Fair Work Act 2009
s.394—Unfair dismissal

Elliott Keyworth
v
Australian Capital Territory as represented by Canberra Health Services
(U2020/15111)

Application for an unfair dismissal remedy – application dismissed.

[1] Mr Elliott Keyworth was employed by the Australian Capital Territory as represented by Canberra Health Services (Respondent or CHS) until he was dismissed on 30 October 2020 on grounds of underperformance. Mr Keyworth has made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed. He seeks reinstatement to his former position.

[2] The application was heard by video over multiple days between May and July 2021. At the hearing, Mr Keyworth appeared on his own behalf and was assisted by his partner, Ms M Gane. Mr M Chilcott of the ACT Government Solicitor appeared with Mr D Ingram for the Respondent.

[3] Mr Keyworth gave evidence in support of his application and called evidence from two other persons: Ms Madeleine Gane (his partner) and Ms Meaghan Edwards (a former colleague). His evidence was supplemented by a chronology of events leading to his dismissal and a significant volume of material relating to his employment with CHS, the background and the implementation of the underperformance management process, his engagement with and responses to those processes, and other related matters.

[4] CHS called evidence from the following persons:

•  Ms Kara de Lucey, HR Business Partner

•  Mr James Tosh, Senior Director of People & Culture

•  Ms Bailey de Paiva, Manager of Consumer Participation, Quality, Safety, Innovation and Improvement Division

•  Ms Denise Patterson, Chief Operating Officer

[5] Both parties provided oral and written submissions. In short, Mr Keyworth contends that he did not underperform; that the many aspects associated with the underperformance process were unreasonable and the decision to dismiss him was unfair both procedurally and substantively. CHS says that the processes and steps leading to the dismissal were abundantly transparent and fair; and the termination of employment proportionate given what is said to have been the unwillingness of Mr Keyworth to recognise and remedy the deficiencies and shortcomings in his performance.

[6] For the reasons set out below, I find that Mr Keyworth’s dismissal was not unfair.

The Background and Evidence

[7] The sequence of events leading to Mr Keyworth’s dismissal is, by and large, not disputed.

[8] Mr Keyworth commenced employment with CHS in or about June 2010. At the time of his dismissal, he was employed as a Quality and Safety Data Officer in the Quality Assurance Team and had been in this role since around March 2016. He was classified as a Senior Officer Grade C (SOGC) under the terms and conditions of the ACT Public Sector Administration and Related Classification Enterprise Agreement 2018-21 (the Agreement).

[9] Ms de Paiva became Mr Keyworth’s manager when she joined the Quality Assurance Team in August 2017. According to her, Mr Keyworth was a senior member of the Team with particular responsibilities for the administration of the Division’s Sharepoint pages and preparation of a number of regular reports which required him to access a number of IT platforms and undertake tasks that she allocated to him.

[10] Ms de Paiva gave evidence that she met with her team members regularly to discuss work issues and scheduled monthly one on one meetings with all team members. She said that in late 2018 and early 2019 she began having concerns about Mr Keyworth’s performance in the following aspects:

a. The way he informed CHS about his unplanned leave

b. His hours of work

c. His ability to prioritise his work and meet deadlines

d. The quality and accuracy of the reports he produced.

[11] Ms de Paiva said that she first discussed these issues with Mr Keyworth at a meeting on 4 January 2019. She said that she had discussed with Mr Keyworth his performance in subsequent meetings on 22 March, 18 April and 24 May 2019 but did not see any improvement. As a result, she sought guidance from Mr Tosh in managing Mr Keyworth’s performance.

[12] Mr Tosh gave evidence that Ms de Paiva provided him with email correspondence detailing the performance issues she raised with Mr Keyworth at a number of meetings. He met with Ms de Paiva on 26 June 2019 to discuss the steps to follow under the relevant provisions of the Agreement. He advised her that the Agreement requires a ‘Performance Record’ to be signed by both the employee and the relevant manager prior to commencing an underperformance process.

[13] Mr Tosh said that Ms de Paiva told him on 28 June 2019 that she wanted to provide Mr Keyworth with another opportunity to respond to her concerns before proceeding with a formal process.

[14] Mr Tosh said that she next met with Ms de Paiva on 4 September 2019 when she expressed ongoing concerns in relation to Mr Keyworth’s performance. It was agreed that they would meet with him upon his return from leave.

[15] Mr Keyworth was on annual leave from 2 September 2019 until 20 September 2019. On 26 September 2019, Ms de Paiva sent an email to Mr Keyworth directing him to attend a meeting with her and a representative from People and Culture. Mr Keyworth was invited to bring a support person to this meeting. The email referred to continuing concerns regarding his performance which had been raised in an informal capacity and noted that his work performance was considered to be below the expected standard. The email went on to outline the specific concerns which were said to have been previously raised, and concluded as follows:

“Accordingly, I am hoping to meet with you, and make clear my expectations of your performance in a more formal setting. I would like to give you the opportunity to comment on my current assessment of your work performance, and provide me with any factors which you believe have contributed to your performance.

To be clear, following this meeting, a record will be produced which will clarify my concerns, and provide you with my expected performance standard. This record will be consistent with H4.4 to H4.6 of the Enterprise Agreement (see page 94).”

[16] The meeting eventually occurred on 14 October 2019 and was attended by Mr Keyworth, Ms de Pavia and Mr Tosh. Also attending were Ms Edwards and a CPSU officer, Ms C O’Regan (via telephone) as Mr Keyworth’s support persons.

[17] Following this meeting, Ms de Paiva issued the ‘Performance Record’ on 21 October 2019 in the form of a letter to Mr Keyworth. The letter particularised the concerns relating to Mr Keyworth’s performance which she identified as the subject of discussions during their previous meetings. Those concerns fell into four categories:

a. Missing of deadlines and quality of work;

b. Regularly turning up late to work,

c. Not appropriately reporting leave, and

d. Unable to locate reports in Q drive.

[18] The letter set out under each of those categories the details of prior discussions and Mr Keyworth’s responses to the specific matters raised. It also included a number of directions:

Direction 1: I am directing you that in future if there is work that has been re-prioritised without my knowledge that you provide an update to me in writing of the reason why work was re-prioritised and when I will expect to receive the finalised work output.

Direction 2: I am also directing you to take the time to review all of your work to ensure the quality of your work is finalised to a high-level, including work that is cross-checked by you prior to providing to team members for validation, and also for you to consider the audience of the report for appropriate content for the purposes of the report.

Direction 3: I am therefore directing you to finalise the M&M reports in future by saving datasets using PDF files that can be opened by clinicians using Windows 7.

Direction 4: I am now directing you to be in the workplace to commence work from 9am every day and finish by 5.30 (unless otherwise discussed with and approved by me).

Direction 5: Further, I am directing you to now regularise your appointment by taking personal leave for all future appointments.

Direction 6: I am directing you to submit a HR21 leave application and medical evidence on the next available 1-2 days upon your return to the workplace following all unplanned leave (I noted in our meeting that HR21 is unavailable one day per fortnight).

[19] The letter went on to state that continued performance below the expected standard may lead to the initiation of an Underperformance Process and Action Plan in accordance with clauses H4.7 to H4.20 of the Agreement, which may result in action being taken up to and including termination. The letter concluded with a direction requiring Mr Keyworth to indicate if he agreed or disagreed with the record therein and to provide reasons and comments if he disagreed.

[20] Mr Keyworth responded to this correspondence on 14 November 2019. In his response Mr Keyworth disagreed with almost all the performance issues raised by Ms de Paiva. In terms of the matters raised concerning the missing of deadlines, Mr Keyworth said:

“I strongly object to this being used as evidence to allege that I do not adhere to deadlines – in fact, this is a clear example of me actively prioritising work and managing my tasks to ensure they are completed within expected timeframes.

•  On Thursday 29/8/19 you were on leave and called in the morning to ensure that I was aware of the Observational SSC Audit Report being due at 16:00 hrs for the meeting taking place at 17:30 that afternoon.

•  I was aware of the scheduled meeting and had in fact already commenced work on this report earlier in the week to ensure it would be ready in time.

•  This task was made more challenging as you provided additional audit data to Linda on the morning of Thursday 29/8/19, and directed her to upload this to SharePoint. This meant that the dataset for the report I had been working on was no longer correct and so are extract of datasets had to be undertaken to update the draft report with new figures as these audits were for the month being reported.

•  Despite these late changes in the dataset, I was still on track to finalise the report by the agreed deadline.

•  In the middle of the morning on Thursday 29/8/2019; I had some queries about the report development. In your absence I spoke to the Director of Clinical Effectiveness (Josephine) as she attends the ESSC meetings. As we were talking, Josephine checked the meeting details and informed me that the ESSC Meeting scheduled that afternoon had been cancelled, and that the report was now due to be tabled at the next scheduled ESSC Meeting on 5/9/2019.

•  As other work was required prior to the new meeting date, work was progressed with Roman to complete the prioritised activities.”

[21] In terms of the issues concerning the quality of his work, Mr Keyworth said:

“In this letter you have listed several issues with the Observational Surgical Safety Checklist Audit Report produced in August, however I was not actually provided any information on issues with this report. The first time this was raised with me was in the meeting on 14/10/19.

•  No details provided re issues with report that required resolution.

•  Have checked finalised report vs report supplied to identify any differences 27/9/2019.

•  I have not discussed the variation between reports with Bailey as yet.

I regularly produce a range of reports and have not received other negative feedback. I understand and appreciate the importance of correctly analysing and presenting data pertaining to the Health Service and I always strive to produce reports of high quality. I am disappointed that these concerns relating to my work were not discussed at the time.

This delay in advising me of these issues means that we have not actually had a constructive discussion about your concerns and I have not had a chance to investigate and rectify any problems. In the future I would appreciate it if any concerns or issues such as this could be communicated with me in a timely fashion.”

[22] In responding to another issue raised in relation to his reporting Mr Keyworth gave the following explanation:

“As you have noted, I sent the 5 reports to you on time for your review and distribution. You have stated that you tried and to open the PDFs and you were unable to successfully open 4 of the reports. As a result, you delayed sending these reports until this perceived error was rectified. To address this perceived problem, you directed Roman to create the PDFs using Microsoft Edge. These reports were then distributed. Recipients who are Windows 7 users could not open these PDFs as they were created in Edge (most Clinical staff use Windows 7). The report had to be re-distributed, using the PDFs I had that I created originally.

It is particularly frustrating that you have used this as an example of my ‘underperformance’, as I provided the correct reports to you within the correct timeframe. We have previously encountered this issue with W7/W10 PDF compatibility and I worked to diagnose and understand the problem, and specifically produced the reports using a method which would mean all staff could open the embedded PDFs. When this issue first arose I communicated this with you and explained my proposed workaround. I indicated at the time that I believed that the problem you were having opening PDFs was an issue on your machine that needed to be raised with SSICT, and did not represent a widespread issue. I am disappointed that you chose to disregard my advice, and I absolutely reject your suggestion that the late delivery of the reports was due to any incompetence on my part.

For the record – we first had compatibility issues following the w10 upgrade at Bowes St. The M&M reports were finalised and sent by Roman. He was using a Windows 10 computer and created the PDFs in Edge. We were advised that a recipient could not open the report, so I assisted Roman and investigated the issue. We identified a compatibility issue: when PDFs are created in Microsoft Edge (W10) they cannot be opened in Adobe.

Spoke to SSICT and confirmed that the W10 Standard Operating Environment includes Acrobat Reader, so all W7 and W10 users will be able to open PDFs created in Adobe (via Adobe Reader or Adobe Edge Plugin). Since discovering this issue, we now generate any PDFs using Adobe Acrobat PRO. This creates a regular pdf file that can be opened on any Windows 7 machine via Adobe Reader as per normal. The PDF can also be opened on any Windows 10 machine with either Edge (via Adobe plugin which should be installed by default) or Adobe Reader (which is not installed by default for many W10 users but can be installed at any time via software centre – see attached document). If a Windows 10 user cannot open PDFs created with Adobe Acrobat, this is a technical issue with their machine, likely caused by a missing plugin. Shared Services has confirmed this. The small number of staff who have the same issue as you either need to install any pending or required updates in Software Centre or contact SSICT for assistance.”

[23] In terms of the issue concerning his turning up late to work, Mr Keyworth said:

“•  I accept that sometimes I may be late but I advise my Manager if this is the case by 9:00AM; as previously agreed.

•  I have worked on improving this.

•  Post return from annual leave (3 weeks) we have moved back to The Canberra Hospital (TCH) from the offices at Bowes St. This has required me to learn that parking a vehicle at work can now take up to 25 minutes.

•  This was not accounted for when planning of working back on campus.

•  This is publicly communicated as an issue at the Hospital and there is now promotional material advising people to seek other transport options.

•  As a result of this I have changed my transport to and from TCH to minimise the possibility of this occurring in the future.

•  Since I have undertaken this change I have been at work at 9:00AM or earlier.

•  If there are scheduled meetings or events planned for certain times, I do not believe I have an issue with attendance on time.”

[24] In response to Ms de Paiva’s comments that “most concerning is that in the three working days following our discussion, you were late again. When asked on 17 October you provided the following explanations including that you are not a morning person, you had trouble adjusting to daylight saving, your partner was on call and you relied on your partner to wake you up in the mornings (relevant emails are attached). As a senior officer, I am concerned that this is now a pattern of wilful behaviour and intend to counsel you on your conduct. I will arrange a meeting time separate to this process”, Mr Keyworth said:

“It is incredibly unfair for you to describe this as ‘a pattern of wilful behaviour’. This infers that I do not care, and that I do not try to address this issue, and categorises it as an intentional act of defiance. This is not the case. We have had discussions in the past where I have shared with you the difficulties that I have in the first hour or two of the day. These challenges stem from biology and require effort to manage on a day to day basis. For the most part, I am able to overcome these intrinsic factors.

However, I have found this has become increasingly difficult manage in an unsupportive and hostile environment in the workplace. The scrutinising and highly-critical management practices I am currently being subjected to seem to be incredibly disproportionate to the situation. We already work in a pressurised environment, with constantly shifting demands and priorities, where all work must be done to an extremely high level of quality. I welcome feedback and any identified opportunities to continually grow and improve, however the manner in which these concerns have been raised has been extremely destabilising and caused me a significant and ongoing amount of stress. This affects my sleep, my appetite and general health & wellbeing.

I do not dispute that there are times when I am late. However please understand that this is not deliberate and wilful behaviour, and recently it has been directly related to the stress caused by this process.”

[25] In terms of the issue concerning his taking of leave, Mr Keyworth’s responses were that:

a. he did not believe that the criticism was justified;

b. he was on personal leave on 21/6/19 and attended his GP for review who provided him with a medical certificate and antibiotics, and determined he needed to have a surgical procedure which occurred on 26/6/19

c. he had annual leave planned for the following week (24/06/2019 – 28/06/2019);

d. he had not sought to claim this time as personal leave despite occurring during his annual leave;

e. On 1/7/19 he returned from leave and submitted a personal leave request via HR21 System for the 21/6/19 stating that he had a medical certificate;

f. He brought the certificate to work and from his recollection provided it with his timesheets;

g. He was advised on 31/7/19 that the medical certificate had not been received;

h. He then proceeded to search through his files at work and look at home to locate the certificate, then asked his manager to check his file to ensure that it was not there;

i. On 5/8/2019 he was told that the medical certificate had not been located and as a result the leave request would be declined. He was informed that he could resubmit the leave application it if he was able to produce the medical certificate;

j. He took further personal leave (19/8/2019 to 26/8/2019);

k. He subsequently obtained a copy of the medical certificate then resubmitted the leave application.

[26] It was Ms de Paiva’s evidence that she continued to monitor Mr Keyworth’s performance but did not see any improvement. After seeking further guidance from Mr Tosh, she wrote to Mr Keyworth on 22 January 2020 stating that she intended to initiate the underperformance process in accordance with section H of the Agreement. Mr Keyworth was asked to attend a further meeting on 31 January 2020 to develop the Action Plan and was invited to bring a support person to this meeting. A draft Action Plan was attached to the letter which Ms de Paiva said would form the basis of discussion. The letter set out the outcomes available under clause H4.17 of the Agreement if his performance did not improve over the timeframe of the Action Plan. Mr Keyworth was given 7 days to provide any comments.

[27] After receiving this letter, Mr Keyworth advised Ms de Paiva that he preferred to respond verbally at the upcoming meeting. The meeting planned for 31 January 2020 was postponed to 7 February 2020 to accommodate the availability of Mr Keyworth’s union representative. Mr Keyworth attended the meeting with Ms Edwards and Ms O’Regan. Also attending the meeting were Ms de Paiva and Mr Tosh.

[28] Following the meeting, Ms de Paiva forwarded an email to Mr Keyworth in the following terms:

“Dear Elliott,

Thank you for meeting today to discuss response to the performance letter sent that I sent you on the 22 January 2020 (attached).

Due to your preference to provide a verbal response to the letter (instead of a written response) at today’s meeting, as agreed in our meeting today, I have provided you with additional time to respond in writing to the letter. As discussed, the agenda for the meeting scheduled today was to discuss the draft action plan and formalise this plan.  As discussed at today’s meeting I would like to progress to finalise this Underperformance Action Plan as soon as possible.

Would you please provide response to the letter dated 22 January, and any changes to the draft Underperformance Action Plan (attached) to me by COB Wednesday 12 February. Would you provide your availability on 13 or 14 February to meet again to formalise the Underperformance Action Plan and to progress with this process.

Thank you,
Bailey”

[29] Meanwhile, Ms de Paiva took unplanned leave from 11 February 2020 until 24 February 2020. On 12 February 2020, Mr Tosh wrote to Mr Keyworth reminding him of the deadline and advised that Ms Josephine Smith (Senior Director of the Quality Safety Innovation and Improvement Division) would assist in progressing the matter in Ms de Paiva’s absence.

[30] In his reply, Mr Keyworth stated that he was seeking advice from his union representative regarding the “change in process and manager being absent”, that he had been busy with additional work requirement due to Ms de Paiva’s unplanned leave and that he was continuing to progress his response to the letter of 22 January whilst awaiting the advice from the union.

[31] The next day Mr Keyworth wrote to Ms Paiva in the following terms:

“Dear Bailey,

Thank you for your email and for your invitation to provide you with a written summary detailing my responses to your concerns which were discussed in our meeting on the 7th of February.

As agreed I will provide my responses to your letter dated the 22 January.

Due to unexpected staff leave; communicated to the team as being for the rest of the week (ending 14/2/20).

This has limited my ability to clarify questions with you; in relation to providing a response.

As a result of the significant workload currently being managed and your anticipated absence for the remainder of the week; this will be submitted by COB today.

I would like to raise some concerns that I have about this process, and seek a response to these concerns prior to you proceeding with this action plan.

•  In the meeting on the 7th of February, you confirmed that you have seen improvements in my performance since our initial discussion in October 2019.

•  Many of the examples provided in the letter dated 22nd January are spurious and seek to mischaracterise my work performance.

•  In the meeting on the 7th of February, I provided counter evidence and clarification on a number of your examples.

•  I am now providing this information to you in writing as per your request.

•  Despite your verbal agreement in the meeting on the 7th of February that many of your claims were invalid, both you and Jim Tosh continued to advocate during this meeting for the progression of this underperformance process.

•  In your email above, you advised ‘As discussed at today’s meeting I would like to progress to finalise this Underperformance Action Plan as soon as possible’, and that you would like to ‘meet again to formalise the Underperformance Action Plan and to progress with this process.’ I ask that you adequately acknowledge and address the responses I raised during the meeting on the 7th of February prior to determining if an action plan is necessary or justified.

I would appreciate consideration of the matters I have raised in the meeting on the 7th of February and further detailed in my response to the letter dated 22 January (to be provided by COB today) and look forward to working with you to constructively address any concerns that you may have.

Kind Regards,
Elliott Keyworth”

[32] Following this email, Mr Keyworth sent Ms de Paiva and Mr Tosh his response to the letter of 22 January by way of marked up comments.

[33] On 21 February 2020 Mr Keyworth was advised by Ms Smith that she had reviewed the information provided by him and Ms de Paiva and considered there was enough evidence to proceed to an underperformance plan. Ms Smith referred to her concerns about Mr Keyworth’s “repeated failure to follow reasonable direction, including providing responses to formal communication by the deadline throughout the process” and that this demonstrates that he was “not operating to the performance expectations of a SOGC, including but not limited to: Accountability for Quality Outcomes: takes responsibility for timely delivery of individual and team outcomes; Leads with commitment: accepts accountability for actions of self and others; addresses performance shortfalls in an appropriate, constructive and timely manner.”

[34] Ms Smith concluded that the underperformance plan would be initiated upon Ms de Paiva’s return to the office the following Monday.

[35] On 24 February 2020 Ms de Paiva sent an email to Mr Keyworth indicating that she would be scheduling a meeting with him later that week on Friday 28 February to discuss the draft Action Plan. The proposed meeting did not eventuate on 28 February as Mr Keyworth was unable to arrange a support person. An invitation was subsequently sent to Mr Keyworth by Ms de Paiva on 2 March 2020 directing him to attend a meeting on 5 March 2020 with her, Mr Tosh and his support person to finalise the proposed Underperformance Action Plan. The meeting was later cancelled by Ms de Paiva for reasons unknown to the Commission.

[36] Between 10 and 20 March 2020 Mr Keyworth was on personal leave.

[37] On 23 March 2021 another email was sent to Mr Keyworth from Ms de Paiva. Attached to that email were Ms de Paiva’s response to the comments provided by Mr Keyworth on 13 February and a letter confirming her decision to proceed to an Underperformance Action Plan. Also attached was an Underperformance Action Plan to which Mr Keyworth was directed to provide a written response by 30 March 2020. Ms de Paiva referred to the attempts to meet with Mr Keyworth on three occasions to discuss the action plan (7 February, 28 February and 5 March) and further directed him to attend a meeting on 1 April 2020 with her and Mr Tosh to commence the plan.

[38] On 31 March 2020 Mr Keyworth sent the following email to Ms de Paiva:

“Hi Bailey,

I appreciate that it is close to the scheduled meeting tomorrow (1/4 @ 1pm), however, I have just spoken to CPSU who have requested that the meeting be delayed by a minimum of 24 hours to allow them to organise a representative to attend.

Please note that you advised me of this proposed meeting late Monday afternoon last week (23/3). I was then directed by you on Tuesday 24/3 to take leave for the reminder of the week without my laptop. I requested an extension last week as I was not able to prepare a response to your letter by COB Monday 30/3 due to not having my work materials while on leave, which you denied late Monday (30/3) afternoon. Despite this, I have attempted to contact the Union during this period and did not receive a response regarding the proposed meeting time.

As previously stated, I would like union representation at this meeting. I am therefore requesting that the meeting currently scheduled for 1pm tomorrow (Wednesday 1/4) be deferred for at least 24 hours as suggested by my Union.

I will provide you with an update as to their availability once I have spoken to them again tomorrow.

Thank you for your understanding.

Regards,
Elliott”

[39] In response to this email, Ms de Paiva cancelled the meeting scheduled for 1 April and replied as follows:

“Dear Elliott,

Today’s meeting was to discuss your written response to the Action Plan provided to you on 23 March (attached), due on 30 March, which we have not received.

As described in my correspondence to you, the decision has been made to progress to an action plan, and the purpose of this meeting was to discuss the goals and other aspects held within the Action Plan. It is concerning that you “have just spoken to CPSU” about the meeting despite having the date for more than a week, an extension could have been sought much earlier, or perhaps CPSU availability resolved. To ensure this does not happen again, I provide the following times to Cheryl and Jess to ensure that you have support for these following meetings:

•  15 April, 3pm

•  29 April, 3pm

•  13 May, 1pm

•  27 May, 1pm

These meetings are scheduled to track your progress against the Action Plan. Should you fail to attend any of these meetings, I will provide you with an overview of your performance against the goals for the fortnight in writing, so that we can continue to progress the process.

I will cancel today’s meeting on the basis that we have not received any feedback on the Action Plan. I note that your attendance at the meeting today was a direction provided to you, and that you failed to comply with this direction as a result of not informing your union with sufficient notice.

For clarity, while I suspend this meeting today, the Underperformance Action Plan will commence on Monday 6 April in its current state (same attached), however you are welcome to provide any suggested changes before then for me to consider by close of business tomorrow, then I can consider these before commencement. It is worth noting that you have had this plan for a number of weeks to make comment already.

For your knowledge, I will be assisted through this process by Kara De Lucey from People & Culture, who has taken over from Jim as the Business Partner for QSII.

Regards,
Bailey”

[40] On 2 April 2020 Mr Keyworth emailed Ms de Paiva and Ms De Lucey with a response to the Action Plan. By email of 8 April 2020, Ms de Paiva acknowledged receipt of Mr Keyworth’s response and advised that a few minor edits would be made to the Action Plan to reflect the working from home arrangements that were in place from 6 April 2020. Mr Keyworth was reminded of the next meeting on 15 April and was asked to organise the attendance of his support person. Ms de Paiva noted that as she had scheduled the meetings well in advance it was her expectation that he would have adequate opportunity to organise his support.

[41] The Action Plan proceeded to fortnightly assessment meetings on 15 and 29 April 2020 which were attended by Mr Keyworth, Ms Edwards, Ms de Paiva and Ms de Lucey. Ms J Cooney of CPSU joined the meeting on 15 April via telephone.

[42] What was said and discussed at the meetings was contested. However, it appears uncontroversial that arising from the discussions during those meetings Ms de Lucey felt it necessary to re-format the action plan and in the following weeks held discussions with Mr Keyworth and Ms de Paiva which culminated in a new action plan set to commence on 1 June and conclude on 27 July 2020. Mr Keyworth was provided with the final version of the action plan on 29 May 2020.

[43] The Action Plan had four key goals:

1. Improved communication

2. Meeting deadlines

3. Managing work requests and workloads

4. Quality of work

[44] Assessment review meetings were held 16 June, 24 June, 10 July and 27 July 2020. After each assessment meeting, Ms de Paiva completed a summary of the discussions and Mr Keyworth was asked to provide his response after receiving the summary.

[45] As a result of the first meeting, Ms de Paiva determined that Mr Keyworth met one of the four goals.

[46] As a result of the second meeting, Ms de Paiva found that Mr Keyworth had shown some improvement towards meeting three of the goals and had met the fourth goal.

[47] As a result of the third meeting, Ms de Paiva found that Mr Keyworth had not sustained the previous improvements, and concluded that each of the four goals were rated as ‘not met’. She provided a lengthy response as to why she came to this view.

[48] As a result of the fourth meeting, Ms de Paiva found that Mr Keyworth had not met two goals, had partially met one, and did not meet the fourth goal.

[49] At the completion of the action plan, Ms de Paiva concluded that Mr Keyworth had not adequately maintained the required performance standard during the action plan period.

[50] Mr Keyworth took a period of unplanned leave commencing on 5 August 2020.

[51] Mr Keyworth met with Mr Dave Peffer, the Deputy Chief Executive of CHS, on 14 August 2020 to discuss a complaint Mr Keyworth made on 27 July 2020 of bullying arising from the underperformance process. Mr Keyworth also explained to Mr Peffer a situation that had occurred in March 2019 which related to patient complaints in the maternity department that the CHS CEO had publicly stated did not exist, but which Mr Keyworth claimed did exist as he compiled reports on patient complaints. Mr Keyworth had subsequently been accused of ‘leaking’ data and colluding with the media and opposition members of the ACT Legislative Assembly. He adamantly denied these allegations and said that it was a few days later that the first suggestion of his ‘underperformance’ was made.

[52] The Deputy Chief Executive sent two emails to Mr Keyworth asking for additional information after the meeting but Mr Keyworth did not see the emails as he was on leave. Mr Keyworth was later advised by Mr Peffer that he had investigated the matter and had found no evidence of bullying or inappropriate behaviour.

[53] On 11 September 2020 (while still on personal leave), Mr Keyworth was informed of the underperformance process outcome by letter (the Show Cause letter) signed by Ms D Patterson (Chief Operating Officer of CHS). Ms Patterson stated that she proposed to terminate Mr Keyworth’s employment in response to his unsatisfactory work and her reasons were indicated as follows:

“1. You remain of the opinion that you are not underperforming. During the fourth assessment meeting you stated that you still believe there are no aspects of your performance that are below standard and that your performance has always been and remains at a high standard. You continue to hold this opinion after four assessment meetings where examples of your underperformance were raised and discussed with you.

2. You have not demonstrated an ability to adequately consider and to adapt to the feedback provided by your manager.”

[54] Mr Keyworth was given 7 calendar days to respond to the proposed dismissal in accordance with clause H4.16.3 of the Agreement. He provided a 16-page response on 18 September 2020 after his request for an extension was rejected.

[55] By letter of 30 October 2020 (the Termination Letter), Mr Keyworth was notified of his dismissal which took immediate effect with payment in lieu of notice. In addition to giving reasons for the dismissal, the Termination Letter provides an overview of the performance management process and outlines Mr Keyworth’s show cause responses. It is set out in full as follows:

“Dear Mr Keyworth

Underperformance Process Outcome - Termination of Employment

I refer to my correspondence dated 24 September 2020 where I advised you that I received your response dated 18 September 2020 and I extended the deliberation in making my final determination due to my planned leave.

During this period, you were directed not to return to the workplace, however, your pay has continued as though you were at work.

In your response, you claim you have not been provided with procedural fairness and natural justice throughout the underperformance process. In addition, you state that you believe the proposed outcome of termination of your employment is neither fair nor reasonable and you believe it to be excessively harsh and disproportionate to the claims made against you.

You have outlined, in your response documents, ten areas of concern in support of your argument. I have summarised these below and provided comment.

MANAGER SUPPORT

You claim throughout the Action Plan process, your Manager has not provided you with timely advice or support.

During the Action Plan assessment period:

•  your Manager provided you written feedback of your performance, with specific examples, over each fortnight prior to the assessment meeting. This feedback was sent to enable at least one day for you to consider the material and to document your own account of your performance. You had agreed to share your responses with your Manager the day before the assessment meeting.

•  Each fortnightly assessment meeting was scheduled for an hour to discuss the feedback. These meetings were open to you to question and challenge assessment of your performance.

•  A written summary of the assessment discussion points and the outcomes of each assessment period was forwarded to you after each of these meetings.

In addition, your Manager met with you weekly, at your request, to discuss any concerns, matters or questions regarding your work or workplace. These meetings were held throughout the Action Plan period.

PROCESS HISTORY

You state since the underperformance Action Plan process commenced in April 2020, you have been placed under two different Action Plans and that the intervening period between the plans highlights a lack of a fair, prompt and transparent framework, to your significant disadvantage.

On 29 April 2020, and in subsequent email discussions, you stated that you found the structure of the Action Plan was not helpful. You stated you felt your feedback during development of the Action Plan had not been heard. To provide an Action Plan structured in way helpful to you, and with your requests incorporated, it was agreed with you to reformat the content of the Action Plan into four areas of improvement.

From 29 April 2020 to 29 May 2020 you actively participated in the reformatting of the Action Plan which included: clarifying the tasks to be undertaken during the process; measures and evidence to be used in assessment of your performance, and; the development and support you would require throughout the process.

During this period, discussions were re-scheduled around your unplanned personal leave and the availability of your union support.

As a result of this process, an Action Plan was developed collaboratively with you and your union support and was in place as of 1 June 2020. This process provided adequate opportunity for your input, iterative review and continuous feedback.

You claim the second plan (start date on 1 June 2020) was rigid with the onus on you to account for or defend any question of your performance.

This Action Plan was developed in collaboration with you and your union support. It provided broad scope for you to plan your work schedule around priorities and deadlines and to suit your working preferences. Both you and your Manager provided an assessment of your performance with opportunity for discussion each fortnight.

SUPPORT AND WORKPLACE ENVIRONMENT

You claim that the underperformance process did not provide a supportive framework. You felt that the process began with the raising of performance concerns and the issuance of formal performance directives in September 2019 and this reflects an action plan designed to admonish rather than support you.

You were provided clear performance directions in writing on 21 October 2019. On 22 January 2020, after breaching six of the eight performance directives issued in October, you were informed in writing of continuing concerns of your underperformance. The decision to proceed to an underperformance Action Plan was made in accordance with the ACT Public Sector Administrative and Other Classifications Enterprise Agreement 2018-2021 (the Agreement) and you were informed of this in a letter dated 23 March 2020. From February to April 2020 you were requested to participate in discussions to develop the Action Plan. These discussions accommodated delays due to availability of your union support, your unplanned leave and requests for additional time in order to provide your responses. I remain of the opinion that you have been provided clear performance feedback and clear instruction as to what has been required in your role. In addition, you have been afforded several months to adjust your approach to your work prior to the commencement of an underperformance Action Plan.

You claim a lack of support for training throughout the process and limitations, due to COVID-19, put you at a significant disadvantage and limited opportunities to improve.

You requested to attend two specific training courses and these were agreed in the Action Plan. Your Manager confirmed your attendance and funding for these sessions. It was acknowledged by you, and written into the Action Plan, that the courses you had chosen may not be available within the Action Plan period. You also agreed in the Action Plan to consider internal training options. I understand you were able to attend the training you had requested.

You claim the performance assessments from your Manager lacked balance in that you were provided minimal positive feedback. When you raised this as a concern you were advised you could write your own positive feedback.

Your Manager documented areas of your performance that met the performance goals in her fortnightly assessment and sent this to you prior to each fortnightly meeting. You were encouraged to also offer your own examples of where you met the performance goals in both your written assessment and during the fortnightly meetings.

You claim you presented medical evidence in support of your performance being affected by your health condition and this was not acknowledged.

You provided medical certificates from your GP advising your need to work from home for 50% of your full-time hours.

From 6 April 2020 you were accommodated to work at least 50% of your full-time hours at home (meeting the requirements set out by your GP) as part of our COVID-19 response.

When the organisational decision was made to begin returning our administrative workforce on site, you were offered several options to support continuation of working from home arrangements beyond completion of the Action Plan.

VALIDITY, ACCURACY AND REASONABLENESS OF CONCERNS

You claim many of the examples provided to you of your underperformance were spurious and of questionable accuracy.

It is acknowledged that you disagreed with the majority of the examples put forward during the assessment meetings and that you maintained you were not, at any stage, underperforming.

You were provided, each assessment period, the opportunity to respond in writing and in person, and to challenge the examples raised with which you disagreed. On several occasions it was agreed to change the outcome from 'goal not met' to ‘goal met’ based on your explanation of events or your decision making leading to your actions. For similar reasons, on several occasions, actions put forward as examples of your underperformance were agreed to be removed from the assessment documents.

OPPORTUNITY TO RESPOND AND CONSIDERATION OF RESPONSES

You claim you have had limited opportunity to respond to assessments verbally in the fortnightly review meetings.

You have been provided with an hour-long meeting, each assessment period, to verbally respond to the written feedback provided to you by your Manager. This discussion is in addition to the opportunity for you to respond, each assessment period, in writing. You were provided with a written summary of the each of the assessment discussions.

You provided two specific examples where you claim limited opportunity to respond verbally.

You provided your week six assessment meeting as an example stating you had opportunity to only respond to a single example raised, that you were not allowed to submit a response in writing and this denied your right to provide a response.

However, you did not provide your written responses for the assessment meeting by the agreed deadline. You emailed your written document approx. 15mins before the assessment meeting on the following day, providing insufficient time to read your comments. In addition, you considered your emailed response document to still be in draft and requested more time to complete your response. It was agreed that you could provide additional information at a later date. While this document was to be attached to the week six assessment documentation, the decision as to whether you had met the Action Plan goals for the period was based upon the document submitted on time by your Manager and the meeting discussion.

In relation to your eight-week assessment meeting, you were provided additional time in which to provide your written response. You provided your written response by the new deadline, however, you were told during your assessment meeting your manager and the HR Business partner had not read your response. Your submission was discussed during the assessment meeting, were [sic] you did provide verbal feedback, and your document was considered as part of the week eight assessment.

You claim you have raised concerns about the lack of opportunity to provide feedback and to have your feedback genuinely considered a number of times throughout the process. You provided three examples stating that at no stage did you receive a response to these concerns.

1. You sent an email to your Manager and the former HR Business Partner on 13 February 2020 where you raised concerns relating to the underperformance process and requested consideration of the matters you had raised. You claim you did not receive a response to these concerns. You were invited to meet with your Manager to continue discussion of this process on 28 February and 5 March 2020.

2. In an email to your Manager and the current HR Business Partner on 16 April 2020 you raised concerns that your feedback had not been incorporated into the Action Plan. You claim you did not receive a response to these concerns. Your Manager responded by return email on 16 April 2020. In addition, the concerns you raised had been discussed by email on 8 April 2020 and in person with you on 15 April 2020.

3. You state you submitted a complaint by email on 27 July 2020 to your Manager, the HR Business Partner and the Senior Director Employee Resolutions in relation to your concerns that you had not been provided sufficient opportunity to provide feedback and refusal to consider your responses. You claim you did not receive a response to these concerns.

No complaint, written or otherwise, was received by your Manager, the HR Business Partner or the Senior Director Employee Resolutions on 27 July 2020.

You sent an email on 23 July 2020 to your Manager and the HR Business Partner. This email contained your feedback in relation to your week six assessment period and included similar material to that outlined in your response document to me dated 18 September 2020. The matters raised by you in the email dated 23 July 2020 were discussed with you during your week six and eight assessment meetings.

You provided excerpts from written documents, sent on your behalf by your support people on 11 February 2020 and 27 July 2020, in support of your claim: that you have not been afforded adequate opportunity to respond to the performance feedback from your Manager; nor have your responses been appropriately considered.

Since September 2019 you have engaged in discussions relating to your performance. You have provided written documents in response to concerns raised and have provided feedback in relation to the underperformance process and your performance in your role. Your feedback, verbal and written, in relation to your dissatisfaction with the Action Plan began in April 2020, therefore a review of your Action Plan. You actively participated in this review and in collaboration with your Manager and the HR Business Partner you created a version of the Action Plan that provided a fair and transparent framework for the period 1 June to 27 July 2020.

During the Action Plan period you had opportunity during each of the four assessment periods to provide a written response to your performance and your Manager's feedback. In addition, you were provided opportunity to meet to discuss your assessment outcomes each fortnight with the outcome to these meetings provided to you in writing.

I remain satisfied that you have been provided adequate opportunity to respond throughout the underperformance process. I am also satisfied that your responses have been considered and have influenced the process.

JUSTIFICATION OF OUTCOME

You claim you do not believe the assessment outcomes have been fairly and reasonably decided throughout the process and that, in many cases, invalid criticisms have been cited as evidence that you are not performing to the required standard.

I acknowledge you have consistently argued, since September 2019, that you have not been underperforming in any aspect of your role. I also acknowledge that you have consistently refuted feedback provided to you in relation to areas of performance improvement.

I understand that your Manger provided examples of where your performance had met the agreed goals of the Action Plan as well as examples where your performance had not met these standards. I also understand that on several occasions the outcome of the assessment period was changed based on your feedback and discussion. I accept that your opinion remains that the examples provided throughout your assessments have been trivial, inaccurate, irrelevant, unjustified and unreasonable. This is reflected in the tabulated examples you provided in your response (dated 18 September 2020) where your representation does not match the summary of discussion provided to you after your final assessment meeting.

RELEVANCE OF CONCERNS

Items not relating to the assessments have been raised in assessment meetings. This impacted your ability to provide a response to concerns and impacted your ability to improve.

The two items you raised in relating to this concern were discussed during the week eight (final) assessment meeting. Both examples had occurred within the final assessment period and had come to light after your Manager had provided her written feedback to you. You provided a response during the meeting, as reflected in the meeting notes. This was the final assessment period of the Action Plan.

You claim your Manager raised hypothetical concerns about your presumed future failures during your week eight assessment meeting.

During this final assessment meeting your Manager provided you with a summary of your performance over the Action Plan period. Specifically, the evidence provided and discussed for each of the four assessment periods suggested you had not consistently met the performance goals. Your Manager acknowledged some improvement in your communication, specifically that you had generally provided the 4 pm status reports and the 1-1 meetings each week had improved clarity of your workload. Based on performance against the Action Plan, your Manager stated she had little confidence that you would be able to consistently meet the work requirements of the role based on your Action Plan performance over the eight-week period or demonstrate an ability to manage changing priorities, manage your standard workload and meet deadlines as expected in your role.

CONDUCT OF MANAGER AND PEOPLE AND CULTURE BUSINESS PARTNER

You claim that during your week six assessment meeting, the HR Business Partner repeatedly advised you that it was extremely likely that you would not meet the goals of the plan in the next and final assessment and that you would be terminated. You also claim you were advised to spend the following two weeks looking for a lower level role.

At the end of the assessment meeting the HR Business partner stated that you were six weeks into the Action Plan period and you had not been able to demonstrate consistent and sustained improvement against the four performance goals. You were reminded that two weeks of the Action Plan period remained. With your union support present, you were asked to consider what was needed to change during the remaining two weeks for you to be able to demonstrate that you could meet your performance goals. It was recommended that you discuss this with your union support after the meeting.

You claim that your Manager has based assessments of your performance on incorrect and/or incomplete evidence and raised an example from the week eight assessment meeting relating to your accumulation flex time over the Action Plan period.

On 23 July 2020 you submitted timesheets indicating you had accrued flex time. It was agreed and clearly stated in your Action Plan that flex would not be accrued for the duration of the plan as you would average your hours over the pay period. This was included in the Action Plan in support of your feedback that you were better able to perform when you could manage your own workhours.

Discussion during the assessment meeting identified that you did not raise with your Manager any change to your flex time accrual prior to adjusting the balance. Your Manager stated she would have valued a discussion and agreement before any changes were made. You subsequently apologised to your Manager for making a mistake with your flex balances (email dated 29 July 2020) and reiterated that you had not actually accrued any flex time over the assessment fortnight.

BIAS AND PREJUDICE

You claim the HR Business Partner has advised that failure against this Action Plan would result in termination of your employment and that termination was the only outcome raised.

Written correspondence has been provided to you clearly outlining the performance actions available under the Agreement. During your week six assessment meeting the HR Business Partner reminder you of these actions. Transfer to another role, including a suitable ASO level role and a potential classification reduction were discussed as possible outcomes should you fail to meet the performance criteria. Reference was made to actions in the Agreement and both your Manager and union support were present for these discussions.

You claim the underperformance process included bias and prejudice and you raised an excerpt from a letter sent on your behalf from the CPSU dated 27 July 2020 "It is our understanding that borderline situations between misconduct and underperformance may require a Preliminary Assessment to determine the best course of action and to ensure that correct procedures are followed to prevent an employee being treated unfairly or unreasonably".

There is no requirement to complete a Preliminary Assessment before commencement of the underperformance process. I remain satisfied that this underperformance process has been conducted in alignment with section H­ Underperformance of the Agreement.

PERSONAL IMPACT

You believe that the process itself has been exploited to facilitate bullying and has been engineered to push you out of the workplace.

I remain satisfied that you have been provided consistent, documented feedback outlining the performance expectations of your role and your progress towards consistently meeting these expectations. At each stage of the underperformance process you have provided both written and verbal feedback. Clear, measurable assessment criteria were established in collaboration with you and your support person. You have been provided, in writing, the outcome of each stage of the underperformance process.

The procedures are set out in Section H of the Agreement stating the action plan will:

•  identify the expected standards of work required of the employee on an on­ going basis.

•  identify and/or develop any learning and development strategies that the employee should undertake.

•  outline the potential underperformance actions that may be taken if the employee does not meet the expected standards.

•  specify the action plan period, which should not normally be less than one month and should not exceed six months to allow the employee sufficient opportunity to achieve the expected standard.

•  specify the assessment criteria to be measured within the action plan period.

I remain satisfied that CHS provided you procedural fairness and natural justice in relation to the action plan process.

Performance action

Throughout this process you have remained of the opinion that you are not underperforming in your role. You have shown no insight to the concerns raised by your Manager nor have you demonstrated a willingness to address the performance concerns raised.

After reviewing all the information available to me, I have decided that your level of performance has not met the performance expectations of a Senior Officer Grade C and I have decided to uphold my original decision and terminate your employment with the territory effective immediately.

I believe you have been provided adequate opportunity to recognise and remedy deficiencies in your performance. I consider termination of your employment to be a proportional response to your refusal to consider any feedback in relation to your underperformance.

Notice of termination and notice period

In accordance with Division 11, Subdivision A, Section 117 of the Fair Work Act 2009 (‘FW Act’) an employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of termination, and the time between giving the notice and the day of the termination is at least the minimum period of notice worked out under Section 117 (3) (a) of the FW Act.

Your termination date with CHS will be effective immediately. In accordance with Section 117 (2) (b) the FW Act, CHS will pay you four weeks' payment in lieu of notice at the full rate of pay for the hours you would have worked had your employment continued with CHS.

Period
Employee's period of continuous service with the employer at the end of the day the notice is given		Period
1	Not more than 1 year	1 week
2	More than 1 year but not more than 3 years	2 weeks
3	More than 3 year but not more than 5 years	3 weeks
4	More than 5 years	4 weeks

Reengagement of former officers

In accordance with Section 138 of the ACT Public Sector Management Act 1994 (‘PSM Act’), the head of service must not reappoint a former officer if the employment in the service was ended for underperformance in accordance with Section 125 (Underperformance) of the PSM Act.

Appeal rights

You have the right under Section J of the Agreement to appeal any underperformance action taken under Section Hof the Agreement, except action to terminate your employment.

In respect to termination of your employment you have the entitlement to bring any action under the Fair Work Act 2009 in respect to any termination under this Agreement. Please refer to www.fwc.gov.au for the detail on how to pursue any entitlement.

Support Services

The Employee Assistance Program (EAP) panel of providers offers free, professional and confidential services to support you and your immediate family members through both personal and work-related issues. You are encouraged to access EAP services as early as possible. More information on EAP services can be found at https://www.cmtedd.act. gov.au/ employment- framework/home.

Yours sincerely

Denise Patterson
Chief Operating Officer
Canberra Health Services

30 October 2020”

[56] Mr Keyworth’s employment ended in accordance with the terms of the Termination Letter.

[57] In addition to what is set out above, Mr Keyworth gave very extensive evidence both orally and in written form and provided many supporting documents. Given the volume of the material it is not summarised here, although some of the material is referenced below in the context of his submissions, and all of the material has been fully considered.

Evidence of Ms Gane and Ms Edwards

[58] As noted earlier, Ms Gane and Ms Edwards also gave evidence in support of Mr Keyworth’s application.

[59] Ms Gane is the partner of Mr Keyworth and works as a system administrator for an ACT Government Directorate.

[60] She gave evidence that she accompanied Mr Keyworth to a meeting on 7 May 2020 with Ms de Paiva and Ms De Lucey to discuss the Mr Keyworth’s feedback and suggestions about the new action plan drafted by Ms De Lucey. She stated that throughout the meeting she observed Mr Keyworth being subjected to combative and interrogatory questioning and that Ms de Paiva and Ms De Lucey were uninterested in anything that Mr Keyworth had to say. She recalled Ms De Lucey stating to Mr Keyworth at the meeting that “you are underperforming in four key areas. This will lead to your termination” and she was in the impression that Ms De Lucey had already made up her mind about the outcome of the process.

[61] She also attended a meeting on 14 August 2020 with Mr Keyworth and Mr Dave Peffer (CEO of CHS) about the report lodged by Mr Keyworth in Riskman concerning actions and behaviour from his managers which he believed constituted bullying. Also attending was Ms Cooney of the CPSU via telephone. During the meeting Mr Keyworth expressed that the underperformance process was unreasonable and was not based on any valid evidence of underperformance and that he had sustained ongoing poor treatment and unreasonable management actions since March 2019 after he pointed out that incorrect information was on the public record. Ms Gain said that Mr Keyworth felt the process was being undertaken as a retaliatory measure against him and expressed that this had impacted his mental health and caused him to take a large amount of personal leave. Mr Keyworth said that despite raising these issues with his manager, the poor treatment and disregard for his wellbeing continued. Mr Keyworth expressed that his complaints and feedback were repeatedly ignored. For example, he was told that he would be advised of an outcome by the end of the week after being informed of having failed to successfully complete his action plan, but this did not happen. Ms Cooney also pointed out that the CPSU’s letters to CHS were not acknowledged nor responded to.

[62] Ms Gane stated that Mr Keyworth’s dismissal has negatively impacted his health and wellbeing, saying: “This includes the financial impact which has resulted in difficulties paying our living expenses such as rent. It also has impacted Mr Keyworth psychologically and I have seen that over time he became withdrawn, irritable and anxious. He has experienced physical impacts such as loss of appetite, insomnia and headaches.”

[63] Ms Edwards was employed with CHS as a Quality Assurance Officer from 18 September 2017 to 18 March 2021.

[64] She gave evidence that she first became aware of CHS’s intention to commence an underperformance process with Mr Keyworth in 2020. As a colleague of Mr Keyworth, she offered to act as his support person in the process.

[65] Ms Edwards stated that upon returning from leave in January 2021, she found that her email account had been ‘swept and sanitized’ and all correspondence between Mr Keyworth and her were removed, including items that would ordinarily be automatically archived. Ms Edwards said that this affected her ability to provide comprehensive evidence.

[66] Ms Edwards stated that she attended two initial underperformance meetings with Mr Keyworth, Ms de Paiva and Mr Tosh. She made reference to a discussion with Mr Keyworth on 11 February 2020 after which she came to the view that he was not being afforded respect and due process. She then wrote an email to the CHS Employee Advocate on behalf of Mr Keyworth raising concerns about how the underperformance process was being handled and the behaviour of Mr Tosh whom they felt was intimidating. They later met with the Employment Advocate to seek assistance and advice. Ms Edwards said that despite some actions being taken to explore ways to assist, the follow up support provided was minimal.

[67] Ms Edwards alluded to the second Action Plan as a totally new plan with different goals and performance priorities place upon Mr Keyworth. In terms of her involvement with the ensuing process, Ms Edwards said:

“Shortly after Ms. De Lucey took over the role as HR representative, I raised a process issue in one of the action plan meetings, as is my right as Mr. Keyworth's support person ... I asked of Ms. De Paiva and Ms. De Lucey if Mr. Keyworth could have an opportunity to review the fortnightly action plan report from Ms. De Paiva in advance of the meetings in order to adequately prepare for the meetings. The response I received from Ms De Paiva during the meeting was ‘this is a process between myself and Elliott’.

Following that meeting, I wrote to Ms. De Paiva and Ms. De Lucey, pointing them to the documentation of the role of a support person and explained I was within my rights to raise the process issue. I received an email response from Ms. De Paiva stating she would make the reports available to Mr. Keyworth prior to the meetings.

In subsequent meetings, Ms. De Lucey pressed the issue of Mr Keyworth only having one support person at his meetings (Mr. Keyworth had been utilizing Union representation over the phone and myself as support person to take notes and provide emotional support in the meetings).

In a conversation with Mr. Keyworth, we discussed the issue of being denied Union and my support in tandem. Mr. Keyworth noted in that conversation that it was becoming increasingly evident to Mr. Keyworth that he was having little effect with counterevidence to the claims made against him and was not being heard in the meetings. As such, Mr. Keyworth was forced to abandon my support and continue with representation from the Union in the event he needed to take further action as part of his defence.

It was after this conversation that I ceased my role as a support person for Mr. Keyworth. At this stage Mr. Keyworth had not yet completed the eight-week action plan process attached to the second underperformance action plan.

It was my conclusion that Mr. Keyworth was not provided a fair process, as I witnessed in the meetings I attended, that his evidence was ignored or deemed insufficient, that he was continually accused of providing too much detail which was seen by Ms. De Lucey and Ms. De Paiva as an attempt to distract and stall the process, when in fact Mr Keyworth engaged fully in the process in good faith and spent significant time compiling his evidence to participate fully in the process.

It was - and still is - my opinion based on my involvement that the decision to terminate pre-dated the action plan process entirely, and moreover the action plan process was a box-ticking exercise to demonstrate the process had been undertaken and substantiate the pre-determined decision to terminate.”

[68] Ms Edwards described Mr Keyworth as having the skills and knowledge to fulfill his duty to a high standard and that such was evidenced in his work. She stated that she never questioned his ability and indeed often sought his assistance in her role.

[69] She said that she observed Ms de Paiva did not afford Mr Keyworth privacy during the underperformance process and did not “adequately manage team members concerns and was unable to prevent the perpetuation of the rumor mill amongst colleagues”.

[70] She said that despite being put through a drawn-out underperformance process, Mr Keyworth displayed a high standard of professionalism and dedication to his role in the face of adversity.

Submissions

Mr Keyworth

[71] Mr Keyworth submitted that his dismissal was unfair as the process followed by the Respondent was procedurally flawed and the outcome was not fairly reached. He contended that:

a. His dismissal was not consistent with the principles of procedural fairness and natural justice.

b. The actions taken to resolve the performance concerns were poorly and ineffectively managed.

c. His managers did not approach the process with shared responsibility and did not provide timely advice of support that might be available to him.

d. Medical evidence to the effect that his performance was affected by his health condition had largely been ignored.

e. He was denied an opportunity to work flexible hours.

f. There was a lack of support for training throughout the process and limitations arising from COVID-19 restrictions put him at a significant disadvantage and limited any opportunities to improve. To this end he undertook and completed a course he found through CIT in his own time and own expense.

g. The Action Plan was not achievable, not measurable and not reasonably imposed, and ‘the process allows for absolutely no room for human error on my part’.

[72] Mr Keyworth contended that he “had been repeatedly advised that in my role I need to be fluid and adapt to changing priorities and deadlines, however the plan is not designed to be fluid; it is rigid and the onus is constantly on me to account for or defend any question over my performance.” He also submitted that the process was conducted in a manner which was not supportive or constructive, and seemed designed to admonish him.

[73] He submitted that at the end of the action plan period, there was no evidence that he was underperforming, and he took significant issue with the accuracy of the assessment made by his manager, which he set out in detail in his response.

[74] He claimed that he was not provided with a duties statement and that throughout the underperformance process the Respondent did not define the standards of a SOGC nor the standards expected by CHS which they claimed he did not meet. As such, the underperformance process did not proceed in accordance with the Agreement.

[75] Mr Keyworth also claimed that working at the level of a SOGC requires freedom, autonomy, and the ‘ability to decide how you will approach work in order to use your skills to support business operations and perform your duties successfully’. The key characteristics of the work level standards are autonomy and flexibility. Mr Keyworth said that he had been micromanaged and this made it difficult for him to manage his work effectively.

[76] Mr Keyworth took issue with the significance of matters being raised as underperformance examples, saying that they were minor issues, and yet they were relied on to support a recommendation that he be dismissed. To this end he contended that if his performance had been examined fairly at that point and weighted fairly, any objective analysis of his performance would have found that there was no issue with his performance.

[77] Mr Keyworth said that throughout the process he was subjected to unfair and unreasonable behaviour from Ms de Paiva and Ms de Lucey. He felt compelled to ‘adopt the opinions, the mindset, total and complete agreement’ with his manager to be able to keep his job. He felt he had to adapt to the feedback regardless of whether he agreed.

[78] He said that complaints about the process, including complaints made by CPSU on his behalf, were repeatedly ignored by CHS.

[79] Mr Keyworth contended that he was not given a fair go. He said he was accused of underperforming in relation to matters which were completely outside of his control and were actually his manager’s fault in some cases, or were completely irrelevant and unlinked to his duties.

[80] In summary, he was not underperforming and the action plan was not achievable nor measurable, and was unreasonably imposed.

CHS

[81] CHS submitted that the evidence produced by Mr Keyworth did not establish that the termination of his employment was harsh, unjust or unreasonable, and the process and the assessment that was followed was fair, transparent and complete.

[82] It contended that the evidence showed that Ms de Paiva had become concerned about aspects of Mr Keyworth’s performance in late 2018 and early 2019. Her email of 4 January 2019 reflected the concerns she had raised with Mr Keyworth at the meeting with him earlier that day.

[83] The Respondent submitted that the formal underperformance process initiated by Ms de Paiva and the steps that followed were in accordance with the Agreement which applies to Mr Keyworth.

[84] Between January and June 2020, attempts were made to agree and settle an action plan in accordance with the terms in the Agreement. Ms de Lucey was committed to ensuring that the action plan adhered to the provisions of the Agreement and procedural fairness was followed. This resulted in the action plan being re-formatted to allow Mr Keyworth greater flexibility as to how he chose to undertake his work.

[85] It was submitted that the evidence of Ms de Lucey and Ms de Paiva accurately describe the assessment process and the Commission should accept their evidence that they were not satisfied that Mr Keyworth could consistently meet the agreed performance goals.

[86] It was further submitted that the evidence of Mr Keyworth demonstrated that he had little or no insight into his underperformance. He refused to accept that his performance may have been assessed as being below the standard expected of him in the role he was employed. He did not genuinely consider the assistance and advice he was offered, and rather than looking to his own performance, he claimed other factors were reason for his manager’s negative assessment of his performance.

[87] CHS highlighted that Ms Gane is Mr Keyworth’s partner, and submitted that her evidence offered little assistance to the issue that the Commission is required to consider, that being the standard of his performance. Her evidence in terms of the negative impact on Mr Keyworth’s health and welfare arising from the process is not surprising and not challenged.

[88] As to the evidence of Ms Edwards, it was submitted that she was a close colleague of Mr Keyworth and her evidence lacked any objectivity on the issue that required consideration by the Commission. Her allegation that her email account had been accessed and critical emails deleted was proved to be wrong by an audit of her email account that was undertaken and submitted to the Commission during the hearing.

[89] CHS stated that Mr Keyworth’s evidence and submissions can be summarised as follows:

a. He denies that he underperformed;

b. He maintains that he was bullied and harassed by his manager, Ms de Paiva;

c. He alleges that his manager lied in her assessments of him and his performance;

d. He alleges that, in effect, that there was a concerted effort or a campaign to remove him from his employment.

[90] CHS submitted that such allegations are misplaced and are the result of Mr Keyworth:

a. Failing to accept or at least genuinely considering the information given to him about his performance;

b. Lacking insight into his performance or the reasons for the negative assessment of it;

c. Failing or being unable to respond appropriately to that assessment;

d. Blaming others for what has happened, with particular focus on his manager;

e. Not being susceptible to supervision because he has an attitude, bordering on arrogance, that his skills and knowledge means that he has a better understanding of his role, its organisational context and his level of performance.

[91] Mr Chilcott criticised Mr Keyworth for raising a number of irrelevant matters in an attempt to distract from his underperformance issues. Those include:

a. His complaint that that CHS ignored his doctor’s advice, (notwithstanding CHS was not provided with any information about his medical condition and the medical certificates provided also lacked the information)

b. His approach to correct the public reporting of information;

c. The impeding of his role as a health and safety officer.

[92] Mr Chilcott argued that these matters do not form part of the Respondent’s reasons for the termination of Mr Keyworth’s employment and by raising them Mr Keyworth has demonstrated his lack of self-awareness and that he did not genuinely accept the underperformance process or take it seriously.

[93] The Respondent submitted that Mr Keyworth was dismissed for being unable to perform his role at the expected level and this is a valid reason for the termination of his employment. CHS submitted that it is was sound, defensible and despite Mr Keyworth’s submission to the contrary.

[94] It was submitted that CHS had complied with the performance management process in effecting Mr Keyworth’s dismissal. The process and the assessment that was made of Mr Keyworth was fair, transparent and complete. Mr Keyworth was given a fair and adequate opportunity to address the performance concerns over a period of some 18 months. The action plan was appropriate for his level of employment and the standards expected of him at his work level. It was negotiated with him and most of his suggestions for changes were accepted. Had he fulfilled its requirements, it was submitted, he would not have been dismissed.

[95] CHS concluded that Mr Keyworth has failed to establish that there was no valid reason for its decision to terminate his employment, or that the process followed was unfair.

[96] In conclusion, the decision to dismiss him was reasonable in all the circumstances and could not be regarded as harsh, unjust or unreasonable.

Consideration

Protection from Unfair Dismissal

[97] There is no dispute and I am satisfied that Mr Keyworth is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.

Was the dismissal unfair?

[98] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[99] There is no dispute that Mr Keyworth was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[100] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

a. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

b. whether the person was notified of that reason; and

c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

d. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

f. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

g. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

h. any other matters that the FWC considers relevant.

[101] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd¹ as follows:

‘... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

[102] The onus is on Mr Keyworth to prove his dismissal was harsh, unjust and/or unreasonable.

[103] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.²

Valid reason - s.387(a)

[104] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”³ and should not be “capricious, fanciful, spiteful or prejudiced.”⁴ However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.⁵

[105] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[106] Having considered all the evidence, I find that on balance there was a valid reason for Mr Keyworth’s dismissal, although this has not been a straightforward or easy decision to make.

[107] The concern in my mind, which has been difficult to resolve, is whether the matters that led to the finding that Mr Keyworth had not demonstrated consistent, satisfactory performance were sufficient to support a finding that there was a valid reason for his dismissal.

[108] The Termination Letter summarises the reasons CHS provided to show that Mr Keyworth failed to meet the required standard of performance for his role.

[109] I am satisfied that CHS had genuine concerns with respect to Mr Keyworth’s performance, and that these concerns were valid concerns for an employer to raise with an employee and expect to have rectified. The evidence shows, however, that Mr Keyworth had reasonable explanations for some of the matters that were raised with him. One such example is set out in paragraph 22 above, in which Mr Keyworth explained that an issue with some report formats he prepared were in fact an issue with his manager's computer, and not a result of incompetence on his part.

[110] The performance concerns that were documented in the reformatted action plan were developed with Mr Keyworth’s input. There was extensive time invested by CHS and Mr Keyworth to arrive at an action plan they both agreed to. As is evident by the review meetings, Mr Keyworth fully or partially met some of the goals, and did not meet others. The goals that were met (or partially or not met) varied from meeting to meeting. The evidence shows that CHS accepted some of the feedback given by Mr Keyworth during the performance management process and made changes as a result. This included changing some ratings (e.g. from ‘not met’ to ‘met’) during the action plan review meetings. This demonstrates CHS gave genuine consideration to Mr Keyworth’s responses. At the conclusion of the process, CHS formed a view that the inconsistencies in meeting the goals meant that the action plan was not successful in achieving its aim of consistent, satisfactory performance of the duties of the role. This is an understandable outcome on the part of CHS.

[111] I accept that Mr Keyworth did not meet all the goals of the action plan despite him having some satisfactory explanations for some of the matters raised with him. Afterall, Mr Keyworth should have been abundantly clear about what the performance concerns were, and what he had to do to meet the requirements of the action plan. That he did not meet some deadlines, for example, in circumstances where he knew this was a key focus of the action plan and was being closely monitored by CHS, supports the finding by CHS that he did not demonstrate a consistent level of performance throughout the action plan period.

[112] I am satisfied that Ms de Paiva provided an explanation to Mr Keyworth after each action plan meeting as to the basis of her rating. In terms of missing deadlines for example, I accept that she clearly expressed her concern that he had “moved a number of timeframes and deadlines with either short notice or no agreement, not setting realistic timeframes for routine work that was not new to him.” 6

[113] I further accept Ms de Paiva’s evidence that: “It was my assessment at the conclusion that the Applicant had not adequately sustained improvement in his capabilities as a SOGC through the process. Throughout this process the Applicant reiterated that he was not underperforming and that he was undertaking the process in 'good faith'. I had little confidence that the Applicant was able to consistently meet the work requirements of the role based on his performance through the action plan period, noting continued concerns with communication, ability to manage changing priorities and to meet deadlines at his level as a SOGC.” 7

[114] There is no doubt that Mr Keyworth held a fundamentally different view to that of CHS as to his performance. He did not accept or agree with CHS’s view that he was underperforming. Having fully considered all of the evidence, I accept that his performance fell short of CHS’s expectations and that he had displayed a lack of willingness to acknowledge any fault on his part. These matters in my view support a finding that there was a valid reason for his dismissal.

[115] Mr Keyworth claims there were other reasons for his dismissal. He says that he was being bullied by his managers. I am not satisfied on the evidence that Mr Keyworth was bullied. The performance management process was thorough and lengthy, in part because CHS accommodated requests for additional time requested by Mr Keyworth, and in part because of absences during the process by Mr Keyworth and relevant mangers and decision makers. No doubt the process (as would most such processes) caused a level of stress for Mr Keyworth, but there is no evidence that he was the subject of bullying by his managers.

[116] I am also not satisfied that there was a campaign to remove him from his employment because of the incident in March 2019 involving media coverage of complaints related to the maternity department. The matters raised in the underperformance process in my view were legitimate concerns that were appropriate for CHS to raise.

[117] When all the performance matters are considered as a whole, I am satisfied that they were sufficient to ground a finding that there was a valid reason for Mr Keyworth’s dismissal.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[118] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,⁸ in explicit terms⁹ and in plain and clear terms.¹⁰ In Crozier v Palazzo Corporation Pty Ltd¹¹ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”12

[119] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.¹³ This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹⁴

[120] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Keyworth before his dismissal was effected.

[121] The process followed by CHS was consistent with its obligations under the Agreement and I am satisfied that Mr Keyworth was provided with procedural fairness. So much is clear based on a review of the process it undertook which is set out earlier, and which took place over a lengthy time period. It was a thorough and extensive process. The action plan was in a format that was simple to understand. Mr Keyworth was given additional time at various points during the process to respond, and meetings were rescheduled to enable his support person to attend. The correspondence between the parties dealing with the underperformance process was also extensive. I am satisfied on the evidence before me that Mr Keyworth was notified of the reason for his dismissal and was given an opportunity to respond to that reason.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[122] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[123] Mr Keyworth was not denied a support person. He had a support person with him for each meeting he attended, and at least one meeting was rescheduled to fit in with his union representative’s availability.

[124] I note that part way through the performance management process, CHS changed its position from allowing Mr Keyworth two support persons (one attending with him in person and his union representative by phone). I do not consider that this change results in an unreasonable refusal to which this section of the Act is directed.

Warnings regarding unsatisfactory performance - s.387(e)

[125] A warning for the purposes of s.387(e) must clearly identify:

(a) the areas of deficiency in the employee’s performance;

(b) the assistance or training that might be provided;

(c) the standards required; and

(d) a reasonable timeframe within which the employee is required to meet such standards.¹⁵

[126] The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”¹⁶

[127] There is no doubt, based on the evidence set out earlier, that Mr Keyworth was warned about this performance, and that the matters set out in this subsection were met.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[128] I am satisfied that the size of CHS and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[129] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[130] I have considered the impact that the dismissal has had on Mr Keyworth, his length of service with CHS, and his medical condition.

Conclusion

[131] Having carefully considered each of the required matters, I am not satisfied that Mr Keyworth has discharged his onus of proving that his dismissal was harsh, unjust or unreasonable. Accordingly, I am not satisfied that Mr Keyworth was unfairly dismissed within the meaning of s.385 of the Act, and so his application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

E Keyworth on his own behalf.
M Chilcott for Australian Capital Territory as represented by Canberra Health Services.

Hearing details:

2021.
By video:
May 18, 28;
June 11;
July 16.

Printed by authority of the Commonwealth Government Printer

<PR737881>

1 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

2 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

4 Ibid.

5 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 6   Exhibit 11.

 7   Ibid.

8 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

9 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

10 Previsic v Australian Quarantine Inspection Services Print Q3730.

11 (2000) 98 IR 137.

12 Ibid at 151.

13 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

14 RMIT v Asher (2010) 194 IR 1, 14-15.

15 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].

16 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].