Industrial Relations Commission New South Wales Medium Neutral Citation: Narayan v Industrial Relations Secretary on behalf of the Department of Communities and Justice, Corrective Services NSW [2020] NSWIRComm 1014 Hearing dates: 22 January 2020. Written submissions filed 23, 29 and 31 January 2020 Date of orders: 03 March 2020 Decision date: 03 March 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – Sentence Administration Officer - concerns about applicant's attendance and work performance – applicant diagnosed with type 1 diabetes – Performance Improvement Plan – allegations of bullying and harassment – claim that dismissal was due to sick leave record not unsatisfactory work performance Legislation Cited: Government Sector Employment Act 2013 Category: Principal judgment Parties: Navindra Narayan (Applicant) Industrial Relations Secretary on behalf of the Department of Communities and Justice, Corrective Services NSW (Respondent) Representation: Applicant in person Ms A Perigo of counsel (Respondent) File Number(s): 2019/00280820 DECISION 1. At the time of the termination of his employment, the applicant, Navindra (Jim) Narayan, was employed as a Sentence Administration Officer, Clerk Grade 3/4, in the State Sentence Administration business unit ("SSA") within Corrective Services NSW ("CSNSW") at the John Moroney Correctional Complex ("JMCC"), Windsor. 2. On 2 September 2019, David Huskins, Director, Statewide Administration of Sentences and Orders, wrote to the applicant and advised him that he, Mr Huskins, had decided to terminate the employment of the applicant, after giving him the opportunity to resign. 3. On 4 September 2019, the applicant filed the unfair dismissal application which is the subject of this decision. 4. The applicant did not resign and his employment was terminated with effect from 13 September 2019. Background 1. The applicant commenced employment with CSNSW in August 2011 as an Administrative Assistant at the Long Bay Correctional Complex. In September 2012 he was seconded to the Silverwater Correctional Complex. 2. From January 2015 until September 2018, the applicant worked as a Court Officer at the Office of the Sheriff, NSW. In September 2018, the applicant re-joined CSNSW as a Sentence Administration Officer at the Silverwater Correctional Complex. He was transferred to JMCC in January 2019. The applicant's immediate supervisor at JMCC was Brooke Cummings, Cluster Manager. 3. On 22 February 2019, Mr Huskins wrote to the applicant expressing his concerns about the applicant's attendance and commitment in performing the work expected of him in his role. The applicant was directed to attend a meeting with his managers to discuss the implementation of a Performance Improvement Plan ("PIP"). 4. Mr Huskins met with the applicant on 8 March 2019 and discussed his absenteeism, work performance and outbursts by him in the workplace. The applicant explained that he had been diagnosed with type 1 diabetes and his medication with this had been erratic, but that his General Practitioner and he were close to having this settled. 5. After meeting with the applicant, Mr Huskins wrote to him on 15 March 2019 and advised him that the PIP would proceed. 6. The applicant underwent a medical assessment by Dr Peter Cook of Sonic Health Plus on 5 April 2019. An email dated 11 April 2019 from Reginald Pangilian, A/HR Advisor – Injury Management, CSNSW, to Mr Huskins and Kelly Farrell, South West Regional Manager, SSA, contained the following: Good Morning David and Kelly, Sonic Health Plus have provided Dr Peter Cook's report following his assessment of Mr Jim Narayan. Please see overview of the outcome of the assessment below: - Dr Cook has confirmed that Mr Narayan's persisting medical problem are likely to have an impact on his work for several months--affecting his concentration and attention--and it is likely he will require intermittent sick leave. - Dr Cook has recommended that Mr Narayan avoid more complex tasks if he is having difficulty with these tasks. - Dr Cook has advised that it is likely to be several months before Mr Narayan's temporary medical problems improve­-subsequently management of his permanent condition is expected to improve. - Dr Cook has provided his opinion that overall, Mr Narayan is fit for the inherent requirements and demands of his role as a Sentence Administration Officer. - Dr Cook has advised if ongoing workplace difficulties continue, a review in 4 months would be reasonable. The report has been released directly to Mr Narayan as per Dr Cook's instructions. The full report of Dr Cook was not tendered into evidence. 1. On 5 July 2019, the applicant had a medical appointment in the morning and was due to go to work after that appointment but, for reasons which are expanded upon later in this decision, he did not attend work on that day. During the afternoon of that day, Mr Huskins had a telephone conversation with the applicant's mother during which she claimed that the applicant had not been treated properly by CSNSW and had been bullied and harassed at his workplace and that "Kelly and Brooke do not speak nicely to him". According to a file note made by Mr Huskins after the telephone conversation, the applicant's mother said that she "will tell him he must go to work no matter how well he is - she will tell him this, even if he is not fit to drive… she will tell him he must go to work no matter what, he will have an accident and die and she will blame me [Mr Huskins] and she will make a claim against the department". 2. On 6 July 2019, the applicant advised Ms Cummings and Ms Farrell that he had cancelled all future medical appointments because he had no paid sick leave or recreation leave and he had significant financial commitments. He also advised them that he had postponed scheduled surgery. 3. Mr Huskins wrote to the applicant on 10 July 2019 and referred to the telephone conversation between himself and the applicant's mother that occurred on 5 July and to the applicant's statement to his managers on 6 July that he had cancelled all future medical appointments. Mr Huskins strongly urged the applicant to reconsider this decision. 4. Mr Huskins again wrote to the applicant on 16 August 2019 and set out the following absences due to sickness that he had taken during 2019: January 5 x sick leave February 4 x sick leave March 8 x sick leave April 12 x sick leave May 7 x sick leave June 3 x sick leave July 6 x sick leave August 4 x sick leave 1. Mr Huskins also listed a number of "key interventions, workplace adjustments and performance issues" had been raised and discussed with the applicant since February 2019. Mr Huskins stated that he was considering taking action under sections 47 and 68 of the Government Sector Employment Act 2013 to terminate the employment of the applicant, after giving him an opportunity to resign. The applicant was given 14 days to respond and provide any additional information which he considered should be taken into account in relation to the action being considered before a final decision was made. 2. The applicant met with Mr Huskins on 27 August 2019 and provided him with a document in which he complained about the toxic atmosphere at the workplace and the tension that existed between himself and his supervisor, Ms Cummings, and the impact this had had on his health and work performance. He requested that he be transferred to Fleet Services at CSNSW "for my safety and health so that I continue to perform my duties appropriately instead of being petrified of my managers at Windsor Complex". 3. On 2 September 2019, Mr Huskins wrote the letter to the applicant which is referred to at [2] above. This letter also contained a detailed response from Mr Huskins to the matters raised with him by the applicant on 27 August 2019. Case for the applicant 1. In his witness statement, the applicant claimed that he had complained to Mr Huskins in July 2019 that he was being harassed and bullied by Ms Cummings and Ms Farrell. These two managers regularly worked together to manage the performance of SSA employees at JMCC. Ms Farrell, who gave evidence in the proceedings, denied this claim. 2. The applicant claimed that, within a month of raising this complaint with Mr Huskins, he received the letter of 16 August 2019 about his work performance. He further claimed that he was dismissed due to his sick leave record, not his work performance. 3. With respect to his claim that he had been harassed and bullied by his managers, the applicant stated: 6. Bullying behaviour from Ms Kelly Farrell and Ms Brooke Cummings ranged from obvious verbal to subtle psychological abuse. It includes as per below: i. Yelling and screaming - different tone of voice whilst talking to me - Friday- 5/7/19: When I said, I will have blood test and will be15 minutes late - Kelly screamed over the phone and said "this is the last time I am letting you do this". ii. Excluding or isolating me(Navindra Narayan) - stating to me that I should not be talking to the other staff about my problems and issues, e.g health. iii. Psychological harassment - I am being told by Ms Kelly Farrell and Ms Brooke Cummings not to discuss my issue, with staff at work. Either work or personal, I should be keeping to myself all the times, whilst I am at work. iv. Ms Kelly Farrell and Ms Brooke Cummings humiliated me in front of other staff in the office with belittling comments. v. Intimidation and denigration - applying pressure to me due to my health issues, e.g: if I am not able to perform my duties due to my health, as I am taking sick leave, I will be terminated and it did happen. vi. Deliberately changed work rosters to inconvenience me - (Navindra Narayan). Moved me from Silverwater Complex to Windsor Complex. At Silverwater Complex, I was on shift work, I was able to attend my medical appointment without taking sick leave. E.g. I will have medical appointments scheduled in the morning and start my shift at 2.00pm till 10.00pm. vii. Since I have been diagnosed with medical condition, I experienced bullying and intimidation at a much higher rate than the broader workforce employee. viii. Undermining my work performance by deliberately withholding information vital for effective work performance. Subtle ways to undermine my work. ix. I was given misleading and ambiguous information "gas­ lighted" e.g: that I am doing well and have improved by Ms Brooke Cummings; but this was not recorded in my personnel file. x. My personnel file states that I am not performing well - contradictory to what I was told at the meeting/supervision. xi. Not enough information provided to do my work. xii. I will not be trained efficiently or training was scheduled when I was off sick. xiii. I will be ignored when I ask questions, as if I don't exist and it is what constitutes bullying on the part of me experiencing it. 1. At the meeting with Mr Huskins on 27 August 2019, the applicant provided Mr Huskins with a document which contained the following: My submission in response to your letter dated: 10 July 2019 & 19 August 2019 1. My work story summarised 2. The way I've been treated 3. My past workforce History 4. My health My time and role as Sentence Admin with Corrective Service NSW I started to work in Silverwater in September 2018 with no training nor any access to the Department system. The limited training that I received was very poor or non-existing. At this point in time I was newly diagnosed with Diabetes Type 1. Back then I was on 18 units of Lantus (long lasting insulin) and on pain relief medication for submandibular gland. The amount of insulin I was on was more than my body needed - (double). At this stage, my Health Professionals were still trying to see what level I needed to alleviate my health issues. My blood sugar would drop to dangerous levels, due to the insulin being more than my body could handle. Also, I had a submandibular gland(stone) in my jaws at this time. It made it very hard to eat or to communicate(talk) due intense pain. I had the surgery done in November 2018 and then about 3 days after I contracted Staphylococcus. I went to hospital and while I was waiting to be seen by the Specialist it had burst open. I went back into surgery and this time it was successful. Windsor Complex I was transferred from Silverwater to Windsor Complex. I received training From Brooke Cummings. As time went on, the atmosphere was getting toxic and was causing me a lot of problems/issues. Staff would notice that when Brooke and I were in the same room the environment would become very tense. This caused a lot of problems with my health, due to this my blood sugar would go high (Hyper) and drop to dangerous levels (Hypo). Due to my health(I became sick - NOT THAT I CHOSE TO BE SICK) - I became a victim at work, Kelly and Brooke humiliated me in front of other staff and I cried most of time at work. Here are some symptoms Hypo • Shaking, trembling or weakness • Sweating • Paleness • Hunger • Light headedness • Headache • Dizziness • Pins and needles around mouth • Confusion • Slurred speech • Not able to treat own hypo • Not able to drink or swallow • Not able to follow instructions • Loss of consciousness • Fitting/seizures/coma Hyper • Increased thirst • Headaches • Trouble concentrating • Blurred vision • Frequent peeing • Fatigue (weak, tired feeling) • Weight loss • Slow-healing cuts and sores • Worse vision • Nerve damage to all parts of the body, causing painful cold or insensitive feet, loss of hair on the lower extremities, or erectile dysfunction • Stomach and intestinal problems such as chronic constipation or diarrhoea • Damage to your eyes, blood vessels, or kidneys My body is unaware to this and I don't know what happens. I have told all my managers to please look it up(research) so they can understand it better and have more knowledge about it my medical issues. Everyone/staff I have asked has replied to the words effect of 'I know someone that has it'. As time progressed the work environment became extremely toxic for me work. This type of environment has an impact on my health and mind. Due to this I kept on having infections in my jaw (stone). Also, my mental health was taking a turn for depression. This in-turn made it harder to control my sugar levels. This caused me to eat less due to immense pain in the jaw and lack of hunger due to mental health. I stopped being social and going out with family and friends. As a result, I had to force myself through the pain and sometimes the pain was unbearable so I had to stop eating My last appointment - with Health Professionals- Endocrine 5.07.2019 - I went to Endocrine and I was given a blood test slip for that day. The blood test place was next door to where I was for my medical appointment. I thought I should call to let work know I might be 10-15 minutes late. I called up work phone and Kalean answered the phone call. I said, can I please let someone know that I might be a little late. Also I said, I don't want to speak to Brooke Cummings or Kelly Farrell. The reason behind that was, I had developed fear and was terrified by them as they have been belittling me and talking over me in a threating manner. Every time I enter the workplace I am petrified and sad, as to how I am being treated by Brooke and Kelly. Anyway, my phone call was transferred to Kelly and I explained to Kelly that I will be late as I am having blood test and will be at work shortly but am prepared to stay late. Thus, my fear and being terrified of Kelly became a reality. Kelly screamed at me over the phone and said "this is the last time we letting you do this". I went home in tears, my mum made me call David Huskins. After a conversation with my mum I decided to cancel all my future appointments so this would never happen again and this will keep my managers/supervisor Kelly Farrell and Brooke Cummings happy as I am not to attend any of my medical appointments. This is the reason I had cancelled all my appointments. Despite raising the issue of being harass and bullied by Brooke and Kelly to David Huskins - Nothing has been done about this issue and Corrective Services failed to provide appropriate and reasonable working environment; therefore; intimidation and belittling continued by Kelly Farrell and Brooke Cummings towards me and is affecting my health. Department of Corrective Service - Injury Management Injury Management has referred me to see Independent Medical Assessment Centre in Parramatta on 5 April 2019. Despite Health Professional stating very clearly in the report that: "His medical problems are persisting and are likely to continue to have some impact on his work for several months. It is likely he will continue to require intermittent sick leave. There may also continue to be some effect on his concentration and attention. This may continue to have some impact on his performance. He is fit to continue any duties that he is able to satisfactorily complete. If the difficulties with concentration and attention are such that there are some more complex tasks which he is having substantial difficulty with, then he may need to temporarily avoid these tasks until his condition has improved. He needs to always check his sugars before driving and repeat this if he is driving for prolonged periods of time. He needs to always carry food with him. It is unlike that he salivary gland problem will fully resolve and that this will then improve the difficulties he is having with diabetes. Therefore; his condition is not currently permanent. While diabetes is a permanent condition it is likely that his management of will improve in time". After Dr Cook, Occupational and Environmental Physician Assessment dated 5 April 2019 - as per above, Kelly Farrell and Brooke Cumings failed to provide reasonable measures for me to work at Windsor Complex as Sentence Admin. My medical Assessment was sent through to Mr Reginald Pangilinan, HR Advisor, Injury Management, Health and Safety Corrective Services NSW but still I am a victim due to my health. Recommendation: 1. I, Navindra (Jim) Narayan, be transferred to Fleet Services at Corrective Services for my safety and health so that I continue to perform my duties appropriately instead of being petrified of my managers at Windsor Complex. 1. In his witness statement, the applicant responded to the letters from Mr Huskins of 16 August and 2 and 22 September 2019 and claimed that his medical issues had been the cause of the concerns about his work performance. 2. Further, the applicant claimed that he had been subjected to discrimination by CSNSW: 20. 'Direct' Discrimination I have experienced direct discrimination due to my medical condition which means that I have been treated less, favourably than my colleagues in the same or similar circumstances, belittling and humiliating comments by M, Brook Cummings and Ms Kelly Farrell: i. I was not introduced to new staff/employees, whilst managers will introduce new staff to all other employees in the office. ii. My team/unit went to visit/tour - Dillwynia Correctional Complex - I was told to stay back in office and was not included. Deliberately excluding me from work-related activities. iii. Why am I being excluded from the above at my workplace? Can this be articulated in full. iv. Ms Brooke Cummings and Ms Kelly Farrell will make me cry in meeting - due to my health condition. I felt intimidated and upset during meeting/supervision with them because of how I was spoken to by Ms Kelly Farrell and Ms Brooke Cummings in a belittling and humiliating, manner - different tone of voice. How can I provide evidence for tone of voice? 21. 'Indirect' Discrimination I have experienced indirect discrimination, as Ms Brooke Cummings and Ms Kelly Farrell imposed an unreasonable requirement or condition that on the face of it appears to operate the same way for everybody but has the effect of disadvantaging me because of my medical condition. i. New staff/recruits were allowed for secondment but I was not considered for any secondments in another area of Corrective Services NSW. ii. Nor given an opportunity to do other roles/duties under different manager. iii. Department of Communities and Justice, Corrective Services NSW say and advertise on the website that they are open to employing people with disabilities, but did not provide an appropriate access or opportunities to me despite me having disability/impairment. Misleading information. 22. Discrimination Act. i. Illnesses do not need to be permanent to be covered by the definition of disability. ii. The Act makes it against the law to discriminate against a person because of their medical/health condition. iii. lt seems when I raised an issue in the workplace - received a dismissal letter stating my work performance despite medical issues and Health Professional clearly stating in the medical assessment that: "also continue to be some effect on his concentration and attention. This may continue to have some impact on his performance. He is fit to continue any duties that he is able to satisfactorily complete. If the difficulties with concentration and attention are such that there are some more complex tasks which he is having substantial difficulty with, then he may need to temporarily avoid these tasks until his condition has improved… iv. NSW Corrective Services clearly did not pay any attention to my medical assessment from Dr P Cook. v. I asked to be transferred to Fleet Services but was notified there is no job. 23. According to Diabetes Australia "diabetes is a disability - Type 1 and type 2 diabetes are considered disabilities and are protected attributes under the State and Federal Acts… i. Diabetes Australia facts on Hypoglycaemia and Hyperglycaemia and how the body reacts to it and its symptoms… 24. According to Australian Human Rights Commission - Diabetes is classified as disability/impairment. 25. I am being discriminated for my medical/health issues and terminated on work performance, despite medical professionals stating otherwise in the medical report. i. I had not been given an option to do another role/job at Department of Communities and Justice but given dismissal letter, despite requesting to do other duties/job like other staff do. ii. NSW Department of Communities and Justice is such a large NSW state government department, but yet Corrective Services NSW is not able to accommodate me to do another role/job due to my medical/health condition as per Health Professionals assessment. iii. I am an ongoing/permanent staff. As I got sick Department of Communities and Justice (Corrective Services NSW) has given me a dismissal letter instead of providing a suitable role/job accordingly. iv. Corrective Services NSW did not consider - that due to my health I should be transferred to another role instead of terminating me due to work performance. v. Dr Cook's assessment stated: "Review in four month would be reasonable" - BUT Corrective Services NSW did not send me for another independent medical review. "Duty of care" was not considered in my case. vi. Other staff who are sick are not being treated the same way as I am being treated - is it because I look different and am not allowed to work or live? vii. I have been in workforce since August 2011 and should be allocated different role as per my ability – I am sick with permanent disability - I suppose that is not counted, look different and I got sick - I am not a human being. viii. 8 years of being in the workforce with good referee reports clearly states that I am capable of doing my work. ix. Maybe, if there were a change of management would have been a different scenario and not a biased outcome. x. NSW public service employees do not own a position therefore; can be easily transferred to another role within the Department as per their ability to do the role and be trained accordingly. 26. The Federal Disability Discrimination Act 1992 states: Prohibits discrimination against someone with a disability in workplace, prohibits harassment because of a disability e.g. making humiliating/degrading remarks are against the law in employment environment. 27. My Medical History i. On 10/062018 - I was admitted at Liverpool Hospital in Emergency Department. It was then - that I was diagnosed with my current medical condition. ii. I was admitted on Sunday, but on Monday morning I called to notify my manager at Silverwater Complex that I am admitted at Liverpool Hospital and hence will not be a work. iii. I had to take unplanned sick leave. I can not come to work if I am admitted in the hospital… iv. 30/10/2018 - I was admitted at Liverpool Hospital for submandibular surgery, this was planned surgery and Corrective Services was notified (this was planned sick leave). I can not come to work if I am admitted in the hospital… v. 04/12/2018 - I was once again admitted at Liverpool Hospital for rectification of previous submandibular surgery in October 2018. vi. I was taken to Liverpool Emergency Department at 1.00am and was admitted for rectification surgery. vii. I called my work at Silverwater Complex and notified my supervisor that I will not be at work as I am admitted in the hospital for a rectification surgery on Monday morning. viii. Once again, I had to take unplanned sick leave, I can not come to work if I am admitted in the hospital… 28. NSW Department of Justice – Corrective Service, NSW - Disability Inclusion Action Plan 2015 - 2018 I will draw your attention to NSW Department of Justice Disability Inclusion Action Plan 2015 - 2018 Summary together with Disability Inclusion Action Plan 2015 – 2018… 3. Employment The aim of this focus area is to: - Increase the recruitment of people with disability - Increase representation of people with disability in the Department - Create an inclusive workplace that supports and values the contributions of staff with disability. Actions include: • Review current recruitment processes to ensure they support inclusion and are non-discriminatory. • Develop and integrate disability awareness into hiring manager training courses delivered to staff that are involved in recruitment • Promote membership of the Staff with Disability Network • Encourage staff with disability to participate in internal and external leadership programs. 29. Disability Inclusion Action Plan 2015 - 2018 I will also draw your attention to 6.3 Outcome 3 - Employment from pages 4 to 31. Please refer to attached documents of NSW Department of Justice Disability Inclusion Action Plan 2015 - 2018 Summary together with Disability Inclusion Action Plan 2015 - 2018. 1. NSW Corrective Services has and is advertising - NSW Department of Justice Disability Inclusion Action Plan 2015 - 2018 Summary together with Disability Inclusion Action Plan 2015 - 2018 on their website but have failed to ensure that their employee (Navindra Narayan) be included according to the Plan designed as per above. Contradictory to what is being advertised. 1. The applicant also relied upon a statement by Dr V Maheswaran dated 7 January 2020 which stated that the applicant had been admitted to Liverpool hospital on 14 July 2018 with an infected right sub-mandibular salivary gland. A CT scan revealed multiple stones in the right salivary gland. The applicant was incidentally diagnosed with type 1 diabetes during his stay in hospital. He had multiple hospital admissions for irregular insulin levels and for surgery for right sub-mandibular calculus and abscess. He was attending Liverpool Hospital Diabetes and Endocrine clinic for his diabetic management and check-ups. Case for the respondent 1. Evidence was given on behalf of the respondent, the Industrial Relations Secretary on behalf of the Department of Communities and Justice, Corrective Services NSW, by Mr Huskins and Ms Farrell. Mr Huskins' witness statement contained the following: 16. The work performed by SSA staff is often time critical. Sentencing and crime Legislation hinge on dates (for sentence expiry and release for example). Appearances ordered by a court must be facilitated when, where and how the court orders, or we are in contempt of court. 17. The SSA business unit is very mature, has well documented processes and procedures, and staff with in-depth knowledge of the work. A procedures and training team administers our procedures, and assists with training new staff. The work performed by SSA staff is almost identical at every site, and needs to be, because staff can then relieve at other sites, and when an inmate is transferred, the new site knows what has been done at the last site. 18. Inmate records include the OIMS electronic record and a paper Warrant file for every inmate. The Warrant file follows the inmate when they transfer to another correctional centre and contains a copy of CSNSWs authority to hold a person in custody. 19. Task Lists contain a list of exactly what work individual staff are to perform each day, and these refer to detailed procedures for each task. Each staff member on duty is given a task list so they know the work they are to perform. 20. SSA work, akin to all Administrative functions and responsibilities, requires accuracy and attention to detail. Errors in this work affect people adversely, including adverse impact on the reputation of CSNSW, Government and the Justice System. Monetary penalties can apply to the correctional centre operator where it is found they have breached policy or are negligent, compensation may be paid to parties held in custody unlawfully, and community safety can be at risk if an inmate is released sooner that they should be released. 21. Notwithstanding the importance of the work, when our systems and processes are followed, errors very rarely occur, and when they do, a review is performed to improve controls or improve policy. 22. The work is classified at a grade and rate of pay in accordance with other Administrative roles in Communities & Justice and the Public Sector. Annual Performance Agreements, Development plans and regular performance reviews are tools implemented under The Government Sector Employment Award 2013, and a feature of employment in today's public sector. Employment of Navindra (Jim) Narayan, the Applicant 23. The Applicant was recruited into CSNSW through a competitive merit selection process, and commenced on 3 September 2018. This was a promotion for the Applicant and he commenced work in the SSA Silverwater Complex unit, into a shiftworking role, as a Sentence Administration Officer Clerk Grade 3/4. 24. It usually takes about two months for an external employee to become proficient, and the Applicant having previous experience with CSNSW and more recently the Courts, was well placed to be proficient in a short period of time. 25. The Applicant made very little progress in learning the requirements of the new role. Other new staff commenced at the same time, and despite individual training being provided by our training staff, in addition to training and support of his peers, the Applicant did not progress to more complex tasks, which are at the core of the role, its grading and rate of pay. 26. The Ellipse leave system records indicate the Applicant had been absent from work on 27 occasions due to sick leave between 3 September 2018 and 3 January 2019. 24 occasions with medical certificate and 3 occasions without medical certificate. 27. At that time, the Applicant was content performing very low level tasks and had not demonstrated progress. More flexibility was needed to support short notice workplace absences, therefore he was consulted about a temporary transfer to the John Moroney Correctional Complex (JMC) at Windsor. The distance from the Applicant's place of work to home did not add additional travel time to the Applicant's journey to work, SSA at JMC did not work shiftwork and did not have the same high volume of work as Silverwater which would allow more time for the Applicant to progress into the role. JMC staff work flex time, providing 6 moveable flex days off every 12 weeks (including part days) instead of fixed 3 fixed RDOs every 12 weeks under shiftwork, which was considered would be more beneficial to the Applicant in managing his non-work commitments and requirements. 28. The Applicant agreed to the transfer and commenced work at the JMC on 7 January 2019. The Applicant did not fill a vacant position and was placed in Sentencing Administration as an above establishment employee. This would provide ample opportunity for the Applicant to be trained and supported, being above the staffing establishment needed to perform the work at JMC. 29. The Applicant reported to Ms Brooke Cummings, Cluster Manager and Ms Kelly Farrell, Regional Manager. 30. Ms Cummings and Ms Farrell are both located at JMC. Both Ms Cummings and Ms Farrell have responsibility for the management of the work and staff in the SSA unit at JMC (and other locations). 31. During the Applicant's employment at JMC, I had regular discussions with Ms Farrell regarding the Applicant's progress and performance at work. The extent of discussions was the same as had occurred with other staff whose performance was of concern. 32. A count of the number of times managers in the SSA business unit or I had consulted with staff regarding their wellbeing and/or performance, and then transferred them to other locations, identified that nine staff were moved in the last four years, including one person being moved two times. The Applicant's Performance 33. Following discussions with Ms Farrell and Ms Cummings, I was concerned ·with respect to the Applicant's performance and attendance. I wrote to the Applicant by letter dated 22 February 2019 outlining my concerns and advising the Applicant that Ms Farrell and Ms Cummings were to meet with him at my direction to review his performance and implement a Performance Improvement Plan (PIP)… 34. I met with the Applicant on Friday, 8 March 2019 at the Applicant's request to discuss my letter of 22 February 2019. I took notes of the meeting… 35. At around the same time as I wrote the letter of 22 February 2019, assistance was sought from CSNSW's Injury Management Unit, when the Applicant emphasised he had Diabetes, however, had not supplied a copy of the diagnosis from a Specialist or Practitioner, and the Applicant advised he had verbally advised of this diagnosis to his employer. I mentioned to the Applicant that I would refer this to CSNSWs non-compensable Injury Management team for assistance. 36. Mr Reginald Pangilinan, A/Human Resources Advisor Injury Management, Work Health & Safety, had made a request to the Applicant's treating doctor and to Liverpool Hospital to assist CSNSW with further reasonable adjustments that may have been necessary to assist the Applicant. 37. I wrote to the Applicant on 15 March 2019 and referred to our discussions on 8 March 2019 and email exchanges during that week. The Applicant denied several behaviours, however, these were evidenced in the workplace. The Applicant sought separation of Sick leave, recreation leave and flex leave, and this was agreed to. The Applicant was advised the PIP was to proceed... 38. Mr Pangailinan arranged an independent medical assessment with Sonic Health. On 5 April 2019, the Applicant attended an independent medical assessment. I received an email from the Injury Management Unit on 11 April 2019 setting out the outcome of the medical assessment… 39. I discussed the outcome of the medical assessment with Mr Pangailinan and Ms Farrell. The full report was not provided to Management, therefore I relied upon the email outcome advice. 40. Following receipt of the recommendations, the following adjustments were made to assist the Applicant in performing his role: (a) The Applicant had continued access to sick leave as required and in accordance with his entitlements; (b) While the applicant was on a Medical Certificate requirement for all absences due to sickness, this was relaxed; (c) The Applicant was permitted to use his recreation leave at short notice to cover absences of this nature; (d) The Applicant had access to flexible working arrangements, to support appointments and treatment; (e) Leave that had been marked as unauthorised was converted to flex leave or recreation leave; (f) The Applicant given self-paced learning of less complex tasks and more complex tasks in accordance with his capacity on the day; (g) The Applicant was given further training and retraining. 41. On 5 July 2019, I received a telephone call from the Applicant. He told me that his mother would like to speak to me. I then had a conversation with the Applicant's mother. I made notes of the conversation… 42. On 10 July 2019, I sent a letter to the Applicant following the conversation I had with his mother on 5 July 2019. I said in the letter that I wanted to raise a number of concerns with him and invited him to provide a response or meet with me if he wished to do so. I pointed out areas in my phone conversation with the Applicant's mother were incorrect, including her raising for the first time the Applicant being bullied (referring to discussions initiated by Management). I was concerned the Applicant's mother told the Applicant to come to work regardless of his capacity to drive or fitness for duty. I also raised in the letter significant concern I had received from local management that the Applicant had cancelled all future medical appointments as he had no paid sick leave or recreation leave available. I advised the Applicant that local management will work with him to arrange for flex leave to be used for appointments, as they had in the past. I asked the applicant to reconsider his decision regarding treatment. I advised the Applicant that I will again refer the matter to the injury management team and reminded him of the availability of the Employee Assistance Scheme… 43. In particular, in my letter, emphasis was given to the Applicant's mother alleging bullying behaviour, including a published excerpt of what constitutes bullying behaviour. I did not consider discussions with Management conducted in a professional and understanding manner constituted bullying behaviour. 44. The Applicant and the Applicants mother did not respond to my offer to meet. 45. In August 2019, I decided to send a further letter to the Applicant regarding his performance. 46. Prior to making this decision, I took advice from CSNSW's Injury Management Unit. While a further independent medical assessment was considered, the Applicant had been previously found fit to perform his duties. CSNSW had also implemented the recommendations made as a result of the previous assessment. Constant performance management and coaching were taking place at the workplace, however, the Applicant continued to make mistakes in his work, deferred to and was content with low level tasks and his performance did not improve. The Director of Human Resources and Injury Management did not recommend a further medical assessment. 47. Also prior to sending the letter, ongoing discussions were held with Ms Farrell regarding the Applicant's performance. I was concerned the Applicant had not improved as generally it takes approximately two months for a new employee to be able to perform the tasks required of a Sentence Administration Officer. The Applicant had been employed in that role since 3 September 2018. I was of the view that the mistakes the Applicant was making in his work and lack of care and regard had serious consequences and that he was not performing tasks that formed a fundamental part of his responsibilities as a Sentence Administration Officer. Moreover, his ambivalence toward the level of accuracy needed and pride in his work were lacking, certainly not at the standard needed of an Administrative Officer in today's Public Sector. 48. I set out my concerns with respect to the Applicant's performance in my letter dated 16 August 2019... 49. On 27 August 2019, I met with the Applicant. The Applicant did not bring a support person with him. Mr Craig Wunsch, Senior Manager, Corrections Business Analysis Unit, and Former Public Sector Association Delegate also attended the interview (as a Business Unit independent person). The Applicant was given considerable time and opportunity to provide material for me to consider in forming a final decision regarding action to take on his performance. The Applicant agreed his performance was poor, and that he would take the same steps if he were in Management's position. 50. During the meeting, the Applicant suggested he should be transferred to a different position within CSNSW, the Fleet section. When asked why Fleet Services, the Applicant explained he liked cars and this work would be consistent with his interests and therefore of more interest to him. ……………………………. 52. In making my decision with respect to the Applicant's employment, I considered: (a) the information the Applicant provided to me in our meeting of 27 August 2019; (b) CSNSWs records of training and discussions with the Applicant, and his responses and actual behaviour and output; (c) the progress the Applicant had demonstrated in performing his role and future prospects; (d) the fact that after 12 months of employment, the Applicant was not competent in the role and there was no prospect that in the near future the Applicant would be competent; (e) that the Applicant had not taken or accepted responsibility for not performing his job to the expected level of competence; (f) the Applicant's apparent attitude to what he perceived as an acceptable level of accuracy in work and his care and pride in his work; (g) the potential exposure to CSNSW should the Applicant continue to make mistakes and not perform his assigned role or any other role competently; (h) that the Applicant was still being provided considerable assistance to perform his role which involved the time of other employees performing simple tasks for the Applicant such as checking his emails and checking alphabetical filing; (i) The Applicant's motivation to work, interpersonal skills and the safety of others in the workplace. 53. In forming a decision, I also reviewed the file notes of the Applicant's performance discussions that had been taken by Ms Cummings and Ms Farrell. 54. I also carefully considered the options available to me with respect to the Applicant's continuing employment, and what action would be commensurate to the circumstances. 55. The Applicant had previously worked as a Clerk 1/2. I looked at the Applicant's personnel file and found that at the time, the Applicant had performed that role satisfactorily. The officers managing the Applicant were no longer employed, and compared to the standards today, did not reflect or apply the standard of work or values of a contemporary GSE Act employee. 56. I had a check performed on vacant Clerk Grade 3/4 roles, and Corrective Service Industries had some coming up, but these required a level of performance out of the Applicant's reach. In addition, when broached, CSI were very hesitant to entertain a transfer - the vacancies were some months away yet. 57. I looked to see if there were any Clerk Grade 1/2 roles within the Department. There are very few Clerk Grade 1/2 roles and the few were temporary, working in the Cells at Amber Laurel and Surry Hills, where inaccuracy and low output would not be tolerated. Therefore, I determined they were not suitable for that reason. 58. I also considered the Applicant's request to transfer at the same level into Fleet Services. A check with Fleet Services informed that they were under a restructure, and were most likely to lose roles, and had no vacancies. 59. I formed a view that the Applicant had not performed this role at the required level and I was not satisfied that either of a lateral transfer or a lower graded role transfer, would result in the Applicant performing satisfactorily. 60. Further, whether it was a demotion or a lateral transfer, other clerical roles had the same Public Sector values (Integrity, Trust, Service, Accountability and Respect) and conduct expectations as the role the Applicant occupied, including diligence, attention to detail and accuracy. I could think of no role where I or any Manager could genuinely accept the level of performance demonstrated by the Applicant. 61. I decided termination of the Applicant's employment was the appropriate action, but only after giving him the opportunity to resign. I decided that there was no need to terminate the Applicant outright and that he should, if he wished to, be given the opportunity to resign his employment. 62. I provided the Applicant a letter with my decision dated 2 September 2019... I took the opportunity to meet with the Applicant and serve my decision on him, discuss my reasoning, and for him to consider resignation, emphasising the benefits of this in a statement of service. The Applicant said he understood. CSNSW provided nine days of paid service following that meeting; a week for him to consider resigning, and a week after that before the effective date. 63. I included as an attachment to my letter a response to the other matters raised by the Applicant in our meeting of 27 August 2019. One of the matters was an allegation by the Applicant that he was bullied at work. I found that there was no evidence of the Applicant being humiliated at work or being subject to unreasonable behaviour. 64. The Applicant did not resign and accordingly his employment was terminated effective 13 September 2019. 65. In the Applicant's application in these proceedings, it states that he is seeking re-employment to a position in "Corrective Services Fleet Division". For the reasons cited above, his redeployment in any role is not considered appropriate or in the interests of the NSW Public Sector. 66. I am aware in these proceedings the Applicant has alleged that he has been subject to discrimination. At no time has CSNSW treated the Applicant less favourably than other employees or discriminated against him in any way. The Applicant has been managed in accordance with CSNSW's policies and practices and has been treated the same as any other employee with attendance and performance issues. 1. The attachment to Mr Huskins' letter of 2 September 2019, which is referred to at paragraph 63 of his witness statement, in which Mr Huskins provided a written response to the matters raised with him by the applicant on 27 August 2019, is reproduced below: Response to the points Jim Narayan raised in his paper and our meeting on 27 August 2019. i) You had no training or any access to the Department system when you started employment In September 2018. This is the first time you have raised training, in 12 months, as a factor when considering your performance. After further discussion, you revealed that Ms Leasa Archer was assigned to train you and two other new staff at the time you started, and that you used the computer access of another employee until your access was settled. Your raising that the training was inferior in our meeting, has not been mentioned previously. You also mentioned you were taking medication at the time, which affected your alertness and comprehension. You assert there were no training manuals, online materials but were handed task lists. I have since checked and been advised that training material was provided by Leasa and that online material was available in the form of Procedures and a Best Practice Guide. ii) While you received training from Brooke, as time went on the atmosphere was getting toxic and very tense. This caused problems with your health and Kelly and Brooke humiliated you in front of other staff and you cried most of the time at work. I have checked on these claims, and have no evidence of your being subject to unreasonable behaviour from management but have found evidence of frank performance discussions and a significant amount of training and re-training in the tasks required for you to perform the Clerk Grade 3/4 role. File notes made to record discussion with you indicate performance feedback given by any of your three managers is not well received. I am advised you cried on one occasion during a performance discussion, when outside factors (your family and past) were raised and appreciate you are sensitive to these factors and can become upset while at work. iii) My body is unaware to this and I don't know what happens. The work environment became extremely toxic and the environment has an impact on your health and mind. You ate less and stopped being social. I have checked on your claims regarding the workplace, and have found no evidence of toxicity toward you or others. Your removal from a fixed shiftworking role in January 2019 to a flexitime role was done to help you balance your treatment requirements by affording more flexibility and a less complex and 'lighter' workload. You advised Employee Assistance Program has assisted, and you do not require other support. iv) My last appointment - with Health Professionals - Endocrine. You were screamed at by Kelly and cancelled all appointments so that this would never happen again. Despite raising the issue of being harass and bullied by Brooke and Kelly to David Huskins - nothing has been done and CS failed to provide appropriate and reasonable working environment and intimidation and belittling by Kelly and Brooke is affecting your health. I have checked on your claims and advise: a) Kelly did speak with you to express her expectation that you would return to work and sought clarity on when that would be (at approximately 1pm) - according to Kelly, you were vague on when you would be at work and were ambivalent toward the impact of your absence on the work of the team, which you were advised previously was already one staff member short, heightening the risk of release errors occurring. In response, you yelled at Kelly, asking what you were meant to do - a file note was made at the time of this interaction; b) Your cancelling appointments was mentioned in David Huskins' letter to you on 10 July 2019, in which asked that you reconsider that decision for your own healthcare and wellbeing; c) You claim to have raised being harass (sic) and bullied with David Huskins. In the meeting you could not say when or how you raised this with David, simply asserting you had. This claim is strongly refuted - if claims had been raised, they would have immediately been investigated; d) Your claim that nothing has been done by Corrective Services and it failed to provide an appropriate and reasonable work environment is refuted, given you could have gone to other senior managers on site (Glen Ravet for example), the Injury Management team were available and had been in touch with you, you could have escalated the matter above the Director, could have lodged a grievance or could have sought union support - none of which occurred. v) Department of Corrective Service - Injury Management. Reference to Health Professional Report from Dr Cook. Kelly and Brooke failed to provide reasonable measures for you at work - you are a victim due to your health. I have sought feedback from Injury Management, who advised in a conversation in mid-July 2019, you declined any assistance offered. You were advised of the likelihood that a further Independent Medical Capacity Assessment would be arranged in which you understood and did not express any concerns. You phoned on 25 July 2019 to advise of your current and ongoing health concerns, also addressing that you could not afford to take time away from work until you had built enough leave to attend any medical reviews or received treatment required. It was re-iterated the importance of your attending medical reviews and receiving the required treatment as a priority, vi) Questions to ask Brooke Cummings and Kelly Farrell. Eight YES/NO questions were contained in your submission, which you explained was a means to demonstrate other staff make mistakes. I do accept other staff make mistakes, however, other staff have not made the number or breadth of mistakes that you have made, which have been raised with you - no one member of staff has dropped warrant files off to the wrong gaol and sent emails to the wrong email account and return files to the compactus out of alphabetical order. Nor have other staff been limited to the duties you perform after 12 months of training and support. 1. Ms Farrell gave the following evidence: 7. The Applicant worked with Team Leaders who are classified as a Clerk Grade 5/6 who oversaw his work. The team reported to Brooke Cummings as the Cluster Manager. Ms Cummings reported to me. Ms Cummings and I regularly worked together to manage the performance of the Sentencing Administration employees at JMCC. The role of Sentence Administration Officer 8. The Applicant held the position of Sentence Administration Officer Clerk Grade 3/4… 9. The Sentencing Administration unit at JMCC is responsible for the following: (a) Ensuring all inmates attend their court appearances and all court results are reconciled; (b) Ensuring all inmates are detained correctly in accordance with the relevant court orders; (c) Ensuring the database maintained by CSNSW contains accurate information with respect to inmates' detentions. This databased is used by CSNSW and Community Corrections; (d) Ensuring all inmates are released on time; (e) Recording bail applications and appeal applications and update inmates' personal details on the CSNSW database, maintaining the Warrant File and general duties. 10. A Sentence Administration Officer Clerk Grade 3/4 is expected to perform all of the required functions of the role. The team leaders are required to check the completed work of the Sentencing Administration Officers. 11. Employees receive face to face on the job training including one of one coaching. Where employees are recruited at the same or similar time, training may occur with more than one employee. 12. When commencing in the role, employees generally work on the administration associated with inmates attending court and being discharged from custody. Employees generally are able to perform this role to a satisfactory level after three months. 13. The work performed in Sentencing Administration is time critical. That is, the administration work for an inmate to attend court must be completed prior to the scheduled court attendance. Similarly, when an inmate is to be discharged from custody, the paperwork must be prepared in advance to ensure the inmate is not detained past the time of their release. As a result and due to the volume of the work, we work one day ahead. 14. Employees are provided with checklists and guides to follow. In addition, employees are encouraged to take notes during training. Navindra (Jim) Shiva Narayan, the Applicant 15. The Applicant applied for a Sentence Administration Officer Clerk Grade 3/4 position in September 2018. He participated in a merit based selection process and was successful in obtaining a position at Silverwater Correctional Complex – State Sentence Administration. 16. At the time of the Applicant's recruitment, I was the Regional Manager with responsibility for Silverwater Correctional Complex – State Sentence Administration. I was part of the panel that made the decision to hire the Applicant. 17. Following the Applicant commencing at Silverwater Correctional Complex – State Sentence Administration, a restructure occurred and I no longer had responsibility for that facility. 18. I was aware that the Applicant was to be transferred to JMCC in January 2019. I was happy for him to come across to State Sentence Administration Windsor. I had hired him and I wanted him to succeed in his role. 19. When the Applicant commenced work at JMCC on 7 January 2019, I was on annual leave. 20. From the commencement of the Applicant's employment at JMCC, file notes were prepared with respect to the training provided by Ms Cummings and the meetings held with the Applicant, Ms Cummings and myself. These file notes are attached and marked B. Ms Cummings was the primary author of each file note. Attachment B does include correspondence from me to the Applicant. 21. The file notes make referred to Section 23 requests. This refers to Section 23 Orders of the Crimes (Administration of Sentences) Act 1999. These are Orders used by CSNSW to move inmates from one Correctional centre to another. The notes also refer to Section 25 Local Leave Orders for the purpose to attend Police Interviews. Section 42 of the Bails Act 2013, CSNSW are required to advise a court of cases where the court has granted bail to an inmate but where the inmate has not entered that bail before the expiration of eight days after the inmate received into custody. 22. During the course of the Applicant's employment at JMCC, I reviewed the file notes on a weekly and sometimes daily basis. The Applicant was provided an opportunity to review these files notes at our weekly meetings. 23. While I was on leave, Ms Cummings worked with the Applicant and provided him training on the processes he was required to follow as part of the Sentence Administration team at JMCC… 24. The file note for 31 January 2019 includes a note regarding the Applicant's behaviour that day. On the 31 January 2019 I was contacted by the Team Leader Kayleen who advised me that the Applicant was very agitated and asked me to attend the office. When I arrived the Applicant was pacing around outside in a circle. Once I was able to calm him down we went into the Cluster Managers office to discuss what the issue was and how we can fix it. Due to family personal reasons, the Applicant was given time off to travel to Fiji… 25. On 5 February 2019, I met with the Applicant and Ms Cummings to discuss his performance. The discussion was to establish a Performance Support Plan to assist the Applicant to improve his performance to the required standard. During the meeting I discussed with the Applicant his attendance and absences from work, his behaviour in the workplace, the errors in the work he had performed to date and he was requested to complete an eLearning course… 26. With respect the Applicant's sick leave record, in accordance with CSNSW's Sick Leave Policy, after discussing the attendance record with the Applicant during the meeting of 5 February 2019, I sent a memo to the Applicant dated 5 February 2019 advising him that he was required to provide a medical certificate to support any future sick leave absences, that his attendance will continue to be monitored and that a further meeting will take place in three months' time… 27. Ms Cummings continued to maintain file notes on the Applicant's progress during the Performance Support Plan… 28. In February 2019, I received paperwork with respect to salary progression of the Applicant… After completion of the paperwork, I was advised by Payroll that the documentation had been sent in error and the Applicant's incremental salary increase was not due until September 2019. The Applicant's salary was not affected. 29. On 13 February 2019, I met with the Applicant and Ms Cummings to discuss his performance… 30. At this time, I was of the view that the Performance Support Plan was not working. The Applicant's attendance had not improved and his behaviour in the workplace was not acceptable. The Applicant was continuing to make errors and took longer than required to perform the tasks assigned to him. I discussed with Mr Huskins and Yvonne Oliver from Ethics, Workplace Issues & Performance and we agreed Jim should be placed on a Performance Improvement Plan. 31. On 20 February 2019, I met with the Applicant and Ms Cummings to discuss his performance. The Applicant was advised that the performance plan was being formalised and he was to be provided with a letter outlining the plan and the requirements. The Applicant was also advised that CSNSW's Injury Management team had also been consulted and he would be contacted by them with respect to the management of his medical condition… 32. On 27 February 2019, I met with the Applicant and Ms Cummings to discuss his performance. The Applicant was provided with a letter from Mr Huskins dated 22 February 2019 with respect to the Performance Improvement Plan (PIP)… 33. Ms Cummings and I put the PIP together and provided it to Mr Huskins for his comment… 34. Ms Cummings and I meet with the Applicant on 4 March 2019 to discuss the PIP. I took the Applicant through each section of the PIP and explained the standard required and the action expected. I gave the Applicant a copy of the PIP and asked him to come back with any questions… 35. The Applicant did not sign the PIP. The Applicant did provide a written response directly to Mr Huskins… Mr Huskins made minimal changes to the PIP… 36. Ms Cummings continued to discuss the Applicant's performance with him and complete file notes on his progress. 37. On 1 April 2019, the Applicant had sent an email request to the wrong area which had resulted in an inmate not attending for court. The ramifications can include the inmate remaining in custody longer than he/she otherwise would have, inconvenience to other participations in the matter such as witnesses, Police, legal representatives including the DPP, the court registry. In addition, the Commissioner CSNSW could be found to be in contempt of court... 38. On 3 April 2019, I met with the Applicant and Ms Cummings to discuss his performance… 39. The Applicant was referred to the Injury Management Program. One of the recommendations was to retraining the Applicant in certain tasks to enable him to have a solid understanding of the basis tasks. This would in turn allow him to progress and perform more of the role. The Applicant was retrained however he was unable to progress due to his poor attendance and his repeated errors. 40. On 20 May 2019, the Applicant delivered warrant files to the centres, this included files required for escort to other centre and a single file that was required at OMPC for a Release of an inmate due on 21 May 2019. A call was received from the reception area urgently requesting the file on the morning of 21 May 2019 as the inmate had become aggressive and had had an altercation with an officer as he had not been released yet. On investigation it was determined that the file had been part of the delivery the day before and therefore enquires where made with the other centres to locate the missing file. The file was located in a locked office of the reception area of Dillwynia Correctional Centre. The Applicant acknowledged that he had dropped files to JMCC for escort and had then dropped files to Dillwynia, missing OMPC. Due to the warrant file not being at the correct Centre the release of the inmate was substantially delayed while the missing file was located, the release confirmed by the Manager of Security, which normally takes place the day before the discharge is required, and then the final discharge process by reception staff. This delay resulted in the inmate becoming frustrated and lashing out at an officer… 41. On of around 5 July 2019, the Applicant had exhausted all of his paid sick leave. On 5 July 2019, the Applicant had a medical appointment. The Applicant had only advised of his need to attend the appointment a few days prior. To allow the Applicant to attend the appointment, the Applicant was approved to have a half day flex and then commence work at 1.00pm which required the work of other staff to be reorganised. On 5 July 2019, the Applicant called the office at 1.00pm and spoke to a team leader. The team leader asked me to speak to the Applicant. I had a conversation with the Applicant. I made notes of the conversation... At no time in the conversation did I yell or raise my voice. 42. This incident was discussed with the Applicant in a meeting I had with him and Ms Cummings on 8 July 2019. It was also at this meeting that the Applicant advised that he had cancelled all future medical appointments as he had no paid sick leave or recreation leave to use… 43. On 10 July 2019, I met with the Applicant and Ms Cummings to discuss his performance… 44. On 25 July 2019, I met with the Applicant and Ms Cummings to discuss his performance… 45. During the time the Applicant worked at JMCC, I had regular discussions with Mr Huskins regarding the Applicant's performance. In the meeting on 8 July 2019 when the Applicant advised he was no longer going to seek medical treatment, I spoke to Mr Huskins to obtain his advice. 46. I am aware Mr Huskins sent the Applicant a letter on 16 August 2019 regarding his performance. At this point, my involvement in the management of the Applicant's performance ceased. 47. In managing the performance of the Applicant at no time did I nor did I observe Ms Cummings: (a) yell or scream at the Applicant; (b) exclude or isolate the Applicant; (c) humiliate or belittle the Applicant; (d) tell the Applicant not to discuss his issues with other staff. I did tell the Applicant to be careful what he said as there were matters that may offend other staff; (e) intimidate or denigrate the Applicant; (f) deliberately change work rosters to inconvenience him; (g) withhold or not give enough information from him; (h) give the Applicant misleading or ambiguous information. During the performance discussions, the Applicant was told where his performance needed improvement and he was also told what tasks he was performing well; (i) not train or organise training when the Applicant was absent. As stated above, the training was face to face training on the job; (j) ignore the Applicant. 48. The Applicant was managed in accordance with CSNSW's policies and procedures and treated the same way as any other employee with performance issues. 49. The Applicant came to JMCC after having four to five months of training at another location, due to his apparent confusion of set tasks it was quickly decided to restart the training from the very beginning in an attempt to fill in any gaps that may have been missed. The Applicant appreciated that as he said he hadn't had much training previously. When asked to take notes so he can refer to them in future the Applicant was reluctant, as he felt he would not need them and would remember what to do, this reluctance continued for the next few months. 50. The Applicant's progress and work standard was erratic, dependant on how he was feeling either in his health, in his mood or what was going on in his private life. This seemed to determine his progression through learning the tasks allocated to him, and at times seemed to go backwards especially after having longer periods of time off either for family or health reasons, delaying his progression further. 51. When providing feedback or showing the Applicant areas that had been identified as needing correcting or further work in an attempt to help him self-identify his own progress I felt like he was taking it as an attack against him. 52. The erratic nature of Jim's work showed that at times, he would struggle with identifying information required to complete forms, but was able to complete other simpler tasks, and then the next day would struggle or miss information for the simpler tasks and be accurate in the information he was providing for more complex matters. 53. In the eight months at JMCC he had not been able to be trained on all Sentence Administration tasks. 1. Attachment B to Ms Farrell's witness statement comprises 190 pages of file notes and other documents which were compiled throughout the period of the applicant's employment at JMCC encompassing the informal performance support plan and the formal PIP. 2. In addition, the respondent relied on written submissions which included the following: STATUTORY CONSIDERATIONS 19. The Applicant has brought proceedings pursuant to section 84 of the IR Act. To be entitled to any remedy under the IR Act, the onus is on the Applicant to prove that his dismissal was harsh, unjust or unreasonable. 20. The Applicant was employed as a Sentence Administration Officer for a period of 12 months. During that time, he was provided with considerable support and assistance to perform his role. 21. In February 2019, the Applicant was placed on a PIP. After a period of six months, his performance did not improve. The Respondent made a decision that the appropriate course was to provide the Applicant with correspondence advising him that it was considering action under the GSE Act. 22. The Respondent met with the Applicant and took into account the matters the Applicant raised and the Applicant's performance prior to making a decision with respect to the Applicant's employment. 23. The Applicant was afforded procedural fairness. 24. It was open to the Respondent to terminate the Applicant's employment given his unsatisfactory performance and lack of improvement over a 12 month period. 25. In these proceedings the Applicant has not stated that he seeks reinstatement. The Applicant seeks re-employment to a position in "Corrective Services Fleet Division". 26. The Applicant requested a transfer to a position in Fleet Services during his meeting with Mr Huskins. Mr Huskins was advised that there were no such positions available. In any event, Mr Huskins formed the view that the Applicant did not have the core skills nor did he meet the core expectations of any clerical roles with the Respondent's operation. CONCLUSION 27. The decision of the Respondent to dismiss the Applicant was procedurally fair and based on his unsatisfactory performance. 28. The acts of the Respondent in doing so were not harsh, unjust or unreasonable. 29. The Application should be dismissed. Applicant in reply 1. The applicant relied upon a reply witness statement in which he challenged much of the evidence given by Mr Huskins and Ms Farrell and criticised the submissions put on behalf of the respondent. He claimed that no adjustments had been made to his role in response to his health issues and that he could have been employed in another role within the NSW public sector. 2. The applicant was critical of what he described as "so many errors and inconsistency in Mr David Huskins's written statement, letters and unsigned File Notes" and the "errors, incorrect and misleading information" in the written submissions relied upon by the respondent. 3. The reply witness statement concluded as follows: 16. The management at John Maroney Correctional Centre at Windsor (JMCC) and Corrective Services NSW jointly are liable for general damages including "psychological harm, suffering and hurt feelings" they had caused me. i. As the management have belittled me many times whilst I was at work. ii. Humiliated me as I was taking sick and recreation leave. iii. Ridiculed me in various ways. iv. Threatened me to be terminated and they did. v. Micro management and written incorrect and false information/recordings about my life and as to what I done in my own time e.g. weekends, etc; in File Notes – with grammar and spelling mistakes. vi. False allegations of incorrect medications written on the File Notes. vii. Intimidation and denigration – applying pressure to me due to my permanent and temporary health issues, e.g: if I am not able to perform my duties due to my health, as I am taking sick leave; I will be terminated and it did happen. 17. I would like to be re-employed within NSW Public Sector so that I can pay for my medications and live. 18. Department of Communities and Justice is such a large Organisation e.g: NSW Land and Housing Corporation, FACS, etc and other Sections or Departments within NSW Public Sector inclusive for my re-employment. 19. My preferred re-employed is with NSW Land and Housing Corporation. As there will be less "conflict of interest" from Corrective Services NSW management with NSW Land and Housing Corporation. However; my options are still open to other NSW Public Sector Departments for re-employment. Further submissions 1. Following the conclusion of the hearing on 22 January 2020, and in response to an invitation extended by the Commission, the parties filed a series of further documents 2. On 23 January 2020, the applicant filed a document in the following terms: TO WHOM IT MAY CONCERN 1. I have been open to any re-employment within NSW Public Sector as I am an ongoing/permanent employee within NSW Public Sector since August 2011. 2. My preferred re-employed is with NSW Land and Housing Corporation. 3. As there will be less "conflict of interest" from Corrective Services NSW management with NSW Land and Housing Corporation. 4. However; my options are still open to other NSW Public Sector Departments for re-employment. 5. In order for me to accept re-employment the following has to be reinstated: 5.1 My sick leave, annual and long service leave should continue as per my entry date to NSW Public Sector from August 2011. 5.2 Back pay my wages from September 2019 till now. 5.3 I should be compensated as I am behind my mortgage repayments and my credit rating is affected due to unfair termination. 5.4 I was not able to complete the purchase of my investment property and defaulted – due to my termination. I should to be compensated for this as well... 5.5 Together with interest for my wages backdated from September 2018 till now as I was unfairly dismissed. 5.6 My superannuation to be continued and employer contribution to be made from September 2018. 6. Increment to maximum Grade 3 wages, as I was due for an increment in September 2019. 1. In addition, the applicant stated that he wanted to recall Mr Huskins for further questioning and clarification. This request was denied. 2. On 29 January 2020, the respondent filed a comprehensive set of closing submissions tracing the history of the applicant's employment with CSNSW up to the time of the termination of his employment. The submissions continued as follows: 59. The Applicant was employed by CSNSW for approximately 12 months in the role of Sentence Administrative Officer Clerk Grade 3/4. 60. In that time, the Applicant did not progress to perform all of the duties expected of that role. He was provided with reasonable adjustments including further training and the allocation of less complex tasks however he was also unable to perform the work he was given to do without error. 61. The management at JMC gave the Applicant training, support, accommodation of his requirement to be absent from work and met with him to discuss his performance. 62. The management of the Applicant's performance was initially informal, through a performance support plan and then formally, through a PIP. 63. The Applicant was warned at the commencement of the P!P, if his performance did not improve, he may face disciplinary action which may include termination. 64. The Applicant, in meetings with management and in these proceedings, acknowledged his performance was poor. 65. The Respondent met with the Applicant and carefully considered the matters the Applicant raised and the Applicant's performance prior to making a decision with respect to what, in the range of possible actions, was appropriate. 66. It was open to the Respondent to terminate the Applicant's employment given his unsatisfactory performance and lack of improvement over a 12 month period. 67. The Applicant's dismissal has a basis in fact, he did not perform the job he was hired to perform. He was afforded procedural fairness in that he was managed though a formal PIP, knowing the possible outcomes if his performance did not improve and given the opportunity to meet with the decision maker following communication to him that consideration was being given to section pursuant to section 47 of the GSE Act. 68. Further, the Applicant was provided with reasonable adjustments to assist him in performing his role. Even with these adjustments, he did not perform competently the tasks allocated to him. 69. The Applicant has in these proceedings raised issues of unlawful discrimination. He has provided no evidence of being discriminated against on any basis. His mother raised allegations of harassment and bullying. Mr Huskins gave him the opportunity following his letter dated 10 July 2019, to raise any matters with him. The Applicant did not and has not in these proceedings provided evidence of bullying or harassment. 70. Ms Farrell gave evidence that at no time did she or Ms Cummings yell or scream at the Applicant, exclude or isolate the Applicant, humiliate or belittle the Applicant, intimidate or denigrate the Applicant, deliberately change work rosters to inconvenience him, withhold information from him, give him misleading or ambiguous information, not train or organize training when he was absent or ignore the Applicant. 71. The Applicant asserts that Ms Farrell raised her voice in their conversation of 5 July 2019. That ls the only occasion where the Applicant challenges Ms Farrell's evidence on this point. Ms Farrell rejects the Applicant's assertion, in her evidence in chief and again in cross examination. The end result of the conversation is that the Applicant had the day off work as a flex day, an outcome in his favour. 72. CSNSW rejects any allegation of unlawful discrimination, harassment or bullying. 73. The Applicant, in asserting these matters, makes the submission that he should have been given the option to perform a different role. The Applicant was fit to perform his role. He did not perform his role competently. He did not apply for or express interest in other roles until 27 August 2019. It is not the responsibility of CSNSW to find the Applicant a role he prefers to work in. 74. The dismissal of the Applicant was not harsh or unjust or unreasonable. 75. The Application should be dismissed. 76. In these proceedings the Applicant has not stated that he seeks reinstatement. The Applicant seeks re-employment. This has been the Applicant's position prior to dismissal. 77. In the alternative and without resiling from its primary position, CSNSW submits that reinstatement is impracticable. The Applicant was employed to perform a role and has shown over a period of time that the Applicant cannot meet the performance requirements of that role. lt would be inappropriate to reinstate the Applicant into a role that he is not capable of performing. 78. Similarly, the Applicant should not be re-employed or granted compensation. 79. The Applicant requested a transfer to a position in Fleet Services during his meeting with Mr Huskins. Mr Huskins was advised that there were no such positions available. In any event, Mr Huskins formed the view that the Applicant did not have the core skills nor did he meet the core expectations of any clerical roles with the Respondent's operation. 80. The Applicant in his material filed in these proceedings makes numerous references to the purported ability of CSNSW to find him a job. In his submissions dated 23 January 2020, the Applicant again states that he is open to re-employment. 81. At the time of submitting his second statement, Exhibit 2, the Applicant had obtained a temporary clerical position employed by an employment agency performing work for Housing Statewide Services, a section of the Department of Communities and Justice. He commenced in the position on 11 November 2019. 82. For the Commission to consider re-employment or compensation, it has to make a finding that the dismissal was harsh. CSNSW submits it was not. There were no further steps for CSNSW to take with respect to the management of the Applicant's performance. The performance management process was exhausted and an employer is entitled to determine, after sufficient time and support have been provided, that an employee who is not meeting the requirements of their role may be dismissed for unsatisfactory performance. Conclusion 83. The decision of the Respondent to dismiss the Applicant was procedurally fair and based on his unsatisfactory performance. 84. The acts of the Respondent in doing so were not harsh, unjust or unreasonable. 85. The Application should be dismissed. 1. Lastly, on 31 January 2020, the applicant filed a further document which contained the following: In response 1) Yes the work environment is time critical, I must add that my work was submitted on time and as scheduled. Also no evidence was given that it was not. I also was looking for more work to do on most days. 2) At SCC, I was getting treatment for my diabetes (as I was recently diagnosed at the time). A. At this point in time, My treating endocrinologist had to find out how much Insulin I would need. The amount I was told to take was to much for my body to handle. B. With too much insulin the body sugar drops to dangerous levels (hypoglycemia) which has these symptoms: If blood sugar levels become too low, signs and symptoms may include: • An irregular heart rhythm • Fatigue • Pale skin • Shakiness • Anxiety • Sweating • Hunger • Irritability • Tingling sensation around the mouth • Crying out during sleep As hypoglycemia worsens, signs and symptoms may include: • Confusion, abnormal behavior or both, such as the inability to complete routine tasks • Visual disturbances, such as blurred vision • Seizures • Loss of consciousness C. Where was the duty of care when I went through hypoglycemia. Not one person ever helped me or assisted me when in a hypoglycemia state while at CSNSW. 3. Yes JMC does not have the same high volume work load. A. If I was an additional employee to the establishment to be trained, then it should not of effected the team on my time off for medical appointments. B. It is stated by the File notes it did. This further proves my point as there is consistency of the file notes/evidence. 4. As I have stated in my evidence, During the meeting I knew BC was writing down something. A. At no point in time I was told I that I was able to review the file notes. lf I was able to review them I would have signed them as I would of had review them. B I had only been able to see the file notes weeks before I was terminated. 5. In respect to the accuracy of the file notes. A. It states in my statement, I was told in the meetings by KF and BC that I was doing good and improving though not stated in the file notes. B. MS Cathryn Hellams, Director of Human Resources. The letter dated 17/10/2019 has stated positive performance and to a satisfactory level. I will also add, that the question was not asked. 6. That's correct I did not take notes on my first day as it was new to the environment and was nervous. A. I did take notes soon after I learnt the JMC way of administration, and I used them as needed. When I called HR( to ask for my notes and documents from JMC I had only received my medical document and p- file but did not received my notes. B. This further points out how management has treated me. 7. Yes I was found fit. A. As stated by DR P Cook If the Difficulties with concentration and attention are such that there are some more complex tasks with he is having substantial difficulty with, then he may need to temporarily avoid these tasks until his condition has improved. Determination 1. I have considerable sympathy for the applicant in this matter. I accept that he genuinely believes that his poor performance in the role of Sentence Administration Clerk was solely due to his diabetic condition. However, the evidence before the Commission does not support this proposition. 2. It is apparent that Dr Cook of Sonic Health Plus, who undertook a medical assessment of the applicant on 5 April 2019, formed the opinion that the applicant's persisting medical problem was likely to have an impact on his work for several months, affecting his concentration and attention, and that he would likely require intermittent sick leave (at [10]). This prediction was born out. In the five months of April through to August 2019 the applicant took 32 days of sick leave. 3. Whilst Dr Cook was of the opinion that overall the applicant was fit for the inherent requirements and demands of his role, the doctor recommended that the applicant avoid more complex tasks if he was having difficulty with such tasks. I accept the evidence of Mr Huskins at subparagraph 40(f) of his witness statement (at [25]) to the effect that the applicant was given self-paced learning of less complex tasks and more complex tasks in accordance with his capacity on the day. I also accept the evidence of Ms Farrell at paragraph 53 of her witness statement (at [27]) that in the eight months at JMCC the applicant had not been able to be trained on all Sentence Administration tasks. 4. Dr Cook was also of the opinion that it was likely to be several months before the applicant's temporary medical condition improved and management of his permanent medical condition was expected to improve. However, the preponderance of the evidence demonstrates that, in the five months following the medical assessment, including the period of the PIP, the work performance of the applicant did not improve to the requisite standard. By way of example, a file note prepared by Ms Cummings dated 7 August 2019 contained the following: PERFORMANCE SUPPORT PLAN Name: Jim Narayan Date: 07/08/2019 Work Performance Review - As Jim has been absent there is no work to review. Task 1: Gaol Event date Report Task 2: Warrant File Archiving Task 3: Warrant File Audit Support Outcome Additional Notes PIP meeting to be held 11am Jim was due to commence work at 8am, arrived at 9am as he had not looked at the roster. Email had been sent to Jim on the 31/7/2019 to remind him to check the roster as there had been a change in start times and to ensure he was aware of these changes. Jim has now attended outside of the roster three times, 25/7/19 he was 1 hour early, 29/7/2019 he was ½ hour late and today he was an hour late. Advice was received from team leaders advising of the filling being completed very badly, warrant files not filed alphabetically, with files not being able to be found for some time. As an example a surname of H was found filed under T, the impact of this is quite serious as it could lead to the cancellation of an escort. I have requested that the warrant file audit get completed, with Jim and a second person so the filing can be fixed and additional training of this general duties task be given 1. During the applicant's cross-examination of Ms Farrell, the following exchange occurred: Q. And from when I arrived at John Morony complex, which was around January, early January-- A. Yeah. Q. --till when I was terminated, did you see an increase of productivity and work from me? A. Jim, from my observation and as not your direct manager, I believe that it went around in circles. Q. Mm-hmm? A. You would star (sic start) off good, we would train you in something, you would be good in that and then the next week or the week after you would not know how to do it and we'd be back to square one. I believe you got along with all the staff but, in terms of your work and what we were trying to train you in, the productivity was not as productive as we would expect it to be, with the intense training that we had given you. Q. Would you agree to me, from the start of the year toward the end of my termination, that I did improve? A. No. Q. No? A. No. Q. So I remained the same level at the start of the year? A. I think it decreased. Q. It decreased? A. And I think you even said yourself that you don't remember. I think it's written in one of the file notes of the meetings that you don't remember how to do some of the tasks that you've been trained in. Q. So I put it to you that you're stating that my work was going backwards from what I started at to what I finished at? A. Yes, I do believe it did, Jim. 1. I accept this evidence of Ms Farrell. 2. I reject the claim by the applicant that he was bullied and harassed by Ms Farrell and Ms Cummings. On the contrary, I accept the evidence at paragraph 47 of Ms Farrell's witness statement (at [27]) to the effect that the applicant was not bullied or harassed by either manager. Ms Farrell was not challenged on this aspect of her evidence during her cross-examination by the applicant. 3. I also reject the applicant's claim that he was subjected to discrimination during the period of his employment with CSNSW. Apart from the applicant's assertion to that effect, there is no evidence before the Commission to support such a claim. 4. On the contrary, the evidence establishes that, despite having been given support and training in the tasks he was required to perform and despite having been shown significant consideration due to his medical condition, the work performance of the applicant remained unsatisfactory over an extended period of time. 5. I accept the evidence of Mr Huskins that he considered the possibility of offering alternative roles to the applicant but found none that he considered that the applicant was suited to or capable of fulfilling. Given the applicant's ongoing inability to perform his role to a satisfactory standard, it was inevitable that the decision would be made to terminate his employment. 6. I find that the termination of the applicant's employment was neither harsh, unreasonable nor unjust. Order 1. The unfair dismissal application of Narindra Narayan is dismissed. 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: 03 March 2020