Kristine Soutar v The Commissioner of Police

132 The plaintiff also says that, in effect, this personal achievement plan was put in place as a form of rehabilitation in light of the fact that the plaintiff had since 24 June 2003 reduced her hours from twenty-four hours per week to eighteen hours per week, and had presented what are popularly known as "WorkCover certificates". However, it is also to be noted that the plaintiff did not in fact make a claim for hurt on duty benefits until subsequently; that is, on 24 September 2003.

133 I should reiterate a little bit of the evidence of Chief Inspector Sweeney. He said that there were two "templates" available to him: the personal achievement plan and the remedial performance programme. Both of those, on my understanding of the matter, are referred to in Ex. J, the review of the Newcastle Zone Crime Scene Office prepared by Inspector York on 15 July 2003. I have already quoted from her report that all staff had been placed on "performance agreements" and that any member of the staff who was identified as not meeting the objectives set out within the business unit should be placed on a "remedial work performance agreement". Accordingly, what was envisaged in the report is that there be a performance plan and that, if it were not adhered to, there would be a remedial work performance agreement.

134 I accept that what was invoked here was the first step in that process, the personal achievement plan. After all, that is the subheading in the document which refers to the "performance management scheme". It appears to me likely that if the plaintiff was unable to continue to reach the goals set in the personal achievement plan that eventually a remedial performance programme would be set, and that if the plaintiff failed to reach the goals in that programme that the Commissioner could use his various powers under s 173.

135 In reciting the facts which I recited yesterday I tried to detail the way in which the plaintiff had become deskilled. It has been submitted that the plaintiff became deskilled because of her psychiatric problem which appears to have been first diagnosed in 2002. I cannot acceded to that submission. It is more probable in my view that the deskilling of the plaintiff and her realisation of it led to the anxiety in the first place.

136 What prompted the intervention of Chief Inspector Sweeney to place the plaintiff on the "personal achievement plan"? That evidence was given in cross-examination. The Chief Inspector had told me that he had been approached by the plaintiff's immediate superior, Detective Senior Sergeant Parkes. In cross-examination the Chief Inspector said that Inspector Parkes had approached him on more than one occasion, and that the advice he had received from Detective Senior Sergeant Parkes was that the plaintiff's input into the workplace was minimal.

137 The plaintiff may have been fully occupied with her work, that is, largely the administrative work which she had undertaken. However, her position was as a fingerprint expert. The plaintiff was engaged or employed to fulfil that job. She was not doing it. One does not have a Detective Senior Constable qualified to be a fingerprint expert carrying out administrative or clerical work. She had a vital role to perform in the Police Service and, effectively, she was not performing it. There was unsatisfactory work performance on her part. The defendant implemented this scheme to give the plaintiff back her skills as a fingerprint expert, to have the plaintiff do the job which she was supposed to do properly. If the plaintiff did the job that she was supposed to do properly it might reduce the workload on the other fingerprint experts employed in the office at Newcastle.

138 In my view, the facts of this matter are wholly analogous to those in Kushwaha. Accepting, as I did in Kushwaha, that offering support and training to a worker in order to have the worker improve his or her work performance or to do his or her job properly was discipline, then in the current matter there was invoked a disciplinary process. My only concern is that perhaps I approached the matter too broadly in Kushwaha.

139 In the current case I have been referred to the decision of the Federal Court of Australia in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75. In that case Cooper J was concerned with the construction of the Commonwealth Employees Rehabilitation and Compensation Act 1988. The definition of "injury" contained in that Act did not include any disease or injury: "suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment".

140 This decision was not drawn to my attention in Kushwaha. However, the verbiage "reasonable disciplinary action taken against the employee" is very different to the verbiage of the New South Wales statute, a fact acknowledged by Armitage J in Ritchie v Department of Community Services (1998) 16 NSWCCR 727 at [45], and also recently by the Court of Appeal in Department of Education and Training v Sinclair [2005] NSWCA 465.

141 The verbiage of the Commonwealth Act would not allow the full meaning of the word "discipline" to be applied because it would be quite impossible to invoke the concept of remedial training or instruction as being "action taken against the employee". The narrower meaning of discipline is mandated by the words of the Federal statute.

142 I am also aware of some criticism implicit of my decision in Kushwaha by Walker J in Hunt v Department of Education and Training (2003) 24 NSWCCR 642. At [140] his Honour said: "I took the view that the meaning that should be attributed to the word 'discipline' in section 11A was the primary meaning attributed to it in the Macquarie Dictionary; namely, 'training to act in accordance with rules'. The only difference I have with Neilson's J definition is the industrial requirement that there be rules, be they written or inferred, that have been infringed before formal instruction is undertaken."

143 However, not every workplace is governed by a set of written rules, and the New South Wales statute, unlike the Federal statute, applies to every form of employment in the State. It is not limited to Government employees and, indeed, is not limited to disciplined employments such as the Police Force or the Department of Corrective Services or the Sheriff's Office or the like. Implicit in any contract of service is the requirement that the worker do the job assigned to him or her. It is implicit in being a fingerprint expert that one do the work of the fingerprint expert. The plaintiff was not, in effect, doing that and the personal achievement plan was invoked to remedy the problem that had been identified.

144 I accept that this was a disciplinary process that was being gone through. The remaining question on this issue is whether the action of the defendant through Chief Inspector Sweeney and others who participated in the process was "reasonable".

145 When the plan was first proposed it was accepted willingly and, I might say, enthusiastically by the plaintiff. Those things which she wanted to have done for her were agreed to be done. The achievement indicators set were ones that she herself thought she could achieve. The plaintiff made it clear that initially she thought she could achieve ten scans every week, increasing the number every week.

146 At the second progress review it was noted that the plaintiff was having difficulties doing the scans when there was a requirement for her to prepare statements and to work with exhibits. The achievement indicator was therefore lessened, so that the plaintiff was required to do a minimum of forty scans monthly; which is a lesser requirement than doing ten each week and then eleven each week and then twelve each week, which is what the plan originally called for.

147 At the third progress review on 27 November 2003 any absolute number of scans was dropped completely. Again, there was an accommodation made to the plaintiff. She was required to perform 40 per cent of the average output of the other fingerprint experts. She was only working 60 per cent of their work week. The requirement was, therefore, that the plaintiff do in three days what everybody else would do in two days. Again, the plaintiff made it clear in her e-mail, and also by signing the record of the meeting of 27 November 2003, that she thought she could fulfil that requirement.

148 As I said, I do not accept that the plaintiff was dealt with either insultingly, abusively, harshly or arrogantly by Chief Inspector Sweeney at the time. I have sought to give reasons concerning that, and I believe I have done so. I therefore accept that the defendant's actions were reasonable.

149 The plaintiff clearly became upset because she perceived that she was still being challenged about her work performance. She was being challenged about her ability to meet the plan and that challenge to her caused her to decompensate psychiatrically, leading to the certified infirmity of mind.

150 If I be wrong in my categorisation of the process undertaken, then there is much force in the submission of learned counsel for the defendant that what was involved was "performance appraisal". I had reason to consider the concept of performance appraisal in Bottle v Wieland Consumables Pty Limited (1999) 19 NSWCCR 135 at [26] to [35] and [50] and [51]. In Bottle I elected to follow as a matter of comity the decision of Judge Geraghty in Irwin v Director-General of School Education (NSW CC, number 14068/97, 18 June 1998, unreported). The only difference between my prima facie view of performance appraisal and that of his Honour was that it appeared to me that performance appraisal appeared to refer to part of the process of fixing an employee's salary or remuneration. However, his Honour Judge Geraghty did not so limit it. If I may quote from his Honour as I recorded him as saying in [31] of Bottle: "It is important to consider the meaning of the term 'performance appraisal'. The respondent submitted that it should receive its ordinary street meaning, that is not a term of art. But it seems to me to be a rather precious and precise expression. It is framed within the context of other processes of crises [sic] points in a worker's life. It is placed in the context of processes like 'transfer', 'demotion', 'promotion', 'retrenchment' or 'dismissal' of workers. It must be seen in this context. Furthermore, performance appraisal in any work situation is a process, an established process involving various steps. Perhaps it would involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometimes even self-appraisal, and maybe even a score. It is a process in which parties are engaged and knowingly engaged. Performance appraisal is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day-to-day basis. But 'performance appraisal' is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited, discreet process, with a recognised procedure through which the parties move in order to establish an employee's efficiency and performance."

With great respect to his Honour, I concur, as I did in Bottle's case.

151 When one considers his Honour's description of performance appraisal, one can see that what was going on here was, in the alternative to a disciplinary process, an assessment or appraisal of the plaintiff's performance. Indeed, the "personal achievement plan" was part of the defendant's "performance management scheme". The plaintiff was set goals and had to measure up to them. If she measured up to them, the remedial action had been taken successfully. If she did not measure up to them, the next step, leaving aside what actually occurred here which was the continuing lowering of the performance indicators, was the imposition of a remedial performance programme in accordance with s 173 of the Police Act and reg 26.

152 Mr Edwards for the plaintiff sought to distinguish the current matter as not being performance appraisal because in Bottle I formed a view that performance appraisal appeared to be part of a process of fixing an employee's salary or remuneration. In Bottle I said this, commencing at 27: "The first thing to say about the words 'performance appraisal' is that it is unfortunate Parliament should use a noun to qualify a noun. I assume Parliament intends to mean by 'performance appraisal', 'appraisal of performance'. According to the Oxford English dictionary, second edition, 'appraisal' has two meanings. 'Appraisal' is the art of appraising something - literally, it means 'the setting of a price'; figuratively, it means 'the estimating of the worth' of a thing. The appraisal of performance must be estimating the worth or putting a value upon the work without that work being performed by an employee. It appears to me to refer to part of the process of fixing an employee's salary or remuneration. One should also have regard to ejusdem generis rule of construction. Transfer, demotion, promotion, discipline and retrenchment or dismissal of workers all affect workers financially; so does 'estimating' the value of the work which they are carrying out. Mr Callaway for the respondent submitted that 'appraisal' merely meant 'assessment'. To support that, he relied on meanings given to the word 'appraisal' by the third edition of the Macquarie dictionary which was published in 1997. Inter alia that says that appraisal is 'the act of assessing the worth, quality or condition of anything'. His submission is that appraisal means the assessment of the performance of the worker. However, why would one carry out an assessment of the performance of a worker? One can understand its occurring in a bureaucracy where the process of carrying out an assessment of the work being performed by another worker of the bureaucracy justifies existence of the first member of the bureaucracy. However, such is not common in private industry. One, in my view, would only assess the quality of the work being performed by a worker for the purpose of something such as promoting him, demoting him, sacking him or transferring him. Consistent with my decision in Yeo v Western Sydney Area Health Service (1999) 17 NSWCCR 573, an assessment preliminary to promotion, demotion, transfer, retrenchment, dismissal or discipline will be part of each of those respective processes. There would be no need for there to be a separate provision for 'performance appraisal'. That, again, leads me to the view that 'performance appraisal' is putting a value or putting an estimate of value (that is, monetary value) upon the work being performed by the employee."

153 However, it is clear that Judge Geraghty did not so limit performance appraisal. He thought it to refer to any process used to "establish an employee's efficiency and performance".

154 However, even if I be right, it is clear that the personal achievement plan was a part of a process which could lead to the exercise by the defendant of his powers under s 173 of the Police Act 1990. It could lead to a remedial performance programme and, if that programme were not successfully completed, it could lead to a deferral of a salary increment or reduction in seniority or reduction in rank or grade. All of those things would affect the plaintiff financially.

155 I therefore accede to the submission put to me by Mr Beauchamp for the defendant that, if this were not a disciplinary process, it was a performance appraisal that was being conducted. Again for reasons I gave when considering the disciplinary process, I accept that the actions of the defendant were reasonable. As Mr Beauchamp has submitted to me, there is no requirement in the Act that the process of discipline and the process of performance appraisal be mutually exclusive, that the one action might be categorised as either one or the other or both.

156 Furthermore, if my decision in Yeo be correct, then there is much scope for overlapping. For example, a complaint might lead to discipline, which might lead to retrenchment. One could be both in the process of retrenchment and the process of discipline.

Any further reasons for judgment required, gentlemen?

157 HIS HONOUR: I have been asked to address two further issues.

158 It has been submitted by Mr Edwards on behalf of the plaintiff that where there is a specific scheme in the current matter, a specific statutory scheme to deal with matters such as discipline, that that process must be invoked if discipline is to be relied upon. In the current matter it is clear that the defendant was not proceeding pursuant to reg 26 of the Police Regulation 2000, and certainly not proceeding in accordance with s 173 of the Police Act which relates to both misconduct and unsatisfactory performance. Essentially, Mr Edwards is relying on the approach taken by Cooper J in Chenhall, to which I have referred.

159 However, it has to be borne in mind that the terms of s 11A are wide, and much wider than the terms used in the statute being considered in Chenhall's case. Section 11A is concerned with actions taken or proposed to be taken by or on behalf of the employer "with respect to". "With respect to" is a very wide concept. Furthermore, the section deals with action not only taken but action that is proposed to be taken on behalf of the employer.

160 Here, as I have sought to make clear, it appeared to me that the "personal achievement plan" was a process that, if not fulfilled, would lead to the imposition of a remedial performance programme in accordance with reg 26 and s 173. Even if the construction of the Act adopted by the plaintiff be correct, then still in my view this was part of the process because it was antecedent to what could occur.

161 I am aware that in Chenhall Cooper J limited the disciplinary action to that permitted under the relevant provisions of the Australian Federal Police Act 1979. However, as I have sought to point out, the verbiage of the Federal statute is much narrower than the verbiage of the New South Wales Act and, furthermore, the Act there in question is limited to a very distinct workforce, that is, Commonwealth public servants whose conditions of work are highly regulated by both Act of Parliament and regulations, rules and bylaws, as well as the law of the Constitution, for that matter, and also the Armed Services and the Australian Federal Police which are disciplined services and occupations in which the conditions of which are highly regulated. The New South Wales statute applies to all forms of work in New South Wales and, if the wide meaning of "discipline" is adopted, it would often be very difficult to find any statutory scheme or any scheme established under delegated legislation, including industrial awards and the like, which would govern the process.

162 In my view the word "discipline" used in the Workers Compensation Act has a wider meaning than that applicable under s 173. Therefore, in my view, I cannot accede to the argument advanced on behalf of the plaintiff.

163 I have also been asked to deal with a submission made by the plaintiff that the decision of Judge Geraghty in Irwin is not applicable in this case because it was not a process in which the parties sought to establish the plaintiff's efficiency and performance. The submission of the plaintiff is that the process was in order to re-educate the plaintiff with her skills as a fingerprint expert. The process was one of giving the plaintiff back her skills and replacing her confidence so that she could return to the full duties of her position.

164 However, that submission depends on using the verbiage of Judge Geraghty, which is only a gloss on the statute, as if it were the terms of the statute itself. His Honour clearly had before him the analogy of students at a school whose performance is constantly being scrutinised but at a certain time have to undergo an examination process in order to establish that they have the requisite knowledge and skills so that they can proceed with their education. Clearly the plaintiff's work performance was under scrutiny; hence the information conveyed by Detective Senior Sergeant Parkes to Chief Inspector Sweeney that the plaintiff's output in the workplace was "minimal". This process was then established in order to offer the plaintiff the opportunity of improving her skills and reaching the required level. Whilst the approach of the plaintiff was to obtain her skills back, the approach of the defendant was to return the plaintiff to the full duties of her position.

165 In my view, if the process had a number of aspects to it or a number of aims, if one aim was one of the statutory aims protected by s 11A, that is performance appraisal, it does not detract from it still fulfilling the statutory test. In other words, even if it were general training, this could still be categorised as a performance appraisal.

166 But if I be wrong in that, then the provision of remedial training, if I can put it in those terms, is precisely the extended meaning I gave to discipline in Kushwaha. But, as has been submitted by the defendant, the same conduct might find itself under a number of statutory heads, that is, a number of the various items referred to in s 11A.

167 For those reasons, I confirm the decision of the Commissioner of Police made on 9 February 2005.

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