Public Service Association and Professional Officers' Association... [2007] NSWIRComm 1016 | Case summary

Public Service Association and Professional Officers' Association... [2007] NSWIRComm 1016 | Case summary | Zoe

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27 Ms Christensen expressed concern that the proposed transfer to the Newcastle office would be interpreted by her colleagues as a disciplinary matter as opposed to the remedial action contended by WorkCover. She was also concerned that her professional reputation could be harmed. 28 Ms Christensen did not believe the transfer was warranted or justified principally on the grounds that the allegations did not relate to her current work environment. She was also concerned that the transfer would add a further one to one and a half hours travel time per day which may be detrimental to her pre-existing back injury. Further, as a single parent, the additional travel would create difficulty with childcare arrangements as well as stress given her "already busy schedule". Ms Christensen could not understand how a transfer "would teach me that I should not question decisions or directions made". 29 In cross examination Ms Christensen confirmed that one of the purposes of a case conference was to conduct an interview with the relevant company director to ascertain whether or not an offence had been committed under the Occupational Health and Safety Act 2000. She also agreed that prior to recommending a prosecution, an inspector was required to form a view on the likelihood of being able to prove guilt, or the likelihood of the defendant being able to establish an adequate defence. 30 Ms Christensen agreed with the proposition that when prosecuting parties before the Industrial Court of New South Wales, the prosecution brief needs to be comprehensive and resort to a case conference was a means of achieving that objective. 31 Ms Christensen confirmed that she picked Ms Curtis up from her home en route to Tamworth at approximately 7.00am. She was unsure of her time of arrival at the meeting venue in Tamworth or the time she dropped the horse off at a property "just outside of town". Ms Christensen stated that in her experience it would take three and a half to four hours to drive from Branxton to Tamworth and disputed the respondent's estimate of two and a half to three hours. 32 Ms Christensen said she believed Ms Mayo-Ramsay was aware that she was towing a horse float containing a horse to Tamworth. She also agreed that the towing of the float and subsequent delivery of the horse in Tamworth was "an entirely private matter". 33 Ms Christensen denied that she could have left home after 7.00am had there been no requirement to deliver the horse. Ms Christensen also confirmed her flex sheet for 16 August 2005 showed a commencement time of 7.30am in consideration of the 30 minutes taken to deliver the horse. 34 Ms Christensen agreed that WorkCover required her to be at the meeting on time at 12.00 noon. Accordingly, she left early so that she could find the venue, book into her room and speak to colleagues that she had not seen for some time prior to the commencement of the meeting. 35 Ms Christensen subsequently agreed that she left home early because it would take longer than normal to drive to Tamworth towing a horse float. Notwithstanding, she claims that she conducted WorkCover business whilst driving to Tamworth - phone calls, discussions and networking. Accordingly, she was entitled to show the commencement time of 7.30am on her flex sheet. Ms Christensen denied conduct such as towing a horse float was detrimental to WorkCover's professionalism. 36 Ms Christensen did not recall Ms Pollard saying to her during a presentation "I'm happy to answer these questions on a one on one basis at the end of the presentation, but I would like to finish the presentation first". She denied saying to Ms Pollard, words to the effect "you're a manager, you get paid the big bucks and you should be able to justify it". 37 Ms Christensen also denied saying to Ms Pollard "Well, I'll be asking the CEO about this when he gets here tomorrow. CEOs just breeze in and breeze out, I've been here a long time and I've seen CEOs come and go". 38 Ms Christensen recalled asking Ms Pollard "about half a dozen questions" and she did not believe at the time that those questions were asked in an aggressive manner. She did not believe that she had embarrassed or insulted Ms Pollard and described her apology to her at the end of the meeting as "a general apology" on behalf of the group of staff present. 39 Ms Christensen subsequently confirmed no staff member directed her to issue an apology to Ms Pollard. Ms Christensen also confirmed her affidavit evidence that she "apologised in case I offended her" was actually an apology on behalf of the meeting. She did not reply to questions concerning Ms Mayo-Ramsey's evidence that she had heard Ms Christensen put a personal apology to Ms Pollard. However, she later admitted "if that's what they've said they heard, I can't disagree with that". 40 Ms Christensen stated both Ms Kenny and Ms Mayo-Ramsay were both aware that Ms Curtis had travelled with her to the meeting and she was emphatic that they were part of the conversation that decided she should attend the Mount Thorley incident and Ms Curtis would travel with her. She further stated it was Ms Kenny's suggestion that Ms Curtis should travel with her. 41 Ms Christensen confirmed that Ms Curtis drove her vehicle to Mount Thorley. She also confirmed that the motor vehicle running sheet for that day was incorrect as it was certified and signed off by herself. 42 Ms Christensen denied Ms Kenny had phoned her en route to Mount Thorley after realising that she was towing a horse float. She denied Ms Kenny had told her that she would have to unhitch the horse float and leave Ms Curtis somewhere because she cannot go onto the site. She denied replying "that's okay, I'll leave them in Singleton ... and get them later". 43 Ms Christensen denied that as a result of Ms Kenny's alleged telephone conversation with her she had decided to leave Ms Curtis and the horse float "around the corner" from the Mount Thorley site. 44 Ms Christensen denied the proposition that WorkCover would have considered it a to be a risk for Ms Curtis to go onto the site because at the time it was unknown whether or not a fatality had occurred. She was emphatic that at no time did she consider taking Ms Curtis onto the site and, the reason for this decision was not because Ms Kenny had allegedly instructed her not to do so. 45 Ms Christensen believed the case conference proposed by Mr Richey was unnecessary and she had completed her investigation. 46 In relation to the nature and tone of the email, Ms Christensen agreed that Mr Richey could have thought it was brusque. 47 With regard to her pre-existing back injury, Ms Christensen confirmed there was no medical evidence before the Commission stating that she was suffering any disability from her injuries that would prevent her from driving to Newcastle. A significant component of her position involved driving. She also stated she undertook significant horse riding activities. 48 Ms Christensen said she was concerned that other staff would interpret her transfer to Newcastle as disciplinary, rather than a transfer based on "the proper performance of your duties". 49 Ms Christensen believed that she had not seen a letter sent by Mr Watson to the General Secretary of the PSA on 27 September 2006 which advanced the proposition that the transfer was not a disciplinary transfer. She said she was overseas at the time. However, the gist of the letter had been read to her over the telephone. 50 Ms Christensen agreed that she had received a summary of all the allegations in writing and was afforded an opportunity to respond to those allegations with the assistance of the PSA. However, she believed Ms Curtis and fellow inspectors at the Tamworth meeting should have been interviewed as their evidence "could have verified the issues that occurred". 51 Ms Christensen agreed there was no evidence before the Commission or WorkCover setting out her particular childcare requirements that would be adversely affected by her transfer to Newcastle. However, she agreed that the relevant WorkCover Inspectors' Award made provision for a variation of her core hours and the ability to work from home on occasions. 52 Ms Christensen stated she thought that it would be inappropriate in all the circumstances to work in Newcastle under Mr Richey, the Team Manager, given the fact that he had framed the original allegations. 53 Ms Christensen stated that she was unaware that WorkCover was prepared to consider all the allegations as a matter of her performance, rather than misconduct, as set out in Mr Watson's correspondence to the PSA dated 27 September 2006, where he stated:

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102 On 19 June 2006, Mr Watson replied to Mr Hiesley in the following terms: ... this matter has been conducted in accordance with the public sector Management of Conduct and Performance Guidelines issued under the Public Sector Employment and Management Act 2002 . As part of that process, Inspector Christensen was provided with procedural fairness as required under those Guidelines. Specifically, Inspector Christensen was provided with an opportunity to respond to the allegations against her. In response to your questions 1, 2, and 3, I do not consider that the time taken to deal with this matter was excessive, particularly given the need for me to consider all the relevant facts and circumstances of the case and to provide Inspector Christensen with an opportunity to respond. In response to your questions 4, 5, and 6, I am satisfied that the matter was conducted in accordance with the Guidelines and the procedures relating to remedial action. In response to your question 7, I disagree. I carefully considered all the information provided by Inspector Christensen prior to making any decision to take appropriate remedial action. In response to your question 8, again, I disagree. In my view, a permanent transfer from the Maitland Office to the Newcastle Office (with an option to lodge an Expression of Interest for transfer to another office after a minimum period of 12 months on the condition that there are no further incidents of misconduct or inappropriate behaviour) is an appropriate remedial action. The aim is to ensure that Inspector Christensen has appropriate management and supervision, and to ensure that management can provide additional support for her to improve her communication and interaction skills with other people. As an employee of WorkCover, Inspector Christensen is expected to treat her colleagues with professionalism and courtesy. Inspector Christensen has been warned that any further incidents of disrespectful or offensive behaviour may lead to disciplinary action and her possible dismissal. As I do not consider that there has been a lack of procedural fairness, or a breach of procedure, and, unless you have any evidence that would manifestly alter the facts and circumstances of the case, I do not propose to refer the matter for further investigation to either the Internal Audit Branch or an independent investigator. 103 Mr Hiesley deposed that he sought the intervention of Mr Jon Blackwell, Chief Executive Officer, WorkCover, in an email dated 19 June 2006: I ... refer to the ... response from John Watson which I received late this afternoon. As the Safety Inspector's Vocational Branch President I am disgusted at the treatment given to our Member Madeline Christensen. Despite Mr Watson's somewhat unbelievable statements to the contrary, our Member has not been afforded the natural justice and procedural fairness which is inherent in the Procedural Guidelines on Dealing with Conduct and Performance. We seek your intervention in this matter. In my original email of the 29 May 2006, we submitted that the whole matter should be fully investigated either by our own Internal Audit Unit or an independent from outside of this organisation. Our thoughts on this submission have changed since that original email. We now request that the matter be fully investigated by an independent from outside of this organisation. The reason for this change is that we are now aware of an incident involving our Member and yourself on the evening of the 16 August 2005. There is a perception amongst a number of our Members that because of this incident you are either driving this action against our Member or it is being driven in part because of that incident. Again we submit, that until this process is completed and our Member receives the natural justice and procedural fairness entitled to her, our Member should remain at her present location in the Maitland Office. 104 Mr Blackwell replied to Mr Hiesley in correspondence dated 27 June 2006: I have reviewed the file in relation to this matter and consider the remedial action taken by John Watson to be appropriate. I also consider the conduct of Inspector Christensen to be unacceptable. In my view this matter has been managed in accordance with the public sector " Management of Conduct and Performance Guidelines ". In particular, I am satisfied that the General Manager, OHSD, carefully considered and evaluated all relevant information in relation to the matter prior to making a decision to take remedial action and that Inspector Christensen was provided with procedural fairness. With regards to the perception of your members that I have been " driving this action against our Member " due to an incident that occurred on 16 August 2005, this perception is incorrect. You would be aware that I delegated this matter to the General Manager and as such, would not involve myself in his decisions. I therefore find the remarks made by you on behalf of your member to be offensive. As I consider that the matter has been dealt with appropriately, I do not propose to refer the matter for an independent or further review. 105 Mr Hiesley subsequently sent the following response to Mr Blackwell by email: I refer to your letter dated the 27 June 2006. As President of the Safety Inspector's Vocational Branch I find the treatment being afforded our Member Madeline Christensen to be offensive. Our Member has not been afforded the natural justice and procedural fairness inherent in the Procedural Guidelines on Dealing with Conduct and Performance. Our Member's matter has not been managed in accordance with the public sector Management of Conduct and Performance Guidelines. It is our intention to continue to pursue this matter. 106 Mr Hiesley deposed that his contention that WorkCover did not follow the formal Procedural Guidelines for Dealing with Misconduct as a Disciplinary Matter was grounded in the decision of Mr Watson to investigate the complaint under Part 2.7 of the Public Sector Employment and Management Act 2002 where clause (sic) 46 states: 46 Dealing with allegations of misconduct (1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the officer . 107 Mr Hiesley further contended Mr Watson had conducted a preliminary investigation to assist him in deciding whether to deal with the matter as a disciplinary or remedial one. In this regard he referred to clause 10, Initial Determination of an appropriate course of action regarding an allegation of Misconduct, where the Guidelines relevantly state: This is not to become the main investigation and, if undertaken, should be limited to obtaining sufficient information to allow the Department Head to determine what course of action to take. 108 It was not mandatory to have a preliminary investigation. According to Mr Hiesley, Mr Watson's preliminary investigation involved the gathering of written witness statements and was not limited to determining what course of action to take as the information gathered was used to determine that Ms Christensen had committed misconduct.

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117 Ms Heidi Pollard deposed that at the time of the incident she was the Marketing Communications Manager in WorkCover NSW, a position she had held since October 2003. It was Ms Pollard's evidence that in August 2005 she was involved in the implementation of a new Publications Distribution Policy for WorkCover. This Policy was implemented after an executive level review of the way in which WorkCover publications were distributed to the public. 118 Ms Pollard said that on 16 August 2005 there was a meeting of the Country North Team at Tamworth. She deposed that she had attended various staff sessions and meetings to present the new Policy and detail steps the marketing unit proposed to assist inspectors with its implementation. Ms Pollard said she recalled a number of questions at the conclusion of the presentation relating to operational matters. 119 Ms Pollard particularly recalled a line of questioning from Ms Christensen, which she found to be aggressive and directed to her personally. She felt that Ms Christensen was stalling her presentation by continually asking questions which had already been explained. She informed Ms Christensen that she would be happy to provide more details to her personally after the presentation and responded on several occasions by saying "I'm happy to answer these questions on a one to one basis at the end of the presentation, but I would like to finish the presentation first". Ms Pollard also recalled Ms Christensen saying "Well, you're the manager. You get paid big bucks, you should be able to justify it" to which she responded "the decision was not mine, it's been made by the executive". Ms Pollard said that Ms Christensen then said "Well I'll be asking the CEO about this when he gets here tomorrow. CEOs just breeze in and breeze out. I've been here long time and I've seen CEOs come and go". 120 Ms Pollard deposed that Ms Christensen interjected with lengthy comments opposing the Policy. She said that she was aware that whilst other people at the meeting were frustrated and unhappy with the policy change, she formed the opinion that Ms Christensen was trying to "get under her skin" with a bullying style of questioning which she said she found "aggressive and persistent". She recalled feeling quite "flushed and flustered" which she said does not usually happen as she is an experienced presenter. 121 Ms Pollard could not recall whether Ms Christensen had apologised to her for her alleged behaviour after the meeting. However, Ms Pollard said that she stayed for the dinner to enable staff to speak to her about the Policy if they wished. Ms Christensen approached her during the dinner and appearing slightly intoxicated, said to her "No hard feelings about today. We've just got to push back on management when they want to change things". Ms Pollard said Ms Christensen was quite amiable and friendly towards her at the dinner and explained some of her hobbies, including the hunting of animals. From this discussion, Ms Pollard said she understood Ms Christensen went horse riding and hunting regularly. 122 Although she did find the experience unpleasant at the time, Ms Pollard said she did not raise her concerns about Ms Christensen's behaviour with anyone. She was later contacted by Mr Richey regarding the matter.

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123 In cross examination, Ms Pollard was questioned about the number of people at the presentation who were frustrated and unhappy with the new policy. Ms Pollard said that she knew from questions on the day that some people were unhappy with elements of the policy or did not totally agree with it. Ms Pollard said she fully expected and was prepared for that response and the questions raised concerning the regional impact of the policy change. However, she was surprised at the tone, volume and amount of questions that came from Ms Christensen. While she did not raise the issue with Ms Christensen in their after dinner discussion, she recalled Ms Christensen had said to her words to the effect of "Managers have to expect when they come here that we're going to give them a serve, I guess"./// 124 Ms Pollard was cross examined on whether she was offended on the day or whether it was something she had assessed in the context of lively debate: I wouldn't say I wasn't offended. I found some of her remarks unprofessional and they were unexpected, and at the time when I was delivering my talk, it very much put me off guard and I'm usually very comfortable with public speaking. And it was quite obvious to the rest of the group that I was flushed and flustered by it, because it kept taking me away from the presentation that I intended on giving. I thought that was quite obvious and other people commented on it afterwards, which suggested others could also see that I was uncomfortable. It's more that that's my choice to deal with things in that way. When I left that night, I decided to leave it behind. 125 Ms Pollard said that after the presentation Mr Richey came up to her and apologised for the way she had been questioned. 126 In re-examination Ms Pollard said Mr Richey briefly apologised to her straight after the presentation as she was packing up her materials. He had a further conversation with her during the dinner that evening. 127 Ms Susanne Kenny has been employed by WorkCover for ten years and is the Team Co-ordinator North West. She reports to the Team Manager, Mr Richey and is responsible for three district offices, including the Maitland office. Ms Kenny deposed she supervised the Maitland district co-ordinator, Ms Mayo-Ramsay who in turn supervised four inspectors at Maitland including Ms Christensen. 128 Ms Kenny deposed that on or about 24 June 2005, she received an email from Mr Richey requesting her to organise a case conference with the WorkCover legal branch. The purpose of the conference was to address the issue of a possible prosecution against a prominent company director. Ms Christensen and Mr Wade were to be involved in the conference. Ms Kenny said the investigation file had been completed by Ms Christensen and forwarded to Mr Richey. However, it did not include a statement from the company director and the case conference was sought to clarify what further steps should be taken. 129 Ms Kenny said that contrary to paragraph 9 of Ms Christensen's affidavit, Ms Christensen was aware of the purpose of the case conference and believed that she had explained the purpose to Ms Christensen at the Maitland office on either 5 or 7 July 2005. 130 It was Ms Kenny's evidence that the two day Country North Team meeting held in Tamworth was scheduled to commence at lunchtime on 16 August 2005. She was required to arrive early to ensure the room setup and equipment was both appropriate and operational. Ms Kenny said that when she arrived she had noticed a WorkCover vehicle with a horse float attached to it in the car park. She asked Ms Mayo-Ramsey whether she owned the horse float and was informed that it belonged to Ms Christensen. She said Mr Richey also asked her who owned the float and she told him "it is Madeline Christensen's". 131 Ms Kenny said that on 17 August 2005 she received a call from Maitland office and was told "there is a serious incident at Mount Thorley that needs to be investigated immediately". Following a discussion with Ms Mayo-Ramsay and Ms Christensen, it was decided Ms Christensen should attend and investigate a potential fatality. Ms Kenny said at the time of directing Ms Christensen to attend the incident, she had forgotten there was a horse float attached to her vehicle. She said that if she had thought of it at the time, she would have instructed Ms Christensen to leave the horse float behind and arranged for another person to tow it to her home. 132 Ms Kenny said in her opinion it is not appropriate for a WorkCover inspector to have a horse float attached to their vehicle during business hours. Although inspectors were able to use their vehicles for private use during non-business hours, she said that the team meeting was business related and the vehicle should have been available to any inspector who required its use during those business hours, without the horse float being attached or requiring removal. In her view, by bringing the horse float to the team meeting, Ms Christensen had compromised the professionalism of the WorkCover Inspectorate. She believed it should not have occurred particularly given Ms Christensen's experience as an inspector.

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161 In relation to Ms Christensen's transfer to Newcastle, Mr Richey said a temporary secondment from one office to another was an expected part of the role of a WorkCover inspector. Inspectors were not appointed to particular offices. Rather, appropriately qualified staff were appointed as inspectors within WorkCover New South Wales. 162 Mr Richey referred to Ms Christensen's Motor Vehicle Running sheet for the month of August 2005 noting that she had travelled to the Newcastle office for training on 24 August . She had indicated that this was a trip of 58 kilometres from her home to Newcastle. In contrast, a trip the previous day from home to the Maitland office was recorded as 39 kilometres, making a difference of 20 kilometres each way. Mr Richey said that even averaging only 60 km/hour, this difference would only add an extra 20 minutes each way to her trip to Newcastle subject of course to traffic conditions. 163 Mr Richey said that contrary to the matters set out in paragraph 32 of Ms Christensen's affidavit, a temporary secondment from a small regional office to Newcastle at this stage of her career was not disciplinary action, but action that would expose her to greater levels of supervision and feedback particularly regarding how she communicates with other staff. In his view, working in the same office as himself would assist the career development of Ms Christensen as he would be able to provide direct supervision, feedback and assistance to her. 164 Mr Richey said that in any event, there is a managerial prerogative pursuant to s86 of the Public Sector Employment and Management Act 2002 to transfer an inspector to another public sector agency, including another office of the same public sector agency for a secondment. He reiterated that WorkCover inspectors were not assigned to a particular office. They were assigned to a position and could be transferred between offices. 165 In relation to travel between her home and Newcastle, Mr Richey said it was his understanding that the additional travel would only add up to 30 minutes additional travel to her one-way daily trip when compared to her present office location in Maitland. He said it would not be necessary for Ms Christensen to travel every day to and from the office as she may be required to attend worksites closer to home and return to her home at the end of her work day. He said that over the past seven years he was aware that Ms Christensen had travelled by car to various work related locations including Singleton, Denman, Muswellbrook, Scone, Tamworth, Sydney and Gosford. 166 Mr Richey said Ms Christensen would on average have to drive distances of up to 100kms to worksites in the Country North region weekly. He said Ms Christensen's motor vehicle running sheet for August 2005 states that she travelled a total of 1693 business kilometres in 20 working days, an average of 84.65 kilometres per day. This travel included a trip to Gosford and return on 10 August 2005 totalling 278 kilometres from her Branxton home.

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167 Mr Richey said Ms Christensen had been an active owner and rider of horses since he has known her. Ms Christensen sustained an injury to her back as a result of a riding accident in 1999 and he understood that she had remained an active owner and rider of horses. Since her accident, he had not received any complaints from Ms Christensen nor her managers that she was unable to perform her full duties including undertaking the lengthy driving trips referred to previously. He said that when he was Team Coordinator North West, he had arranged for a modified workstation to be provided to Ms Christensen. Mr Richey said the workstation arrangements presently in place for Ms Christensen in the Maitland office would be replicated in the Newcastle office. 168 Mr Richey agreed that as a result of evidence given the previous day he had obtained a copy of Ms Christensen's mobile phone records of 16 August 2005. Mr Phillips asked him two questions related to those phone records marked as Exhibit 12. Firstly, the location of "Taminda" which he said was an industrial estate in Tamworth. He was then asked how calls could be recorded showing their origin on that day as Sydney. Mr Richey said he understood that anomaly related to the voice mail system going through a Sydney phone number. The exhibit showed that a mobile phone call was made from the Tamworth area at 9.30am and from Taminda at 10.56am. 169 In response to a question from Mr Phillips, Mr Richey said the performance improvement plan contemplated for Ms Christensen would take approximately 12 months to complete. A consultant would be retained to undertake and supervise a one-on-one communications program with Ms Christensen. Mr Richey said the Newcastle office was equipped with better training facilities and accordingly, it would be more convenient to conduct the program there, rather than Maitland. Mr Richey said at this stage he was unable to say how much time per week the consultant would spend with Ms Christensen. However, he proposed to confer with the consultant together with Ms Christensen and her manager to work out a program targeted at all the areas identified that required some improvement. 170 In cross examination Mr Richey was asked about the email from Ms Christensen and agreed he was concerned about issues related to it. Mr Richey agreed that he never spoke to Ms Christensen about those issues but instead spoke to her coordinator who subsequently spoke to her. Mr Richey said he felt that he had addressed his concerns in his email reply to her on the day when Ms Christensen was informed her coordinator would speak to her regarding assistance with communication issues. He said it was probably a couple of months after that when he raised the issue with Ms Christensen formally. 171 Mr Richey said he was not concerned that an inspector sought to raise questions with him but rather, it was the manner in which they were asked. However, as the team coordinator manages all operational aspects of an investigation, he felt that he should distance himself from the operational aspects of the investigation so as to ensure the coordinator could enjoy some degree of independence. 172 In relation to the team meeting that was held in Tamworth, Mr Richey confirmed that Ms Pollard gave a presentation about the new publications policy direction and agreed that many at the meeting were concerned about the policy and had raised those concerns and voiced their dissatisfaction during the meeting.

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173 Mr Richey denied that when he cautioned Ms Christensen, he in fact directed his comments to the group rather than to her personally. Mr Richey said that while other staff were commenting on the policy itself, they were not personally attacking the presenter. He reiterated that Ms Christensen's attack on Ms Pollard was personal. Mr Richey agreed that Ms Pollard did not refer to Ms Christensen by name and said that she may not have known her name "but I don't think you had to be too smart to figure out who she was referring to". 174 Mr Richey agreed that the private use of an inspectors' motor vehicle was covered by a contribution of three additional hours of time worked each week plus a cash payment. He also said he was aware that towbars were fitted as standard equipment to all WorkCover vehicles to enable the towing of government trailers. He said that in this matter, "the issue is whether it's business use or private use and certainly towing a horse float with a horse in it is not private use of a vehicle in work time". 175 Mr Richey agreed that he was aware that the horse float was attached to Ms Christensen's vehicle on the first day of the meeting. However, he was busy conducting a meeting involving 35 staff when he realised Ms Christensen had left for Mount Thorley. He said he spoke to Ms Kenny to ensure that the horse float did not go to the scene of a potentially fatal incident. It had also occurred to him that Ms Christensen had Ms Curtis with her. 176 Mr Richey was referred to part C of his statement where he said "I believe that had I not taken action to direct Ms Christensen, she may have adopted either or both of the above actions, which I believe would have been inappropriate". When asked whether this speculation formed the basis of the two allegations he raised against Ms Christensen, Mr Richey said: Well, I don't think it's speculation, it's actually fact that she's towing the horse float to the scene of a potentially fatal incident, which is one of the more - there's no more major matter that WorkCover deals or the inspector deals with as part of their role. So this is a prominent matter for me and usually fatals can have potential media interest as well and it's not unusual to turn up to a fatal and have TV cameras and the like around the front of the premises. 177 Mr Richey agreed that it was impossible to ascertain what would have occurred and said: ... clearly if I had known before she left and it had occurred to me that horse float was on the vehicle, then there would have been arrangements made for her not to take the horse float from Tamworth or we would have otherwise given her another vehicle to take, or swapped and given her another inspector's vehicle, which is a government vehicle. And also if I had known that Rachel Curtis was going with her, then that wouldn't have occurred. Rachel Curtis could have got a ride back to Newcastle with any of the other people who were going back to Newcastle who were driving through Branxton, and indeed if we needed a second staff member to go to that potential fatal incident, then it would have been an inspector that could have assisted with that investigation. 178 Mr Richey said it was correct protocol that Ms Kenny made the arrangements with Ms Mayo-Ramsey for Ms Christensen to go to the site and agreed he was not aware of any other inspector being available to help share the driving.

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181 When cross examined about the direction for Ms Christensen to transfer to Newcastle, Mr Richey reiterated his view that it would assist Ms Christensen's career because he would be able to provide direct supervision, feedback and assistance to her. After further questioning, he agreed that his supervision would actually be indirect. 182 Mr Richey agreed that despite his affidavit evidence that suggested transfers were generally classed as managerial prerogative pursuant to s86 of the Act, the transfer of Ms Christensen in this case was actually remedial action. Referring to the modified workstation provided to Ms Christensen Mr Richey said he had been "more than aware" her injury required those special arrangements. 183 Mr John Watson is the General Manager of the Occupational Health and Safety Division ("OHSD") of WorkCover, a position he has held since April 2004. From July 1999 until that time he was Director of the Service Delivery Group within the OHSD. Mr Watson has been employed by WorkCover since its inception, having commenced with its predecessor in 1984. His affidavit evidence referred to various other affidavits filed in the proceedings and the content is reproduced as follows: Structure of the OHSD Presently, the OHSD is structured so that the Inspectorate is managed in the following manner. The inspectorate is structured in 7 Industry teams and 2 Country teams. Teams are managed by Team Managers. Those Team Managers have direct supervision over a number of Team Co-Ordinators. In turn, those Team Co-Ordinators in the Country teams supervise District CoOrdinators, who in turn directly supervise Inspectors in their District office. Ms Christensen's current direct supervisor is Colin Plowright however, relevant to the time of this matter Rosalie Mayo-Ramsay was the substantive District Co-ordinator at the Maitland Office. She is in turn supervised by Sue Kenny, Team Co-ordinator who is supervised by Mr Richey, Acting Team Manager who is supervised by the Director, Industry Programs - Jenny Thomas. I have overall supervision of the OHSD. Events since August 2005 On or about 27 September 2005, I received from Laurence Richey a Memorandum regarding the conduct of Ms Christensen. A copy of that Memorandum dated 27 September 2005 is hereto attached and marked Annexure "A". I believed that this Memorandum outlined possible misconduct or unsatisfactory performance on behalf of Ms Christensen. On or about 13 October 2005, the Chief Executive Officer of WorkCover delegated to me all his functions under Part 2.7 of the Public Sector Employment and Management Act 2002 ("the Act") to deal with allegations against Ms Christensen. A copy of that Instrument of Delegation dated 13 October 2005 is hereto attached and marked Annexure "B". On or about 20 October 2005, I forwarded a letter to Ms Christensen, a copy of which is hereto attached and marked Annexure "C". That letter attached a copy of the Memorandum from Lawrence Richey which detailed the allegations being made against Ms Christensen. Under section 46 of the Act, I believed that if there was misconduct on behalf of Ms Christensen, I could deal with the allegations against Ms Christensen as a disciplinary matter in accordance with the Procedural Guidelines, or decide that it was appropriate to take remedial action. Section 46 of the Act states: 46 Dealing with allegations of misconduct (1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may: a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or

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On or about 4 November 2005 I received a written response from Ms Christensen. A copy of that written response is attached to the Affidavit of Ms Christensen at Attachment 3. I believed that letter to be a considered response to the allegations made against Ms Christensen. At that stage, I considered that there may have been misconduct on the part of the Inspector and I requested further information from Sue Kenny, Laurence Richey and Jenny Thomas, as supervisors of Ms Christensen. I also requested information regarding the Tamworth meeting from other attendees including Paul Olive and Mladen Kovac. I requested this information in order to allow me to make a decision as to whether the matter should be considered for remedial or disciplinary action. A copy of that material I obtained was forwarded to Ms Christensen on 22 March 2006 as part of the procedural fairness adopted in the matter. A copy of that letter dated 22 March 2006 and the material is hereto attached and marked Annexure "D". After receiving that material, I formed the view that the conduct of Ms Christensen amounted to misconduct. In my view, I believed that the incidents raised serious questions about Ms Christensen's abilities as an Inspector, in particular, her judgment and self-control and her responsibilities to act in a professional manner. I was very concerned at the false claiming of work time when the Inspector was admittedly undertaking personal activities. I was particularly concerned that the Inspector displayed an unprofessional approach to the use of the WorkCover provided motor vehicle during business hours, particularly in light of her requirement to attend a potential fatality. Ms Christensen is provided with, at WorkCover's expense, a fully maintained motor vehicle. The provision of this vehicle, in accordance with the WorkCover NSW Motor Vehicle Policy and Procedures is to provide to the Inspector support for "essential business travel needs" most notably being for investigative duties. It is read in conjunction with the Safe Driving Policy. In my view, it is unprofessional to use a work vehicle in the manner that Ms Christensen did in August 2005. I was also concerned at her apparent unprofessional and discourteous attitude towards other WorkCover personnel. Nevertheless, in light of the Inspector's lengthy service, I did not believe that disciplinary action was necessitated but I considered that remedial steps should be taken. On 14 March 2006, I informed Ms Christensen of my opinion and a summary of the findings of misconduct. At that stage, I considered that remedial rather than disciplinary action was warranted and I therefore did not initiate a full investigation into the matter. A copy of that letter dated 2 March 2006 (but signed 14 March 2006) is hereto attached and marked Annexure "E". I requested a response within fourteen (14) days. On or about 27 April 2006, I received a response from Ms Christensen, which appears as Attachment 5 to her Affidavit. On receipt of that letter, I formed the view that Ms Christensen accepted that her behaviour, as set out in my letter dated 2 March 2006, warranted remedial action. I considered these submissions and decided that the remedial action that I had initially proposed should be implemented. On 23 May 2006, I advised Ms Christensen of the remedial action that would take effect immediately. A copy of that letter dated 23 May 2006 is hereto attached and marked Annexure "F". Since that time, I understand that Ms Christensen has undergone the training and counselling set out in the letter of 23 May 2006. I further believe that there has been an adjustment made to the flex time sheet to reflect the personal time taken at Tamworth. However, at this stage, Ms Christensen has not transferred to Newcastle. On or about 21 July 2006 I received advice that these proceedings had been commenced in relation to the remedial action directed to be taken in my letter dated 23 May 2006. Consideration of Misconduct and Unsatisfactory Performance Having considered the matter in light of representations made on behalf of Ms Christensen, I am prepared to consider her actions as unsatisfactory performance rather than misconduct in light of the failure to strictly follow some procedures in the Commentary and Guidelines on Conduct and Performance Provisions. I personally believe, however, that the admitted deliberate act of claiming personal time as work time would inevitably be considered misconduct. On 27 September 2006, as a result of these proceedings, I forwarded a letter to the PSA regarding the above. A copy of that letter dated 23 September 2006 is hereto attached and marked Annexure "G". I have not received an open response to this letter. Requirement for Transfer to Newcastle I maintain my view that remedial action is still required in the form of a transfer of Ms Christensen to the Newcastle Office in order to provide the Inspector with appropriate management and supervision and to improve her communication and interaction skills. In particular, it is my view, that the actions of Ms Christensen and her response in the months indicate the need for closer supervision of the Inspector's communication skills. Contrary to paragraph 34 of the Inspector's Affidavit, it is clear that the Inspector wrongly holds a view that counselling she has received to date was aimed at teaching her that she "should not question decisions or directions made, that [she does] not understand". The counselling was in fact directed to assist her in restoring sound judgment and professionalism to her work. The Newcastle office has a larger number of Inspectors working from it who carry with them significant experience which will be of assistance to any Inspector who works at that office, in particular Ms Christensen. The Newcastle office has Ms Christensen's Team Co-ordinator and Team Manager working there who will be able to provide direct supervision, guidance and encouragement to the Inspector in all aspects of her duties, and in particular, her communication skills and professionalism. I believe that this cannot be effectively achieved through the present state of remote management. The Newcastle office will, in my opinion, provide Ms Christensen with a higher quality of management of her work than her present location, which only has five Inspectors and one supervisor. A twelve month secondment to the Newcastle office, will also offer Ms Christensen a larger variety of work giving her the opportunity to refocus her career. Transfers generally Transfer to different offices in NSW, is an integral part of the effectiveness of the WorkCover system. The rotation of staff contributes to WorkCover's effective service delivery by, amongst other things, ensuring that staff maintain their investigation skills, providing staff with access to and experience in a variety of work throughout the organisation, increasing communication across the organisation and fully utilising each staff member's skills. Relocation, whether temporary or permanent, is often very important for assisting in the career development of the individual by exposing the Inspector to other operations of WorkCover but also to ensure that WorkCover avoids what the Independent Commission Against Corruption describes as "regulatory capture". In the ICAC report into WorkCover, the ICAC commissioner noted: "Within any regulatory environment, there is a risk that the Regulators will become "captive", incapable or unwilling to perform their proper regulatory role because they have adapted to a dominant workplace culture or are constrained by familiarity with the individuals they are meant to monitor.

[126]

187 Mr Watson stated Ms Christensen did not complain to him that she was unable to do justice to her case in responding to his correspondence. He also said that he wanted to make sure that she could make any representations to him that she wished to make and he felt that his correspondence made that point quite clear. He acknowledged that on one occasion he had granted her an extension of time to reply to one of his letters. 188 In cross examination, Mr Watson agreed that Annexure C to his affidavit, correspondence to Ms Christensen dated 20 October 2005, did not mention misconduct or unsatisfactory performance: Dear Madeline The Chief Executive Officer has delegated to me his powers under part 2.7 of the Public Sector Employment and Management Act 2002 (the Act) to deal with the issues raised in the attached report dated 27 September 2005 from the Acting Team Manager, Laurence Richey, which detail a number of incidents regarding your recent conduct. I have also attached for your information a copy of Part 2.7 of the Act and a copy of the Procedural Guidelines on Dealing with Conduct and Performance issued by the Public Employment Office. Prior to determining whether to deal with the incidents as remedial action or as a disciplinary matter under section 46 of the Act, I have decided to provide you the opportunity to reply to Mr Richey's report. In this regard, you have 14 days from the receipt of the this letter to make a submission and to provide any additional information to me that you consider I should take into account when making my decision. Your submission may address such matters including Mr Richey's opinion that your conduct was unsatisfactory and inappropriate or any extenuating and mitigating circumstances. If you have any questions regarding this matter or wish to discuss the matter further with me please contact me on ... 189 Mr Watson confirmed that he said at paragraph 8 of his affidavit that he believed if there was misconduct in line with s46 of the Act, the allegations could be dealt with as a disciplinary matter in accordance with the Guidelines. When asked whether he could follow the Guidelines after having already determined that there was misconduct, Mr Watson said that could not be done as a determination has to be made first: No, you can't do that, no, you've got to make a determination, you've got to consider the guidelines and apply those guidelines to the matter that's being dealt with. I mean, clearly this matter, there was issues in respect of the guidelines and we made admissions in respect of that to the PSA and correspondence, and that's why in fact the matter was not dealt with as a disciplinary matter, it was more dealt with in remedial action rather than in any other disciplinary process. 190 Mr Watson accepted a PSA proposition put to him that the Guidelines in relation to managing misconduct and unsatisfactory performance matters were mandatory. 191 Mr Watson was examined extensively about aspects of the Guidelines in relation to unsatisfactory performance. When asked whether he acknowledged that steps one and two of those procedures under section 6.1 of the Guidelines for Dealing with Unsatisfactory Performance were not followed in this instance and there was no early intervention, informal and/or formal counselling Mr Watson said he believed the procedures were followed "in spirit". 192 Mr Watson reiterated that he had given serious consideration to all the issues raised by Ms Christensen notwithstanding WorkCover's admission to the PSA that some of the procedures for dealing with unsatisfactory performance were not followed. There was no informal counselling although the issues of concern were clearly documented in the various correspondence sent to Ms Christensen..

[134]

(3) Displayed disrespectful conduct at the team meeting on 16 August 2005 Ms Jeffries submitted Ms Christensen had been singled out in relation to her conduct at the meeting and there was evidence that other staff, including Ms Mayo-Ramsay, Ms Curtis, Mr Sandall and Mr McMartin has also raised objections and voiced their frustration to Ms Pollard at the lack of appropriate consultation on the publications issue. Further, Ms Pollard had admitted that she expected a difficult meeting in the light of similar meetings that she had attended. Moreover, no management representative spoke directly to Ms Christensen in relation to her conduct at the meeting and Ms Pollard herself had only seen cause to make complaint when pursued months later by Mr Richey. (4) Conduct and behaviour when responding to the potentially fatal accident on 17 August 2005 a) Knowingly allowing Ms Curtis to be absent from the team meeting; d) Enabling Ms Curtis to drive the WorkCover vehicle towing a trailer; Ms Jeffries stated these two allegations related to the conduct of Ms Curtis and accordingly, Ms Christensen could not be held responsible for the action or inaction of Ms Curtis. Additionally, Ms Christensen has clearly stated that the decision for Ms Curtis to accompany her was made by Ms Kenny and Ms Mayo-Ramsay. That decision had been corroborated by Ms Mayo-Ramsay and Ms Curtis. There is no evidence that Ms Christensen, Ms Curtis or the general public were placed at any increased risk by Ms Curtis driving the vehicle. b) Proposing to take Ms Curtis to the scene of a potentially fatal accident; Ms Jeffries said Mr Richey had admitted that it was not possible to know what action might have occurred if he had not asked Ms Kenny to phone Ms Christensen en route to the Mount Thorley work site and had offered no explanation why he believed Ms Christensen may have taken Ms Curtis (or the horse float) on site when they have stated otherwise. Clearly, charges of misconduct and unsatisfactory performance cannot be substantiated if the alleged "action never took place". c) Intending to tow a horse float to a workplace whilst on WorkCover business; The WorkCover policy tendered in evidence is silent in relation to towing despite the fact that towbars were fitted to all inspectors' vehicles as standard equipment. This charge was based on the assumption that Ms Christensen was going to take the horse float onto an employer's property. She did not do so. However, Mr Richey "has been content to make allegations based on his own musings and Mr Watson has been prepared to find guilt based on speculation". WorkCover was unable to substantiate that its reputation had suffered in any way by Ms Christensen towing the horse float. Inspector's vehicles were also unmarked. e) Enabling Ms Curtis to leave you at the workplace to conduct an investigation with no immediate access to the vehicle. Ms Jeffries contended there was no requirement for an inspector take his or her vehicle onto the work site being inspected and frequently it was impossible to do so due to parking difficulties particularly in the metropolitan area. Ms Christensen took all the equipment she required with her and was not required to return to her vehicle which was readily accessible. Accordingly, there were no grounds for a charge of misconduct or unsatisfactory performance.

[135]

205 In relation to the flex sheet and the alleged false claiming of work time issues, Ms Jeffries submitted no allegation that Ms Christensen had falsified her flex sheet had been made in these proceedings nor during the original investigation. Accordingly, the Commission should ignore the respondent's evidence concerning this matter and in any event, Ms Christensen had agreed in conciliation to adjust her time sheet by the 30 minutes it took to deliver the horse. 206 Ms Jeffries contended that Mr Richey was now seeking a further adjustment of one and a half hours to account for Ms Christensen's early arrival at the meeting venue. However, Mr Watson had stated that her early arrival was clearly work time and believed Ms Christensen should deduct time in response to his estimate of how long it took to deliver the float. Ms Christensen's estimate had been corroborated by Ms Curtis who was with her at the time. 207 Ms Jeffries submitted Ms Christensen had been cooperative during the "investigation" and she had also undertaken agreed counselling with respect to various WorkCover policies and had agreed to undertake communication training. 208 It was the PSA's position that no misconduct had occurred and as the respondent now agreed with that view, the issues before the Commission were not serious enough to warrant the level of intervention sought and Ms Christensen's transfer to Newcastle. Moreover, there was no evidence to suggest that the transfer would better address the particular issues more fully than the counseling program already undertaken. 209 Ms Jeffries submitted the public sector Guidelines clearly state that a transfer can only be considered for remedial action where problems have arisen from the work environment. In this matter, the issues relate to Ms Christensen's response to emails and her conduct at a team meeting. Neither issue can be "effected by a change of work location" and a transfer is definitely not available under the Guidelines for managing unsatisfactory performance "when the training components have not yet been completed and tried".

[138]

213 Mr Phillips submitted the PSA was required the identify a particular fact or issue that was not within the knowledge of the respondent employer during the investigation and therefore not taken into account in deciding the matter. However, the PSA's argument was simply "there is procedural non compliance with ...(the) provisions of the Guidelines and so therefore forget the facts and that brings an end to the matter". He contended that argument would only have currency if there was some material fact not considered that could have affected the outcome. The facts in this matter were that the "decision makers" gave Ms Christensen written notice setting out their issues of concern and she was invited to respond to them. 214 Mr Phillips stated the evidence before the Commission supports the fact that senior management had considered the totality of Ms Christensen's conduct and simply put, "If it was just the issue of the horse float ... or the email, we would not be here." He contended that the respondent's decision to require Ms Christensen to undertake further training and a temporary transfer to Newcastle was reasonable considering that faced with similar facts or conduct, other employers may have considered the extreme sanction of dismissal. 215 Mr Phillips submitted that in cross examination, Ms Christensen had agreed with him that the transfer to Newcastle was for a very limited period of 12 months, involved no demotion, no increase in personal transport costs nor any change of residence. Moreover, he contended the evidence of Mr Richey that Ms Christensen may be afforded benefits in terms of career progression and training opportunities that were not available to staff at Maitland was not contested by the PSA. The Newcastle office was also much larger with more staff, including supervisors and an increased capacity for the respondent employer to carry out a performance improvement plan. 216 With regard to the specific allegations and issues of concern, Mr Phillips summarised the respondent's position in the following terms: Email to Mr Richey Mr Phillips reiterated that when considered in isolation this issue was not in itself significant. However, when viewed against Ms Christensen's conduct at the Tamworth meeting, the tone of the email depicts a confrontational approach that the respondent wishes to see dealt with. Tamworth Meeting Without doubt, Ms Pollard was questioned by a number of staff who were unhappy with the new publications distribution policy. In cross examination, Ms Pollard said that while she was expecting some opposition she took exception to the tone and volume of Ms Christensen's remarks. Moreover, Ms Pollard was not cross examined on whether the material contained in her affidavit was untrue or incorrect and accordingly, the statements and evidence of Ms Pollard stand in relation to what she deposed Ms Christensen had said to her. That conduct and behaviour took place in front of a meeting of approximately 25 to 30 staff and can be characterised as insubordination - conduct that deliberately undermines the standing of the person who is the subject of attack. For her part, Ms Christensen had said that she had nothing to apologise for personally and that any apology that was proffered by her to Ms Pollard afterwards was on behalf of the meeting. However, Ms Mayo-Ramsay said that while she did not hear the entirety of the conversation between Ms Christensen and Ms Pollard, she did recall hearing Ms Christensen apologise personally to her. Further, Ms Christensen's correspondence to Mr Watson dated 27 April 2006 stated, "I spoke to Ms Pollard following her presentation and explained my concerns with the changes to the publications system and apologised in case I offended her." In this regard, it was Mr Phillips' submission that Ms Christensen's response that she had "apologised on behalf of the meeting" was of interest for two reasons: Firstly, it was a very inconvenient admission that Ms Christensen had made an apology and she had attempted under cross examination to deal with that admission in a way which "does not speak well of the witness's credit" because it was quite clear from her own evidence that an apology was proffered; and Secondly, an apology of a personal nature is normally given where conduct is regarded as being offensive. Ms Christensen, possibly upon reflection, thought she had insulted Ms Pollard and therefore apologised to her afterwards. That apology should speak credit to her, because that shows a capacity to reflect upon her conduct and give an apology which was freely accepted. Unfortunately, that is not how it has been presented to the Commission because Ms Christensen has attempted to move away from that fact because it would prove that the conduct took place. Towing the Horse Float It was Ms Christensen's evidence that she had informed her immediate manager, Ms Mayo-Ramsay of her intention to travel to Tamworth with the horse float in tow. However, Ms Mayo-Ramsay's evidence was that she was unaware Ms Christensen was towing a horse float until she spoke to her that morning en route to the meeting. Further, the evidence was that Ms Christensen had left the Branxton/Greta area after having picked up Ms Curtis at about 7.00am on 16 August 2005. Ms Curtis had estimated that the arrival time in Tamworth was somewhere between 9.30am and 10.00am. Exhibit 12 sets out Ms Christensen's mobile telephone records and suggests the arrival time was closer to 9.30 am. The PSA's position was that meeting participants were required to arrive at the venue early to get ready and no issue is taken with that general proposition. However, the facts of this matter were that with a 9.30am arrival in Tamworth, Ms Christensen arrived two and a half hours early for a meeting arranged to commence at 12 noon. This was an error of judgement given Ms Curtis' evidence that having arrived in Tamworth, she and Ms Christensen had a cigarette, checked into their rooms and did little else prior to the commencement of the meeting. Similarly, it was also an error of judgement to leave so early to tow a horse float on a business trip. Mr Phillips speculated that Ms Christensen left home at 7.00am because she was concerned to transact the delivery of the horse in sufficient time to ensure her timely presence at the meeting. However, Ms Christensen completed her flex sheet for that day on the basis that nine hours had been worked. That claim was a much larger error of judgement. Mr Phillips requested the Commission to determine whether any adjustment should be made to Ms Christensen's flex sheet as there was no requirement, according to Mr Richey's evidence, for her to be in Tamworth prior to about 11.30am. Attendance at Mount Thorley Mr Richey's evidence was that he was concerned that Ms Christensen would take Ms Curtis and the horse float on site. That did not occur. However, it was not contested that Mr Richey sought to avoid the following risks: Firstly, the potential risk to the reputation of WorkCover. Ms Christensen was attending a possibly fatal incident where people are traumatised. Emergency services and the media are often in attendance. A WorkCover inspector turning up to an incident looking like he or she was also conducting private business along the way does not present the organisation in a professional manner. Secondly, that an untrained person "may" somehow become involved in an on site investigation. Accordingly, Mr Richey caused Ms Kenny to phone Ms Christensen and advise her not to take Ms Curtis or the horse float on site. Therefore, irrespective of her actual intentions, Ms Christensen was under a relevant and reasonable command from the employer.

[140]

218 It was the respondent's contention that Ms Christensen "was a less than forthcoming witness and was deliberately attempting to evade responsibility for things which were only her action". Mr Phillips stated the most significant case in point concerned her exchange with Ms Pollard where the respondent submits she was deliberately evasive or worse. That evidence was unchallenged. 219 Mr Phillips contended that when Ms Christensen's conduct in the witness box was observed and compared to the confrontational tone of her email to Mr Richey, the confrontational tone of her exchange with Ms Pollard, issues arise that "go to the confidence which the employer has in this employee to discharge her duties". Accordingly, having conducted an investigation and given Ms Christensen an opportunity to be heard, the respondent employer decided it was appropriate to take reasonable steps to try and assist Ms Christensen attain an acceptable level of behaviour rather than consider her demotion or termination. 220 For her part, Ms Christensen has objected to her temporary transfer to Newcastle and the range of training to be undertaken at that office: Firstly, the condition of her back was such that additional travel would exacerbate her injury. However, she agreed in cross examination that her back condition did not hinder the proper discharge of her work functions. There was no medical evidence before the Commission or with the respondent employer to suggest that anything adverse was likely to result from Ms Christensen driving from Branxton to Newcastle as opposed to Maitland. Ms Christensen's job is field based and she already does a lot of driving. Moreover, the evidence that Ms Christensen was an accomplished horse rider shows a significant capacity in terms of physical fitness. Accordingly, the whole issue concerning the potential affect to her back injury precluding the move to Newcastle should be dismissed. Secondly, Ms Christensen stated that she was concerned that her transfer to Newcastle would be seen as a form of punishment. However, the evidence of Ms Kenny was that she had no desire to treat Ms Christensen in any way other than to welcome her to the office and assist her. Ms Kenny would be Ms Christensen's team coordinator from March 2007. Similarly, Mr Richey indicated that while he would not have line responsibility for the direct supervision of Ms Christensen, he was also willing to assist her and had made arrangements with a consultant to provide a performance coaching program.

[146]

228 It was WorkCover's contention that Ms Christensen's response to Mr Watson dated 27 April 2006 confirmed there was justification for the remedial action proposed and she did not challenge the finding that her alleged conduct amounted to misconduct. Further, Ms Christensen's objection to the then proposed permanent transfer to the Newcastle office was based on her view that Mr Richey's allegations did not specifically relate to her work environment and the training proposed would largely resolve such issues. In addition, she was concerned about the potential impact of the additional travel involved and working in the same office as Mr Richey. 229 WorkCover further contended that given there was no finding that disciplinary action was required and the matter had proceeded on the basis of remedial action, it was not required to comply with the "Guidelines". In that regard, WorkCover denied that a preliminary investigation formed the basis of determining misconduct. Further, the prescribed timeframes for resolution and sample letters were not required. There was no breach of the procedural guidelines because the allegations of misconduct were put to Ms Christensen for her consideration prior to the determination that any misconduct had occurred. Mr Watson was independent and competent to undertake the investigation. He had an adequate understanding of the procedures and procedural fairness requirements involved. Mr Watson did not directly supervise Ms Christensen. Moreover, the timeframe to collect statements was not prejudicial to Ms Christensen insofar as procedural fairness was concerned. 230 In correspondence dated 27 September 2006 sent to the General Secretary of the PSA and set out under annexure "G" of Mr Watson's affidavit filed on 24 October 2006, WorkCover made a clear admission that the processes and procedures set out under the Guidelines "may not have been strictly followed and therefore charges of misconduct could not be sustained against Ms Christensen". There was also an admission that Ms Christensen was only given an opportunity to respond to the additional matters raised in Mr Richey's second report after WorkCover had determined Ms Christensen had engaged in misconduct, but prior to the commencement of the proposed remedial action. In that regard, it was WorkCover's contention that the conduct of Ms Christensen related to issues that affected the proper performance of her duties as an inspector. WorkCover also contended that it was open to the Commission to find that Ms Christensen's conduct constituted misconduct.

[156]

239 The PSA forcefully submitted that the Guidelines were mandatory guidelines. Indeed, Mr Watson admitted as much in cross examination. The Public Sector Management Act 1988 clearly set down 14 mandatory steps to be followed in the case of misconduct and performance. Following the passage of the Public Sector Employment and Management Act, allegations of misconduct and unsatisfactory performance are now subject to an 8 and 6 step process respectively. The legislative framework provides concepts and guidance for NSW Public Service Departments so as to effectively manage the conduct and performance of departmental officers. It is clear from the Policy Statement set out under Chapter 9, Management of Conduct and Performance that the purpose and operation of the Guidelines is to: Maintain appropriate standards of conduct and work-related performance in the Public Service; Protect and enhance the integrity and reputation of the Public Service; and Ensure the public interest is protected pursuant to s 41 of the Act. 240 The Policy Statement refers to a "dual approach" that is to apply to the management of conduct and performance issues: Performance issues, in particular, can be dealt with in a remedial framework, with disciplinary action being taken where there has not been satisfactory improvement. The option to take remedial action, instead of disciplinary action, is also available in cases of misconduct and conviction of a serious offence at the discretion of the Department Head. It is important to apply a risk-based approach to managing issues of conduct and performance. The approach taken in each case will depend on the nature and seriousness of the issue. Looking behind the issue, within the framework and scope of the allegation, can assist in deciding which approach to take. Each allegation of misconduct should be assessed and a considered decision should be made in deciding whether to take disciplinary or remedial action. Just as some cases will always warrant a disciplinary approach, it is not warranted in others. In some cases a remedial approach would be the best option. Importantly, if having decided that a disciplinary approach should be taken, and the facts of the matter later support a remedial approach, remedial action may be taken. Similarly, if having decided to take remedial action, further allegations of misconduct arise, then the matter may be dealt with as a disciplinary matter. Flexible options which incorporate support and assistance, provide officers with the opportunity to improve to an agreed performance standard. Where appropriate, remedial action may provide a better outcome for both the officer and the Department.

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244 On the evidence before the Commission, Mr Watson first wrote to Ms Christensen on 20 October 2005 when he gave her 14 days to make a submission in response to the allegations set out in Mr Richey's report. He also advised Ms Christensen that her response would be considered prior to a determination whether the matter would be dealt with as a remedial action or disciplinary matter. Ms Christensen provided her written response to Mr Watson on 4 November 2005. 245 On 14 March 2006, Mr Watson wrote to Ms Christenson and advised her that following consideration of her 4 November 2005 response, he had determined that she had engaged in misconduct. He proposed a remedial action response that comprised both counselling and training, an adjustment of her flex sheet and a permanent transfer to the Newcastle office. 246 Ms Christensen provided a written response to Mr Watson's letter dated 14 March 2006 on 27 April 2006. She broadly agreed with the action proposed by Mr Watson with the exception of the transfer and wrote "I am of the opinion that there is some justification for minimal remedial action to be taken ...". The email to Mr Richey was "not intended" to be offensive nor disrespectful. She had apologised to Ms Pollard "in case I offended her". Her flex sheet would be adjusted and she was adamant that she never intended to take the horse float onto the Mount Thorley site. 247 On 22 March 2005, Ms Bronwyn Van der Graaf wrote to Ms Christensen to advise that Mr Watson was considering taking remedial action and accordingly, there was no requirement under the Guidelines to initiate a formal investigation. Ms Van der Graaf also forwarded seven documents including internal memoranda and an email concerning the matter "in the interests of procedural fairness and to assist you in any further response you choose to make". 248 Mr Watson replied to Ms Christensen's response of 27 April 2006 on 23 May 2006 and informed her that she would now be able to lodge an expression of interest to transfer to another WorkCover office after 12 months service in Newcastle, provided there were no further conduct or behavioural incidents. 249 Mr Watson wrote to the General Secretary of the PSA on 27 September 2006 and as set out above, advised that the matter would now be dealt with as a performance issue and he had determined Ms Christensen should now undertake a temporary transfer to the Newcastle office for a period of 12 months.

[185]

276 When the more substantive allegations are viewed separately and distinct from each other, WorkCover would be entitled, subject to an appropriate investigation, to respond with informal counselling. However, when the sum of all the substantive allegations are viewed collectively, as was the case in this matter, WorkCover was entitled, subject to the conduct of a proper investigation, to consider and implement remedial action as part of a structured performance improvement plan. 277 To her credit, Ms Christensen has admitted "there is some justification for minimal remedial action to be taken" and has accepted the remedial action proposed in terms of training and counselling. Pursuant to the direction of Mr Watson and s86 of the Public Sector Employment and Management Act, WorkCover has the right to direct Ms Christensen to undertake the 12 month transfer as proposed and enable the complete remedial action proposal to be implemented. 278 During the course of this matter the Commission was invited to make a finding as to whether Ms Christensen's conduct amounted to misconduct. In my view, this is unnecessary. The imperative of all parties to this dispute should be to ensure that Ms Christensen undertakes the transfer to Newcastle and grasps the opportunity that transfer presents to her in terms of career progression. The evidence in this matter that Ms Christensen is a highly regarded and professional inspector is both compelling and forceful. 279 With respect to Ms Christensen's employment location, WorkCover is entitled to require her to work at any location within the State of New South Wales. In that regard, the location of WorkCover's Newcastle office represents a reasonable daily commuting distance from her home. Ms Christensen was firmly of the view that the half hour taken to drop off the horse was sufficient private business time to deduct from her flex sheet. In my view, it is in the public interest that Ms Christensen deducts a further hour off her flex sheet for 16 August 2005 on a without admissions basis. Otherwise, having carefully considered all of the evidence and submissions of the parties in this matter, it is my finding that the Commission should not intervene in Matter No IRC 2792 of 2006. This matter is now concluded.

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales

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Cases Cited (1)