Industrial Relations Commission New South Wales Medium Neutral Citation: Johnson v NSW Environment Protection Authority [2020] NSWIRComm 1000 Hearing dates: 10, 11 and 12 September, 11 November 2019 Final written submissions filed 20 December 2019 Date of orders: 15 January 2020 Decision date: 15 January 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Appeal allowed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – Senior Technical Policy Advisor – termination of employment – unsatisfactory performance – Informal Performance Improvement Plan – Formal Performance Improvement Plan – appellant contracted Legionnaires' disease – work performance affected by major depression – reinstatement ordered – no order for back pay Legislation Cited: Government Sector Employment Act 2013 Industrial Relations Act 1996 Government Sector Employment (General) Rules 2014 Category: Principal judgment Parties: Michael Johnson (Appellant) NSW Environment Protection Authority (Respondent) Representation: Counsel: Mr D Nagle (Appellant) Mr J Wydell (Respondent) Solicitors: Mr M Burns, McNally Jones Staff (Appellant) File Number(s): 2018/00393417 DECISION 1. The appellant, Michael Johnson, was employed as a Senior Technical Policy Advisor with the respondent, the NSW Environment Protection Authority ("EPA"). By letter dated 3 December 2018, the appellant was advised by David Fowler, Director Regulatory Reform and Advice, EPA, that, as a result of his unsatisfactory performance, his employment with the EPA was to be terminated but he was offered the opportunity to resign. The appellant did not avail himself of that opportunity. 2. By letter dated 21 December 2018, Mr Fowler advised the appellant that, as his resignation had not been received by that date, his employment was terminated pursuant to section 47(1)(c) of the Government Sector Employment Act 2013 ("the GSE Act") with effect from 4 January 2019. He was to continue on paid special leave up until that date. Relevant provisions of the GSE Act and the Government Sector Employment (General) Rules 2014 ("the GSE Rules") are set out below: Section 47 Termination of employment (1) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment: ……………………………… (c) the performance of the employee is determined under section 68 to be unsatisfactory, Section 68 Unsatisfactory performance of government sector employees (1) The government sector employment rules may deal with the procedural requirements for dealing with unsatisfactory performance (consistently with procedural fairness). (2) If the performance of an employee of a government sector agency is determined to be unsatisfactory in accordance with those rules, the person who exercises employer functions in relation to the employee may (without limitation on relevant action) take any of the following actions: (a) terminate the employment of the employee (after giving the employee an opportunity to resign), Rule 36 Dealing with unsatisfactory performance (1) The person who exercises employer functions (the employer) in relation to a person employed in a government sector agency (the employee) may not take any action under section 68(2) of the Act in relation to the employee unless— (a) the employee's performance is determined by the employer to be unsatisfactory in accordance with the agency's performance management system, and (b) reasonable steps have been taken to advise the employee that the employee's performance is unsatisfactory and the basis on which it is unsatisfactory, and (c) the employee is notified that the employer is proposing to take specified action under section 68(2) of the Act in respect of the employee, and (d) the employee is given a reasonable opportunity to respond to the notice, and (e) the employer has taken any such response into consideration. 1. On the same day that he received the letter of termination, 21 December 2018, the appellant filed in the Office of the Industrial Registrar a Notice of Appeal – Public Sector Discipline, pursuant to section 100A of the Industrial Relations Act 1996 ("the Act"). This decision determines that appeal. Background 1. The appellant was awarded a Bachelor of Science (Honours) from the University of Melbourne in 1987. He also holds a Master of Business Administration from Charles Sturt University which he was awarded in 2016. 2. The appellant was employed as a Senior Atmospheric Scientist at the Office of Environment and Heritage ("OEH") from May 1992 until 13 September 2013, when he accepted a voluntary redundancy. He commenced employment with the EPA in the classification of Environment Officer Class 9 (EO 9) in the role of Senior Technical Policy Advisor on 18 September 2014. The appellant's area of work was the Air Technical Advisory Services Unit ("ATASU"), Regulatory Reform and Advice Branch. The appellant commenced employment with the EPA at the same Grade/Step (EO 9.4) as he was on when he accepted voluntary redundancy from the OEH. 3. The primary purpose of the Senior Technical Policy Advisor role is the management of major projects that involve research, analysis and monitoring of air quality management and pollution control matters and the provision of senior level input into air quality regulation, policy and strategy development. 4. According to the respondent, the appellant's supervisor, Anthony Savage, Manager Air Technical Advisory Services, has had concerns in relation to the appellant's work performance since 2014. Mr Savage afforded the appellant some 12 to 18 months to become oriented in the role and to acquaint himself with the requirements of the work and to develop his skills and experience. However, in the opinion of Mr Savage, the appellant's performance was not commensurate with the requirements of the role. 5. In or around March 2016, the appellant contracted Legionnaires' disease and became quite ill. He was hospitalised for a short period and was off work sick for an extended period. He returned to work on 24 March 2016 on a return to work plan of four hours per day. 6. In October 2016, the appellant was diagnosed with mild sleep apnoea. At about this time, the appellant and his wife put their home up for sale so that they could move closer to their children's school. 7. In March 2017, the appellant sought assistance from the respondent's Employee Assistance Program ("EAP") as he recognised that he was stressed and this had affected his relationships. He had four sessions with a consultant who recommended that he develop skills in mindfulness. 8. The appellant's home was sold in May 2017 and the family prepared to move house. 9. In July 2017, the appellant's wife underwent minor surgery to remove polyps which turned out to be non-cancerous. Shortly after this she was suddenly made redundant with her last day of work in early August 2017. 10. The appellant's father-in-law, who had been ill since September 2016, died on 26 September 2017. 11. In September 2017, approximately three years after he commenced in his role, Mr Savage determined that it was appropriate to manage the appellant's unsatisfactory performance through an Informal Performance Improvement Plan ("IPIP"). The period over which this IPIP was conducted was 25 September to 15 December 2017. 12. The identified performance issues were: (i) quality and timeliness of the advice prepared on licencing, regulatory and planning matters - including but not limited to evaluations of air quality impacts and air quality assessments; and (ii) delivery of operational policy and project work. 1. The IPIP included details of the standard expected, support to be provided as well as quantifiable measures to determine if the requisite standard expected had been achieved. At the conclusion of the IPIP a decision was made to continue with the appellant's performance management on an informal basis, providing further opportunities and time for the appellant to improve his performance. 2. According to the respondent, despite Mr Savage's continued assistance on this informal basis, the appellant's performance did not improve and was not commensurate with the requirements of his role. Mr Savage determined it was appropriate to recommence the performance improvement process with another IPIP for the period 8 May 2018 to 5 June 2018. 3. The identified performance issues were: (i) quality and timeliness of advice and work task deliverables, including matters relating to licencing, regulatory and planning matters; (ii) senior level input to air quality regulation and policy; and (iii) focus and delivery. 1. Again, the IPIP included details of the standard expected, support to be provided as well as quantifiable measures to determine if the requisite standard expected had been achieved. According to the respondent, at the conclusion of the second IPIP the appellant's performance continued to be unsatisfactory. 2. Peter Marczan, EPA Manager, Technical Assessments and Advice Section, identified the areas of concern with the appellant's performance as: (i) quality and timeliness of advice and work deliverables; (ii) delivering complex policy and regulatory work projects to the required standard; and (iii) the lack of concentrated focus, affecting delivery of fit for purpose work. 1. Mr Marczan, by delegation, approved proceeding to a Formal Performance Improvement Plan ("FPIP"). 2. The FPIP was for the period 26 June 2018 to 20 August 2018. The identified performance issues were as set out at [18] above. 3. The FPIP also included details of the standard expected, support to be provided as well as quantifiable measures to determine if the requisite standard expected had been achieved. 4. On 24 August 2018, Mr Savage provided his Supervisor's Report for the FPIP process. 5. Mr Savage considered and benchmarked the appellant's overall performance, with reference to the FPIP and the appellant's role description. Mr Savage also referred to the Technical Policy Advisor (EO 7) role description to assist with appraising the appellant's overall performance. 6. Mr Savage concluded that the appellant's performance had not satisfactorily fulfilled the requirements of the FPIP or the Senior Technical Policy Advisor (EO 9) role description, including the key accountabilities and capabilities. Further, the appellant had not demonstrated performance at a standard that would fulfil the Technical Policy Advisor (EO 7) role description 7. ln the body of his report at Section 3 – Finding(s) on performance, Mr Savage discussed each of the performance issues identified and provided examples of tasks or projects undertaken by the appellant and described how he did not meet the standard expected. 8. These examples of tasks or projects included Austral Bricks Horsley Park, Muswellbrook Coal, the Wauchope Liquid Waste Facility and the United Wambo Coal proposal. In relation to each of these tasks or projects, Mr Savage stated that the advice provided by the appellant was late and/or not fit for purpose. 9. The appellant's performance in relation to the Particulate Matter Assessment Criteria project and the Clean Air Regulation project was also determined to be unsatisfactory. 10. Mr Savage also observed: (i) ongoing and frequent use by the appellant of a mobile phone for personal calls apparently interrupting the appellant from progressing work tasks; and (ii) multiple occasions where the appellant was at his work station with eyes closed, apparently asleep. 1. The last day of the FPIP period was 20 August 2018. On that day, the appellant received a call from the Environment Line. The call concerned a public enquiry from an air quality consultant which was transferred to the appellant to discuss questions of a routine nature relating to air quality impact assessment methodology. 2. The appellant declined to take the call and address the enquiry, advising that the enquiry should be put to the EPA in writing and that Mr Savage was the appropriate person to respond. The appellant advised Mr Savage of the call, asserting that he was not qualified to take the call and the call would have taken too long to complete. 3. The appellant was afforded an opportunity to respond to the Supervisor's Report and did so. The appellant provided his response on 14 September 2018. 4. The appellant stated: "In my 25 year career in the Public Service my work performance has never been in question". However, according to the respondent, the appellant was subjected to performance assessments for the periods 1 July 1998 to 30 June 1999, 1 July 1999 to 30 June 2000 and 1 July 2000 to 30 June 2001. Also, in 1999, the appellant was the subject of a sick leave review. At that time the appellant said that there was some stress associated with his position and that he had also been under some stress in his personal life. His feeling was that this had contributed to his absences due to migraine. However, the personal situation contributing to this had been largely resolved and that recent changes to his treatment regime had also been effective in alleviating this condition. 5. The appellant conceded that there had been issues regarding his work performance that had not been adequately addressed by the two IPIPs. The appellant agreed that Mr Savage had spent considerable time in supervising him and editing his work. 6. On 26 September 2018, Mr Marczan provided the Senior Manager's Determination. Mr Marczan reviewed the two IPIPs and the FPIP, the Supervisor's Report and the appellant's response, including the examples of work carried out during the FPIP period. Mr Marczan considered the issues raised by the appellant. Mr Marczan determined that the process for managing unsatisfactory performance had been substantially followed. His recommendation was that the appellant's performance had been found to be unsatisfactory. Mr Marczan went on to consider the options provided for by the Managing Unsatisfactory Performance Policy. In the circumstances Mr Marczan concluded it was appropriate to recommend termination of the appellant's employment. 7. On 17 October 2018, the appellant provided a revised response to the Senior Manager's Determination. 8. On or about 9 November 2018, Mr Fowler provided the appellant with notice of the proposed action being to terminate the appellant's employment after giving him an opportunity to resign. 9. On 23 November 2018, the appellant sent, in the form of an email, a further response to Mr Fowler's proposed action. 10. On 26 November 2018, the appellant sent an email to Mr Fowler requesting a meeting to make an oral submission in relation to the notice of the proposed action. Mr Fowler acceded to the appellant's request. On 28 November 2018, the appellant and Michael Sinclair of the Public Service Association ("PSA") met with Ian Haydock, Industrial Relations, Department of Planning, Industry and Environment, and Mr Fowler. 11. On 3 December 2018, the appellant and Mr Sinclair again met with Mr Haydock and Mr Fowler. The appellant was provided with Notice of Termination referred to at [1] above. Following the failure of the appellant to tender his resignation, his employment was terminated by way of the Termination Letter referred to at [2] above. Case for the respondent Anthony Savage 1. The respondent relied upon two witness statements by the appellant's supervisor, Mr Savage, which were supported by an extensive amount of documentation. Mr Savage reviewed the appellant's employment with the respondent since 2014. 2. Mr Savage also reviewed in minute detail the perceived shortcomings in the various tasks and projects performed by the appellant during the performance improvement processes from September 2017 through to when Mr Savage prepared his Supervisor's Report in August 2018 which ultimately led to the termination of the appellant's employment. 3. During his cross-examination, Mr Nagle, counsel for the appellant, took Mr Savage to the following comments made by the appellant on his Performance, Development and Feedback Plan document for the period 1 July 2016 to 30 June 2017: l feel disappointed with achievements in the year and frustrated. My review of AQIAs (Air Quality Impact Assessments) has not improved as intended. Of concern is a pattern of insufficient attention to detail which at times was also a failure to identify assumptions being made. I have struggled to focus and I underestimated the extent of the impact on my work from personal matters. I have thought about this and feel confident this is resolving because I am now aware of the issue and the personal issues are resolving. In thinking about work process and my feelings of frustration, I conclude that I have misunderstood the nature of the review work. I have been working hard to "learn the ATASU position". While this is logical and laudable, it assumes there is one. I had been looking for a set of standard responses and had been puzzled why there was no guiding notes stating them. I now realise there are no notes because there are no standard responses. Each assessment stands alone. Experience in similar matters assists the assessment, but does not guide it. There is an ATASU position, but not in the way I had assumed. Now that I understand this, I have a different expectation of the time needed for review, and will amend my approach to review. I will continue to start with the actual task - what advice has been requested. This leads to either refining the question if it is unclear or proceeding with review. Review starts by identifying the significant elements in the proposal, the information provided, and what assumptions are being made. This should indicate the scope of the review, its significance, and whether additional information (contextual or technical) is needed. 1. The following exchange then occurred: Q. This is Mr Johnson self-identifying that he's not meeting the standard that he would want for himself isn't it? A. Yes. Q. You have been his supervisor for the 12 months before? A. Yes. Q. Yes? You were his supervisor when he had Legionnaires Disease? A. Yes. Q. You were his supervisor when he needed to take six weeks off as a result of having Legionnaire's Disease do you recall that? A. Yes I don't recall the specific period of time but yes. Q. But it wasn't a small amount of time it was a fair old whack of time wasn't it? A. Yes as I recall he spent some time in hospital. Q. Do you recall he came back with a return to work where he was only working four hours a day? A. Yes I do, I don't recall much more detail than that but I recall that he came back working less than a fulltime load. Q. Do you recall him being fatigued when he came back? A. I don't recall specifics of him being fatigued when he came back but then I wasn't seeing him for full days. Q. You wouldn't argue with the proposition though that if he's only coming back for four hours a day after having suffered Legionnaire's Disease that it was obviously still having some impact on him, would you? A. I would expect that if he was recovering from an illness that that would take some time. The amount of that and the extent of the impact I couldn't say. Q. He fills out this document that we see at AS3 the part I've directed you to on 7 September 2017 then you have the PD&F catch up talk with him about that and we find your notes typed up of that at AS4 is that right? A. Yes. Q. During the course of that conversation he told you that he was suffering from significant home pressure? A. Sorry I'm just reviewing the - there's a comment here about the workload not being too great there is significant home pressure and stresses home and not work driven, yes. Q. Do you recall Mr Johnson having access to the EAP earlier in 2017? A. Mr Johnson would have had access to the EAP since he joined the EPA. Q. Yes but do you recall him actually telling you that he had accessed the EAP during the course of 2017? A. No. Q. At no time did he ever tell you that? A. That's not what I said I said I don't recall him telling me that. Q. I'm now asking you did he at any time tell you that? A. I don't recall him ever telling me that. Q. Can I ask why it was that your managerial response to him self-identifying that he had a difficult year, we know that he had Legionnaire's disease, that your managerial response is to start him on an informal performance improvement plan rather than looking to send him to training courses perhaps? A. I did suggest training throughout the course of Mr Johnson's employment and other developmental opportunities as well. Just sorry my mind is not clear on the matter, I believe Mr Johnson had Legionnaire's disease significantly prior to this meeting, the September 2017 meeting. I thought it was in the order of a year before that, I got a bit muddled on my dates. Q. Yes 12 months before. A. Okay yeah so in order of a year before this meeting. Q. Let me put it to you this way, he'd had a rough 12 months and he's doing his annual performance review. You accept that? A. I accept that he's had some sickness 12 months prior to us having this meeting. I accept that he's identified that there's been significant home pressures as I documented in my meeting notes and I also accept that in those meeting notes it says it now should be worked out okay. 1. Later in his cross-examination, Mr Savage was taken to the appellant's first IPIP, which commenced on 25 September 2017, in which a number of the identified milestones or benchmarks required 100% achievement. The following exchange then occurred: Q. Can you explain to the Commission please how benchmarks which require 100% compliance are designed to elicit improvement? A. I view these measures I use the word benchmark as somewhat synonymous with the heading of measures. I viewed those measures to be one component of the overall plan which included other aspects of the plan such as the standard expected and the support to be provided. Q. You were the person that was marking the applicant's performance at all times in relation to this plan weren't you? A. Yes I was. Q. Did you assign the applicant a mentor? A. No I did not. Q. Do you think it could have been helpful for the applicant to have been assigned a mentor to assist him if he had questions rather than coming to you? A. Certainly that could have been an option for additional support. Q. Sir how many performance improvement plans did you administer before this one? A. None. Q. What training were you given in relation to administering performance improvement plans prior to commencing this one? A. None. Q. Throughout the course of all of the performance improvement plans that is starting from 25 September 2017 up until the date of the applicant's removal from the Environmental Protection Authority what training did you have in relation to administering performance improvement plans? A. Formal training none. 1. At various points during his cross-examination, Mr Savage conceded that, at different times during the performance improvement process, the appellant had shown improvement in terms of his focus. For example, in relation to the notes of a meeting between Mr Savage and the appellant which took place on 7 June 2018, during the second IPIP, the following exchange occurred: Q. ….Do you agree that at this stage Mr Johnson was improving in the way that he was working? A. I believe he was improving in terms of his focus, yes. 1. In relation to the FPIP that was put in place on 26 June 2018, Mr Savage was cross-examined as follows: Q. Thank you. The formal performance improvement plan is then put in place on 26 June 2018, wasn't it? A. Yes, I thought it was June 2018. Q. Thank you. Was any thought given to you not being the person who undertook the formal performance improvement plan? A. I don't believe so. Q. Part of your thinking was that you were going to push Mr Johnson throughout all the performance improvement plans because if you don't push him he's not going to get better, is that right? A. I was working with Mr Johnson, yes. Q. That's working with him, is it? A. What's that? Q. Are you playing here, sir? A. No, no, no, no. Q. Do you understand that what I've just put to you is that you were going to push him? A. I was going to push him. I'm sorry, I was just after some clarity around what that means. Q. You were going to push him in this process because if you didn't push him in your mind he was never going to get any better, right? Do you agree with that, that that was the way you were thinking? A. I was going through a management process of managing unsatisfactory performance. Q. Did you understand the question that I asked you? You can either agree or disagree with it. Was your thinking, as part of this formal performance improvement plan, you were going to push him because if you didn't push him he wasn't going to get any better in your eyes? A. I believed he needed support and he needed to be challenged to improve, yes. If that's what you mean by "push him", yes. Q. Thank you. Do you think that's supportive, sir? A. That what's supportive? Q. That the idea of pushing him when he's already saying that he doesn't understand what you want from him, that he's clearly stressed, he's got issues at home, do you think that pushing him in the formal performance improvement plan, in the manner that you've described, is an appropriate management measure? A. I believe that the plan had both standards, expected measures and support to be required. So yes, I wouldn't have implemented the plan if I didn't believe that it was acceptable and I wouldn't have consulted Mr Johnson on the plan prior to it being finalised and finalising it if I didn't believe it was acceptable. So, yes, I believe that it was acceptable. Q. Do you think that by pushing him you were going to add to his stress? A. I would envisage that a plan of this nature would present a stressful circumstance, yes. 1. On the issue of whether or not assigning another employee of the respondent to act as a mentor to the appellant throughout this process would have been of benefit to the appellant, Mr Savage conceded that it may have been. 2. In relation to the appellant's health status and personal circumstances, Mr Savage stated: 233. Throughout the period I supervised Mr Johnson, from the commencement of his employment in the role until the conclusion of the Formal Performance Improvement Plan and delivery of my Supervisor's Report, Mr Johnson did not advise me of any medical condition or ailment that would (or could) be impeding his ability to perform competently in the role on an ongoing basis. 234. I was aware that Mr Johnson periodically suffered from migraines - from historic sick leave applications and discussions. 235. Throughout the period I supervised Mr Johnson, I repeatedly enquired about any factors that could be contributing to Mr Johnson's under performance. For example, at a meeting on 3 July 2018… I advised Mr Johnson that l had observed him at his desk with his eyes closed. Mr Johnson responded, indicated that it was concerning and must be happening more often than he realises. I enquired, ls there a reason? Stress, boredom? I further advised that it was more than momentary eye closures and it should not be happening. I stated, If you need to take a break, take one. I also advised Mr Johnson that I don't want it to be for reasons of stress, boredom etc. One to manage. 236. Mr Johnson had previously indicated to me that he had experienced pressures external from work, such as selling and buying a house and factors relating to his wife's employment. Whilst I treated this advice with concern and empathy, I interpreted theses as routine factors which occur from time to time in many people's lives. Mr Johnson did not indicate to me that these factors were preventing him from performing satisfactorily in his role at the EPA. This is supported by Mr Johnson's appraisal of his own performance as part of the 2016/2017 PD&F review: I have struggled to focus and I underestimated the extent of the impact on my work from personal matters. I have thought about this and feel confident this is resolving because I am now aware of the issue and the personal issues are resolving. Janelle Pickup 1. Ms Pickup is employed with the EPA in the role of Principal Technical Policy Advisor (EO 11), Regulatory Reform and Advice Branch. 2. Between 5 September and 2 November 2018, Ms Pickup was acting in Mr Savage's position while he was on a period of leave. At the commencement of this period, the appellant was off work on sick leave. He returned to work on 18 September. 3. During this period, Ms Pickup reviewed three pieces of advice prepared by the appellant regarding Recycled Concrete Products West Gosford, North Aminya Quarry Expansion and Former Newcastle Gasworks (Clyde Street) Remediation Project. 4. In her witness statement, Ms Pickup detailed what she regarded as incorrect statements, transcription errors and other deficiencies in the advice work undertaken by the appellant. However, in an email to Mr Fowler on 7 December 2018, Ms Pickup stated that all advice was provided within a suitable timeframe. 5. One of the advices prepared by the appellant and identified by Ms Pickup as deficient concerned silica dust emissions from Recycled Concrete Products Pty Ltd, 18A Tathra Street, West Gosford. This advice was prepared by the appellant following the receipt of two letters from a firm of lawyers, on behalf of a resident of 16 Tathra Street, expressing concern regarding unsafe levels of silica dust, and was annexed to Ms Pickup witness statement at tab 2. Another version of the advice, with corrections made by Ms Pickup, was annexed to her witness statement at tab 3. 6. In her witness statement at paragraph 15, Ms Pickup stated: 15. The incorrect statements in Mr Johnson's advice were: a) 'New South Wales has not set limits for this pollutant (silica dust) and has not defined unsafe concentrations'. This statement is incorrect. Silica dust is regulated by SafeWork NSW, including a workplace exposure standard. b) 'There are no dust management measures listed within either the AQIA or the EIS'. This statement is incorrect. Chapter 7 of the air quality impact assessment listed the dust management measure being applied to the site. 1. Ms Pickup was cross-examined about this issue: Q. Thank you. Can you go to tab 2, please? This is the silica dust issue, isn't it? A. Yes. Q. Thank you. Do I understand, as I'm a layperson, but when I read this report we're talking about the environmental impact of air going into the public domain, out of the site? Is that what we're concerned with? A. Yes. Emissions from the site going into the public domain. Q. Yes? A. Yes. Q. That is going beyond the work site? A. Yes. Q. Thank you. Tell the Commission what the standard is in relation to silica concentration in the air outside of the work site, please? A. There is not one. Q. In your statement you say, "The incorrect statements in Mr Johnson's advice were" - this is at paragraph 15, "(a) New South Wales has not set limits for this pollutant, silica dust and has not defined unsafe concentrations. This statement is incorrect. Silica dust is regulated by SafeWork NSW, including a workplace exposure standard." Do you accept that your statement says that? A. Yes. Q. Are we talking about silica dust outside of the premises, what is the relevant standard? A. There is not one. Q. Thank you. But the SafeWork standard relates to occupational exposure for an eight hour shift, doesn't it? A. Yes, it does. Q. Members of the public are not there in occupational exposure for an eight hour shift capacity, are they? A. No. Q. Thank you. Tab 2. Sorry, we'll go to tab 3 which has got your comments? A. Mm-hmm. Q. The first strike through relates to a typo, you accept that? 20716, as opposed to 20617? A. Mm-hmm. Q. Thank you. The next changes in the next paragraph are largely grammatical except for the name of the approved methods for the modelling and analysis, should be "assessment" of air pollutants? A. Mm-hmm. Q. Why does it matter if there was a comma and it's changed to "including" as opposed to "this includes"? A. It was a very long sentence. Q. Sure, you're a busy woman at this time, aren't you, as a supervisor? You've already said that you had time pressures? A. But my role is to make sure that the briefs are readable. It was a small change that added to the readability of the brief. Q. Is that similar to the next change or the second change after that, impacts and then you add "of silica dust" at the end of a sentence? Has that got a readability? A. Yes, it was just being more precise. Q. Because the author would have no idea that this was about silica dust, is that right, madam? A. I'm just adding readability again. Q. Sure. Do you realise that a man has been sacked as a result of you saying that his work was substandard when a lot of your changes are typos? A. I don't think a lot. 1. During her cross-examination, Ms Pickup was taken to parts of the appellant's advice concerning the former Newcastle Gasworks site which she had described to Mr Fowler as requiring substantial redrafting and repositioning. Ms Pickup was specifically taken to certain changes she had made to the document by way of underlined additions and strikethrough deletions as well as her comments: The EPA identified the site is contaminated with gasworks waste including the following following pollutants as potentially contaminating the land substances: polycyclic aromatic hydrocarbons (PAHs); benzene; petroleum derived hydrocarbons (THCs), arsenic, and lead. 1. Ms Pickup was cross-examined about these changes: Q. You've in the third paragraph where it says "The EPA identified"? A. Yes. Q. See that, can you just read that to yourself please? A. Mm. Q. The strikethrough do you understand what I mean by strikethrough? A. Mm. Q. The strikethrough relates to Mr Johnson's work does it? A. Yes. Q. The underlining part is what you've written in? A. Yes. Q. Can you please explain to the Commissioner what the difference is between the part that you've written in versus the strikethrough? A. Yes. So I've suggested that you know a little bit more - it could be a little bit more specific in saying that the site is contaminated with gas works waste so the whole point of my changes there was just to include the information that the site is contaminated with gas works waste. Which includes the substances as Mr Johnson had written there. Is that-- Q. Oh no I understand. Madam the substances that are listed after the colon Mr Johnson had written those in? A. Yes. Q. The words that are struck through make clear that pollutants had been identified doesn't it? A. Yes. Q. The report is about the gas works site isn't it? A. Yes it is. Q. Thank you do you accept that there really is no substantive difference between what you have written and what Mr Johnson has written? A. In that sentence ..(not transcribable).. yes. 1. Further on in the document there were further changes together with a comment by Ms Pickup: Jemena support the application for approval of SSD 7676 with an environmental impact statement (EIS) prepared by GHD Pty Ltd. The EIS identifies the following pollutants as potentially impacting the air environment (p 11): polycyclic aromatic hydrocarbons (PAHs); benzene, petroleum hydrocarbons (THCs), arsenic, and lead. Commented [JP2]: It is soil..sentence can be deleted anyway. 1. Ms Pickup was cross-examined about these changes and her comment: Q. Go down another three paragraphs you'll see "Jemena support the application"? A. Mm. Q. Read that to yourself please? A. Mm. Q. Did you take that out because it relates to soil rather than air? Sorry in relation to the parts that are struck through did you take that out because it relates to soil rather than air? A. I can't quite recall why I specifically deleted that. Q. You see you've commented on it haven't you. A. I did yep. Q. EIS is an environmental impact study, statement? A. Yeah. Q. Which of those two is it? An environmental impact? A. Statement. Q. Thank you. This is detail that Mr Johnson's written into the report isn't it about what the EIS have..(not transcribable).. there? A. Yes. Q. Why is it wrong to include that? A. Because if we were talking about the air we would - I guess it was a repetition of the same substances that had already been listed in the second and third paragraph that we've just spoken about and I - we just would have been a little bit more specific maybe about the petroleum hydrocarbons and we hadn't even introduced - if you have a look at the next paragraph, that's when we start to talk about the air quality impact assessment so the air quality impact assessment hadn't even been introduced yet so I just felt that the brief flowed better if we you know that kind of sentence was added. It should have been after the introduction of the air quality impact assessment. We were still talking about the fact that the site was contaminated, what the land was contaminated with at that point of the brief. Q. Would you accept that that might be background material? A. No I think that sentence is not in an appropriate location. No. Q. You said that sentence is in an inappropriate location is that-- A. Yes. Q. Is that what you're-- A. Yeah look that was my view when I reviewed it was that the flow of the brief is that that sentence shouldn't have been there. Q. Because it's wrong? A. No because it's a repetition of - if we're talking about the air we hadn't even spoken about the air quality impact assessment yet.. Q. Thank you can you tell the Commission where we would find a directive that when briefs like this are written, that you are to avoid repetition at all costs? A. There's no specific directive. Dr Samson Roberts 1. The respondent also relied upon a report dated 19 August 2019 by Dr Roberts, a General and Forensic Psychiatrist. This report is discussed later in these reasons for decision. Case for the appellant The appellant 1. The appellant gave evidence about the work he had undertaken at the EPA since September 2014. He believed that, in the first few years of his employment at the EPA, he was performing his work at a satisfactory level. 2. The appellant's witness statement contained the following: 63. In the annual performance review in September 2017, I expressed disappointment and frustration. This arose from an expectation that my reviews would continue to improve in both style and specificity. I noted a lack of attention to detail indirectly attributed to the series of significant personal life events I had experienced and the consequent stress I felt - my children changing schools, selling our house, my wife's health, and my wife's very difficult work situation. 64. It is apparent that not only had my performance slipped, but the feedback from my supervisor had changed. 1. The appellant then recounted that in March 2016 he contracted Legionnaires' disease, was hospitalised and was off work sick for a period of time. He returned to work part time, four hours per day, before eventually resuming full time employment. 2. In late 2016 and in 2017, a number of issues arose in the appellant's personal life which are referred to at [9]-[13] above. 3. The appellant gave evidence about his experience during the two IPIP processes. He stated: 102. During a meeting with Mr Savage in November 2017 I proposed a change to work process to help me improve. I suggested that after receiving work, I would provide an outline of the size/scope of the task and my approach to generating advice for my supervisor to review. He could then provide me guidance. I thought this would be effective as it would ensure I had the right approach and help me to gain the knowledge and perspective needed to accurately assess how I should approach each piece of work. This would improve timeliness when I have the approach wrong at the expense of an additional step when I have it right. I thought this would be worthwhile. 103. Mr Savage rejected my suggestion. My recollection is that he immediately said it would "be a waste of his time". I was surprised by this statement - that my supervisor did not need to consider it but could summarily reject it, and that he expressed it in such a blunt way. I felt worthless. I felt I needed to work much harder even though I was already working as hard as I could. I was also puzzled why my supervisor thought this. My proposal was intended to improve my performance and the overall timeliness of advice. I felt it was out-of-character for my supervisor to behave this way. It was inconsistent with a previous conversation where we had tried to propose different approaches. 104. IPIP-1 ended on 15 December 2017. Mr Savage suggested on-going review to which I agreed. While it was clear I had not reached the standard expected, there was no assessment of whether I had made gains. I had tried a few different approaches to improve my performance within the review period. As there was no review of improvement, I was unable to determine whether any of these approaches were worth continuing. 105. There was no review of the performance process itself. 106. On 7 May 2018 the second Informal Performance Improvement Plan (IPIP-2) commenced… This had the same approach as the first informal improvement process. Human Resources provided assistance with lain Haydock attending the meeting at which the plan was proposed. 107. This IPIP-2 also had regular meetings, but this time fortnightly. There were no documented outcomes from the meetings and no flexibility to modify the approach. I was given no feedback regarding progress towards the goal, only advice making clear where I was not meeting the desired performance. 108. IPIP-2 ended on 4 June 2018. 1. The appellant then gave evidence about his experience during the FPIP process and his reaction to Mr Savage's Supervisor's Report. He stated: 128. On 24 or 25 August 2018, Mr Peter Marczan forwarded the Mr Savage's Supervisor's Report to me… 129. I was shocked by the report. I was expecting it to assess my performance as not meeting the standard of a senior technical policy advisor as I was aware I had not reached the required standard. I did not expect it to go to so much detail to construct a biased description of my work. As written, it appears that I have produced no work of value. Mr Savage fails to acknowledge the work I did that met expected standards. Indeed, Mr Savage fails to provide context for the list of poor work by omitting information regarding my total work output. 130. Mr Savage's Supervisor's Report: • fails to comment on unit workloads and the work assigned to me. • fails to mention the factors I had raised regarding my personal circumstances. I kept him informed of each of them as they arose. • omits that he recommended training courses to help me after I told him that I was frustrated and had difficulty focussing. These courses included 'Building Your Resilience", "Take a Deep Breath and Manage Your Stress", "Make the time you need to get organised" (not available), "Planning meetings fit for purpose (not available), and "Taking Stock of Your Work/Life Balance". The two courses marked unavailable were thought to be available online, but were not in the period I looked. • errs in stating at page 11 of his report… under a heading "Behaviour and Focus" "the level of focus has not improved to the point where outside distractions have been adequately minimised". Mr Savage did not raise this issue with me at any time following my offer to amend my behaviour. I did significantly alter my behaviour - phone calls to be only for emergencies, mindfulness using breathing techniques and eyes open, and leaving my desk if I needed to refresh. I assert I did minimise the distractions within my control. Mr Savage couches his view as a deduction based on my lack of focus. This is a logical error I point out at page 10, paragraph 2 in my response to his report… • Unfairly includes in his report the matter of the pollution line enquiry, pages 11-12 of the supervisor's report... This matter was ongoing at the end of the formal performance improvement plan, so could not be properly assessed. Mr Savage's assessment of my handling of the matter assumes knowledge not available to me at the time of the call. I provide further detail in my response to his report... 131. My shock at the report caused me to have frank discussion with my wife and then with my GP, Dr Lai (27 August 2018). I discussed with him the significant life events over the previous two years or so, the impact they have had on my work and my mood, and behaviour changes my family had noticed. Dr Lai diagnosed me with reactive depression. He prescribed the anti-depressant Pristiq advising that it takes about two weeks for the medication to stabilise and five to six weeks to assess if it is effective and tolerable. 132. Dr Lai referred me to Dr Grant Walker, neurologist, for opinion. 133. On 28 August 2018 I e-mailed my supervisor advising him that I had commenced medication and may need to take some leave, work from home, or work reduced hours. I was on sick leave until 17 September 2018 while I adjusted to the medication… After adjustment, I found the Pristiq effective. My mind was clearer. I had more focus and more energy. 134. I saw Dr Grant Walker, neurologist, on 13 September 2018. His opinion was that "... the cognitive problem was mental health related and not neurological"... 135. My response to the supervisor's report was submitted to Mr Peter Marczan, Manager Technical Assessment and Advice on 15 September 2018 after obtaining agreement to a one-week extension… 136. My response advised of my recent diagnosis of depression and made reference my contracting Legionnaires disease… and to the impact of and to the cognitive impacts of Legionnaires Disease… 137. My submission asserts: a. The supervisor's report was incomplete and biased, and therefore unsound. b. All three performance improvement plans were flawed in that I was judged only with a pass/fail and not supported to improve my performance. c. There was no review of the informal performance plans to assess the effectiveness of the methods used to support me to improve my performance. d. My supervisor rejected my suggested approach aimed at improving my assessment of tasks, thereby denying me support. e. My supervisor gave me feedback that was unclear, contradictory to previous guidance, and unreasonable (examples provided). f. There are instances of my supervisor's behaviour being offensive, undermining my confidence, and harming my reputation. g. Prolonged fatigue is usual following Legionnaires Disease and of itself is enough to cause Depression, particularly where there are additional life stressors. h. Neither my supervisor nor the Human Resources representative could answer my question "what does the formal process offer to help me improve that the informal processes did not offer''. They did not even identify the previously used process for improvement or expand on what constituted "supervision" and how this would help me to improve. The formal performance plan was punitive and set me up to fail. 1. In relation to the decision to terminate his employment, the appellant stated: 164. I assert the delegate's decision to terminate my employment is unreasonable and unfair. My reasons are, in summary: • The three performance improvement plans were flawed. They lacked review of the approach taken using the same flawed approach in all three. I had poor support from my supervisor in the form of: unclear direction; confusing and contradictory guidance; rejection of my proposed approach to work flow and hence denial of effective guidance; undermining my confidence; and offensive behaviour towards me. None of the plans contained an improvement pathway and I received no indication of whether (any) progress had been made. • Throughout the performance improvement plans I was stressed. This is known to my supervisor. I was also dealing with undiagnosed depression. My supervisor failed to apply internal guidance on mental health and use it to prompt me to consider the extent of impact on me from my stress. • I have been given no reasoning for rejecting my submissions. The Senior Manager's report merely notes that he has '... noted and considered the medical and personal issues'. It is silent on the matter of the absence of an improvement pathway, and it shows no consideration for my argument that the supervisor's report is incomplete and strongly biased. The senior manager recommends my employment be terminated when there is no obligation to make such a recommendation and where he has limited consideration of re-deployment to his section. Omission of reasoning makes the recommendation unsound. The senior manager provides no reason for rejecting my request for an extension of the review period, despite my diagnosis meeting the criterion noted in the policy. The report is not fit-for-purpose. • The delegate provides no response to any of the submissions I made and there is no consideration of the issues within them. The delegate does not even respond to my assertion that the senior manager's report is not fit-for-purpose and that the senior manager errs in recommending termination of my employment. The delegate provides no reasoning for his decision to reject my request to extend the formal performance improvement plan. The delegate provides no reasoning for determining my employment should be terminated. The absence of reasoning showing careful consideration of matters put forward results in an indefensible decision. Proper consideration of the matters I raise lead to a different decision. • Management rejected requests to extend the formal performance improvement plan given my diagnosis and treatment. They appear to have rejected medical opinion that medication is effective. They have provided no indication of considering my submission that my performance has improved now my depression is being treated. The statement of Mr Anthony Savage is limited to his opinion that I have not demonstrated the standard expected of a senior technical policy advisor. The statement of Ms Janelle Pickup is limited to commentary on three of the fourteen matters I completed while she was my supervisor. 1. The appellant also gave evidence of things he has done since the termination of his employment, including enrolling in a Graduate Certificate of Professional Practice at the University of New England to gain greater knowledge of the context for managing the environment. He also gave evidence of the unsuccessful attempts he has made to gain alternative employment. 2. The appellant also gave a detailed response to the witness statements of Mr Savage and Ms Pickup. Dr Lawrence Lai 1. Dr Lai has been the appellant's family doctor for approximately 20 years. In a report dated 3 October 2018, Dr Lai stated: Michael contracted Legionnaires Disease in March 2016 Town Hall Sydney outbreak. This is a serious illness with a notorious long period of recovery. During this time he undertook the stress of selling his house and moving to a new house. He continued to feel tired and irritable. He has had sleep apnoea study in view of his tiredness and was followed up by Dr Jimmy Chien post Legionella pneumonia. At the same time he was prescribed Sandomigran for his recurrent migraine. He later reported that sandomigran affected his mood and stopped taking it. Michael came and see me on 27 August 2018 after he had received a report from his supervisor regarding poor work performance. Michael and I discussed his health issues over the last 12 months and it is my opinion that he has been suffering from a reactive depression as a result of family and work issues. I started him on an anti-depressant and gave him some time off work and review him after his medication. On the first review Michael and his wife attended and we discussed the impact of Legionaires disease on Michael's ongoing health and I referred him to a neurologist to rule out organic cause for his ill health. Meanwhile the anti-depressant has not had any side effects on him and Michael reported some improvement after a couple of weeks. To assist his recovery I will be continuing to treat Michael and I will develop a Mental Care Plan which enables him to seek ongoing psychological treatment. This will include a referral to a psychiatrist for further psychological assessment and treatment review. It is my opinion that Micahel is an honest person of good character who has enjoyed good health for most of his life. The unfortunate event of contracting Legionaires Disease has had a significant impact on his ongoing health leading to reactive depression. Given Michael is now aware of this and is pursuing treatment through medication psychological help and he has good family support, I expect him to continue to recover. Dr Grant Walker the neurologist agreed on this. 1. Dr Lai was not required for cross-examination. Dr Grant Walker 1. Dr Walker is a Consultant Neurologist. In a report to Dr Lai dated 13 September 2018, Dr Walker stated: Thank you for referring Mr Johnson whom I saw with his wife on 13 September 2018 regarding some cognitive issues. Michael developed Legionnaire's disease by walking past the Town Hall in March 2016. He ended up in Westmead Hospital but only overnight, and he was a little confused but he had a high temperature. He never scored any neurological tests, but he thinks that the problems may relate to that. Certainly, he's had significant fatigue since then. Over the last 18 months or so he has complained of reduced clarity of thought and trouble remembering things. He's had comments from his superiors at work that his work lacks the detail, and sometimes he uses the wrong word in his submissions (he works assessing environmental protection reports for the Government). He admits that during this last 2 years there have been quite a few stresses, in as far as his father in law died after a sudden Illness, they have moved house and their children have moved schools. You commenced him Prlstiq 2 weeks ago. Michael's main health issue in the past has been his migraines which began at a very early age of 3 or 4. At one stage he was having classical migraines with aura and got good effect with Ergotamine before it was withdrawn from the market. In the last 10 to 15 years he's had more frequent headaches, weekly and there has been no aura. He takes Nurofen Plus and tries to go to bed with reasonable success. He tried what sounds like lmigran at one stage without benefit. His father and a couple of his siblings suffer from migraine, and two of his siblings also have epilepsy. On examination Michael looked well. His blood pressure was 140/85 and visual acuity 6/6 uncorrected. There were no abnormal neurological signs. He brought with him an MRI which is normal, apart from a couple of white matter hyperintensities consistent with his migraine. I told Michael and his wife that I thought the cognitive problem was mental health related and not neurological. The Pristiq sounds like a good idea, and hopefully things will settle with time. I have not made any arrangements to see him again. 1. Dr Walker was not required for cross-examination. Dr Ben Teoh 1. Dr Teoh is a Consultant Psychiatrist. In a report to Dr Lai dated 23 October 2018, Dr Teoh Stated: Thank you for referring Mr Michael Johnson, a 54 year old public servant, who is living with his wife and 2 children. He contracted Legionnaire's Disease in 2016. He was placed on work performance review in September, 2017. He reported lethargy and daytime "sleeping". He lost his confidence and he has been excessively "rechecking" his work. He became irritability and marked mood swings. He was preoccupied with negative things. His work performance deteriorated. He took 2 weeks off in September, 2018. He was commenced on Pristiq I00mg. He reported significant improvement, with less preoccupation with negative thoughts, although he remains lethargic. He reported insomnia. He felt hopeless and angry, he did not report suicidal ideation. As his mood has improved, he has been able to develop strategies to deal with the problems at work. His father had PTSD and was a prisoner of war. His mother, brother, and sister were treated for depression. He is the youngest of 7 siblings. He grew up on a farm in Victoria. There was no history of childhood trauma or abuse. He reported mild periods of depression in his adolescence and early adulthood. He did a Bachelor Degree in meteorology, and subsequently an MBA. There is no history of work injury or compensation claim. There is no history of alcohol or substance abuse. He is in good physical health. Mr Johnson's presentation is consistent with a diagnosis of Major Depression. I have advised him to continue the Pristiq 100mg. I will review him over the next few weeks and will keep you informed of his progress, . . 1. By letter dated 22 March 2019, Michael Burns, solicitor of McNally Jones Staff Lawyers, acting on behalf of the appellant, wrote to Dr Teoh and sought a report from him for use in these proceedings. That letter set out a number of specific questions about the appellant's condition. In his report dated 25 March 2019, Dr Teoh stated: HISTORY Mr Johnson is a 56 year old scientist and senior technical policy advisor, employed by the Environment Protection Authority. He had worked for four years with EPA, his employment was terminated on 4 January, 2019. Mr Johnson first consulted me on 23 October, 2018, following a referral by his general practitioner, Dr Lawrence Lai. Mr Johnson presented with significant depressive symptoms. He had insomnia, and he was preoccupied with negative thoughts, I diagnosed Mr Johnson as suffering from Major Depression, and he was treated with antidepressant medication, Pristiq 100mg. Mr Johnson reported that he was diagnosed with Legionnaire's Disease in March, 2016. He developed "flu-like symptoms" with fever and headache. He had lost his appetite. He took Panadol for his fever. He consulted his general practitioner, who did some investigations including urine sample. He recalled that his mother had asked him if he had contracted Legionnaire's Disease, because it was in the news that there was an outbreak. His general practitioner did the tests, which confirmed that he was positive for Legionnaire's Disease. He was admitted to Westmead Hospital, where he was treated with intravenous antibiotics, and then further courses of oral antibiotics. Mr Johnson reported that he subsequently became very stressed when his wife was "bullied out of her job and made redundant" by the Mental Health Services in 2017. His father died in September, 2017. The family had to move house, including changes of school for the children. Mr Johnson reported that he had consulted the Employee Assistance Program for counselling in March, 2017. He reported that he was irritable and argumentative. He was not coping with the stress. He had argued with his son and wife His wife suggested to him that he should get some help. He had a few sessions with the counselor through the EAP program. He was treated with mindfulness and psychological strategies, he found the sessions helpful. Mr Johnson reported that he was aware that he had struggled with his work. He reported that he had to go through his work a few times and that he had poor concentration. He was "frustrated". Mr Johnson reported that his boss was often critical of him, without giving him any support or explanation. He said that his supervisor, Anthony, was rarely satisfied with his advice and recommendations. He admitted that he had made mistakes and he had "misapplied regulations". He said that his work was returned for corrections, "some minor". He said that he was given alternatives and options, but he had occasionally "made the wrong choice". He said that he tried to do his job properly, and he thought that he had improved, but his supervisor, Anthony, did not provide him with proper feedback. In April, 2018, he had a meeting with his supervisor (Anthony), and Human Resources, to discuss his performance review. He became emotionally distressed, he felt that he was not supported. He said that he was not given any specific strategies or plans to improve his work performance. He said that he attempted to use some of the psychological strategies like mindfulness to deal with the situation. He said "I tried to work hard". He said that he made a few private phone calls at work, and he was unfairly criticised that he was not "focused". He was subsequently called to a meeting to discuss a formal improvement plan. He said that he was not given a plan and support on how to improve his performance. He had weekly meetings to discuss how he was going, but he said that he was not given any feedback or advice, and he was left to do everything himself. Mr Johnson reported that he knew that he had not done enough, and he thought that he could be demoted, and that his salary could be deducted. He thought that something would change. Mr Johnson reported that he was "shocked" when he discovered that the supervisor had recommended "termination" of his employment. Mr Johnson reported that the issue of termination was never discussed, and that there was no discussion in the report about his incapacity to carry out his role. He continued working until January, 2019, when his employment was terminated. Mr Johnson said that the supervisor had trouble with him, and did not get along with him. He reported that his supervisor had told him, "I'm not getting what I want from you". Mr Johnson said that the supervisor's goal all along was to terminate him. He was not supportive or made any attempt to help him to improve his performance at work. He said that the supervisor had often told him that he was a smart person, and the supervisor possibly could have felt threatened by his intellectual capacity. Mr Johnson reported feeling hopeless, and he has been worrying about his career. He reported feeling depressed and irritable. He has been socially withdrawn and lacking interest in his usual activities. He has intrusive, negative thoughts. He reported lethargy. He has lost his confidence. He complained of frequent migraines and headaches. Mr Johnson reported that his dismissal was "unfair". He thought that he should have been redeployed to an alternative position. He had agreed to work in another location. He said that the report was "biased" and did not mention "all the good things I had done". Mr Johnson has worked for the Environment Protection Authority from 1992 to 2013. He was made redundant. He rejoined the Environment Protection Authority in 2014. He has no past history of work injury or compensation claim. BACKGROUND He grew up on a farm in South West Victoria. He is the youngest of seven siblings. His father had worked as a farmer, and his mother as a teacher. There was no history of childhood trauma or abuse. He left school at the age of 17, and he went to university to study science and meteorology. He had obtained a degree in MBA. There was no history of drug or alcohol abuse. He is in good physical health. He did not report a past history of significant psychiatric illness (prior to 2016) MENTAL STATE EXAMINATION Mr Johnson appeared casually dressed. His speech was coherent, he was not thought disordered. He was cooperative and spontaneous during the interview. He reported depressed and irritable mood. He has been preoccupied with negative thoughts, including a sense of helplessness. He has lost his confidence, he has been worrying about his career. He reported insomnia. He has been lacking motivation in his usual activities. He has been feeling angry that he was not supported and that he was unfairly dismissed at work. He has been irritable and argumentative. There was no evidence of psychotic symptoms or suicidal ideation. His cognitive functions were intact; there was no evidence of short or long term memory impairment. SUMMARY AND OPINION In answer to your specific questions, I advise as follows: 1. Patient's complaints and history received. This is documented above. Mr Johnson presented with significant depressive symptoms. 2. Your findings on examination. The Mental State Examination is as described. 3. Your diagnosis. Mr Johnson's presentation is consistent with a diagnosis of Major Depression (DSM 5 Diagnostic Criteria). 4. We note your observations in your report of 23 October, 2018 that our client contracted Legionnaires disease in 2016, and that he was placed on work performance review in September, 2017. You also observed that our client's work performance deteriorated. Mr Johnson was diagnosed with Legionnaire's Disease in early 2016. He developed symptoms with fever, headaches, poor appetite, insomnia and lethargy. 4.1 Please comment upon any now possible immediate to long-term mental-health related side effects / consequences of Legionnaire's disease? Legionnaire's Disease can precipitate an episode of Major Depression as a result of a reaction to a life-threatening illness, and also the possible neurobiological changes resulting from the infection in the short-term. 4.2 When did our client first begin to experience symptoms of Major Depression? It is likely that Mr Johnson had developed a mood disorder with depressive symptoms following his infection with Legionnaire's Disease. He had struggled with his concentration. He was stressed. In March, 2017, Mr Johnson developed significant mood symptoms. He took the initiative to see a counselor through the Employee Assistance Program. He was depressed, irritable and argumentative. At that stage, he reported irritable and depressed mood, not meeting the criteria of Major Depression. 4.3 Are you of the opinion that our client's condition of Major Depression was attributable to his contracting Legionnaires disease? It is my opinion that his Major Depression was precipitated by the Legionnaire's Disease. 4.4 Are you of the opinion that the deterioration in our client's work performance was attributable to his Major depression condition? The deterioration of his work performance was caused by a significant change in his mood. He had poor concentration, he was irritable. He was not coping with stress. The decline in his work performance was caused by the significant mood symptoms with irritable and depressed mood, associated with poor concentration. 4.5 If you are of that view, are you of the opinion that the deterioration in our client's work performance can therefore be attributed to his initial Legionnaire's disease condition? The performance review and the termination of his employment are a substantial contributing factors to his condition. He reported that the review process was unfair, he was not supported, he was not given the option to improve his performance. The work performance review aggravated his condition. 4.6 What effect, if any, did the work performance review process Mr Johnson was placed on from September, 2017 until the termination of his employment have upon his Major Depression condition? His work performance review had significantly contributed to his psychiatric condition. 4.7 Was our client still suffering from Major Depression at the time his employment was terminated on 4 January, 2019? He was still suffering from Major Depression at the time of his employment when his employment was terminated on 4 January, 2019. 5. Your opinion as to our client's current fitness for work. He is fit to return to suitable duties. 6. What further treatment, if any, is indicated. He will require psychiatric treatment with periodic review, fortnightly to monthly for the next six months. He will need to be on antidepressant medication for two years. 7. Your prognosis generally. His prognosis is guarded. It depends on his treatment for his depression and his employment. 1. During the hearing, Dr Teoh gave the following evidence in chief: Q. … you were provided a copy of Dr Roberts' report of 19 August 2019, yes? A. Yes. Q. From reading that report, are you aware that Dr Roberts has formed an opinion that Mr Johnson only became depressed after the work events that related to his termination? A. Yes, that's the impression I got, yes. Q. Thank you. Do you have any comment in relation to that opinion? A. Well, yes, I disagree with that. Q. Why? A. Because from the history I've taken, I believe that the onset of the - Mr Johnson's depression started significantly, I think, in early 2017. Q. Thank you. And why did you form that opinion? A. Because at that stage he reported feeling irritable, poor concentration, agitated. And then he consulted the Employment Assistance Program for counselling. Q. Yes and what does a consultation to the EAP - you understand to be an EAP? A. Yes. Q. What does a consultation or reaching out to an EAP in or around the beginning of 2017 indicate to you? A. Well, that would suggest to me that Mr Johnson must have experienced significant emotional distress to seek help. Q. Thank you. In your opinion, is it usual that depression just forms overnight? A. No, it's hardly ever formed overnight. Usually it's a matter of weeks, it's sometimes months and sometimes years. Q. Yes. Would you say that it's often a cumulative effect of stressors that lead to a tipping point where there might then be a clinical diagnosis of depression? A. Yes, sometimes the depression might have started at a particular point and a person starts to have problems coping, life events, stressors, so just a cumulative life events would make the depression worse. Q. Thank you. And in the lead up to satisfying the DSM-V and as the accumulative stressors build, in your experience does that have an effect on cognition? A. Yes, one of the symptoms of depression is poor concentration, pre-occupation and negative thoughts, agitation, so those symptoms would affect a person's cognition, yes. Q. Memory? A. Memory, yes. 1. Dr Teoh was cross-examined as follows: Q. Dr Teoh, I only have a couple of questions for you. You've just confirmed that you've read Dr Roberts' report of 19 August 2019? A. Yes. Q. In saying that you've read that report, have you had regard to the additional material that was supplied with that report? A. Yes, yes, I think the materials, yes. Q. Okay, so just confirming, you've read Dr Roberts' report, you've read all of the material annexed to it? A. All of the material that's relevant to the report. Q. Okay, that's fine, yes, thank you. And, as a result of reading that report and as a result of having regard to that additional information, would that cause you to change your opinion on any material matter in your report? A. No. Medical Evidence in Reply 1. At the outset of the hearing of this appeal, the respondent had tendered into evidence a folder of documents marked "Medical Evidence in Reply". That material included a Medicolegal Report dated 19 August 2019 prepared by Dr Roberts at the request of the respondent after Dr Roberts had examined the appellant. 2. Dr Roberts' report included the following: Mental State Examination Mr Johnson presented as a neatly groomed man of short stature. His grey hair was noted to be thinning consistent with the prescription of Propecia. He was clean shaven and his beard was shaped to a goatee. He exhibited a reactive range of emotional expression throughout the interview and described his depressive symptomatology as having resolved. He did not present as anxious. He demonstrated confidence in the rectitude of his position with respect to the inappropriateness of his termination. Although he acknowledged the substandard nature of his work he presented a detailed explanation of the basis upon which he had been unable to perform to what he considered to represent a standard commensurate with his ability. It was noted that he consistently sought to explain his shortcomings at work as an effect of the impact of personal circumstances, inconsistencies with respect to feedback and ultimately as an effect of the depressive condition which was diagnosed subsequent to the workplace events. With the exception of uncertainty surrounding specific dates, Mr Johnson's account was logical and coherent. He participated effectively in a lengthy interview process addressing questions that were posed to him and elaborating when required to do so. Review of Documents The statement of Mr Johnson includes reference to the disappointment expressed by him at an annual performance review in September 2017 and an acknowledgement of "a lack of attention to detail indirectly attributed to the series of significant personal life events" consistent with his account at interview. There is reference to the diagnosis of Legionnaires' disease dated to March 2016. There is reference to his involvement with EAP during the first half of 2017. He notes that he was "shocked" by the report recommending his termination noting his summary that "as written it appears that (he had) produced no work of value". Dr Lai evidently diagnosed reactive depression according to Mr Johnson for which he was prescribed Pristiq. Comment: An acute mood disturbance in response to a significant stressor would not usually precipitate the prescription of antidepressant medication and indeed there is no evidence for the use of antidepressant medication under such circumstances. There is reference in Mr Johnson's statement to referral to Dr Teoh, the extent to which he considered a recommendation for termination inappropriate and to his enrolment in tertiary studies at the University of New England. He includes in his statement his evaluation of the performance process and the opinions expressed regarding his performance. The report of Dr Ben Teoh dated 25 May 2019 was reviewed. He dates Mr Johnson's first attendance to 23 October 2018. He makes reference to the stressors to which Mr Johnson reported having been exposed including Legionnaires' disease, his wife's employment circumstances and the other matters raised at the time of his attendance for assessment. He notes that Mr Johnson consulted the Employee Assistance Programme (EAP) in March 2017 at which time he recalled having been "irritable and argumentative" and was not coping with stress. He informed Dr Teoh that his wife suggested that he should get some help at that time. He also reported to Dr Teoh that he was aware that he was compromised in such ways as to impact on his work. He acknowledged to Dr Teoh that his supervisor was dissatisfied with his work and he also acknowledged that he "had made mistakes and he had misapplied regulations". In general, the history otherwise provided to Dr Teoh was similar to that presented at the time of my assessment of him although to Dr Teoh it is apparent that he was more critical of his supervisor's attitude towards him and his supervisor's expectations of him. Dr Teoh concluded that Mr Johnson "did not report a past history of significant psychiatric illness (prior to 2016)" in contradiction to the statement contained in his letter of 23 October 2018 which notes that Mr Johnson "reported mild periods of depression in his adolescence and early adulthood". Dr Teoh notes that the 2016 "Legionnaires' disease can precipitate an episode of Major Depression as a result of a reaction of life-threatening illness and also the possible neurobiological changes resulting from the infection in the short term" and expresses the opinion that this was in fact the case with respect to Mr Johnson notwithstanding the time course of events. The general practice clinical notes make reference to consultations dating from 2001 and the presence of migraines initially diagnosed at age 19 years for which Mr Johnson had evidently been on long-term treatment. Propecia was evidently introduced in 2003. Sandomigran would appear to have first been trialled in 2009. Nasal surgery evidently occurred in 2012. There is reference to the prescription of Pristiq 50mg at night following four weeks of a depressed mood and irritability on the background of a chronic headache with an entry four days later ascribing various symptoms to a bad reaction from Pristiq characterised by nausea and dizziness in addition to tiredness, emotional upset and irritability with Legionnaires' disease being raised as a possible diagnosis. The prospect of Sandomigran impacting on mood is documented in an entry of 16 March 2017 with reference to a depressed mood and stress at work over a five-month period documented in an entry of 27 August 2018 at which time Pristiq was reintroduced at a dose of 100mg at night. It is evident that five days later, namely on 3 September 2018 Mr Johnson reported getting better with respect to his mood symptoms with the return of motivation documented in an entry by 7 January 2019. A letter of Dr Grant Walker, consultant neurologist, dated 13 September 2018 notes as the basis for referral the presence of cognitive issues and makes reference to the history of Legionnaires' disease noting the history of fatigue since that time. There is reference to ongoing Nurofen Plus for the treatment of headaches but no indication of the frequency with which he would take them. Dr Walker evidently supported the use of Pristiq and did not consider the cognitive issues to be neurological. A letter of Dr Brian Chuong dated 21 April 2016 raises the prospect of obstructive sleep apnoea and the potential that this could be impacting on concentration and memory. He recommends a sleep study. Various neuroimaging investigations are noted to have been normal. Documentation pertaining to the diagnosis of Legionnaires' disease in 2016 is noted. Documentation pertaining to the nasal septoplasty is also noted. Summary and Opinion The account presented by Mr Johnson presuming the timeline is indeed accurate indicates that he had suffered depressive symptomatology based on his wife's description to him over a six to nine-month period prior to her bringing it to his attention at the time when he was informed of the recommendation to terminate his employment. The timeline of compromise with respect to Mr Johnson's workplace performance however well predates this six to nine-month period which he evidently attributes to significant personal stressors. It is an unlikely plausibility that Mr Johnson could have been suffering such a protracted period of depressive illness of such severity as to compromise his workplace performance without his wife, a mental health professional, being aware that this was the case and the basis upon which his condition was only brought to his attention after he ceased employment is not explained. The diagnosis of a depressive illness in the immediate aftermath of a circumstance so traumatic as the unexpected termination of one's employment must inevitably be questioned. Namely, anger, distress, irritability, frustration and a depressed mood represent an appropriate, reasonable and indeed predictable reaction to such an event and could not be considered pathological. Furthermore, the rapidity with which Mr Johnson described achieving a therapeutic response to antidepressant medication is not consistent with the expected response. There are aspects of Mr Johnson's account that support the impression of aberrant personality traits if not frank Personality Disorder influencing his attitude to events specifically his response to the criticism levelled against him with respect to his performance and his response to the adverse feedback and ultimate termination. Although he reports an acknowledgement of the production of substandard work and his failure to remediate his tendency to do so despite what would appear to represent a prolonged period of support from his manager, was consistently ascribed by him to factors beyond his control. Namely, the impediments to his satisfactory performance were attributed to events in his personal life then ultimately to the effects of a depressive condition. It is not apparent that during the course of his performance issues at work or in his description of difficulties during the assessment that he accepted personal responsibility for these deficiencies at any stage. It is noted that his depressive condition has elsewhere been ascribed to Legionnaires' disease. If one accepts the timeframe of events and takes into consideration the description presented to Mr Johnson by his wife noting her professional background, it is psychiatrically implausible to accept that an illness in March 2016 produced a depressive condition in 2018. Similarly, it is implausible to accept that Mr Johnson could have been suffering a depressive condition for the entirety of the period during which he was underperforming at work yet by his account he maintained satisfactory performance in other areas of his life including the provision of support to his wife under considerably challenging circumstances, assisting the family in relocating to a new home and supporting his children in adjusting to a new school. Namely, impairment arising from a depressive illness does not selectively compromise functioning in one area of life. ……………………………….. As discussed under the subheading "Summary and Opinion" the history as presented by Mr Johnson raises significant doubt as to whether the condition identified following the termination of his employment can reasonably be considered to represent an episode of depressive illness. His account raises the possibility that he suffered a depressive episode in his 20s however there is no contemporaneous information to support his retrospective evaluation in this regard. There is a past instance of the prescription of antidepressant medication but there is insufficient information upon which to confidently conclude that the episode represent a clinical illness. In conclusion therefore, there is doubt that Mr Johnson has ever suffered a clinically diagnosable episode of Major Depressive Disorder. ………………………………. The opinion documented by Dr Lai in his entry of 3 September (sic October) 2018 evidently reflects an opinion expressed not by Dr Lai but by Mr Johnson and having regard for the passage of time between the diagnosis of Legionnaires' disease and the entry, the association between a depressive condition at that time and Legionnaires' disease is clinically implausible. Also implausible is the conclusion that Mr Johnson was getting better after only a week on Pristiq. The academic literature and clinical experience supports the expectation that a patient would experience no meaningful change in symptomatology in under four weeks and often not before six to eight weeks. Dr Lai evidently refutes the conclusion drawn by Mr Johnson regarding the causation of his depressive condition attributing his decline to a response to family and work issues. By contrast, Dr Teoh attributed his decline in work performance to depression. The conflict between these two opinions would appear to be that Dr Lai considers the depressive condition in part an effect of work issues while Dr Teoh ascribes the work issues to the depression. ………………………………… It is psychiatrically implausible that impairment arising in the context of a psychiatric condition could selectively compromise performance in only one sphere. It might lead to subtle difference in the level of achievement across different domains of functioning but to assert that a person so compromised in a work environment as to lead to such significant concerns as those identified with respect to Mr Johnson could not reasonably be presumed to be functioning unaffected in other areas of his life if one is to accept the diagnosis and if one is to presume that the impairment at work was indeed an effect of the diagnosed condition. 1. During the cross-examination of Dr Roberts by Mr Nagle, the following exchanges occurred: Q. Thank you. Would you accept the proposition that Legionnaire's disease is a very serious disease when contracted? A. It's a potentially serious infection which presents with a range of manifestations and a range of severity. Some people have a relatively mild viral type, what appears to be a viral type infection and is ultimately diagnosed as Legionnaire's. Other people, especially the frail, elderly and immuno-compromised can die as a result of it. Q. You accept though that on the spectrum of diseases Legionnaire's is quite serious? A. It is potentially serious in the same way that influenza is potentially serious. A person can have a Legionnaire's infection and have a short lived illness and recover fully, or a person can die. It's not something that is necessarily expected to be a fatal condition, it's one that certainly attracts a level of attention because of the highly infectious nature of it and something for which a person needs timely treatment. Q. Sorry, have you finished? A. I just don't - I can't give a single answer as to the seriousness of it. It boils down to the individual clinical case. Q. Just accept for the purpose of some questions I'm going to ask you that Mr Johnson was in hospital overnight and then subsequently was off work for six weeks and then had a part time return to work plan after that, okay? So that's just the factual assumption I want you to make? A. Yes. Q. If someone did contract Legionnaire's and then had a period of hospitalisation overnight and had six weeks off work, that could impact them mentally? A. Yes, it could. Q. That could bring a stark focus to immortality, couldn't it? A. As would any potentially significant illness, yes. Q. Yes. And in the event that they did suffer this type of medical disease and needed six weeks off work, that could impact them adversely mentally? A. Yes, it could. Q. And if they were saying that they suffered lethargy after that, after the six weeks, in your experience, if someone suffers an acute medical or a medical episode that then leaves them with lethargy afterwards as a consequence, that can affect them mentally as well, can't it? A. Correct. Q. In your report you've come to the conclusion that Mr Johnson did not suffer depression as a result of having Legionnaire's disease, is that right? A. I found no material to support the conclusion the Legionnaire's disease had caused an enduring depressive condition. Q. Are you saying that it may have caused a transient depressive condition? A. It could have but I have no information to support that conclusion. Q. You've got no information to rule it out either, do you? A. I'm sorry? Q. You've got no information to rule it out either, do you? A. No, I don't. 1. During his cross-examination, Dr Roberts was handed a page of hand written notes that he made in relation to the appellant which had the following words written on it: "causation", "Legionnaires", "moving house", "wife", "children adjusting to new school", "Caroline's fa sick a died Sept '17", "moved for Dillon's dancing studies", "Emily initially w. unhappy". The following exchanges then occurred: NAGLE Q. Line by line from the top, please, sir; what does it say? A. Question mark, "Causation". Q. Thank you, stopping there. In your shorthand, what does that mean? A. Well, I've been handed a page of my clinical notes without any reference to what the previous page said, but-- Q. Thank you? A. --I assume-- Q. No, no, sir. If you can, noting your answer, I'll clarify it for you. Do you use the term question mark "Causation" regularly as part of your clinical assessment of people? A. Yes, I do. Q. Thank you. What does it usually mean? A. It usually means that I'm thinking about what is the timeline of causation, if one's going to postulate the presence of a psychiatric condition. Q. Thank you. Now, next line, please? A. I've written "MBA". With an arrow indicating that it was followed by Legionnaire's in terms of the timeline, followed by moving house, followed by I've written "wife" which refers to the challenges that Mr Johnson's wife was encountering, followed by the "Children adjusting to new school." Then below that I've written "Caroline's father sick and died September 2017. Moved for Dylan's dancing studies. Emily initially very unhappy." Q. Thank you. Going back to question mark "Causation"? A. Mm-hmm. Q. Did you then consider that timeline of events in your report? A. So they're two separate issues. The prospect of causation is inevitably considered where there is a postulated psychiatric condition. The timeline was considered in my report. This timeline was considered, it was also considered in light of the timeline that Mr Johnson subsequently sent me. Q. Thank you. But you reject this timeline as having caused depression? A. (No verbal reply) Q. Do you? A. This doesn't indicate anything with respect to diagnostic conclusion. These are the causative factors that Mr Johnson put forward as impacting on him towards a potential diagnosis. Q. Thank you? A. I didn't form any diagnostic conclusion and then base my question of causation on that. Q. Thank you. Could you rule out that after each of the events that you've referred to on that page that he might have been suffering from some sort of generalised adjustment disorder? A. Can't rule anything out, I can't rule anything out. There was nothing in the information given that would support the conclusion that these conditions produced an adjustment disorder and in considering the presence of an adjustment disorder, we're mandated by DSM-V to consider a normative stress reaction. And I mean, if someone's studying an MBA, they're clearly performing well. And negotiating life's challenges per se does not make a psychiatric diagnosis. These are my handwritten scribbles. There's no conclusions drawn from the information on this page. Q. Thank you. But you can't reject the proposition that the events that are disclosed in that timeline then gave rise to some sort of impact on Mr Johnson's mental condition? A. I made no diagnosis. I could make no diagnosis based on the information presented by Mr Johnson. I couldn't identify either an adjustment disorder, I couldn't identify a major depressive disorder. I could identify a reaction to the circumstances that he ultimately found himself in the workplace. But this is a timeline of life events. Q. Thank you? A. Some significant, some less significant. Q. You couldn't positively rule out either, that he wasn't suffering from depression at the relevant time, could you? A. No, I couldn't rule it out. …………………………….. Q. And just - I may have already asked this, but just to clarify, in your professional opinion you cannot rule out that Mr Johnson was suffering from depression of one form or another for the period 2017/2018, can you? A. I cannot rule it out. Submissions 1. The respondent filed and served extensive written submissions in support of its case that the appeal should be dismissed. I have carefully considered those submissions. 2. Counsel for the appellant made oral submissions on 11 November 2019 in support of the appeal being allowed. At the conclusion of those submissions, the following exchange occurred in relation to section 100D of the Act which gives the Commission power, if it decides to allow a disciplinary appeal, to make orders with respect to payment of salary and continuity of employment: COMMISSIONER: Are you - assuming that, and don't make this assumption, but if the appeal is upheld, are you seeking an order pursuant to s 100D(1)(b), which relates to the Commission's discretion to order the employer to pay the employee an amount stated in the order that doesn't accede the remuneration the employee would, but for the decision of the employer, have received from the employer? NAGLE: Yes, and I say that on this basis. This is not a misconduct case, remembering that of course these proceedings can deal with misconduct and discipline or underperformance. Where the process has led to this and where things could have been done better and differently, and where he was sick at the time, it would be appropriate - I'll put it another way - it wouldn't be inappropriate for you to make such an order. ………………………………… COMMISSIONER: But if I was to form the view, taking everything into account, that Mr Johnson was, to some extent at least, responsible for his lack of improvement, is it open to me to uphold the appeal and not make an order for payment of back pay, for example? NAGLE: Yes. 1. In its final written submissions filed on 20 December 2019, the respondent put the following, which I understand to have been put very much in the alternative to its primary submission that the appeal should be dismissed: No order under Section 100D(1) of the IR Act 66. If the Commission allows the appeal, the Appellant is seeking an order pursuant to section 100D(1)(b) of the IR Act. 67. If contrary to our submissions, the Commission decides to allow the appeal, then no order should be made under 100D(1) of the IR Act because, as outlined above, the Respondent has taken reasonable steps to comply with the requirements of GSE rule 36(1) and section 68 of the GSE Act before terminating the Appellant 68. Specifically, no order should be made requiring the Respondent to pay the Appellant an amount equal to or less than the remuneration he would have received but for being dismissed by his employer. 69. The Appellant has not been performing work for the Respondent since 4 January 2019. An order requiring the Respondent to pay the Appellant for services not performed for such an extended period of time would be particularly harsh given that: (a) the Respondent did not dismiss the Appellant until over 15 months after the commencement of the First Informal PIP; and (b) it is reasonably apparent from his letter dated 9 November 2018, that in making the decision to inform the Appellant that his employment will be terminated (after giving the Appellant the opportunity to resign), Mr Fowler considered that the Managing Unsatisfactory Performance Policy had been appropriately applied and the action he was taking was available to the Respondent under section 68(2) of the GSE Act. Determination 1. In this matter, I have decided to allow the appeal and to set aside the decision made pursuant to section 47(1)(c) of the GSE Act to terminate the employment of the appellant. He is to be reinstated to the classification and rate of pay which he held immediately prior to the termination of his employment, including any pay rate adjustments that have occurred since the termination of his employment. His reinstatement is to take effect from Monday 3 February 2020, which is one year and one month after the effective date of the termination of his employment, 4 January 2019. 2. In coming to this decision, I have accepted that the respondent has properly complied with the relevant provisions of the GSE Act and the GSE Rules in determining that the appellant's performance in his role of Senior Technical Policy Advisor was unsatisfactory. However, there are a number of factors in this case which have led me to the conclusion that the termination of employment of the appellant is too harsh a disciplinary outcome for the demonstrated unsatisfactory performance of the appellant. 3. I accept the appellant's evidence to the effect that he was confused to a certain extent as to what was expected of him generally and specifically during the various performance improvement processes that were undertaken. There appears to have been a lack of clear communication between the appellant and Mr Savage. 4. Further, there is some evidence that the appellant was receiving inconsistent messages from his supervisors as to the role of the EPA. Ms Pickup was of the opinion that the EPA performed a strictly regulatory role. Under cross-examination she gave the following evidence: Q. Jemena is a gas operator? A. Mm-hmm. Q. Jemena wants to upgrade the gasworks? A. No, they want to remediate the site. Q. Or remediate the gas, sorry? A. That's not contaminated from the gasworks, yes. Q. Yes. In order to be able to remediate the site, they have to obtain from a private consultant a report about how it should be done? How the remediation should be effected? A. That's one aspect of how the remediation should be done and then they need to do assessments, various impact assessments, air, water, noise of undertaking the remediation process. Q. Thank you. And their reports in relation to air, for example, are then sent to the air team at EPA for comment? A. They're sent to the consent authority. The consent authority then sends it to the officer who is responsible in the local area for - in this case it's North Branch, and then the North Branch chooses to send it to the air branch or not for comment. So, it comes through our regional officers in North Branch, South and West Branch, Metro. Q. Thank you. So, you're sent that, by "you" I mean the air branch, ends up being sent the environmental impact statement that's prepared by GHD Pty Limited on behalf of Jemena? A. Yes. Q. Then you have to look at the environmental impact statement to see if it aligns with the regulatory criteria? A. And framework, yes. Q. And framework, yes? A. Yes. Q. If it doesn't align, it's not for you to tell them how to make it align, is it? A. No, no. Q. Because you're there as the compliance authority, you are not there to essentially tell private industry, to be the regulator of private industry by telling them precisely how they should do things? A. Yes. Q. And that's how the regulator operates? A. That's right, yes. Q. Because otherwise, if you start straying into the realm of telling private operators what they need to do to be compliant every single time, as opposed to whether they are complaint, you'll just get completely bogged down and get nothing done, is that right? A. It's - well, yeah, we don't' want to be telling someone how to manage their site. It's up to them to - if we're talking about actual operational facility - manage their site. It's up to them as to how to manage the site. We just advise them of the outcomes that they need to achieve. Q. Thank you. Because otherwise the regulator can step into the realm of potential conflict? A. Yeah, absolutely, you can't regulate if you are advising them on how to meet the outcomes. 1. However, Mr Savage stated that the EPA had a dual role as a regulator and as a provider of guidance and information to the regulated community. He gave the following evidence under cross-examination: Q. We'll start from the beginning. The EPA's the regulator, yes? A. The EPA is a regulator, yes. Q. In doing its regulatory function, it decides whether things are compliant or not compliant, agree? A. That's one of its functions, yes. Q. In determining whether compliance has been met or not met, it is inappropriate for the EPA to tell private industry everything it needed to do to be compliant? A. No, I'd suggest it's entirely appropriate for the EPA to collaborate with the stakeholders it has, including those that it regulates. And that means working with them, to make sure that they can provide adequate information. Q. Do you accept providing adequate information is different from how, for example, a process will be undertaken when a licence is sought? A. I mean, I get the - I'll answer your question but I get the impression we're sort of wading into territory around what the function of the EPA is. If that's indeed what we're doing, then the function of the EPA is to discharge the legislation. So, that would be the POEO Act (Protection of the Environment Operations Act 1997) and the objects contained within it. I mean, I'm just a little lost as to why, in doing that, why that means we can't provide guidance on the provision of information to the regulated community. Q. Do you think it's the EPA's job to tell the regulated community how to comply with the law, as opposed to whether they've complied or not? A. I think it's the EPA's job to do both. Indeed, if you look at the EPA's charter, it talks about leader partner protector. …………………………….. Q. You wanted him to go and type in what's in the BOMP (Bitumen Odour Management Plan) rather than just referring to it did you? A. No. I wanted him to outline typical elements which we would expect to see in a plan, not transpose things from this document. So things like, you know, key performance indicators, monitoring methods, location, duration and frequency of monitoring, response, review, etcetera, and these are standard words that our team uses that Mr Johnson had access to. Q. He was the regulator there to check whether things comply or not rather than to go and give direction to industry about how you expect them to do these things? A. As we discussed yesterday morning, no afternoon, I apologise, we have a dual role, we do both. Q. What if I suggested to you that Ms Pickup was given evidence in these proceedings that the job of the regulator is to check compliance as opposed to guiding people about how they should be complying? A. I thought that would be her evidence. Q. Yes. Do you agree or disagree with that as a proposition? A. I agree that we have a role to check compliance. I also agree that we have a role to partner with those who we regulate to ensure that information is provided in an efficient way to ensure compliance. I stand by my original evidence which is we have a dual role. 1. These conflicting opinions between the appellant's supervisors as to the essential role and function of the EPA were likely to have created confusion in the mind of the appellant when he was attempting to perform his advice work to the satisfaction of those supervisors. 2. I do not accept the appellant's claim that Mr Savage's Supervisor's Report was biased against him (paragraphs 129-136 of the appellant's witness statement at [68] above). I do accept that Mr Savage fairly identified serious shortcomings in much of the advice work performed by the appellant. However, there is evidence that some of the criticism made of the appellant's work, particularly by Ms Pickup, was misguided or verged on "nit picking" (see [55]-[61] above). 3. More importantly, I accept the evidence of Dr Teoh at [77] to the effect that the appellant's work performance in 2017 and 2018 was, to some extent at least, impacted upon by the condition of Major Depression suffered by him which was precipitated by the Legionnaires' disease which he contracted in March 2016. According to Dr Teoh, the decline in the appellant's work performance was caused by significant mood symptoms with irritable and depressed mood, associated with poor concentration. 4. In accepting Dr Teoh's evidence, I note a number of the concessions properly made under cross-examination by Dr Roberts, who had formed a different opinion to that of Dr Teoh (at [82]-[83]). 5. However, while I accept that the appellant's mental health status in 2017 and 2018 was a contributing factor to his unsatisfactory performance, it cannot be relied upon by the appellant to totally exonerate him for what were found to be serious shortcomings in his work during this period. The comments made by the appellant himself on his Performance, Development and Feedback Plan document for the period 1 July 2016 to 30 June 2017 demonstrate that he was well aware, at that time, that his performance was less than satisfactory (at [44]). The respondent was entitled to expect that the appellant should have been much more proactive in having his mental health issues properly diagnosed and treated in a more timely manner. 6. For this reason, and in light of the exchange with counsel for the appellant (at [85]) and the submissions of the respondent (at [86]), I have decided to exercise my discretion to not make any order pursuant to section 100D of the Act for payment of salary forgone by the appellant since the termination of his employment with effect from 4 January 2019. 7. If it is determined by the respondent that the appellant should undergo a further Performance Improvement Plan, I strongly recommend that it be conducted by someone other than Mr Savage given the apparent communication difficulties between him and the appellant which have hampered previous improvement processes. I also strongly recommend that, for the duration of any further performance improvement process, the appellant have a peer assigned to act as his mentor to assist him to achieve a level of satisfactory performance. Orders 1. I make the following orders: (1) The disciplinary appeal by Michael Johnson is allowed. (2) The decision to terminate the employment of Mr Johnson with the respondent with effect from 4 January 2019 is set aside. (3) Mr Johnson is to be reinstated to the classification and rate of pay which he held immediately prior to the termination of his employment, including any pay rate adjustments that have occurred since the termination of his employment. (4) Order (3) is to take effect on and from Monday, 3 February 2020. (5) No order is made for the payment to Mr Johnson of salary forgone between 4 January 2019 and 3 February 2020 and that period is not to count as service for any purpose. (6) Despite Order (5), the employment of Mr Johnson is taken not to have been broken by the decision which is the subject of Order (2). John Murphy 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: 15 January 2020