Industrial Relations Commission New South Wales Medium Neutral Citation: Henriquez v Housing NSW [2011] NSWIRComm 1025 Hearing dates: 24 and 25 March 2011 Decision date: 17 June 2011 Before: Oakman AC Decision: Order made for payment of compensation of 17 weeks salary Catchwords: Unfair Dismissal - public service - dismissed for work performance issues - Held - dismissal unreasonable - reinstatement and re-employment impracticable - order made for compensation Legislation Cited: Industrial Relations Act 1996 Public Service Employment and Management Act 2002 Cases Cited: Bankstown City Council v Paris (1999) 100 IR 363 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALJR 170 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Category: Principal judgment Parties: Tito Henriquez (Applicant) Housing NSW (Respondent) Representation: Mr T Henriquez (Applicant in person) Ms V McWilliam, of counsel (Respondent) File Number(s): IRC 1456 of 2010 DECISION Introduction 1Mr Henriquez lodged an application under section 84 of the Industrial Relations Act 1996 ("the Act") on 10 December 2010 for relief from the decision of Housing NSW to dismiss him on 26 November 2010. Mr Henriquez indicated in his application that he was seeking reinstatement. 2A conciliation conference was conducted by Bishop C on 14 January 2011. At a subsequent report back the parties advised the Commission that the matter was not settled and the standard directions were made to prepare and list the application for hearing. 3The application was heard in Sydney on 24 and 25 March 2011. At the hearing Mr Henriquez appeared in person and Ms McWilliam, of counsel, appeared on behalf of Housing NSW. At the conclusion of the hearing the Commission reserved its decision. Background 4Mr Henriquez commenced as a permanent employee of Housing NSW on 4 August 1997. He was substantively employed as a Client Service Officer ("CSO"), Clerk Grade 2 / 4. He was 51 years of age at the time of his dismissal. 5In 2009 when the various events leading up to his dismissal commenced he was a CSO with Team 104. Team 104 was part of the Central Sydney Division looking after a portfolio of properties / clients in the Inner City Area. The team consisted of a Team Leader, a Senior Client Service Officer ("SCSO"), six CSOs and a Clerical Officer. 6Around June 2009 Housing NSW moved to a paperless system for its client service records through the introduction of TRIM - an electronic document and record management system. Part of that system included digital client records. 7With the implementation of TRIM all work had to be processed through that system. It included client requests, client enquiries, correspondence and other documents. Material was scanned and those digital documents allocated to CSOs for action and completion through the TRIM system. 8As part of the implementation all members of Team 104 were required to attend a number of training sessions on the TRIM system. Initial on-line training sessions to familiarise staff with the system were held as 'half days' over several Wednesdays. The office was closed to allow all staff to attend. Mr Henriquez did not attend the training sessions, calling in sick on the various Wednesdays in question. Additionally all Team 104 staff were required to undertake a full day of training on the TRIM system - half of the team on one day and the rest the next day. Mr Henriquez was scheduled for training on the second day but did not attend. 9From May 2009 Ms Angela Walsh was the Team Leader of Team 104. As Team Leader she was responsible for monitoring the implementation of TRIM within Team 104. She introduced weekly meetings between the SCSO and each of the CSOs to assist team members with TRIM issues and to also monitor general workloads. Ms Walsh also made changes to the workloads of team members, including a requirement that all CSOs in the team participate in a roster to do counter service at least one half day a week. 10With the introduction of the workload changes by Ms Walsh, Mr Henriquez was responsible for a portfolio of 380 properties, compared to his previous portfolio of around 250 to 280 properties (Mr Henriquez says he had 412 properties in his initial portfolio). Ms Walsh's expectations of Mr Henriquez, as a CSO included that he: provide comprehensive services to clients seeking housing assistance, assess their needs, manage applications, match clients to appropriate housing solutions; deliver housing solutions, maintain properties, support sustainable tenancies or arrange alternative housing options; and liaise with human services agencies to assist clients to establish and maintain social housing tenancies. 11For a number of reasons Ms Walsh became concerned about Mr Henriquez's general work performance. On 16 October 2009 she and Ms Ludmila Wicks, SCSO, met with Mr Henriquez, as detailed in a file note, to discuss his work performance. At the meeting 'the following issues were discussed regarding expectations that were not being met: ... Prioritisation of work such as the case with the deceased estate of [AA] [client names have been substituted with non-identifying initials by the Commission] who has been deceased since August 2009 and we still do not have the keys back. Closing off items in TRIM without answering or actioning the items or making notes about work completed - such as the case with [BB]. Responding to correspondence - it is the expectation of the Housing NSW to answer all correspondence in a timely manner. Especially that which relates to additional occupants as this is lost revenue for Housing NSW. Responding to emails from the team leader in a timely manner when requested so responses can be made to Clover Moore and the Minister. Attention to work especially the fact that there are no file notes or IHS entries of conversations between Mr Henriquez and tenants. This has previously been brought up in team meetings regarding noting all conversations and decisions. Phone continuously on 'Do not disturb' and the fact that all calls should be transferred to the queue line if Mr Henriquez is not at his desk. Phones should not be on 'Do not disturb'. Outstanding work that is previous to the implementation of TRIM and current outstanding work on TRIM which has not been actioned. Not following procedures or policies and relying on previous policies. Housing NSW changes its policies regularly so need to refer to them as needed. Not making decisions or writing up recommendations to the Senior or team leader so that all decisions are transparent - this has previously been brought up in team meetings and all staff have been given information on their delegations. Mr Henriquez was advised that he has the delegation to do 95% of his core business and that he should discuss any other issues with the Senior in the team if he is having any difficulties making decisions however ultimately he needs to make decisions for his clients. Mr Henriquez was asked if he had difficulty with this to which he replied he did not. [exhibit 5, Tab A]' 12At that meeting Mr Henriquez was told his performance would be monitored for 6 weeks. He was told that if there was no improvement Ms Walsh would have no choice but to formalise the process by completing and implementing a formal work plan which may result in disciplinary action being taken. The file note records the 'actions to follow: Mr Henriquez will go through all papers on his desk with the help of Ms Wicks today and forward any transfers or work un-actioned to the team's clerk to data enter. Mr Henriquez and the Team Leader will have weekly catch-up sessions to address any issues that may be arising and to monitor progress. Mr Henriquez will be offered weekly supervision session with the [SCSO] to go through all work that is outstanding to clarify any issues. Mr Henriquez will document all conversations with tenants in regards to issues that will affect their tenancy either by file notes, on IHS or TRIM. Mr Henriquez will not close off work in TRIM that has not been completed. Mr Henriquez will make decisions based on Policy and follow Housing NSW procedures. Mr Henriquez will not have his phone on 'Do not disturb'. [exhibit 5, Tab A]' 13Ms Walsh was of the view that Mr Henriquez's work performance had not improved during the six weeks of monitoring. She sent an email on 7 December 2009 asking for the advice of Mr Andrew Hearn, Employee Relations Officer, and Ms Meghan Hibbert, Area Director, Inner City, on how to proceed. Mr Henriquez was absent on leave over the Christmas period from 18 December 2009 to 11 January 2010. 14By a hand delivered letter dated 11 January 2010, Ms Hibbert wrote to Mr Henriquez and advised him that she had reviewed his monitoring period with Ms Walsh and it appeared his performance had not improved to a satisfactory standard. The letter said his 'performance issues are: failure to adhere to basic direction from the Team Leader; failure to take responsibility for working with the [SCSO] to improve feedback and guidance on your work practices; data entry of a subsidy contrary to policy and procedure (and with potential legal and audit implications for yourself and Housing NSW (HNSW)); failure to take full responsibility for decisions within your delegation; continual failure to respond to high needs client, without explanation - and it appears, not provided accurate recollections of your actions or attempts to assist clients or several occasions; failure to keep accurate and proper documentation and adhere to record keeping protocols (especially in spite of recent 'record keeping' e-learning); failure to assist the SCSO and Team Leader with regard to preparing information for CTTT and other interviews as required; failure to follow client service visit procedure and record keeping protocols by not leaving a call note and not recording these events appropriately for records and CTTT purposes; failure to adhere to deadlines with regard to management of fraud investigations (fraud files) - which again have very real potential legal implications for HNSW and represent a potential loss of income and risk to the organisation; failure to follow policy and procedure with regard to making a Community Services, Department of Human Services referral - a clear contradiction of child protection responsibilities and probable breach of your responsibilities as a mandatory reporter of children at risk (again, with potential legal implications for yourself and for [HNSW]). [exhibit 4, Tab C]' 15In that letter Ms Hibbert also stated that Housing NSW would, in consultation with him, be developing a Work Plan; he was to attend a meeting on 13 January 2010; and if he failed to improve his work performance by the end of the Work Plan it could result in disciplinary action including implementation of a Work Performance Improvement Plan. 16On 13 January 2010 Ms Hibbert and Ms Walsh met with Mr Henriquez and his support person, Mr Greg Corrigan of the PSA. Ms Hibbert, by a hand delivered letter dated 27 January 2010, wrote to Mr Henriquez to discuss the outcomes of the meeting on 13 January 2010 and the Work Plan. Among other things, Ms Hibbert noted that: he had not provided a draft Work Plan as agreed by 21 January 2010; the Work Plan was to run for a period of 8 weeks; the first review meeting of the Work Plan was held between himself and Ms Walsh on 21 January 2010; and he had until 29 January 2010 to submit his draft plan otherwise a Housing NSW Work Plan would be implemented. He was warned 'that failure to comply with the responsibilities and duties of your position as a [CSO] is very serious. As such, your cooperation in this matter is imperative to Housing NSW supporting you in your role ... this work plan process provides you with the opportunity to improve in the work areas we have discussed, including but not limited to: Undertaking proper and accurate records and ensuring appropriate documentation in Housing NSW systems Proper follow up and management of the TRIM and IHS records systems Thorough and prompt actioning and management of your Outlook emails Following up and documentation of critical issues, including documentation of assessment, analysis and decisions made as appropriate Prioritisation of tasks and deadline management Mandatory reporting obligations and documentation Researching and following Housing NSW policy and procedure Decision making within your delegation and referral to more senior staff with a considered recommendation above your jurisdiction [exhibit 4, Tab D]' 17As foreshadowed in the letter of 27 January 2010 Housing NSW developed a document titled 'Performance Improvement and Work Plan' ("Work Plan January 2010") that was to regulate the 8 week performance improvement and review period for Mr Henriquez. The Work Plan January 2010 was divided into four columns headed 'Work Performance Issues', 'Agreed Performance Goal / Target to be achieved', 'Support and Development and Relevant Remedial Action' and 'Review Date / Comments'. The Work Performance Issues column identified six areas of concern: inability to undertake proper and accurate records and ensuring appropriate documentation in Housing NSW systems; inability to follow up and documentation of critical issues, including documentation of assessment, analysis and decisions made as appropriate; inability to prioritise tasks and deadline management; inability to deliver a broad range of applicant, tenancy and property management services and advice to clients, including those with complex needs; mandatory reporting obligations and documentation; and decision making within your delegation and referral to more senior staff with a considered recommendation above your jurisdiction [exhibit 5, Tab C]. 18The Work Plan January 2010 was originally intended to run for a straight period of eight weeks, with a review meeting held at the start of each week to discuss the targets for the upcoming week and progress against the plan and the previous week(s) targets. However, due to the initial delay in developing the documentation and to Mr Henriquez's absences from work (including for stress related illness) the eight weeks ran in a broken period from January to April 2010. The eight review meetings were held on 21 January 2010, 4 February 2010, 12 March 2010, 19 March 2010, 29 March 2010, 8 April 2010, 15 April 2010 and 22 April 2010. 19There were a couple of work / personnel changes during the operation of the Work Plan January 2010. A month or two after it started, Mr Henriquez was taken off his usual CSO duties in relation to a portfolio of properties and asked to concentrate on the Team 104 arrears. From 22 February 2010 to 30 May 2010 Ms Lynda Duncan acted as the Team Leader of Team 104 while Ms Walsh acted in the position of Manager of Operations, Inner City. As a result, Ms Duncan ran the review meetings of 12 March 2010, 19 March 2010, 29 March 2010, 8 April 2010, 15 April 2010 and 22 April 2010. However, Ms Walsh also attended meetings during this period because of her knowledge of the work and in order to remain appraised of any progress for when she resumed her normal duties. 20Ms Hibbert was of the view that Mr Henriquez had shown a lack of progress throughout his period of work performance and prepared a file note dated 29 April 2010 [exhibit 4, Tab E] recording the history of the performance management of Mr Henriquez and her conclusions on his work performance. On 3 May 2010 she prepared a briefing note [exhibit 4, Tab F] for the Chief Executive of Housing NSW, Mr Mike Allen, concerning Mr Henriquez's work performance. 21By a hand delivered letter dated 21 May 2010 Mr Allen wrote to Mr Henriquez to advise him that, after informal and formal work performance processes, he was not performing his duties as a CSO in a satisfactory manner. The letter stated 'the details of your unsatisfactory performance are as follows: An inability to keep proper and accurate records and a failure to ensur[e] appropriate documentation is placed in Housing NSW IT systems; An inability to follow-up and action critical issues within your job role including application assessments, documents analysis and adequate decision making; An inability to prioritise tasks and satisfactorily meet deadlines; An inability to deliver a broad range of applicant, tenancy and property management services and advice to Housing NSW clients including those with complex needs; A failure to exercise decision making within your delegation; Inadequate and incomplete referrals and recommendations to senior staff where matters require action above your jurisdiction. [exhibit 4, Tab H]' 22The letter informed Mr Henriquez that remedial action would be taken under section 47 of the Public Sector Employment and Management Act 2002 ("PSEM Act") to give him the opportunity to improve and reach a satisfactory level of performance. The remedial action was to implement a Work Performance Improvement Plan and also general counselling. He was informed that if his performance remained unsatisfactory after being given a reasonable opportunity to improve, disciplinary action may be taken under section 42(1) of the PSEM Act and the range of disciplinary actions available - from a caution up to dismissal - were set out. 23The counselling session and a discussion of the contents of the plan were discussed at a meeting on 24 June 2010 between him, with Mr Corrigan as his support person, and Ms Hibbert and Ms Kathy Roil, General Manager, Sydney Region. Mr Henriquez had until 2 July 2010 to get back to Housing NSW with any issues about the plan and it was intended to start it on 5 July 2010. 24On 1 July 2010 Ms Walsh resumed her role as Team Leader. That same day the Inner City Area work teams were condensed from four teams to three. As a result Team 104 was renamed Team 103, it started at a new office location, and it now consisted of a Team Leader, two SCSOs, eight CSOs, a Senior Anti-Social Behaviour Officer, a Community Development Worker, a SCSO Specialist and a Clerical Officer. 25On 9 July 2010 Ms Hibbert sent Mr Henriquez an email stating that nothing had been heard from him (or Mr Corrigan) about the plan. She said the plan would run for the period from Monday 12 July 2010 to Friday 6 August 2010, with weekly review meetings, the first to be held on 20 July 2010. 26The plan was titled 'Work Performance Improvement Plan' ("Work Plan July 2010"). The Work Plan July 2010 consisted of four columns headed 'Work Performance Issues', 'Agreed Performance Goal / Target to be achieved', 'Support and Development and Relevant Remedial Action' and 'Review Date / Comments'. The Work Performance Issues column detailed five matters: inability to undertake proper and accurate records and ensuring appropriate documentation in Housing NSW systems; inability to follow up and documentation of critical issues, including documentation of assessment, analysis and decisions made as appropriate; inability to prioritise tasks and deadline management; inability to deliver a broad range of applicant, tenancy and property management services and advice to clients, including those with complex needs; and decision making within your delegation and referral to more senior staff with a considered recommendation above your jurisdiction [exhibit 4, Tab I]. 27Review meetings were held on 20 July 2010, 4 August 2010 and 16 August 2010. A review meeting was scheduled for 29 July 2010 but, as detailed in an email [exhibit 4, Tab K] from Ms Hibbert to Mr Henriquez (cc'ed to Mr Corrigan), Mr Henriquez initially requested the meeting not proceed because his PSA representative was not available. After discussion the meeting commenced and Mr Henriquez provided a WorkCover medical certificate indicating he was fit for duty but it contained a diagnosis of psychological matters and stated the reason for injury as 'harassment and intimidation'. Mr Henriquez said he was fit for work but was concerned for his health if the meetings and work plan continued and wanted them to stop. After general discussion of those issues Ms Hibbert advised Mr Henriquez that the meetings and the Work Plan July 2010 would continue and he should make written submissions detailing exactly why he says the process should stop if that is what he wanted to happen. As a result of Mr Henriquez's WorkCover Certificate, and advice to Ms Hibbert from Mr Hearning on the matter, the meeting did not proceed. 28Ms Hibbert was of the view that Mr Henriquez had not shown an improvement in his work performance during the Work Plan July 2010 and prepared a briefing note for the Chief Executive dated 16 August 2010 [exhibit 4, Tab L] recording the history of the performance management of Mr Henriquez and her conclusions on his current work performance. 29By letter dated 20 August 2010 Mr Allen wrote to Mr Henriquez to advise him that, following on from his letter of 21 May 2010 and the Work Plan July 2010, he was of the opinion that Mr Henriquez's performance was still unsatisfactory. His unsatisfactory performance was specified as follows:' Failure to action or subscribe to relevant activity reports in IHS to ensure client tenancy matters were monitored and actioned; An inability to keep proper and accurate records and a failure to ensure appropriate documentation is placed in Housing NSW IT systems; An inability to follow-up and action critical issues within your job role including application assessments, documents analysis and adequate decision making; An inability to prioritise tasks and satisfactorily meet deadlines; An inability to deliver a broad range of applicant, tenancy and property management services and advice to Housing NSW clients including those with complex needs; A failure to exercise decision making within your delegation; Inadequate and incomplete referrals and recommendations to senior staff where matters require action above your jurisdiction. [exhibit 4, Tab M]' 30The letter also advised Mr Henriquez that he had until 3 September 2010 to respond to Mr Allen's opinion that his work performance remained unsatisfactory. After considering any response he made, Mr Allen would then decide whether to take disciplinary action, or further remedial action or no action in the matter. 31By letter dated 2 September 2010 [exhibit 4, Tab N] Mr Henriquez replied to Mr Allen. He disputed that he had been provided with any additional training other than one or two hours of TRIM training on 30 July 2009. He believed he had been bullied and harassed by the weekly meetings throughout the process. He was sometimes unable to do what they wanted because of high blood pressure, it was hard to concentrate and he was nervous and tense. The methodology used was flawed because of authoritarian questioning, sarcasm and being treated as a criminal. He developed mental and physical conditions including sleep problems, high blood pressure, anxiety and depression. Even with these problems he said he still manages to carry out his duties managing a portfolio of properties, counter roster, telephone roster and assisting ICAT. He has always followed directions in his 14 years with Housing NSW and if he forgot to enter a detail about a particular case in was just simple forgetfulness. He recalled his work under Mr Allen when he was General Manager and believes he has been unfairly judged by new management who misjudged his capacity and willingness to perform in the job. He also requested a transfer to a different office. 32By letter dated 28 September 2010 Mr Allen notified Mr Henriquez under section 47(4) of the PSEM Act that he was now considering imposing disciplinary action and that the severest outcome he would conceivably impose was dismissal. Mr Henriquez was given 14 days to make a submission, supply further information, or ask for an interview before a final decision was made. Mr Allen indicated that his final decision would be based on: '1. The nature and seriousness of the unsatisfactory performance 2. The objectives of Part 2.7 of the [PSEM Act] as stated in section 41 (copy attached) 3. The following matters: Failure to action or subscribe to relevant activity reports in IHS to ensure client tenancy matters were monitored and actioned; An inability to keep proper and accurate records and a failure to ensure appropriate documentation is placed in Housing NSW IT systems; An inability to follow-up and action critical issues within your job role including application assessments, documents analysis and adequate decision making; An inability to prioritise tasks and satisfactorily meet deadlines; An inability to deliver a broad range of applicant, tenancy and property management services and advice to Housing NSW clients including those with complex needs; A failure to exercise decision making within your delegation; Inadequate and incomplete referrals and recommendations to senior staff where matters require action above your jurisdiction. 4. Your submissions if made. [exhibit 4, Tab P]' 33Mr Henriquez made submissions to Mr Allen in a letter dated 20 October 2010 [exhibit 4, Tab R]. He said that in his 14 years with Housing NSW he had proven he was a good element, good team player etc and 'mostly always prepare to follow policies and guidelines'. He mentioned his 10 years on the OHS Committee; four years as a fire warden; serving as an unpaid Spanish interpreter throughout his career; and representing Housing NSW in the CTTT. 34He said the problems began in 2009 when Ms Christine Melato joined Team 104 as the SCSO. He believes she turned team members against each other; questioned staff performance, which eventually led to the termination of a Mr Devere; and when he was interviewed about Mr Devere and gave his honest and neutral opinion, his 'problems at work started'. She complained to the Team Leader about his performance which led to Ms Walsh reacting immediately and negatively against him, with Ms Walsh telling him in October 2009 they were going to meet weekly to check his performance. Prior to his taking leave in December 2009 Ms Walsh told him that the weekly meetings were going to continue when he returned. It was escalating to a higher level and he realised they were 'there to get me' because there was no need for such measurements. He did not enjoy his holiday because he felt his job was at risk and he started to get anxious, nervous and have trouble sleeping. 35He returned from leave and the weekly meetings, including every second meeting at the Director's office, commenced. It was not good because: work had built up when he was on leave; he was not good in TRIM and had only received one or two hours training in it; he had high blood pressure and had trouble concentrating; and he had to cope with the assigned tasks as well as doing his normal every day work including counter rosters, assisting ICAT etc. He sometimes struggled, as the meetings continued, to do all of the extra tasks assigned for the next meeting. He felt everything was against him, the workload, assisting other teams and, mainly, he felt he was being harassed, intimidated and bullied by the way they proceeded with the meetings. On occasions there were up to three people sitting around him at the computer questioning and checking tasks from the previous week. For some of the tasks he did not have enough time; he had computer problems, which they sarcastically rejected; and he was denied flex days and the Easter half day. He had secondary effects from the situation including depression, sleep problems, high blood pressure and weight loss, for which he was currently receiving medical treatment and advice. And he still had the ability and capacity to continue his duties. 36The allegations that he is not doing his job properly and not following guidelines and procedures are not completely correct - sometimes due to workload he may forget to make a comment in 'note pad' but that could happen to anyone. Many times he had proven himself an asset and not a liability including the 1998/1999 storm damage matter and his willingness to move to the Intensive Tenancy Management in 2001 when most staff refused because of concerns about safety, crime etc. 37In his letter he maintains that the allegations are fabricated to the extent they initially used the same template used with Mr Devere; overall, if there was a problem, it could be dealt with by a simple approach and training; and the process has had an impact on his health. 38By letter dated 22 November 2010, Mr Allen notified Mr Henriquez that, after considering his submissions and additional information, he had decided to take disciplinary action as follows: 'You are directed to resign with effect from on or before 26 November 2010. If you fail to submit your resignation by the required date, your employment will be terminated with effect from 26 November 2010. [exhibit 4, Tab S]' 39By letter dated 30 November 2010, Mr R Silvestrini, Human Resources and Industrial Relations Support Officer, wrote to Mr Henriquez and advised him that, as he had not submitted his resignation, his employment had been terminated with effect from 26 November 2010. Evidence 40The work performance management processes conducted by Housing NSW in relation to Mr Henriquez are well documented in the material before the Commission. The general course of this matter from its commencement in 2009 until Mr Henriquez's dismissal on 26 November 2010 is outlined in the Background above, based on this material. Most of the facts are uncontroversial, with the primary disagreement between the parties being as to whether the material ultimately shows that Mr Henriquez's performance was or was not at a satisfactory level. However, it should be said that Mr Henriquez has also contested the general fairness of Housing NSW's actions, including querying to some extent its motivation or bona fides. 41The Commission should also acknowledge its gratitude to Ms McWilliam who conducted the case for Housing NSW in a manner consistent with the applicant being unrepresented and unfamiliar with the procedures in the Commission. 42Mr Henriquez's filed written material consisted of a statement (unsigned) dated 11 February 2011, together with a number of attachments including: an earlier statement (unsigned) dated 10 January 2011; phone and counter rosters for July 2009 to January 2010; various emails; his leave listings for 1 January 2010 to 30 June 2010; statistics for the arrears of Team 103 for a range of dates; a copy of a TRIM record; and medical certificates from Dr Aung showing Mr Henriquez was unfit for work due to hypertension on 25 to 26 March 2010, 9 April 2010, 18 May 2010, 28 June 2010 and 31 August 2010 to 1 September 2010 (exhibit 1). Mr Henriquez was required for cross examination. 43Housing NSW's filed written material consists of: a statement dated 7 March 2011 from Christine Melato, the Team 104 SCSO during 2009 (exhibit 2); a statement dated 7 March 2011, and attachments, from Lynda Duncan (exhibit 3); a statement dated 17 March 2011, and attachments, from Meghan Hibbert (exhibit 4); a statement dated 23 February 2011, and attachments, from Angela Walsh (exhibit 5); and a statement dated 17 March 2011 from Angela Walsh (exhibit 6). Ms Duncan, Ms Hibbert and Ms Walsh were required for cross examination. 44Mr Henriquez's evidence . In his statement(s) he said his dismissal was unfair as he had carried on his duties with Housing NSW as normal for 14 years. He had worked in the Waterloo, Redfern, Surry Hills and Central Sydney Region offices and since Waterloo had managed a portfolio of 400 or so properties and had 412 properties when told he was performing poorly. 45He said in October 2009 he was targeted by Ms Walsh with the allegation he was not performing but his attached statistics show a different result. He took leave in December 2009 and when he returned to work in January 2010 his workload was higher because his position was not filled; they continued to give him extra work; there were other absences the team had to cover; and he was a team player. He found the management of Central Sydney to be careless and insensible with no respect for the employees and more interested in productivity. 46From 2010 with the work performance issues he was under pressure and got sick from high blood pressure, lack of concentration and other health problems. He believes he was targeted for dismissal for some reason because regardless of the statistics showing he was doing a good job he was told his performance was not up to standard. He admits he had some problems with TRIM but that was basically lack of training. He has been bullied and harassed. He was denied flexi leave on some occasions by Ms Duncan. He wants to be reinstated to his position without any loss of employment conditions. Alternatively, he seeks an order for the maximum compensation. In his evidence to the Commission he confirmed his statements and the attachments as true and correct. 47In cross examination he maintained he was handling a portfolio of 412 properties in 2009. He was initially not sure of when his duties changed to mostly deal with the team arrears and eventually recalled in could have been from February 2010 up until they moved offices in July 2010. He agreed he returned to managing a portfolio of properties in July 2010. After a number of questions about the Team 103 arrears statistics in exhibit 1 he said that it was a continuous effort and sometimes they go up and sometimes they go down. In relation to his leave in December 2009 he said that Housing NSW does not usually fill positions when people go away. 48He was taken to a number of paragraphs and attachments in Ms Hibbert's statement (exhibit 4). He said that Tab K - Ms Hibbert's email detailing the meeting on 29 July 2010 - was '95% correct'. He said he had not seen Tab U - copy of Appendix 9B of the Personnel Handbook - before. He agreed he had been placed on a formal performance management process; he had six weekly meetings with Ms Walsh from October 2009; he was placed on a formal work plan in January 2010; it was not considered successful; he was placed on an improvement plan in July 2010, but said he always considered it the same program throughout; and Housing NSW considered it unsuccessful. He agreed he had received letters about his unsatisfactory performance, he had opportunities to respond to Mr Allen and subsequently he was dismissed. He was taken to a number of conversations Ms Hibbert said she, or others in her presence, had with him - at paragraphs 19, 20, 21, 22, 30, 32 and 36. He could not recall all the conversations but agreed he probably did say such words even though he could not specifically recall doing so. 49He was taken to a number of paragraphs in Ms Melato's statement (exhibit 2). He was taken to paragraphs 28 to 32 of her statement, which includes her version of two conversations. He said he did not recall receiving any appointment from her in Outlook; when she asked him about pending subsidies or transfers he would say 'no, all done'; and that meant there was nothing for her to help him with. He said when TRIM was new there wasn't a build up of work in his in-tray and his desk was basically clear. He said he was always there for weekly meetings, mostly, and could recall meeting her three times. He agreed he had about 700 unopened emails in his in box and said anything urgent he read and then deleted once actioned. 50He was taken to a number of paragraphs in Ms Walsh's statement at exhibit 5. In relation to paragraphs 13 to 14, he agreed TRIM was introduced in 2009, could not recall the actual month, but agreed it was around June. He agreed that training days were set aside at that time and that he did not attend. In relation to paragraphs 32 to 35, he remembered the conversation about the client, [CC], who he said was a difficult client and a deaf mute and added that he was new to that portfolio at that time. In relation to the conversation set out at paragraph 47, he recalled only some of the conversation about the Work Plan January 2010, but said it was likely he told Ms Walsh he did not agree with certain parts of that plan. In relation to the conversation set out at paragraph 52, he said on various occasions she had asked him if he had finished such-and-such on TRIM and, normally, if he had finished it he said yes, if it wasn't finished he said no. He disagreed that he sometimes told her he had finished something when he hadn't just to get her off his back. And he said he knew she had access to his, and everyone's, TRIM screen. 51He was taken to a number of paragraphs and attachments in Ms Walsh's second statement at exhibit 6. He was taken to paragraphs 7 to 9. He said he recalls the meetings but doesn't recall being offered any assistance; he was having problems in TRIM because he didn't go to the training; he did visit the Employee Assistance Program but they didn't fulfil his needs so he saw an independent psychologist. He agreed Ms Walsh raised the issue of his work performance; said he probably said 'no one has ever had any issues about my work before', because if there were previous reviews they were in relation to improvement; and 'basically she was after me to get me in some way', which he told her then any many other times since October 2009. In relation to paragraphs 14 and 15, he recalled having many meetings with Ms Walsh or Ms Hibbert and that he did turn up. He disagreed with Ms Walsh saying he only turned up for three or four of the six meetings. He said he usually turned up even when sick and they wouldn't agree to postpone the meetings. He said he couldn't recall if there were times when he didn't attend because he was sick. He said he would attend meetings regardless of field work; he did not remember her sending him an email about not attending and him responding by going to her office and saying he had been in the field; and he agreed he probably could have missed a meeting once because he was in the field. 52He was taken to a number of paragraphs in Ms Duncan's statement (exhibit 3). He agreed that Ms Duncan took over from Ms Walsh for a period of time. In relation to paragraphs 13 to 16, he said he met with Ms Duncan, and Ms Hibbert also, about his work performance and the Work Plan January 2010. He remembers on occasion saying, in response to questions on why some action had not been completed, that he was too busy relieving other staff and helping out with the phones and counter work. He said they were extremely busy and sometimes the team was down to two or three people to deal with the clients. 53In re-examination Mr Henriquez said Housing is very busy and most of the time they were short staffed, people had to cover other people. The work for the meetings was extra work on top of normal duties and if he did not complete the extra work it was because he was busy and not because he didn't want to do it. He believes the meetings were very harsh and put him under a lot of pressure. He expanded on why [CC] was a difficult client to deal with and said after a few issues with the client's property were fixed he was no longer a problem. He said being a CSO was not an easy task, you deal with lots of property issues and also with clients with issues such as mental illness etc, so it's a very demanding position. 54In response to questions from the Commission, he said that he wasn't aware he was going to be dismissed; he tried to focus on doing his job on a daily basis; the work plans didn't give him enough time to do things; and instead of helping him with things like TRIM training they put pressure on him through this process. He maintained that he was improving but they would never accept it; they didn't tell him the consequences of his not completing the formal work plan to a satisfactory level; and said they initially asked him to do a four weeks review and after that finished they 'extended to eight weeks and then more and more and more'. He said he was surprised to receive the letter from Mr Allen because his view was that he 'was improving in every way' and 'managing everything and I was attending the meetings'. He said the one-on-one training he received was from one of the trainers, it was for an hour or two, the trainer basically asked him to read a book and, he was not sure, but thinks they may have gone through something on the computer. He said it was not enough training for him, but, on the job, he was improving. Mr Henriquez said he has not been employed since his employment was terminated by Housing NSW and he had not made much effort to find other employment because he was waiting for the results of his unfair dismissal application. 55He was asked a number of questions by Housing NSW arising from the Commission's questions. He was taken through a number of documents - exhibit 4, Tabs C, D, K and P - and references those documents contained to 'disciplinary action', ' very serious consequences', 'implementation of performance management' etc. He recalled reading the various letters or taking part in the conversation. However he maintained that until Mr Allen's letter there was no mention of dismissal. He also maintained that no matter what he did or how hard he worked Housing NSW always said he wasn't improving. He agreed with the proposition that although Housing NSW told him on a number of occasions that 'you're not improving, we need to take disciplinary action' he was saying back to them 'but I think I'm okay'. 56Ms Melato's evidence . In her statement she outlined her service history with Housing NSW from April 1996, including working in Team 104 from February 2008 to 11 December 2009. During that period she was the SCSO for Team 104, except from December 2008 to January 2009 when she acted as the Team Leader. 57She states that TRIM was introduced around June 2009 and explains its features and impact on the work of the members of Team 104. She outlines the initial training arrangements etc. She also became a 'TRIM Champion' for which she received additional training in TRIM in order to provide further support and help in TRIM to her fellow team members. 58She details the introduction by Ms Walsh of weekly meetings between herself and each of the CSOs in Team 104, following general client complaints and the CSOs' backlog of work after TRIM was introduced. She states that the majority of CSOs picked up TRIM easily but 2 CSOs, one being Mr Henriquez, had greater difficulty with TRIM. The other CSO who was having difficulties eventually improved to a satisfactory level through her help during the weekly meetings. 59She states she had a number of concerns with Mr Henriquez work. First, he had some 700 unopened emails in his Outlook In Box. She viewed this with concern because she estimated up to 70 per cent of a CSO's work was generated through those emails. Secondly, his TRIM in-tray work was back logged and growing daily. She attempted to address the issue through weekly meetings but Mr Henriquez: did not electronically respond to her email appointments; when approached about the appointments said he was fine and did not need help, she insisted he did; and he did not attend the weekly sessions, but on one or two of those occasions he was off on sick or other leave. She recalls meeting with him on one occasion during which she opened an item from his TRIM in-tray. After the short session finished she checked his TRIM in-tray again and saw the item was marked as completed. However, the required action had not in fact been completed, as shown by the absence of the compulsory notes in a number of fields in TRIM. Thirdly, the CSOs were required to mark a white board when doing field work. Mr Henriquez frequently did not follow that procedure. 60She stated that she gave Mr Henriquez the opportunity to receive additional assistance with TRIM, including through her scheduling of the weekly meetings. If he had requested extra assistance she would have provided it without hesitation. He failed to do so and always indicated he did not need assistance and routinely dismissed her attempts to help him with TRIM. 61Ms Duncan's evidence . In her statement she outlined her service history with Housing NSW from January 1995. She acted as the Team Leader of Team 104 from 22 February 2010 to 30 May 2010. During that period she attended 6 of the weekly review meetings under the Work Plan January 2010. 62She recalls that the meetings were scheduled for an hour but invariably ran for two hours. She set out how the meetings operated: Mr Henriquez was logged into the computer; they went through his emails in Outlook; they examined specific items of work in his TRIM in-tray; discussing with Mr Henriquez each item listed in the work plan; when an item was not completed, as previously agreed, he was asked for an explanation; and the uncompleted items were also carried over for the next weekly meeting. She recalled that, on more than one occasion, when he explaining why an item was not completed, Mr Henriquez said he was busy helping other staff and helping with phone and counter work. She also recalled that Mr Henriquez said he could not understand why he had been placed on a work plan. 63She kept notes of the meetings and later distributed them to the attendees as 'Records of Meeting'. Mr Henriquez was given an opportunity to dispute any matters recorded in those notes, she gave him the notes and she does not recall him disputing any of the items in the notes. Her six Records of Meeting are attached to her statement. 64In cross examination she was taken to paragraph 13 of her statement and agreed that Mr Henriquez had said he was too busy doing his job and couldn't do the tasks assigned to him by her and Ms Hibbert. She said all the client service teams were busy as they are high volume work load areas. She recalled that occasionally he said the extra work was too much for him and could he have a little more time, asking if the times for the meetings can be extended. 65She disagreed that the tasks set in the meetings were extra tasks. She considered them part of his job and they just set the parameters of what work had to be completed by the next meeting. She said everyone in client services had to complete e-learning modules. She agreed Mr Henriquez had time off on sick leave, but could not recall him mentioning that as one of the reasons when asking for extra time to complete tasks. 66Ms Hibbert's evidence . In her statement she outlined her service history with Housing NSW from 2001. She has been the Area Director, Inner City, since December 2008 and sets out the various responsibilities she has in that role. 67She states that around October 2009 Ms Walsh telephoned her about Mr Henriquez's work performance and subsequently sent her a copy of her file note dated 16 October 2009. She received an email dated 7 December 2009 from Ms Walsh concerning the results of the informal work monitoring and she subsequently sought the advice of Mr Hearn. She initially prepared a letter dated 17 December 2009 to Mr Henriquez, but was unable to deliver it because he was on leave. On 11 January 2010 she prepared another letter, similar to the letter of 17 December 2009, and handed it to Mr Henriquez in her office. 68Subsequently she met with Mr Henriquez (and Ms Walsh and Mr Corrigan) on 13 January 2010. At that meeting she discussed with him the performance issues raised in the 11 January 2010 letter. She recalls him saying that he understood what was meant by 'failure to adhere to basic direction from the Team Leader' and when she asked for an explanation he said 'I always do the best I can'. She recalls asking him a series of questions about client [CC] during which he said he had seen and had definitely spoken with [CC]. When she asked him if he could explain how he had done so when she understood [CC] was a deaf mute, he said 'No'. She also queried why he had not documented the visit to [CC] and had failed to keep proper and accurate documentation on other occasions. He said he didn't have time, everyone in the team is busy, why was he the only one being talked to, there are others not doing their work. She told him he was not the only one being spoken to and the usual practice is to consult with staff where there are performance concerns. She asked him to prepare a draft work plan, with help from Mr Corrigan and Ms Walsh if needed, and explained it was Housing NSW's usual practice to do so to allow the employee to have a plan in their own words that they can work towards. She states he did not submit a draft plan and she prepared a letter dated 27 January 2010 which she recalled hand delivering to him on 29 January 2010. 69At the end of the Work Plan January 2010 she prepared a file note dated 29 April 2010, had further discussions with Mr Hearn and then prepared a briefing note for the Chief Executive dated 3 May 2010. She is aware that after considering her briefing note the Chief Executive sent a letter to Mr Henriquez dated 21 May 2010. 70On 24 June 2010 she attended a meeting with Kathy Roil, her General Manager, Mr Henriquez and Mr Corrigan. She recalls Ms Roil handing Mr Henriquez a draft of the Work Plan July 2010, discussing his concerns as to why it was necessary and him saying he would talk to Greg [Corrigan] about it and get back with some suggestions. Mr Henriquez did not provide any comments on the draft plan to her, Ms Roil or Ms Walsh, so she sent him an email on 9 July 2010 that the Work Plan July 2010 would run from 12 July 2010 to 6 August 2010 and the first review meeting would be held on 20 July 2010. 71The second review meeting of the Work Plan July 2010 was scheduled for 29 July 2010 and she recalls Mr Henriquez came into her office and said 'I don't want to proceed without a union rep present' and he also produced a medical certificate saying he was fit for duty but referred to 'harassment and intimidation'. She prepared a record of the meeting and her discussion with Mr Henriquez in the form of an email to him dated 29 July 2010. 72The final review meeting of the Work Plan July 2010 took place on 16 August 2010 and the same day she prepared a briefing note for the Chief Executive. On 20 August 2010 the Chief Executive wrote to Mr Henriquez. On 2 September 2010 Mr Henriquez replied to the Chief Executive. The Chief Executive again wrote to Mr Henriquez on 28 September 2010. On 20 October 2010 Mr Henriquez replied to the Chief Executive. On 22 November 2010 the Chief Executive wrote to Mr Henriquez to advise him of his final decision in the matter - that is, he had until 26 November 2010 to submit a resignation or he would be dismissed. On 30 November 2010 Housing NSW wrote to Mr Henriquez and advised him that as he had not submitted his resignation his employment had been terminated with effect from 26 November 2010. 73On 23 September 2010 Ms Hibbert received a copy of an email from Ms Walsh to Mr Henriquez detailing further, ongoing concerns with his work. The concerns included problems with advising tenants of changes to their temporary accommodation, complaints from tenants that calls were not returned, failure to complete and submit arrears sheets, failure to complete client feedback responses, failure to update registers, failure to entry subsidy details on TRIM and overdue items in TRIM queue remaining from the Work Plan July 2010. On 29 September 2010 Ms Hibbert received an email from Ms Walsh stating that Mr Henriquez had failed to complete a number of the items specified in her email of 23 September 2010 and there were issues with his handling of phone enquiries etc. 74Ms Hibbert states that throughout the work performance management of Mr Henriquez she used the Department of Premier and Cabinet's Personnel Handbook, Chapter 9, 'Management of Conduct and Performance', and particularly Appendix 9B: 'Unsatisfactory Performance' ("the Guidelines") as a reference point. She also referred to the relevant Housing NSW policy. She attached the Appendix 9B Guidelines and the Housing NSW policy to her statement. 75In examination in chief she recalled explaining to Mr Henriquez at the meeting on 13 January 2010 that one of the more severe consequences of this action, if his work performance did not improve, is that he could be dismissed. She remembered saying to him that this meant his employment would be terminated and he would no longer work for Housing NSW. 76In cross examination she said she did not remember saying to Mr Henriquez that with the review she didn't think there would be any problems with his work performance. She did recall saying to him on a number of occasions that the aim of the process was to work with him and, if his performance improved and there were no other issues, the process would stop. She remembered that at one of the last meetings of the Work Plan January 2010 he had completed a number of TRIM matters and she told him his performance was better than at other times. She said it was the only time she had seen that there had been such an improvement. 77She recalled that there was a time Team 104 was required to do counter duties, which they had not been doing when she first became Area Director. She disagreed it was two jobs, because client service is part of the CSO role, so did not consider participation in the roster additional work. She rejected the suggestion it was done because another team had a back log of work, she maintained she did it in order to fairly distribute the duty of attending to client enquiries at the counter across all teams and for no other reason. 78She rejected the proposition that other employees were falling behind in their work but he was the only one subject to performance management. She said it's the Team Leader's and SCSO's responsibilities to manage the day to day work, informally monitor the performance as required and, where necessary, escalate the matter to her. He was not the only one performance managed. She was not sure if he was the only employee dismissed but his case was the only one she had to see through to the end. In other cases there had been an improvement in work performance and the matters went no further. 79She disagreed that the CSOs had an unreasonable work load and said everything they were asked to do was within their position description. She said she had never asked a staff member to work through their lunch break or stopped them from going home during her career. 80In response to the Commission's questions and questions arising, she rejected any suggestion by Mr Henriquez that there was nothing he could have done to satisfy the work plans. She said they kept very clear records of the tasks he was required to do and carefully marked them off at each meeting. Except for one occasion near the end, there were always less than three items that he had completed from the list of required tasks. He would say he had undertaken the task, he would be asked to show in the records or the on-line systems where it had been completed and he would respond 'no, I can't do that' or 'I must have forgot' or 'I've started it but I didn't finish it'. She believed he had been given a reasonable amount of time to complete tasks, they kept extending deadlines, kept placing an emphasis on what they could do to support him to complete the tasks and would have been very pleased if he had completed them. 81She said she had made the recommendation to the Chief Executive that the Work Plan July 2010 run for a period of 4 weeks but ultimately it was his decision as to how long it should be. She suggested four weeks because that was the advice she received from HR as to what was the usual period and she was conscious that Mr Henriquez had said he was uncomfortable in having meetings all the time and didn't want the process to go on much longer. 82She said she and the Team Leader determined whether Mr Henriquez had met the work plans on a week by week basis and added that it was all recorded in the meeting notes, Mr Henriquez had the opportunity to object to anything in those notes and she does not recall him ever doing so. She said during the Work Plan period they asked Mr Henriquez to deal with the matters contained in the plans and nothing else, so she considered it a somewhat reduced work load. She also made adjustments to the targets if he was absent on sick or other leave. 83Ms Walsh's evidence . In her first statement she outlined her service history with Housing NSW. Since May 2009 she was the Team Leader of Team 104, first in an acting capacity for six weeks and then substantively. From 1 July 2010, following a reorganisation, she was the Team Leader of Team 103. In both positions she was responsible for managing the work of a number of staff including Mr Henriquez. 84She states that TRIM was introduced around June 2009 and she had to organisation its implementation in Team 104. She arranged various training and arranged for the SCSO, Ms Melato, as a 'TRIM Champion' to have weekly meetings with each team member. Part of the TRIM training she organised was a full day of training in June 2009 for all Team 104 staff - half of the team on one of two consecutive days. Mr Henriquez was scheduled to attend the training on the second day but did not do so. When she asked him why to had not attended he said 'I got here at 9:40am I didn't want to go in and interrupt anyone'. She recalls that Mr Henriquez also did not attend preliminary on-line training organised for staff. Around 8 February 2010 she organised for a TRIM trainer to give Mr Henriquez one-on-one training with two hours set aside for the session, but prior to it commencing the trainer told her it would take longer because Mr Henriquez was not familiar with TRIM. She recalls the session lasted for four hours. 85She details Mr Henriquez work load in 2009, work re-distribution and the introduction of to a roster for staff to attend the enquiry counter. From about February 2010 she agreed to change Mr Henriquez's work duties by removing his responsibility for a property portfolio and giving him the responsibility for the team's arrears. She said Mr Henriquez did not perform those duties adequately and the quantum of arrears significantly worsened. His role was to contact tenants by phone or filed visits and make arrangements for the arrears to be paid. He failed to enter the arrangements made on the IHS or to escalate matters to the SCSO for taking action in the CTTT. As a result arrears increased every week and he went back to managing a portfolio of properties on 1 July 2010. 86In 2009 Ms Walsh had a number of concerns about Mr Henriquez's work. First , in September 2009 she received a significant number of calls from tenants in his portfolio complaining about the time taken to process transfer applications. As a result she searched his desk and found four large piles of papers including a number of unprocessed, long outstanding, transfer applications; rent deduction forms; subsidy applications; and tenant correspondence. Those documents had not been scanned into or processed in TRIM. Secondly, she was preparing a briefing note about a client, [CC], and asked Mr Henriquez when he had last spoken to him and he replied 'I spoke with him last week'. When she later queried this with him, as [CC] is a deaf mute, he said he spoke to someone on his behalf. There was no entry in the records that [CC] had a spokesperson, instead he would contact Housing NSW through an automated interpreting service. Thirdly, a tenant in his portfolio was in gaol and her two underage children were left in her Housing NSW property. On enquiry she ascertained that the tenant's 18 year old daughter had moved in to take care of the other children and that DoCs was aware of the matter and providing assistance. She was concerned that there was no information recording these matters on the system and appropriate steps were not taken by Mr Henriquez in the matter despite his undertaking the 'Keep Children Safe' training. Fourthly, at a tenancy forum in September or October 2009, with all the tenants in properties that were part of his portfolio, she received many complaints about his not returning calls and not being contactable. 87As a result, she met with him and Ms Wicks, the SCSO, on 16 October 2009 to discuss her concerns about his performance. She prepared a file note of the meeting. She also advised him she was going to informally monitor his performance over a period of six weeks, using weekly review meetings. He only attended three of the six scheduled meetings, as twice he was out in the field, and on occasion she had to search for him so the meeting could proceed. At the end of the six weeks she was of the view his performance had not improved and referred the matter to Ms Hibbert and Mr Hearn by email dated 7 December 2009. 88She attended the meeting on 13 January 2010 to discuss the Work Plan January 2010. She recalls Mr Henriquez saying at that meeting that he did not agree with certain items in the plan and questioned why they were included. Ms Hibbert told him to take the plan, read it, sign it and return it in a week. She does not recall him doing so and the plan started on 21 January 2010. She prepared the Record of Meeting notes for 21 January 2010 and 4 February 2010. She also attended the meeting for 12 March 2010, 19 March 2010 and 25 March 2010, even though she was acting in another position at that time, in order to remain appraised of progress and because of her knowledge of the work. She states that during these meeting Mr Henriquez would not bring material with him, such as TRIM screen print outs, which made it difficult to determine if work was completed. She said that on several occasions she asked him 'Tito did you finish this task in TRIM', he would reply 'Yes, the task is complete' and later when she checked the task on TRIM it was, on each occasion, still outstanding. 89The Work Plan January 2010 was not successful and as a result Mr Henriquez was placed on a further work plan. The Work Plan July 2010 was scheduled to run over four weeks from 21 July 2010. She recalled that only three of the four meetings were held - on 20 July 2010, 4 August 2010 and 16 August 2010. She attached her records of those meetings to her statement. She states that at every available opportunity throughout the informal and formal review processes she referred Mr Henriquez to the assistance available through the EAPS program. 90In her second statement she said that she conducted the informal work performance review with Mr Henriquez around mid October 2009. She would email him an appointment in Outlook for the review meeting; the meeting would be attended by her, Ms Wicks and Mr Henriquez; she would discuss work performance issues with him, including going through each of the bullet points contained in her file note of 16 October 2009; six meetings were arranged, they were informal and designed to monitor how he was attending to his daily work responsibilities. She recalls asking him if there were any issues he wanted to advise her of that might be affecting his work and told him about the availability of EAPS. At the first meeting they went through his work on TRIM and she asked him if he required any clarification about any policies etc. At her suggestion subsequent meetings were held in another area so his colleagues would not be aware of the meetings. At those meetings they would both log into TRIM, on side by side computers, and go through items that needed attention. She explained throughout how to work with TRIM, such matters as transfers, assignments and sorting work items by date etc. She would ask him if he understood. The meetings generally went for an hour or sometimes longer. She recalls on one occasion he did not turn up and when she emailed him about his absence he came to her office and told her 'I was out in the field'. As Team Leader it was important for her to properly manage the work in the team on a daily basis. Her TRIM access allowed her to monitor the work flow and make adjustments to allocations based on that and staff levels. It was of constant concern that Mr Henriquez was not adequately attending to his duties as a CSO. 91In examination in chief she said, in relation to Mr Henriquez taking over the arrears portfolio around February 2010, in one of the meetings he said he was finding his portfolio a bit overwhelming along with the meetings, so she offered him the arrears portfolio, which only concentrates on one job every day so he could get on top of the work. She recalled that when he started arrears were around $19 to $21 per tenancy and they were around the 'low thirties' per tenancy when he finished. She said, based on 1600 properties, that was a significant amount of rent to be losing, because the rent is used to fix properties and fund other programs for tenants. 92In cross examination she agreed that in July 2010 the team performed well in arrears, recalling that when they acquired about double the number of properties the arrears went up to $46 so for several weeks everyone worked on getting them down but that included the two SCSOs and the eight CSOs. She disagreed that Mr Henriquez was also part of that improvement. She said he may have done every aspect of the arrears management, but he was not managing every one of his arrears cases. Every week the CSOs had to submit there arrears reports and he failed to submit those reports. She also disagreed that he had one of the lowest average arrears portfolios in the team, she could recall five or six team members who were lower. She said she was familiar with his arrears figures during that time because she was always asking Ms Duncan to explain the weekly increase. She also rejected the proposition that the thank you email from Jayb Hoyt (exhibit 1, email dated 28 June 2010) showed he reduced the arrears. She said that was when they got to the point where they could no longer just leave him responsible for the arrears of the team and the whole team had then conducted a two week blitz on arrears. 93She disagreed that she would never recognise that he was doing a good job no matter what he did. She said that when he brought various things to her attention she would say 'that is an improvement' but throughout the whole process he would not do the things that were asked of him. He did not enter comments in IHS; would not call tenants; would not respond to correspondence; would not respond to client feedbacks; just the day to day things. She said when she sent out congratulatory emails to the team during that time she was not going to put 'except you Tito your arrears have gone up' or 'except for you Tito you haven't done the five client feedbacks that I've asked you ...'. She said she understood it was not a nice process for him and it wasn't a nice process for her and she wasn't going to make it worse for him by excluding him from such emails or the morning tea to thank the team for their great job. She said she would never thank a team member individually unless they had gone above and beyond, but he was barely scraping by in just doing his day to day work. 94In response to the Commission's questions, and questions arising, Ms Walsh said that when he was managing the team's arrears portfolio he was also doing the day to day CSO duties such as normal administrative duties and the phone and counter rosters, it was just that he didn't have the usual portfolio of properties. Those duties also involve using TRIM and. at the time, IHS. She said she arranged the TRIM training in February 2010 because in one of their meetings about the Work Plan January 2010 he said he would like some more training on TRIM. That TRIM training is noted in the Record of Meeting for 4 February 2010 (exhibit 5, Tab E). She agreed to an extent that she relied on Mr Henriquez to self report if he needed training, besides her training arrangements when TRIM was introduced and using Ms Melato as a 'TRIM Champion' etc, which amounted to her arranging TRIM training before and after the plans were put in place. Submissions Applicant 95Mr Henriquez made oral submissions at the hearing. He submitted he lodged his case because he was unfairly dismissed. He worked for Housing NSW for 14 years. During the first 13 years he never had any problems but believes since 2009 he was targeted for dismissal for a reason in the background that he didn't know and still doesn't know. There was a previous person dismissed and he believes that Housing NSW is relating it to that person. 96He was called for meetings every week, one week with the team leader, the second week together with the Area Director. During every single interview he felt harassed and bullied by the way they interviewed him. Sometimes there were two or three people. And as a consequence of the situation he got sick, continuously had blood pressure problems. He was always under extreme pressure and sometimes was unable to sleep, losing sleep because he knew from the beginning that they were trying to get him for some reason. 97There were some training issues. He did have a problem of sorts but believes that if an employee has training problems it's the obligation of the employer to retrain that person, not to dismiss them. The best option is to train that person. Because he said he did have some problems he was trained in the TRIM system. He cannot remember the date but he only received between an hour and two hours training which wasn't enough for him to learn the whole system. Because of the workload that he used to have and the pressure to complete the extra work most of the time he fell behind. He always told them he had no time to complete everything and he had technical problems with the system. He provided evidence to them that he had problems with the system because he called IT to tell them he was having problems with the system. 98He submitted there were three main issues. The workload, his health, and the technical problems that he was having most of the time. Which is a normal situation in Housing NSW, with not everything working 100 per cent of the time. Sometimes there are problems in different systems in TRIM, they have a new system now and he believes that they still have technical problems. 99Because he wasn't completing everything Housing NSW accused him of not performing, which is not true. He was doing his best to do everything possible and every single comment he put in the IHS system which is the old system. He put in telephone calls, conversations with clients etc and still Housing NSW says he was not performing. And in the end, he was dismissed on 26 November 2010. This situation is very wrong. In his almost 15 years with Housing NSW he never saw a situation like it and he feels that to some extent he was discriminated against. 100After hearing the evidence supplied by Housing NSW he still believes he was targeted from the beginning. Everything points to the need for more training, especially in TRIM. He is seeking justice and if for any reason he is not reinstated he is seeking financial assistance. Respondent 101Housing NSW relied principally on its written submissions handed up at the hearing and its supplementary oral submissions. The submissions were largely framed in terms of addressing the various matters the Commission might take into account under section 88 of the Act. 102Housing NSW had provided Mr Henriquez with the reason for his dismissal. He was repeatedly informed of the issues - work performance being unsatisfactory - that gave rise to his dismissal. These reasons were clearly based in fact, with the evidence of Ms Walsh, Ms Hibbert and Ms Duncan establishing that his poor performance was significant, ongoing and at times extremely serious in the potential consequences for Housing NSW. This included financial consequences, such as the arrears situation, or in relation to its legal obligations, such as mandatory reporting. 103His suggestion that Housing NSW was set on a course of dismissing him from October 2009 is contrary to the clear evidence of Ms Walsh and the documentary material. In particular, Housing NSW went to great lengths to offer him support and training, including offering TRIM training in October 2009, February 2010 and through Ms Melato on a weekly basis as a 'TRIM champion'. Despite all these opportunities and ongoing assistance, even as at 29 April 2010 Mr Henriquez was still unable to grasp the basic system that is required for him to do his job. 104The process followed by Housing NSW was at all time consultative, with him being given informal and formal opportunities to respond to the allegations against him or otherwise explain his behaviour. He basically had access to a support person from the PSA throughout the process. From the start of the formal work plan process Mr Henriquez was advised that disciplinary action was on the cards if he did not improve, per Ms Hibbert's letter of 11 January 2010. He was also warned on numerous occasions of the possibility of dismissal arising from his consistent unsatisfactory performance. This includes the meeting of 13 January 2010, the letter of 21 May 2010 and the letter of 28 September 2010. His evidence that he only realised the seriousness of the consequences when he received the letter of 28 September 2010 is contrary to the evidence of the earlier warnings. It is also contrary to his statement, in his letter to Mr Allen dated 20 October 2010, that he could not enjoy his holiday from December 2009 because Ms Walsh had given him the impression that his job was at risk. 105In cross examination he agreed that he believed his performance was improving even though he was clearly told it was not. Rather than Housing NSW failing to warn him of the consequences of his significant, ongoing, unsatisfactory performance, it appears Mr Henriquez simply failed to understand or accept that his performance was unsatisfactory. 106Mr Henriquez has requested reinstatement. Housing NSW gave consideration to whether he could undertake lower level duties but this was impractical, per Ms Hibbert's briefing note of 16 August 2010. Housing NSW confirmed that it considers reinstatement impracticable in terms of his ongoing poor performance and inability to meet the skill requirements of the position. It does not put the case that the relationship of mutual trust and confidence has broken down. 107In the alternative Mr Henriquez seeks the maximum compensation. If the Commission, contrary to Housing NSW's submissions, was minded to allow his application, the maximum compensation would not be appropriate as Mr Henriquez conceded in evidence that he has not attempted to mitigate his loss in any way. 108Given that it adhered to the Guidelines at all times following more than a year of performance management, primarily through Ms Walsh and Ms Hibbert, Housing NSW has established to the ordinary civil standard that the termination of Mr Henriquez's employment was not harsh, unjust or unreasonable. Mr Henriquez application should be dismissed. Applicant's Reply 109Mr Henriquez does not believe he has ever failed any mandatory reporting obligations. He disagrees that Housing NSW provided him with proper training. 110The PSA person was just sitting there as a witness to the process and did not actively assist. He has a lack of industrial relations knowledge and expertise, does not have the resources of Housing NSW to put into his case, and he relies on the justice of the system. Consideration 111In considering an application by a dismissed employee lodged under section 84 of the Act, the Commission must determine whether the dismissal was harsh and/or unreasonable and/or unjust, having regard to section 88 of the Act, and make a positive finding to that effect: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 and Bankstown City Council v Paris (1999) 100 IR 363. 112If the Commission determines that the dismissal was harsh, unreasonable or unjust, it must then determine the appropriate remedy. As the primary remedy is reinstatement, and Mr Henriquez seeks reinstatement, the Commission must also determine whether reinstatement or re-employment is impracticable: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. If reinstatement or re-employment is impracticable, the Commission may decide to order compensation and, if so, must determine the amount of that compensation. 113The major issue in dispute between the parties is whether or not Mr Henriquez was performing his work to a satisfactory level. 114The Commission is obliged to determine any issues before it on the civil standard of proof, that is, the balance of probabilities. The Commission is also obliged to approach the matter in a manner consistent with the principles in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALJR 170. 115The Commission should indicate that it found the three witnesses who gave evidence on behalf of Housing NSW to be witnesses of truth. The slight inconsistencies or minor changes in their evidence are attributable to the different perspectives witnesses may have from each other of the same event and problems of recall and memory over time. In particular, their evidence is predominantly consistent with the large volume of documentary material produced by Housing NSW in these proceedings. 116The Commission also accepts that Mr Henriquez is generally a witness of truth. However, from the numerous matters he could not recall at the hearing, together with inconsistencies with dates and some details between his written statements, his letters to Mr Allen and his testimony, it is clear that he has limited, independent recollection of the relevant events and details. Additionally, Mr Henriquez has a fixed view that his work performance was acceptable and that there was no need for the work plans. This fixed view has led him to make a number of assertions against Housing NSW management. The Commission has no doubt that Mr Henriquez genuinely believes both his own view as to his level of performance and his assertions. However, it has clearly coloured his perception of events. For these reasons, the Commission prefers the evidence of the witnesses (and documents) from Housing NSW where it conflicts with the evidence of Mr Henriquez. 117The Commission has carefully weighed and considered the material before it in relation to Mr Henriquez's work performance from October 2009 through to August 2010. It has given particular attention to: the Work Plan January 2010, together with the Records of Meeting for 21 January 2010, 4 February 2010, 12 March 2010, 19 March 2010, 29 March 2010, 8 April 2010, 15 April 2010 and 22 April 2010; and the Work Plan July 2010, together with the records of Meeting for 20 July 2010, 4 August 2010 and 16 August 2010, and Ms Hibbert's email of 29 July 2010. The Commission is satisfied to the required standard that Mr Henriquez's work performance from October 2009, and particularly under the two formal work plans, was unsatisfactory. 118Mr Henriquez consistently failed to meet almost all of the targets and requirements set under the work plans. Where he did succeed in completing various tasks it was usually sometime after the original target date set for completing that task. He did not complete all the necessary notes, records and work on TRIM, and sometimes on IHS, for the tasks he was set. On some occasions when he indicated that a task had been completed, a check of the relevant records on TRIM or IHS showed that it was not the case. Mr Henriquez may well have made numerous phone calls, undertaken field visits and otherwise dealt with client issues and arrears etc. However, that was only one part of his duties and responsibilities as a CSO. The records of Housing NSW had to transparently reflect what work was done, what decisions reached etc to enable matters to either be closed or for any other necessary actions to be processed or initiated on those files. 119Mr Henriquez seems to have particular problems dealing with computer records. This creates huge difficulties in relation to properly performing the role of a CSO or other client service work in Housing NSW as its records are predominantly electronic. Mr Henriquez raised issues about the amount of TRIM training he received. However, although he recalls only one or two hours of TRIM training provided in February 2010, the Commission accepts he was provided with more assistance on using TRIM. Ms Walsh during the informal work plan took him through the relevant operations and actions on TRIM, while sitting side by side at computers, showing him all the day to day processing requirements for CSO work. Similarly, parts of the formal work plans including working through some TRIM material with him on the computer while checking his completion of tasks. He also had numerous opportunities to nominate or accept further assistance, including the 2009 efforts of Ms Melato as a 'TRIM champion' for Team 104. 120The computer issues were not confined to TRIM. One of the performance issues that first came to his supervisors' attention was the large volume of unopened emails in his Outlook In Box. He had unacceptable levels of unopened emails throughout much of the period of the formal work plans. This is of concern in light of Ms Walsh's evidence that around 70 per cent of CSO work was produced through those emails. He also failed to complete IHS records on a number of occasions during the work plans. In short, he has consistently demonstrated an ongoing inability to cope with the computerised systems used by Housing NSW - mainly TRIM, but also Outlook and IHS. 121Mr Henriquez also raised the issue of the work loads being too high and the issue of his health in relation to his performance under the work plans. The evidence from Housing NSW witnesses addressed these points. The targets he was required to meet under the work plans were adjusted in the various review meetings to allow for sick leave. Part of his CSO duties were changed during the Work Plan January 2010 from managing the usual property portfolio to his managing the team's arrears portfolio. Various targets were extended. At one point he was told to concentrate on meeting the tasks required by the work plan at the expense of his other work. The Commission also notes, from the medical certificates and leave record Mr Henriquez provided, that he was absent on sick leave for a total of seven days during the 8 week course of the Work Plan January 2010 and had no sick leave during the 4 weeks of the Work Plan July 2010. 122Overall, the Commission finds that Mr Henriquez is unable to perform all the duties of a CSO to a satisfactory level. The Commission does not suggest by this finding that Mr Henriquez did not try to do his best or was other than a committed employee. However, his poor results, together with his lack of insight into how he was actually performing, demonstrate his inability to continue in a client services role at Housing NSW. 123Mr Henriquez has also made a number of assertions concerning Housing NSW's conduct of the performance management process and its motivations. Given the Commission's finding that his performance was not at a satisfactory level, the assertions must fall away. However, the Commission considers it is appropriate to note that, based on the evidence presented, it would in any event not have upheld those assertions. Housing NSW first conducted informal monitoring because of a number of genuine concerns about his performance. When his monitored performance was viewed as not having improved, it is unsurprising that he was placed on a formal work plan. The level of Mr Henriquez's performance under the Work Plan January 2010 was sufficiently poor that Housing NSW was justified in placing him on the Work Plan July 2010. Similarly, his poor performance under that work plan provided sufficient reason for Housing NSW to embark upon the course of disciplinary action under the PSEM Act. 124The Commission accepts that Mr Henriquez's performance was not satisfactory and that Housing NSW was justified in continuing the performance management process through its various stages. However the process followed by Housing NSW is not free from error. 125There are three procedural flaws with the Work Plan January 2010 and the Work Plan July 2010. 126First, Housing NSW commenced the Work Plan January 2010 on 21 January 2010. However, it is clear that the final, formal work plan document was not in place until 29 January 2010. The work plan was to run for 8 weeks overall, but, as there was no formal work plan against which Mr Henriquez's performance was to be compared and assessed until 29 January 2010, in the Commission's opinion it can only be said to have been formally in place for a total of seven weeks. 127Secondly, Housing NSW's Work Plan July 2010 ran for four weeks and was to consist of four weekly review meetings were Mr Henriquez's performance would be assessed against specific targets and, until the last meeting, the next week's targets were set. Because the meeting of 29 July 2010 did not proceed to the stage of discussing performance and targets, there were only three such review / target setting meetings, contrary to the formal plan. The Commission also notes that although Mr Henriquez did not want the meeting to proceed, it was ultimately Ms Hibbert's decision, after advice from Mr Hearn, to call off the meeting. 128Thirdly, and more seriously, the Commission does not view the Work Plan July 2010 as complying fully with the requirements of section 47 of the PSEM Act and the Guidelines. Under section 47(2) of the PSEM Act, and as picked up in the Guidelines, an employee must be given a reasonable opportunity in which to improve his or her performance. Housing NSW gave Mr Henriquez only four weeks under the Work Plan 2010 to demonstrate an improvement in his work performance. Ms Hibbert's evidence was that she recommended to the Chief Executive a four week period for two reasons, she was informed by HR that four weeks was the usual period and because of Mr Henriquez's concerns as to the length of time he was obliged to continually go to review meetings. The material before the Commission does not show what factors, if any, the Chief Executive took into account. In the Commission's view neither reason was an adequate one for determining what period allows a reasonable opportunity to improve. The reasonableness of the period of time given will be determined by the particular circumstances of the case and not generally by reference to how much time was given in other matters. Although the views of the employee concerned may be relevant, in Mr Henriquez's case they were of little value as he has maintained throughout the process that his performance was satisfactory and it was all a stressful waste of time. 129There are a number of factors Housing NSW should have considered when determining what would be a reasonable opportunity for Mr Henriquez to improve while undertaking a Performance Improvement and Work Plan, and under a formal warning that disciplinary action, up to and including dismissal, may be taken if he does not improve. Those factors include: the high volume workload; the high level of client contact; the electronic document systems required to be used; the types of targets, tasks and timeframes Mr Henriquez would have to meet to satisfy Housing NSW he had improved; the relocation of offices on 1 July 2010; the reorganisation of the client service teams on 1 July 2010; Mr Henriquez not having the usual day to day responsibility for managing a portfolio of properties for several months up to July 2010; and the level of his unsatisfactory performance under the Work Plan January 2010. When those factors are considered, the Commission is of the opinion that a period of 8 weeks would have provided Mr Henriquez with a reasonable opportunity in which to improve his performance. Four weeks, even without the events on 29 July 2010, did not provide a reasonable opportunity. 130As such, the Commission believes the process followed by Housing NSW contained procedural errors. 131The evidence before the Commission establishes that Mr Henriquez is an employee with a substantial period of service with Housing NSW and until mid 2009 he had no particular issues or problems in his career. However, in late 2009 concerns about his performance were identified by Housing NSW and he was subject to one informal and two formal work plans to monitor and assess his performance running for various periods from 16 October 2009. The results from the work performance management process undertaken by Housing NSW confirms that he was not able to perform all the duties of a CSO to a satisfactory standard from late 2009. Given his proven inability to satisfactorily undertake a substantial part of the duties and responsibilities of a CSO position, the Commission accepts that Housing NSW had a valid reason for terminating his employment. It also does not consider the outcome of dismissal, after being offered an opportunity to resign, to be a disproportionate one in those circumstances. As such, the Commission does not find his dismissal to be harsh or unjust. 132However, the Commission has found that there were some procedural errors in Housing NSW's work performance management process. As such, the Commission finds the dismissal of Mr Henriquez's by Housing NSW to be unreasonable. 133Having found that the dismissal of Mr Henriquez was unreasonable, the Commission must now determine the appropriate remedy. Mr Henriquez seeks reinstatement to his former position. Reinstatement is the primary remedy envisaged by the Act . What the Commission is required to do is to consider whether reinstatement is practicable in the particular circumstances of this case. 134Housing NSW opposes reinstatement on the basis that Mr Henriquez's proven poor work performance means he cannot properly carry out the functions of a CSO. It also opposes his re-employment on the basis of the evidence that there are no current lower level vacancies and any such lower graded positions would have a high component of computer based work, which is an area in which he lacks the necessary level of skills. 135In the Commission's opinion, Mr Henriquez's proven poor performance issues, together with his inability to recognise his own performance problems and weaknesses, makes reinstatement or re-employment impracticable. 136As an alternative to reinstatement, Mr Henriquez seeks the maximum amount of compensation. As the Commission considers reinstatement or re-employment impracticable, it has to determine what, if any, amount of compensation to award to Mr Henriquez. 137The award of compensation is a matter within the discretion of the Commission. That discretion is subject to the six months limitation on quantum contained in section 89(5) and the matters - basically mitigation of his loss by the applicant - required to be taken into account under section 89(6) of the Act. 138The Commission has considered Mr Henriquez length of service with Housing NSW; his age; his not having actively sought other employment; the stigma of being dismissed for work performance issues from the public service; and that his dismissal was not caused by any misconduct on his part. In all the circumstances, the Commission will make an order for Mr Henriquez to be paid 17 weeks salary. Conclusion 139The Commission finds that Mr Henriquez's dismissal by Housing NSW was unreasonable. The Commission also considers that it would be impracticable to make an order for the reinstatement or re-employment of Mr Henriquez. Accordingly, it will order Housing NSW to pay him an amount of compensation. Order(s) 140The Commission makes the following order: (1) Pursuant to section 89(5) of the Act, the respondent, Housing NSW, is to pay to Mr Tito Henriquez an amount of compensation equal to 17 weeks remuneration at the salary applicable to his grade immediately before he was dismissed. (2) The amount of compensation is to be paid within 21 days; and (3) These orders take effect from the date of this decision. M Oakman Acting Commissioner 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. Decision last updated: 17 June 2011