select the project he wished to undertake, and set up, in consultation with Ms Fuller, appropriate benchmarks and timeframes. We find that Mr Tinapple has the technical capacity to assess the competency and the standard of work of a person performing the role of Production Engineer at level 7. Consideration was given to bringing outside expertise into the process however, there were good reasons for that not occurring, and we find that it did not make the process inadequate or flawed.
4. It is to be noted that a level 7 position is a responsible and senior position. The requirements of the position are clearly stated in the Job Description Form. The position is one which requires skilled analysis and proper reporting, as well as high level written skills. It is clear from the evidence including an objective assessment of the report prepared by Mr Dworzanski for the Barrow Island EOR Project that his report was inadequate for a person occupying a position at level 7. He was provided with an opportunity to respond to the respondent's views as a consequence of that project and he did so. Where his response again raised matters not relevant to that particular project, but were associated with ongoing complaints by Mr Dworzanski about the conduct of his manager, Mr Malek, and others, those allegations were investigated by Ms White on behalf of the respondent.