Industrial Relations Commission of New South Wales CITATION: Notification under s. 130 by NSW LGC, Admin, EAU Union of a dispute with Warrumbungle Shire Council and another re alleged ongoing bullying and discrimination [2010] NSWIRComm 131 New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union PARTIES: Warrumbungle Shire Council Local Government & Shires Association of New South Wales FILE NUMBER(S): IRC 1421 of 2009 CORAM: Harrison DP CATCHWORDS: Notif. of a disp-alleg. of victimis, bullyg, harass.&rac. dis.- wage inc. denied on basis of failing to meet competency assessment - challenge to mngmnt con. allegedly based on racial grounds - payment sought. Held no evidence to support all alleg.finding of fault against mngmnt not made out - remedy refused. LEGISLATION CITED: Anti-Discrimination Act 1977 Industrial Relations Act 1996 HEARING DATES: 23 August 2010, 9 September 2010 DATE OF JUDGMENT: 24 September 2010 EXTEMPORE JUDGMENT DATE: 9 September 2010 Mr P Collins (Applicant) New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union LEGAL REPRESENTATIVES: Ms M O'Neill (Respondent) Local Government & Shires Association of New South Wales JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 24 September 2010 Matter No IRC 1421 of 2009 Notification under section 130 by New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union of a dispute with Warrumbungle Shire Council and another re alleged ongoing bullying and discrimination REASONS FOR DECISION [2010] NSWIRComm 131 1 This matter was subject to Hearing on 23 August and 9 September 2010. At the conclusion of those proceedings an Ex-Tempore Decision was given in Transcript. The reasons for Decision are set out below. 2 Mr John Zhang has been employed as Information Technology (IT) officer by the Warrumbungle Shire Council ("Council") from 30 October 2006 in the Coonabarabran administrative office. Employment is pursuant to the New South Wales Local Government (State) Award 2007 364 IG 491 ("the Award"). 3 The New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) notified a dispute on 9 September 2009 in the following terms: a) The difficulty arises over alleged ongoing bullying and discrimination at Warrumbungle Shire Council against Mr John Zhang. b) Mr Zhang alleges that for approximately two (2) years he has been the victim of bullying and discrimination based on his race, The alleged incidences involve his direct supervisor Director Ms Carolyn Upston . c) We respectfully request the assistance of the Industrial Relations Commission pursuant to Sections 169(1) & (2). d) At the first conference the Applicant/Union will seek leave of the Commission to request the assistance of the Commission at first instance. 4 The matter was subject to extensive conciliation before Commissioner Bishop which resulted in settlement of all matters the terms of which are documented in the following terms: 1. Council to provide administration access to Mr Zhang for all Council Computer Systems except for the Financial Records System. 2. Council will contact 'Practical' to advise them to allow Mr Zhang to contact them to allow him to perform his functions as IT Officer. 3. That Council will develop, and Mr Zhang will adhere to a process or procedure to contact 'Practical'. 4. That Mr Zhang reserves his rights to take further action regarding the competency assessment. 5. Mr Zhang will receive a written apology from Ms Carolyn Upston. 6. Council will re credit Mr Zhang for leave taken to attend and travel to the Industrial Relations Commission in relation to dispute IRC 1421/09. 7. Mr Zhang and the United Services Union will discontinue all current matters filed in the Industrial Relations Commission of NSW and the Anti Discrimination Board. 5 This did not solve all issues between the parties. The matter was reallocated to the Commission as presently constituted. Brief proceedings on 23 July 2010 confirmed that conciliation was exhausted; a certificate of unsuccessful conciliation was issued and directions made to bring the matter to hearing on 23 August 2010. Arbitration proceedings took place on 23 August 2010 and 9 September 2010. 6 Mr P Collins appeared for the USU with Mr T. Dray, an officer of the Union. 7 Ms M O'Neill of the Local Government and Shires Association of New South Wales (LGSA) appeared for the Council. 8 Mr Zhang gave evidence by statement (Exhibits 1 and 2) and orally with an official interpreter present. Mr Zhang did not require assistance from the interpreter. 9 Ms O'Neill brought evidence from Council employees Ms Carolyn Upston, Director Corporate Services; Mr Paul Baker, Finance Manager; and Ms Valerie Kearnes, Human Resources Team Leader. THE ISSUES 10 Mr Collins submitted that: · the terms of settlement agreed in the conciliation proceedings before Commissioner Bishop were not met in that Council did not restore administrator access to Mr Zhang in respect to the messaging system, which he put was not part of the Financial Records System, which is the only identified exclusion. · Mr Zhang continued to object to the outcome of the 2009 competency assessment, insisting that the determination "not yet competent" is not based upon objective assessment but motivated by racial prejudice. 11 The Council has complied with all other aspects of the settlement, including the written apology by Ms Upston. This apology is criticised as being only a statement of regret. 12 I accept the evidence of Ms Upston that the apology was given as a genuine attempt to resolve issues for Mr Zhang. 13 Mr Zhang put that he has suffered a financial disadvantage by not being allowed to progress through the competency system. His evidence in this regard is (Ex 1 paras 3-6): 3. Prior to commencing with the Council I had completed courses in Computer Science, (equivalent to the Bachelor Degree with the NSW DTEC) and several IT courses through TAFE. In addition I have acquired industry certification as a Microsoft Certified System Engineer. 4. I have in excess of 10 years' computer network and PC experience in Australia. I was born in China and moved to Australia in 1989. 5. Ms Carolyn Upston is my Director Corporate Services and my immediate supervisor. Over the years that I have been employed by the Council I believe that I have been treated unfairly to other staff and have suffered bullying, discrimination, victimisation and harassment under her supervision. 6. This has led me to submit a number of complaints including grievances over my competency assessment, a complaint to the Anti Discrimination Board as well as this complaint before the Industrial Relations Commission. 14 Other issues to emerge in these proceedings are: · A complaint by Mr Zhang that he is excluded from some decision making in the purchase of IT equipment; · A complaint by Mr Zhang concerning the conduct of employees of KNet, an IT provider to Council; · A complaint by a fellow staff member that Mr Zhang harassed her by continually hovering and walking past the back of her work station. Administrator Authority in respect to Messaging System 15 In her evidence Ms Upston deposed that the General Manager had refused to authorise Administrator Authority to Mr Zhang in respect to the messaging system due to confidentiality considerations. This is set out by Ms Upston in her affidavit (Exhibit 3 paras 37, 38) in the following terms: 37. In response to Point 17 of Mr Zhang's statement, the messaging system used by Warrumbungle Shire Council is Lotus Notes, which is linked to our Electronic Document Management System (EDMS). The EDMS contains information all our corporate records including for example confidential memos between the General Manager and individual staff. Given that there is this link to the EDMS, it is Council's view that there is considerable confidential information that Mr Zhang should not be privy to and this is why he does not have full administrator rights to the messaging system. The situation may be different if the Council was using Microsoft Outlook as that messaging system would not be linked to our EDMS. However, we are not using this system and have to be able to protect the Council's confidential documents. 38. It is the Council's prerogative to determine the security access levels to any software or hardware utilisation and Council have determined that the administrator rights for the messaging system should be with Bluepoint. 16 Mr Zhang complains that Mr Baker, the Finance Manager for Council, has administrator rights in respect to the messaging system which Mr Zhang asserts he should have as Mr Baker does not have any computer network experience. 17 The evidence of Mr Baker is that he has undertaken some computer based functions which were not specifically part of his job description. Those tasks occurred in the period prior to the appointment of Mr Zhang, when the position was vacant, and on a limited basis since. 18 Mr Baker's evidence is that the role and functions performed by the previous incumbent in the IT position, Mr Dunshea, were different to that of Mr Zhang as Mr Dunshea was highly qualified in finance while Mr Zhang is an IT specialist. 19 Mr Zhang asserts that the IT Officer employed by Council prior to him had administrator rights to the messaging system. There is no evidence to support this but if it were so that does not constrain management from setting alternate levels of security. 20 I accept the argument that it is the prerogative of management to determine the security access levels and I will not interfere with that. 21 Mr Baker retains administrator rights at the time of Hearing. The evidence is that these rights will be removed from Mr Baker, "to be fair to Mr Zhang". 22 The decision by management to allocate or not allocate administrator rights is a matter for management and should be based upon appropriate operational and efficiency grounds. I see no reason to give any consideration to a notion of "fairness to Mr Zhang". I do not find any unfairness to Mr Zhang if Mr Baker has administrator rights and Mr Zhang does not. The notion of comparative fairness is misplaced. The question is whether Mr Zhang has adequate access to carry out his functions as required by management. 23 Ms Upston's evidence is that it is the General Manager's intention that administrator access remains exclusively with the provider Bluepoint. Ms Upston's evidence is that Mr Zhang does not need the access he seeks to do his job; and that only Records Officers and the General Manager have the level of security sought by Mr Zhang. 24 There is nothing to support any assertion that the decision to exclude Mr Zhang from administrator access and control of the messaging system is racially motivated or amounts to harassment or bullying. Information Technology Purchase Decisions 25 In the course of his evidence Mr Zhang was consistently critical of management for not involving him in decision making processes or consulting with him, as he believed appropriate, on the purchase of IT equipment. 26 This is not a decision for Mr Zhang to make. Conduct of KNet Staff 27 Mr Zhang was also critical of KNet, the Network service provider and asserted that this had resulted in significant waste of resources. 28 There is no evidence to support this assertion by Mr Zhang. The evidence discussed later in this Decision in respect to competency assessments reveals that Mr Zhang objects to KNet undertaking tasks he believes he should do. The email exchange between Mr Zhang and Ms Upston (set out at para 48 below) leads to the conclusion that it is Mr Zhang who needs to reconsider his behaviour towards accepting instruction and dealing with employees of KNet. Complaint by Ms Trish Sawyer 29 Ms Sawyer is situated in the vicinity of Mr Zhang's work station and Mr Baker's office. 30 Mr Zhang did not deny that he would regularly walk behind Ms Sawyer while she was seated at her desk so he could observe whether Mr Baker was free for him to approach; on the telephone; or otherwise occupied. 31 The space behind Ms Sawyer is not a passageway or thoroughfare to Mr Baker's office or elsewhere. 32 The evidence is that Ms Sawyer sought rearrangement of her workspace to remove the need for staff to walk behind her as she found this generally unsettling. 33 Mr Zhang refused to recognise his behaviour as a problem for Ms Sawyer, insisting that the urgency and importance of his duties required him to have regular contact with Mr Baker and, given Mr Baker's role in the organisation, he did not want to interrupt him if he was busy. 34 Mr Zhang was asked not to "check on Mr Baker" by walking behind Ms Sawyer but refused to comply. 35 Mr Baker's evidence is that he does not have any line authority over Mr Zhang and found the continual reference of issues by Mr Zhang both inappropriate and disruptive. Mr Baker put that he informed Mr Zhang that Ms Upston, who is located at Council's Coolah offices some 50 minutes drive away, is his line manager and issues should be referred to her. 36 Mr Baker deposed that Mr Zhang took no notice and continued to bring issues or seek approvals inappropriately in such a persistent manner that Mr Baker found it more efficient to accede than argue. 37 Ms Upston's evidence is that Ms Sawyer withdrew her complaint about Mr Zhang walking behind her work station as she became unable to deal with Mr Zhang's consistent questioning as to why she complained. 2008 Competency Assessment 38 Council's Competency Based Salary System Foundation Rules are attached to Ms Upston's statement (Ex 3 Attach H). The stated intent of the salary system is to provide advantage to the stakeholders, identified as: · Community - value for money through increased productivity · Employees - recognition and reward for the acquisition and application of skills · Management - flexibility to maximise effectiveness and efficiency 39 The salary structure has 21 grades across seven levels with three skill steps. Each skill step has a salary increase of 4.5%. Each skill step consists of a specific number of competencies from the Local Government National Competencies suite and other established competencies where there is a skill requirement not covered within the Local Government sector. 40 Mr Zhang commenced employment with the Council in October 2006 and, in accordance with policy, should have had a six monthly competency assessment around 16 April 2007; and an annual assessment prior to 31 August 2008. These assessments did not occur for reasons not explained in these proceedings; suffice to say neither management nor Mr Zhang, who would benefit from progression in the salary scale from a satisfactory assessment, pursued the issue. 41 Ms Upston met the responsibility of Council to undertake a competency assessment on 11 November 2008 ("the 2008 Assessment"), approximately 12 months after she commenced employment with the Council. 42 It is Ms Upston's evidence that in the 2008 Assessment she addressed the assessments which were due in April 2007 and August 2008. 43 Ms Upston assessed Mr Zhang as not yet competent in two of 16 certain entry level competencies; being · CU03007 - Provide effective service to customers; and · LGACORE105 - Work with others in Local Government 44 Ms Upston assessed Mr Zhang as requiring training in two of eight Step 1 Competencies; being · LGACOM503.0 - Contribute to preparation of budget · WK55001 - Implement assets management systems 45 Ms Upston recommended in-house training. 46 Mr Zhang takes exception to comments by Ms Upston in his 2008 competency assessment dated 29 October 2008 (Ex 1 Attach. JZ6): "I'm not sure what training might be effective. John has managed to get off-side with a number of suppliers to the extent that they refuse to do business with him. … … I believe John's personality is the main barrier. He has a tendency to behave in a manner which I believe he thinks is 'diligent' but it's frequently perceived by others as 'harassment'." 47 In the course of his appeal against the 2008 Assessment Mr Zhang sought explanation from Ms Upston for her decision to regard him as not yet competent in four separate categories. These competencies were set out in detail by Ms Upston in a memo to Mr Zhang of 6 May 2009 (Ex 1 Attach. JZ15): "I have spent considerable time yesterday and today reviewing your competency assessment. A competency assessment is an assessment by a trained workplace assessor (which I am) of whether you are competent in the established competencies for your position. I have explained why you didn't meet the requirements for the competencies where I graded you as not yet competent but obviously you have not understood. I have put considerable thought into how I may explain things so that you do understand. Please refer to your copy of the competency document for the description of the following competencies. Two of these are Entry Level CORE competencies and you should be competent in these before you are employed, however assessment of the level of competency is not always apparent until you are employed and working in the workplace. CU03007 - Provide effective service to customers. In explaining this I will define who your customers are: - All staff internal and external who required assistance with their IT issues - External customers are all the people with whom Council does business even if we are the "customer" to their business, The reason I assessed you as "not yet competent" is because many internal and external customers have not been happy with their business interactions with you. They complain, among other things, that you "badger" them, hover over them and repeatedly ask the same questions over and over. Others have mentioned excessive phone enquiries - ie asking the same question in numerous calls on the some day. And before you ask, no, I will not name these people because if I did you would be off to ask them and then I would receive another complaint. I do however have a list which I could provide to an independent third party if required to back up my claim - not to you though. By the way, Trish and Paul have only backed down on the harassment issue raised by Paul in your competency assessment meeting because you have continually pestered them about it. They are sick of you going over and over with the same thing that in the end they have just said "Enough!!!!!! I will withdraw it!" All Paul was trying to do on that occasion was explain to you how an action of yours could be perceived by another person as harassing. LGACORE105 - Work with others in Local Government. The reasons why I assess you as "not yet competent'' on this competency are largely the same as in the previous competency - your relationships with co-workers who allege the same as above. The other two competencies where you were assessed as "not yet competent" relate to budget preparation and asset management. I have undertaken to arrange some in-house training in these areas for you, and this will commence in the next couple of months. In your competency assessment interview, I may have said your cultural differences might be an issue. I am not going to withdraw that statement. I believe that it is possible that you just do not understand how different cultural backgrounds can cause issues and I am offering this as advice that you may be able to address to improve your working relationships with ''customers" and co-workers. John, one of the things you have to understand is that saying there are cultural differences is a fact. You spent the major part of your life in China which has a completely different culture from Australia. This is not a discriminatory statement - it is just fact. I do believe that when you move to a totally different culture you have to adapt and recognise that while some behaviours that are acceptable in one culture are not in another. I had to do this on my recent trip to the US as I was living with a family for part of my time. Whilst US and Australian cultures are similar there are differences to which you have to adapt. There are many examples and in fact books have been written about it and movies made. An example of a movie is "Working Class Man" starring Michael Keaton where the cultural differences are between US & Japan. An example of a cultural difference ; personal space - in countries like China and large densely populated cities like New York, Tokyo, London etc, people do not require as much personal space as they do in Australia. Further people in Sydney require less personal space than those in country areas. An invasion of personal space is perceived as threatening or harassing. For more information on this you could read "Body Language" by Allan Pease which should be available through the local library. Another example of how you get people offside is by continually going over and over the same thing. I am not sure if this is a cultural difference or not, but in Australia this behaviour is considered very annoying and even harassment. I urge you to revisit Councils policies, in particular Staff 4.5 - Harassment Policy. (A copy is attached for your convenience). Please read it in full but here are a couple of quotes from the Policy which I believe are pertinent to this situation. "Harassment makes the workplace uncomfortable and unpleasant. "unnecessarily leaning over someone or standing too close to them" Does there have to be more than one action for it to be harassment? No. Just one action can be enough to amount to harassment. Does it have to be deliberate for it to be harassment? No. Sometimes people harass each other without meaning to. Behaviour that is funny or doesn't mean much to one person or a group of people may hurt or offend others. Yet, every employee has the legal right to a workplace that feels safe, non-sexual and non-harassing. This means that you must respect the fact that everyone is different. You should think carefully about your behaviour and whether it might offend or hurt others. If someone else lets you know in any way at all that they find a particular behaviour offensive or harassing, then you must stop doing it. Does the other person have to say "no" before it's counted as harassment? We encourage people to say no, but sometimes they are too scared or embarrassed to do this. If they are too scared or embarrassed to say no, it could still be harassment. This means you need to be careful about what you say and do and how this might affect others. If you know or think that your behaviour might be unwelcome, you should not do it, even if the other person doesn't say "no". If you are not sure if the behaviour is harassing them , you should ask them if what you're doing is OK." By the way, just for your interest here are some synonyms for the verb "harass", - badger - pester - annoy - ask again and again - press - hassle - plague There will be no further review of your competency assessment. I have provided all the above information to help you in understanding my assessment. I have offered advice on learning why you are not getting on with customers and co-worker's which will hopefully help you to recognise and make some changes so that on your next assessment you are given a tick on those core competencies. You also raised the question of competency assessments for two and a half years. If I do a competency assessment on 11 November 2008 and you do not meet entry level competencies it is reasonable to assume that you have not met them in the past either. I am unable to assess you against the competencies contained in the other steps of your grade because you cannot move off entry level until you meet all the competencies at that level, You have constantly asked Val Kearnes, Team Leader Human Resources for more information and she has been very patient in trying to answer your questions and provide you with information, I believe this correspondence from me excessively explains everything to you. Any further discussion/email/correspondence on this matter will be considered by me as harassment and appropriate action will be taken." 48 In his statement of evidence Mr Zhang includes an email from him to Ms Upston, dated 28 February 2008, and her replies (Ex 1 Attach. JZ11): From Mr Zhang to Ms Upston: You might remember that on 31 Jan 2008, I gave you a letter regarding two software issues with David Mogg and a copy of the record of the service requests lodged with Knet. The service requests regarding the two software issues were lodged on 29 Oct 2007 (about three and half months ago). Since Paul Baker said to me that Knet had asked us to solve these two software (installed on the servers) problems for David Mogg, it appears that they might have difficulties in doing so by themselves. I will take your instruction which is if we can do it, we just do it. Now, I am prepared to take the challenge. But it takes time to do these jobs. As you know, Paul is always busy with the accounting issues, so it is very difficult for me to perform my duties in such a way as logging on by Paul with an account with full administrator's privileges and doing my jobs by me. Besides, it proves that Knet's understanding regarding they are responsible for the whole network is not right and ridiculous. It also proves that the only way to provide prompt, efficient and cost effective service to the council network system is to let IT section have the administrator's user account and as far as I know, this is the way how the companies operate their IT sections all over the world. The current situation has greatly stressed me and to some extent we have all been victimised by Knet. Ms Upston's reply: John, I can't even begin to enumerate the number of times I have told you the following: Whilst you may not like it KNet are our Network Administrators. Your position is IT Officer NOT Network Administrator. You MUST understand this - KNet are our Network Administrators. Your position is IT Officer NOT Network Administrator. Paul DOES NOT HAVE ANY PRIVILEGES GREATER THAN YOU!!!!! You should never have to log on as Paul to do your job!!!!! KNet know exactly what privileges you have and they would not be instructing you to complete tasks that you do not have the appropriate privileges to do. Mr Zhang to Ms Upston: I will be waiting for your further instruction regarding these software issues. Ms Upston's reply: My instructions to you are to do precisely what KNet told you to do Mr Zhang to Ms Upston: Also, from the copy of the record of the service requests, you can see we have lodged service requests twice (29/10/2007 and 6/12/2007) for the second server (with the amber light steadily on) from the top in the server rack. The amber light indicates that the server has got a problem. Ms Upston's reply: Yes, an amber light would normally indicate a problem with the server. KNet actually replaced the hard drive in the server and then provided you with the instructions to clear the event log so that the amber light would extinguish. I know you received those files from KNet and you emailed files back to Chris at KNet. But you failed to clear the event log as instructed. If KNet believed the amber light was a critical issue they would have been out to fix it. Instead rather than waste Council's money in travelling here to clear an event log that you were given information on how to clear, they are leaving that job until next time they do visit the site. It is correct that if you see a warning light you should contact KNet but if they tell you that light is not a critical issue then you have to accept that, Mr Zhang to Ms Upston: Yesterday morning, I rang Linda regarding this issue. She asked me to lodge another service request form. She said that someone from Knet has already fixed something for this server since the first or/and the second service request. But I can't find any records regarding that from my diary. I was wondering whether you are aware that nearly every time when someone from Knet does something for the council, I won't be contacted, not to mention being given a job sheet about what they have done for the council. Since I started working here, I have only been given one job sheet. Thus I don't know clearly or even don't know anything about what they have done for the council. Furthermore, I can't check or track the jobs they have done here. That is one of the reasons I have to fix many problems caused by Knet after they have done something for the council. Please see my letter to Bob dated 16 Nov 2007 for details. If you wish, I will give you more details about the problems they left after they have done something for the council. Actually, they always contact Paul Baker each time when they work here. You might be aware that Paul is keen to do something with IT, but his computer knowledge is limited. Bob, you and Val have said a number of times that Paul has nothing to do with IT. But you might not be aware that the situation is different. Ms Upston's reply: I am aware that people from KNet don't contact you when they are here. They have advised me that they find you very difficult to work with in that you don't follow instructions and argue with them and don't listen and don't appear to understand. I have received this same feedback from CBM and Lexmark. And to be fair John, I understand exactly what these people are saying - after all how many times have I instructed you on what you are to do and you always question my instructions. You must accept that your position is IT Officer and that you are to take instructions from me and from KNet. If you are not willing to do this then you must consider your options and that may be that you resign from this organisation. Mr Zhang to Ms Upston: I aim to make IT section the one the council management least worry about. But the situation doesn't allow me to do so. Kind regards, John Ms Upston's reply: John - at the moment you are making the IT Section the one I worry most about. You don't follow instructions, you continue to raise issues outside the scope of your position and I am still waiting for the inventory/Audit results I requested last October! I have refrained from being blunt with you about comments made to me by others, because I did not want to hurt your feelings. It is my management style to try to be constructive in getting people to perform their duties but I have to tell you that generally the staff find you very difficult to deal with also and frequently would rather live with a computer problem than request help from you. John this is a very serious issue. [Emphasis added] In our last meeting with Terry Dray, (also present Tracey Cain and Val Kearnes) I mentioned that because it appeared that you finally understood what you were to do I would not give you a written warning but you should consider this as a counselling session. Please consider this your first written warning. Under the award and Council's disciplinary policy when an employee has received three written warnings their employment may be terminated without further notice. I look forward to discussing all the matters raised by you and my responses at our meeting tomorrow morning with Terry Dray at 10.30am at Coolah. By the way I have confirmed with Dawn Keirle that someone from the depot will be at the Council offices at 8.15am to take you to the depot to pick up the car. 49 Mr Zhang deposed that he was offended by these comments. I accept that he was, however, there is no evidence to suggest that these statements are inaccurate or racially motivated. 50 As a consequence of Mr Zhang's disappointment with the competency assessment undertaken in November 2008, a discussion took place including Mr Martin and Mr Dray representing Mr Zhang, who was present, Mr McConnell from the LGSA, the General Manager, Ms Upston and Ms Val Kearnes, Human Resources Team Leader. 51 The outcome of this discussion was that Mr Zhang was granted the two entry level competencies and moved up in the salary system to Step 1. An undertaking was reached that the USU would be involved in the 2009 Competency Assessment. Ms Upston deposed that she was not made aware of this arrangement until she initiated the 2009 Competency Assessment process in the usual manner by seeking to make an appointment with Mr Zhang. 52 Mr Zhang objected to Ms Upston seeking to arrange a meeting for the purpose of a competency assessment. Ms Upston then made enquiries and discovered the arrangement for the USU to be involved; she subsequently apologised to Mr Zhang and arranged for the 2009 Competency Assessment to include representatives of the USU. This took place on 1 September 2009 with Mr Martin of the USU present. 2009 Competency Assessment 53 This took place on 1 September 2009. 54 It is Ms Upston's evidence that in this assessment meeting Mr Zhang refused to speak directly to her, insisting that they communicate through Mr Martin. 55 Ms Upston deposed that she remained of the opinion that Mr Zhang had not met the entry level competencies but accepted the position put by Mr Martin that this could not be revisited as Mr Zhang had been deemed competent at the entry level by the General Manager. 56 At the 2009 Assessment meeting Ms Upston conceded that the in-house training in the two step core competencies: Contribute to preparation of budget; and implement assets management system, had not been provided to Mr Zhang and accordingly he was deemed competent in those elements. 57 This advanced Mr Zhang to be assessed on the seven competencies at Step 2. 58 Ms Upston assessed Mr Zhang as not yet competent in two of these: · AF29013.01 - Manage strategies and planning for computer systems · LGACOM503.0 - Justify proposals for expenditure 59 Mr Zhang asserts that he has provided numerous reports and emails to Ms Upston to qualify as Managing Strategies. 60 Ms Upston deposed that Mr Zhang failed to comprehend the distinction between a report on an event and strategy for the future. Mr Zhang was invited to propose a strategy to Ms Upston, which he has not done. 61 In her position of Director of Corporate Services Ms Upston is the officer who can authorise expenditure. Mr Zhang was advised that he should put a purchase request to Ms Upston with a justification in order to meet the competency. 62 Ms Upston deposed that Mr Martin and Mr Dray accepted the requirements upon Mr Zhang to communicate a strategy and justification to her. This evidence is not disputed. 63 Mr Zhang has not provided the communication. He has lodged a formal appeal of the 2009 Assessment. Ms Upston wrote to Mr Zhang on 1 February 2010 to provide further assistance to him (Ex 3 Attach C), pointing out examples where he has specifically failed to put a justification for purchase. 64 The outcome of the meeting was that the first warning was withdrawn by Ms Upston on the following grounds (Ex 1 Attach JZ12): Further to our meeting on Friday I would like to confirm the outcome of the discussions. You raised the matter of administrator access differences between yourself and Paul Baker. You are quite correct in the differences you pointed out to me. Paul does have greater access to complete network administration tasks than you do. The reason Paul has been given this access is as I stated during our meeting so that Paul may give internet access as required for certain finance staff to undertake payroll and banking processes. I have instructed Paul previously that he is not to log in and let you undertake tasks under his log-in, neither is he to complete tasks using the administration powers he possesses except for the specific tasks outlined in the previous paragraph. I will be speaking with KNet about their previous "confusing" description of network administration access, and the fact that they appear to have misled me on the issue. The issue of whether Paul has greater access than you is, however, completely irrelevant to any issue we have been discussing. You have the level of access that is required for you to complete you job. Any issue which requires greater access than you have is to be referred to KNet for completion. The meeting concluded when you agreed that if I withdrew my first written warning to you, then you would NEVER again raise any of the issues which have been raised up till now and you will move on with the tasks you are required to do in the manner in which you are required to do them. That is, if you have the ability to complete the task with your current administrator access then you should and whenever further administrator access is required the matter be referred to KNet. You are not to refer any matters to Paul Baker. You are not to request Paul log on anywhere to allow you to complete any work on any network equipment whatsoever. Any deviation from these very clear instructions above and any attempt to discuss matters prior to last Friday will be considered insubordination and refusal to carry out a legal and reasonable direction and your first warning will be automatically reinstated. This email is merely to confirm the discussions and conclusions of last Friday's meeting. I look forward to you moving forward from today and devoting your energies to getting your job done, rather than spending your time pondering on previous issues. I will be forwarding to you tomorrow a diary for completion so that I can ascertain how you are spending your time each day. From the meeting I also understood that there were only a few items unrecorded in the audit list you were completing on Council's hardware, peripherals and software and you stated that you would complete that on Friday. I am yet to receive a copy of it. Please store your completed spreadsheet in the following location: G:\Carolyn\IT and send me an email when you have completed this task. 65 Mr Zhang did not comply with this arrangement. Interaction between Ms Upston and Mr Zhang 66 There is room for the view that Ms Upston went beyond what might be the usual level of assistance to Mr Zhang. Reference by Ms Upston to cultural differences is in my view not evidence of racial prejudice but an attempt to further demonstrate to Mr Zhang those aspects of his behaviour and relationship with co-workers that were holding him back. 67 The evidence of Ms Upston is that Mr Zhang is a difficult and at times frustrating employee. This is obvious from the email exchange above. 68 Ms Upston deposed that Mr Zhang could read and understand written communication in English very well, however, had a problem with verbal communication; tending to hang on to a single word and miss the intent of the message. 69 Ms Upston's evidence is that counselling and disciplinary action in respect to Mr Zhang was difficult and, when complaints were made and reviewed with Mr Zhang in accordance with the Disciplinary Procedure of the Award, Mr Zhang would badger and harass the complainant until the complaint was withdrawn. 70 Ms Upston deposed that suppliers refused to work with Mr Zhang; and in light of Mr Zhang's persistence in pursuit of his own views, consultation and dialogue to restore the relationships would be futile. 71 Ms Upston conceded that she had "lost her cool" with Mr Zhang on an occasion when he approached her in her office to deal with a matter of importance to him. Ms Upston informed him that she was dealing with a matter of priority and Mr Zhang's issue would have to be dealt with later. Her evidence is that she informed Mr Zhang, "not now John", a number of times and he continued to advance into her office, refusing to accept her instruction to defer his issue. Ms Upston informed Mr Zhang that if he persisted he would get a second warning. Mr Zhang persisted and she eventually shouted at him to "get out of my office". 72 Ms Upston was immediately critical of herself and sought advice from her immediate supervisor. Ms Upston deposed that from that time she limited communication with Mr Zhang to email as much as possible. CONCLUSION 73 Management, in particular Ms Upston, have gone to some lengths to inform Mr Zhang what he needs to do to meet the competency assessments and provide him with assistance to understand and meet the ordinary requirements of communication and co-operation in the workplace. 74 Mr Zhang steadfastly refuses to take this advice and during the course of his cross examination by Ms O'Neill continued to object to the assessment that he does not work well with others and fails to provide effective service to customers. 75 Mr Zhang is wrong and would be well advised to accept the assistance and advice offered. 76 Ms Upston's attempts and efforts to assist Mr Zhang have been mischievously misconstrued. 77 The conduct exhibited by Mr Zhang could not be tolerated in any employee. The issue is Mr Zhang's behaviour, whether that is a cultural matter or a personality issue does not amount to racial discrimination. 78 This conclusion is supported by the fact that the object of the advice was to correct Mr Zhang's offending behaviour and assist him to meet the competency criteria for advancement. 79 There is cause for concern that the racial offence is taken to defend unacceptable conduct in the workplace. This is further reinforced by the fact that Mr Zhang was advanced through competencies he did not have because Council had been unable to provide the necessary training. 80 It is necessary to distinguish between the person and the behaviour. I am satisfied that Ms Upston held no prejudice against or dislike of Mr Zhang as a person, however, there is some conduct by Mr Zhang which she found inappropriate and, as his manager, was obliged by her corporate responsibility and the Award disciplinary procedures to address with him. 81 It is hardly surprising that behavioural issues surfaced in Mr Zhang's competency assessments, which in essence is a process to assist employees. 82 Mr Baker's evidence is that Mr Zhang is not a manager and does not have a delegation of authority from the General Manager to purchase any goods or services without the approval of Ms Upston. 83 Mr Baker's evidence supports that of Ms Upston in respect to problems with contractors. 84 Walking behind Ms Sawyer's desk is not an issue isolated to Mr Zhang. Complaints have been made about other people who have then adjusted their behaviour. 85 I accept the evidence of Ms Kearnes is that Mr Zhang has not been treated differently to any other employee in the competency assessment process. 86 Division 2 Discrimination in work of the Anti-Discrimination Act 1977 states: Division 2 Discrimination in work 8 Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of race: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment for the purposes of a private household 87 On an objective assessment of the conduct of Council and its treatment of Mr Zhang there is no unlawful act or behaviour which offends the Anti-Discrimination Act 1977. Such an assertion is further unsustainable in light of the fact that Mr Zhang has four deemed competencies which the evidence in these proceedings demonstrates are a concession to Mr Zhang. 88 The evidence discloses there is no basis in the allegation of bullying, harassment or racial prejudice. 89 The evidence leads to a conclusion that Mr Zhang is critical of management methods and decisions and does not agree with some operational and commercial decisions of management. 90 These issues are matters of managerial prerogative. Mr Zhang has put his opinion forcefully, that opinion is not accepted; having given management the benefit of his view it is Mr Zhang's responsibility to accept and implement the decision then made, not continually and persistently press his objections. 91 The obligation upon Mr Zhang is to carry out the lawful and reasonable instructions of management. I do not find any of the instructions given to Mr Zhang to be unlawful or unreasonable. 92 The evidence leads to a conclusion that the Council has made a more than reasonable endeavour to provide a supportive environment for Mr Zhang; and to provide him with information and assistance to improve his performance and relationships within the workplace. 93 Mr Zhang has been insensitive to these efforts, misconstruing them as racially motivated and an attempt to discriminate against him on cultural grounds. 94 Mr Zhang expects people in the workplace to be sensitive and supportive of his position; it is appropriate that he reciprocate and become more aware and sensitive to the requirements of others in the workplace. 95 There is nothing in the evidence to support the assertions of discrimination, victimisation, bullying, or harassment of any kind against Mr Zhang. The evidence overwhelmingly leads to a conclusion that it is Mr Zhang who should adjust his behaviour. 96 It is regrettable that the solution developed in conciliation by Commissioner Bishop was not accepted by Mr Zhang. 97 The application for remedy sought by the USU is refused. ­­­­_________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.