APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 6 OCTOBER 2020

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00538

DELIVERED : Wednesday, 13 October 2021

FILE NO. : PSAB 30 OF 2020

Appellant

AND

Director General, Department of Education

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Probationary employment – Fixed term contract – Reasonable training and support provided – Decision to terminate probationary employment not harsh or unreasonable – Board does not have jurisdiction to award compensation as a remedy – Unable to reinstate to a role under a contract that has ceased – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA)

Public Sector Management Act 1994 (WA)

Public Service Award 1992 (WA)

Result : Appeal dismissed

Representation:

Appellant : Mr J Crabtree, on his own behalf

Respondent : Mr R Andretich of counsel and Ms L Jacobson

Case(s) referred to in reasons:

East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth [2000] WAIRC 00067; (2000) 80 WAIG 3155

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525

Thomas v Chief Executive Officer, Ministry of Fair Trading [2001] WAIRC 04042; (2001) 81 WAIG 2957

Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611

Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

State Government Insurance Commission v Johnson (1997) 77 WAIG 2169

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (the Board).

2         Mr Crabtree has appealed to the Board under s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act) against the Director General of the Department of Education's (Employer) decision to terminate his employment. Mr Crabtree's notice of appeal seeks reinstatement to his former position together with lost salary for the period between the dismissal and his reinstatement.

3         For the reasons that follow, the Board dismisses Mr Crabtree's appeal.

Background

4         Mr Crabtree was employed by the Employer on 4 February 2020 in the position of a Level 6 Senior Project Officer in the Public Relations and Marketing Division of the Department of Education (Department).

5         Public Relations and Marketing provides a range of services to the Department in the areas of strategic communications and marketing advice; developing communications and marketing plans; developing major advertising campaigns and strategies; implementing the Department's digital communication strategy; and managing the Department's digital channels including its corporate websites. The overriding focus of the Public Relations and Marketing Division is to enhance the image and reputation of the Department and promote Western Australian Government initiatives.

6         Mr Crabtree was engaged for the particular project of migrating website content from a number of different sites onto a single Department website. It was envisaged that the project would involve meeting with the current owners of the websites whose content was to be migrated, ascertaining their content needs, and training them to enable them to maintain their own content after the migration was complete.

7         The Job Description Form (JDF) for the role provides that as a Senior Project Officer, Mr Crabtree was responsible for:

(a) undertaking communications and engagement requirements for the Department's public website;

(b) planning, implementing and evaluating elements of the Department's public website and providing specialist communications advice and support to business areas;

(c) providing professional learning to business areas on best practice when identifying and communicating content for an online environment, and provide training on the use of the platform;

(d) developing strategies and procedures supporting the implementation of improvement strategies; and

(e) liaising with the Digital Marketing Strategist and other staff to achieve planned outcomes.

8         Mr Crabtree reported to the Digital Marketing Strategist, Ms Kim Parkin, who held a Level 7 position.

9         Mr Crabtree held formal qualifications relevant to his role, being a Graduate Diploma of Web Communication and a Certificate IV in Information Technology. He also has extensive past experience in project management and delivery.

10      Mr Crabtree's employment was subject to an initial six month probationary period, meaning he was a probationary employee at all relevant times until 4 August 2020.

11      Shortly after Mr Crabtree commenced employment, on 15 March 2020, the Western Australian Government made a declaration of State of Emergency and Public Health State of Emergency in response to the pandemic caused by COVID-19. This had several effects on Mr Crabtree's employment. First, he commenced working from home and dealing with colleagues remotely. Second, Ms Parkin's attention was diverted to assisting with setting up the Department of Education's website requirements for online learning for public school students. Third, because of the urgent need for resources to be focused on online learning and because meetings with stakeholders could not easily be arranged whilst the Public Health State of Emergency directions were in place, the website migration project, which Mr Crabtree was employed to undertake, was delayed.

12      On 2 July 2020, Ms Parkin and her manager, Ms Knox‑Robinson, Manager Public Relations and Marketing, met with Mr Crabtree and his union representative to discuss with him a range of concerns and to commence a plan to address those concerns before the end of the probationary employment. Some 12 specific examples of incidents or conduct were raised in the meeting as the basis for the concerns. The matters discussed in the meeting were then confirmed in a letter from Ms Knox-Robinson to Mr Crabtree dated 3 July 2020.

13      Mr Crabtree took personal leave from 3 July 2020 to 19 July 2020.

14      On 14 July 2020, the Employer extended Mr Crabtree's probationary employment for a further six months to 4 February 2021 in light of his absence from work on personal leave.

15      A further meeting was held between Mr Crabtree, his union representative, Ms Parkin and Ms Knox-Robinson on 22 July 2020. This meeting was originally intended to be for the purpose of discussing a performance management plan.

16      On 28 July 2020, Ms Knox-Robinson wrote to Mr Crabtree restating the concerns in relation to his performance, conduct and behaviour and inviting him to provide her with information as to why she should not recommend the conclusion of his employment pursuant to cl 8 of the Public Service Award 1992 (WA). In addition to the 12 examples raised on 2 July 2020, a further two examples arising subsequent to 2 July 2020 were added.

17      Following receipt of the 28 July 2020 letter, Mr Crabtree lodged a formal grievance.

18      Mr Crabtree also provided a response to the allegations contained in the 28 July 2020 letter by a response in writing dated 4 August 2020 and then emailed a further grievance document to Ms Deborah Leavitt on 18 August 2020.

19      After receiving Mr Crabtree's response, Ms Knox-Robinson recommended that Mr Crabtree's employment be "concluded" and accordingly, on 2 September 2020, Mr Damien Stewart, Director for Workforce, wrote to Mr Crabtree putting him on notice of the proposed termination of his employment and seeking his response to the 14 examples underlying the concerns that formed the basis of the recommendation.

20      Mr Crabtree did provide his written response to Mr Stewart. Mr Stewart confirmed the decision to terminate the employment by way of a letter dated 6 October 2020, with one week's notice.

21      Mr Crabtree contends that the allegations of poor performance cannot be substantiated and were made as "retaliation for my lodging my grievance", being a grievance Mr Crabtree says he made against his manager for bullying, "which included workload, unfair treatment, changing deadlines, setting tasks beyond my skill and spreading rumours" (Notice of Appeal, paragraph 10).

Jurisdiction

22      The Board has jurisdiction to hear this appeal under s 80I(1)(d) of the IR Act, which confers on the Board's jurisdiction to hear and determine "an appeal, other than appeal under the Public Sector Management Act 1994 s 78(1) or the Health Service Act 2016 s 172(2), by a government officer that the government officer be dismissed".

23      As detailed above, Mr Crabtree was a probationary employee when his employment was terminated. The dismissal decision was not described by the Employer as a decision made pursuant to the substandard performance provisions of s 79 of the Public Sector Management Act 1994 (WA) (PSMA). Rather, it was described as a decision to "annul" or conclude probationary employment on the basis the Employer considered Mr Crabtree was not suitable or compatible to continue in the role of a Senior Project Officer - Public Website.

24      By bringing the appeal under s 80I(1)(d) of the IR Act, Mr Crabtree implicitly accepts that the decision that he be dismissed was not made pursuant to s 79(1) of the PSMA, that is, it was not the result of a substandard performance process. In any event, it is clear from the termination letter that the concerns that led to the decision to annul the probationary employment were not merely performance concerns, but also related to behaviour and conduct.

25      Nevertheless, Mr Crabtree's employment was a fixed term appointment, subject to satisfactory completion of the probationary period. The consequence is that it was the Employer's actions that brought the employment to an end, such that there was a decision to dismiss: Thomas v Chief Executive Officer, Ministry of Fair Trading [2001] WAIRC 04042; (2001) 81 WAIG 2957 at [24]. That decision is one that is within the ambit of s 80I(1)(d) of the IR Act.

The nature of the appeal

26      The appeal involves the review of the Employer's decision de novo. As such, the Board is to consider the appeal based on the evidence before it, not merely on the basis of whether the Employer made the right decision available to it at the time. The Board has greater scope to substitute its own view for that of the Employer: Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266.

27      As Fielding C noted in Raxworthy:

The nature of an appeal made under section 80I(l)(e) is somewhat different from the authority ordinarily given to the Commission to enquire into whether a dismissal is fair or not. The decided cases make it clear that in claims of unfair dismissal per se the Commission is not to act as an appellate court and substitute its own view as if it were the employer, but rather determine whether the employer's conduct was in all the circumstances reasonable. Hence in cases of misconduct the test is not whether to the satisfaction of the Commission the misconduct occurred, but whether the employer had a reasonable suspicion amounting to a belief that the misconduct had in fact occurred (see Mavromatidis v. TNT Pty Ltd (1987) 67 WAIG 1650). However, these proceedings are expressly an appeal, with the Appeal Board being given the power to ''adjust'' a decision to dismiss an employee. The onus is of course on the Appellant to show that the Board should interfere with and adjust the decision. However, as with promotion appeals the decision is to be reviewed de novo on the basis of the evidence before the Board, not merely on the basis of whether the decision maker made the right decision on the evidence available to it at the time (cf: Colpitts v. Australian Telecommunications Commission (1986) 20IR 184). The process afforded by section 80I is such that the Commission, constituted by an Appeal Board, is given a greater licence to substitute its own view.

28      Fielding C refers in the above extract to s 80I(1)(e) which is not in precisely identical terms, but is the predecessor provision to, s 80I(1)(d)).

29      What does this mean for how the Board should approach the matter when the Employer's decision to terminate was made during a probationary period and pursuant to the provisions of cl 8 of the Public Service Award 1992 (WA)? Clause 8 provides:

8. - CONTRACT OF SERVICE

(1) Probation

(a) Every officer appointed to the Public Service shall normally be on probation for a period not exceeding six months, unless otherwise determined by the employer.

(b) An officer who is appointed from the Public Sector of Western Australia, and who has had at least six months of continuous satisfactory service immediately prior to permanent appointment will not be required to serve a period of probation.

(c) At any time during the period of probation the employer may annul the appointment and terminate the services of the officer by the giving of one week's notice or payment in lieu thereof.

(d) Prior to the expiry of the period of probation, the employer shall have a report completed in respect to the officer's level of performance, efficiency, and conduct, and

(i) confirm the permanent appointment, or

(ii) extend the period of probation by up to six months, to a maximum period of probation of 12 months

(iii) or terminate the services of the officer.

30      In industrial law, the implications of probationary employment are clear. They were explained by the Full Bench of the Western Australian Industrial Relations Commission in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth [2000] WAIRC 00067; (2000) 80 WAIG 3155. At [49], the Full Bench said:

… the following principles apply—

(a) The employer, throughout the period of probation, retains the right to see whether he/she wants the employee or not in his/her employment.

(b)         (i) The employer is entitled to consider the employee as if the employee was still at first interview with the following modifications in this case.

(ii) There was an identifiable contract of employment for a period, indeed, a fixed term, including a period of probation of three months. This advances the matter beyond a notional first interview situation.

(c) Probation is an extension of the selection process, a period of learning and a time for attention, assessment and adjustment to standards of performance and conduct. (Inherent in that is that it is a time for teaching, training and counselling.)

(d)       (i) However, a probationary employee knows that he/she is on trial and that he/she must establish his/her suitability for the post. The employer, on his side, must give the employee a proper opportunity to prove him/herself, but he/she reserves the right to determine the employment with appropriate notice provided he has reason for so doing (see Sommerville v Brinzz Pty Ltd Clerk Vehicle Repair Industry [1994] SAIRComm 8 (31 January 1994), citing Re J M Hamblin v London Borough of Ealing (1975) IRLR 354 and see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit)).

(ii) Further, an employee on probation can expect to be counselled and informed that she/he is not meeting the required standards of performance, to be given reasonable training in this respect, and to be warned of the possible consequences of a failure to improve. Provided this is done, an employee who is on probation would have little cause to complain if a decision was taken during the course of or at the end of a probationary period to terminate the employment (see Sommerville v Brinzz Clerk Vehicle Repair Industry (op cit), citing Hull v F F Seeley Nominees Pty Ltd (1988) 55 SAIR 550 at 562).

(e)     (i) Consonant with those principles, a probationary employee is able to seek reinstatement, but an employer is entitled to terminate a probationary employee more easily, e.g length of service is not a factor generally, because probationary employment is for a finite period and, in that period, assessment, training and acquisition of skills and demonstration of ability can occur. In addition, any genuine question of compatibility between employer, employee and other employees can be assessed. (This is not a comprehensive inventory of such matters.)

(ii) However, probation is not a licence for harsh, oppressive, capricious, arbitrary or unfair treatment of a probationer (see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit) and the cases cited therein).

31      By his appeal, the appellant alleges that the dismissal was harsh, oppressive and unfair because:

(a) Until September 2020, he had no warning about the claims of poor performance being made against him.

(b) In mid-August 2020, he filed a grievance against his manager, Ms Parkin.

(c) He believes the claims of poor performance are in retaliation for lodging the grievance.

(d) The claims of poor performance are factually wrong.

(e) None of the claims of poor performance were put to him soon after they occurred.

(f) He received very little feedback about his performance during the period of probation and he received no or inadequate support, induction or training.

32      Mindful of the purpose and implications of probationary employment as set out above, the Board is not inclined in this appeal to entirely disregard the Employer's decision, albeit the appeal is to be determined de novo. The Board may legitimately have regard to, and place weight upon, the subjective view of the Employer in relation to Mr Crabtree's suitability for ongoing employment in determining the appeal. Further, that the employment was probationary, warrants limiting the exercise to rehearing only those aspects of the matter that are strictly necessary to deal with the appellant's grounds of appeal. This approach is, we think, consistent with what was said in Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 at [26] and [29].

33      Accordingly, we consider there are four factual issues which the Board must consider in this appeal, being:

(a) whether the concerns raised against Mr Crabtree were genuinely held, or whether they were motivated by Mr Crabtree's grievance;

(b) whether having the concerns was unreasonable, arbitrary, unfair or capricious. In this regard, some enquiry into the factual basis for holding the concerns may be necessary, but the Board is not concerned with finding that the concerns are made out. The Board is not deciding whether there was underperformance or misconduct justifying termination. Rather, it is deciding whether the Employer's right to terminate employment during the probationary period was misused or abused;

(c) was Mr Crabtree adequately informed he was not meeting the required standards, including the consequences of failure to improve; and

(d) did Mr Crabtree receive adequate support and training to enable him to perform satisfactorily?

Evidence

34      A significant portion of the evidence before the Board was documentary. The Board received into evidence a Book of Documents (Exhibit 1) comprising Mr Crabtree's application for employment with the Employer, his contract of employment and JDF. Exhibit 1 also contained the documents which the Employer relied upon in determining that a performance management plan was warranted, and in deciding to end the probationary employment as well as the correspondence between the Employer and Mr Crabtree in relation to these matters. It included minutes of relevant meetings, Mr Crabtree's formal grievance and his responses to the allegations concerning his performance and conduct.

35      Mr Crabtree tendered a number of other documents to demonstrate his qualifications and experience. He argued these documents showed that his knowledge, skills and experience were underutilised during his employment and because he was not given enough work, or sufficiently meaningful work, he was hindered in his ability to prove his capabilities.

36      Mr Crabtree gave oral evidence in which he adopted the contents of his formal grievance and written responses to the allegations contained in Exhibit 1. He stated that he had a five-minute meeting with the Department's Director, Ms Deborah Leavitt, on 19 June 2020 and that at this meeting, Ms Leavitt advised him that Ms Parkin had concerns about his performance. He said that this was the first time he had learned of any such concerns.

37      His meeting with Ms Leavitt was prompted because he had earlier expressed interest to Ms Parkin in involvement in other projects or work as he was feeling underutilised. Ms Parkin's response was that it would be inappropriate for Mr Crabtree to work on those projects, given he had been engaged on the public website content migration project with a bespoke JDF. He had overheard Ms Leavitt asking about the status of the website migration project, and wanted to discuss with her where the project was at and what he could do. According to Mr Crabtree, Ms Leavitt suggested he put his concerns in writing to Ms Parkin, which he did in an email dated 23 June 2020.

38      Mr Crabtree's email of 23 June 2020 to Ms Parkin relevantly states:

…I was surprised to learn that you have issues with my work performance. I would of hoped we could of addressed these issues at the time they occur, and treat them as a learning experience.

Deb informs me you advise that you have expressed these to me verbally, unfortunately I do not recall any discussions on this.

It may perhaps be the fact, as disclosed within my employment application, that I do have a learning disability-ADHD. I'm not sure whether this has affected our communication, but I would like communication between us to improve. Perhaps moving forward if there are outstanding issues with my work then let us address them sooner rather than later.

When I have asked you what needs to occur for the project I am working on, you have advised that we are waiting on meetings being scheduled. I have asked you at that time what I should be preparing ahead of those meetings, and was told to wait. After the team meeting I expressed my interest in supporting other projects in our team whilst I await some progress on the one project I am assigned, and although put down to a typographic error on your part, the initial response of advising me I am a contractor was disheartening and added further detriment to our working relationship.

As you're aware, I had limited exposure to, or training in Liferay and I have been teaching myself how to use the platform, preparing training material including liaising with ICT to implement the training site located at. I would greatly appreciate some feedback on this so that I can make sure it meets requirements. The training site is https://www.education.wa.edu.au/group/training-site

I would like a strong working relationship to be restored and improved communications, so a plan for how we can achieve this would be welcomed.

39      Mr Crabtree's complaint about him being underutilised, given insufficient work and excluded from projects which he considered he could meaningfully have contributed was one of the grounds for alleging he had been bullied in his formal grievance. He also describes Ms Parkin cancelling numerous meetings, being denied clear communications about the scope of his role, being constantly advised of project delays and being assigned menial, simple tasks. His other complaints concerned having "vexatious allegations" made being the allegations put to him on 2 July 2020, the physical location of his desk, the revocation of his study leave approval on 3 July 2020 and being given unrealistic timeframes in which to complete a workshop between 22 and 28 July 2020.

40      In cross-examination, Mr Crabtree conceded that he did not disclose that he had ADHD in his employment application. He also conceded that he was trained in website administration by Mr Scott Palmer, Technical Lead ICT Solutions Development and Maintenance, in a one‑on‑one session.

41      As to the performance and conduct concerns, and the 14 allegations underpinning them, Mr Crabtree denied the factual allegations made concerning his involvement in the Landsdale Farm School website on 14 February 2020. In this example, it was alleged that he was actively working on the website, demonstrating to another person how to switch over templates when his actions resulted in the removal of all site content, replacing it with dummy copy. While Mr Crabtree denied that there was a "Build/Convert" button within WordPress, he did not give a cohesive account of what his involvement was, or was not, referring only to an email chain he was party to.

42      Mr Crabtree also denied the allegations that he used inappropriate language during training on 23 June 2020. Again, aside from denying the allegation, he gave no account of what he did say during the training session, but pointed out that Ms Parkin was not present at the relevant time.

43      In response to an allegation that he created a private "page 11" on the public website causing default permissions on documents to be overwritten, Mr Crabtree says "to the best of my knowledge, this page never existed, as no evidence to suggest anything other has been presented to me, other than the allegation made by Kim Parkin".

44      Aside from the above three matters which Mr Crabtree denied, Mr Crabtree's responses were otherwise variably that he either was not aware that his actions had caused any problems, could not recall involvement in the particular issue, that his actions accorded with his previous experience of how to achieve particular tasks, or that he was unfamiliar or untrained in the requirements of the task. On other matters, his evidence was to effectively concede the facts alleged, but downplay or deny any detriment.

45      Mr Crabtree admits that on 4 July 2020, which was a Saturday, he logged into the Department's website pages which were not accessible to the public using his departmental email address and password. He then used an app, described as a scraping tool, to attempt to clone the training materials he had developed, located on those pages. He did so in order to use those materials for an assignment he was doing as part of the university course he had planned to undertake between 3 July 2020 and 19 July 2020. He also conceded in cross-examination that he proceeded to attend that course in the period 3 July 2020 to 19 July 2020, being the period that corresponded with a period he was certified by a medical certificate to be unfit for work. On 5 July 2020, he provided a copy of that certificate to the Employer in support of a request to take personal leave.

46      In cross-examination, it was put to Mr Crabtree that his access to the website and the training materials for the purpose of his study was neither authorised nor approved. His response was simply that Ms Parkin was aware that he was undertaking study. He referred to an email communication but did not produce any written evidence of having approval to use the training materials for his study.

47      Ms Parkin gave evidence on behalf of the Employer. Ms Parkin was one of the panel members who interviewed Mr Crabtree for the position. She said that his application, qualifications and past experience indicated that he was highly qualified and suitable for the role.

48      Her evidence was that while she had concerns about Mr Crabtree's performance of particular tasks as early as 14 February 2020 (being the date of the Landsdale Farm website incident), in the early days she put this down to teething problems and lack of familiarity. However, as time progressed her concerns were compounded.

49      Ms Parkin said that she offered to provide Mr Crabtree with support in the form of invitations to Mr Crabtree to talk to her about any issues he had and offered to show him how to use elements of the website. He declined these invitations, indicating his preference to "figure things out for myself" and reiterating his familiarity with developing resources for adult learners. Her evidence on these matters were unchallenged.

50      Ms Parkin readily conceded that the website migration project was delayed due to the impacts of COVID-19 and shifting of resources and focus to enabling at home and online learning. She also conceded that meetings were cancelled, mainly because of the COVID‑19 pandemic and the deferral of the content migration, but pointed out that weekly website meetings still occurred, and Mr Crabtree did not attend two meetings which did proceed.

51      However, when Mr Crabtree returned to work on or about 25 May 2020 after a period of working from home and Ms Parkin observed Mr Crabtree's conduct at a meeting with Library Services, she determined that she needed to be more proactive in monitoring Mr Crabtree's performance.

52      Ms Parkin gave evidence that a meeting was held with Mr Crabtree and his union delegate on 2 July 2020. According to the minutes, Ms Parkin opened the meeting by explaining its purpose as to discuss Mr Crabtree's performance during the probationary period, his managers' expectations for the role, and ways he could be supported. This included a discussion about the "bespoke" JDF for Mr Crabtree's role and its key responsibilities. Mr Crabtree was told that there were concerns regarding his performance and that the aim was to work with him to help him to improve. The particular concerns were articulated, and 12 specific examples of incidents demonstrating the basis for those concerns were discussed. Mr Crabtree did not respond to the particular examples given during the meeting.

53      Mr Crabtree was provided with an opportunity to advise of what support he needed to "achieve expectations". He responded that because he suffered from and was being treated for ADHD, he needed more written instructions rather than face to face. He also said he felt isolated from the team in his current location. He asked for a daily work plan so that he could understand the priorities in his role.

54      Prior to this meeting, Mr Crabtree had applied for and been granted study leave for the period 3 July 2020 to 19 July 2020. Because this was a substantial portion of the remaining probationary period, Ms Knox‑Robinson informed him at the 2 July 2020 meeting that the approval of that leave would be revoked, in order for the parties to follow a Performance Management Plan over the four weeks of the probationary period remaining. This would include weekly review meetings. This decision was confirmed in an email from Ms Knox‑Robinson to Mr Crabtree on 3 July 2020.

55      On 3 July 2020, the concerns raised at the meeting were confirmed by a written letter to Mr Crabtree. The letter informed Mr Crabtree that a further meeting would be scheduled for 7 July 2020 "to discuss the focus of your Performance Management Plan and to outline what supports you may need to address the areas of concern".

56      The letter dated 3 July 2020 also confirmed that Mr Crabtree would be provided with a four-week timeframe to take on board the concerns and indicate that the employment is able to be continued.

57      Mr Crabtree then applied to take personal leave for the period 3 July 2020 to 19 July 2020, being the period he had originally had study leave approved. The application was supported by a medical certificate of Dr Luke Ashford certifying that Mr Crabtree "has a medical condition and will be unfit for work from 03/07/2020 to 19/07/2020 inclusive".

58      Ms Parkin received Mr Crabtree's application for personal leave and medical certificate during the weekend following the 2 July 2020 meeting. She said that she was concerned about the bona fides of the medical certificate given the period covered coincided exactly with the period that Mr Crabtree had previously sought to take as study leave. Nevertheless, personal leave was granted to Mr Crabtree but the decision was made to extend the probationary period to ensure there was a proper opportunity to progress the performance management plan. On 14 July 2020, Ms Knox-Robinson wrote to Mr Crabtree advising that the probationary period had been extended in light of his taking personal leave, "in order to ensure you are provided with the four-week timeframe to focus on improving your performance". The performance management meeting scheduled for 7 July 2020 was rescheduled to take place on 22 July 2020.

59      In the meantime, Ms Parkin went to access Mr Crabtree's training materials with the intention of reviewing those to provide Mr Crabtree with feedback. That is when she discovered the training materials had been deleted from their previous location on the website. Enquiries with the ICT team led her to conclude that the materials were deleted when Mr Crabtree accessed them on 4 July 2020.

60      Mr Crabtree returned to work on 20 July 2020. Ms Parkin emailed him a draft performance management plan on 21 July 2020.

61      On 22 July 2020, Ms Parkin, Ms Knox-Robinson and Ms Louise Jacobson, Employee Relations, met with Mr Crabtree and his union representative to discuss the performance management plan. Mr Crabtree was told again that if his performance did not improve, his employment would be terminated through probation. Ms Parkin also advised him that issues had arisen since their last meeting including feedback that had been received about a workshop Mr Crabtree had conducted on 1 July 2020, that Mr Crabtree's summary of that workshop did not address items he had been instructed to provide. He was also asked to remove references on his personal website to the work he was doing at the Department (including images of the Department's website for which he did not have approval to use). He was informed that the incident that occurred on Saturday, 4 July 2020, was of great concern and had been referred to Standards and Integrity.

62      It appears from the minutes of the meeting of 22 July 2020 that by this time, while a performance management plan was still an option, the Employer was considering whether that option should be pursued or not in light of the further concerns that had arisen since 2 July 2020. Ms Parkin said to the effect that the Employer would confirm in writing the further issues that had been raised and the possible outcomes which include providing a further period to demonstrate improvement or recommend termination of the employment.

63      On 23 July 2020, Ms Parkin emailed Mr Crabtree a prioritised list of work tasks reflecting the performance management plan. The second item on the list was "Plan the content discovery workshop for Disability Services and Support". Her email indicates that a separate email would contain additional information to assist with this task.

64      The second email sent at 9:22 a.m. on 23 July 2020 set out the additional details as follows:

Hi Joff,

A discovery workshop is conducted to identify who the audiences are and what they need to do/know so we can map the content to the public website. You shouldn't need to have any background info on the topics to be able to effectively conduct the workshop. The outcome of this process is to:

● Define audiences for the client's programs/content (what are public audiences (PWS), and what are private - educators (Ed resources site))

● Identify content for the public website.

● Identify topics for public website.

As with the SDERA request, the step after this would be do conduct an online card‑sort activity with owners of related content and other stakeholders (other branches within Statewide Services). I previously suggested we use optimal workshop for this, as it was used prior and was found suitable.

Steps:

Audience and content mapping

1. Define the audience groups. This should be split by PWS, Ed resources site or both.

2. Define the needs of each of the audience groups.

3. Discover what content is available or required to address these needs. We may need attendees to claim certain topics or content at this stage.

4. Delve deeper into identifying current content gaps, emerging needs and goals.

Post workshop

You would need to write up the outcomes of the session and share with me for review. Once I've approved it you would circulate it to attendees for them to review and ensure nothing has been missed. We can then add the topics uncovered to the list for the card sort.

Any questions please let me know.

65      At 9:36 a.m. Mr Crabtree responded as follows:

Hi Kim,

Thank you for providing some guidance for this workshop.

In the performance management meeting you advised the customer persona activity would not be required as you advised you already know who the customer is. Can you please clarify what your expectations are for the audience identification part of the workshop so we can map out the exact processes and outcomes you would like to see as a result of this workshop.

The detail below is a large body of work to complete in a 2 hour allocation, and may be further reduced as per the SDERA workshop by introductions and discussions, so prior to the workshop to ensure that we are all accountable for the workshop outcomes, I would like us to collaboratively produce a workshop plan with the specific activities and timings.

Previous workshops of this nature over my professional experience are at minimum a full day, if not multiple days, so it's imperative I know exactly what is required for this.

I look forward to further clarification of your expectations for this workshop and the development of a detailed plan with timings.

66      Ms Parkin responded at 3:51 p.m.:

Hi Joff,

Audiences and personas are two very different things. In the SDREA workshop you referred to the personas of fashionista, gym-junkie, techy (or similar) etc. This is not relevant to the customer journey/user experience of our site.

The audiences for this particular branch will probably be something along the lines of: parents of a child with disability, disability service provides, non-profit organisations etc. The workshop process should allow us to identify these particular audiences and the topics/content relevant to them.

This is a relatively small branch so 2 hours should be sufficient.

67      This did not settle things for Mr Crabtree. A few minutes later he emailed Ms Parkin:

Thanks for the clarification Kim,

I'll need more detailed instruction and suggested activities to undertake this task, as my past experience does not provide for the brief period of the workshop, so I am requesting you to provide me with sufficient detail to know what outcomes you are wanting from the workshop and suggestions of activities to achieve these outcomes.

We'll also need to ensure a workshop plan is developed and adhered to if the workshop is to be a success.

I look forward to some further information from you to enable me to undertake this task.

68      Ms Parkin's evidence was that this exchange fortified her concerns that Mr Crabtree was not up to the role he was employed to do. She withdrew this task from him and planned and conducted the workshop herself. Despite Mr Crabtree's assessment that the content would require more than a two hour workshop, it was completed within two hours. It is noted that in response to Ms Parkin's advice to Mr Crabtree that she would facilitate the workshop, Mr Crabtree asked to be provided with the resources as it would be "very useful as a professional development opportunity to observe and take notes".

69      At this point, Ms Parkin concluded that the performance management plan should not be followed and the employment should instead be brought to an end. Mr Crabtree was advised of this recommendation in a letter from Ms Knox‑Robinson dated 28 July 2020. The letter indicated that Ms Knox-Robinson was now considering whether to recommend termination of the employment under cl 8 of the Public Service Award 1992 (WA). She provided Mr Crabtree with five days to provide a written response to the concerns raised in the meetings of 2 July 2020 and 22 July 2020, which would be taken into account in determining whether to terminate the employment. The letter repeated the details of the alleged concerns with Mr Crabtree's performance, behaviour and conduct.

70      Ms Knox-Robinson also gave evidence for the Employer. Ms Parkin consulted her for advice in relation to the management of Mr Crabtree and the performance issues. She was involved in the meetings conducted on 2 July 2020 and 22 July 2020 and generally corroborated Ms Parkin's account of the events leading to the recommendation that Mr Crabtree's employment be brought to an end. She did not observe Mr Crabtree's performance of conduct first hand. However, she had previously held a role similar to Ms Parkin's and therefore understood the requirements and expectations of the role. Her evidence was that as a Level 6 Senior Project Officer, it was expected that the person holding the position could work relatively autonomously with little supervision.

The reasons for raising concerns

71      The Employer maintains that its reasons for raising concerns and ultimately ending the employment are those set out in Ms Knox-Robinson's letters to Mr Crabtree of 3 July 2020 and 28 July 2020. It refutes the suggestion there were any ulterior or improper reasons.

72      The key to determining this ground of appeal is the sequence of events, which is set out above under "Background" and "Evidence".

73      Mr Crabtree's case is that the first time he became aware that Ms Parkin held concerns about his performance was when he approached Ms Leavitt on 19 June 2020.

74      The concerns were then raised directly with Mr Crabtree at a meeting between him, Ms Knox‑Robinson and Ms Parkin on 2 July 2020, one month prior to the end of the initial probationary period. Mr Crabtree did not challenge the accuracy of the minutes of the meeting.

75      On 28 July 2020, Mr Crabtree lodged his Notice of Formal Grievance. On the same day, he sent an email to Ms Knox‑Robinson informing her that he had "now responded to the matters listed by way of formal grievance to Deborah Leavitt". The content of the grievance is in substance in response to the concerns raised at the meetings held on 2 July 2020 and 22 July 2020.

76      There is no evidence that Mr Crabtree had raised a grievance either formally or informally prior to 19 June 2020. There is no evidence that Mr Crabtree raised any grievance with Ms Leavitt on 19 June 2020, although it can be inferred that he approached her on that date to discuss his disappointment at not being allocated tasks from other projects. Nevertheless, Ms Parkin had already formed concerns about his performance by that time.

77      It is abundantly clear that Ms Parkin's concerns were raised before Mr Crabtree lodged his formal grievance. Further, there is no evidence that either Ms Parkin or Ms Knox‑Robinson had any knowledge of the fact of the grievance, its content or Mr Crabtree's intention to make it at the time the concerns were raised with him on 2 July 2020 and 22 July 2020. As a matter of simple logic, there can be no temporal nor causal connection between the lodgement of the grievance and the raising of the concerns.

78      There is no merit in Mr Crabtree's case that the reasons for raising the concerns with him were motivated by, or were in retaliation for, Mr Crabtree lodging a grievance.

Was holding the concerns unreasonable, arbitrary, unfair or capricious?

79      As indicated earlier in these reasons, the Board does not consider it necessary to investigate the facts concerning each example of underperformance or unsatisfactory conduct, nor determine whether each example is substantiated. Rather, the Board must be satisfied that in forming the view overall that there was a need for improvement and that absent such improvement, Mr Crabtree was unsuitable for ongoing employment, that the Employer was not acting unreasonably, capriciously, unfairly or in an arbitrary manner.

80      It may be that some of the examples that were raised with Mr Crabtree did not justly reflect adversely on his performance or conduct. For example, the Board has doubts as to whether Mr Crabtree's call for Mr Palmer to put a request for information in an email in circumstances where he was in the middle of helping someone else at the time Mr Palmer telephoned him was a proper basis for concluding that Mr Crabtree was refusing to take calls or that he "doesn't" want to discuss anything over the phone anymore and wants it all tracked". The Employer's concern was that this incident involved an unreasonable refusal to take a phone call from Mr Palmer and that his actions and interpersonal skills were creating additional workload and creating tension. A large volume of Mr Crabtree's written communications were in evidence. As a general observation, the Board considers the tone and content of his communications to be consistently courteous. It is understandable that Mr Crabtree would view Mr Palmer's email concerning this particular incident as "passive-aggressive".

81      Mr Crabtree was criticised for failing to provide material for the Residential Colleges training to Ms Parkin prior to the training session being held, on the basis that he had previously been directed that Ms Parkin had to approve training materials before they were released. However, in support of her contention, that Mr Crabtree had received such a direction prior to the particular occurrence on 30 April 2020, Ms Parkin referred to an email which she sent to Mr Crabtree on 13 February 2020 which was Exhibit 8. That particular email did not concern prior approval of training materials. Rather, it was in response to an email that Mr Crabtree had sent to dgov‑strategy@dpc.wa.gov.au to "open discussion" about the Department coming on board with the Whole of Government Analytics approach. Accordingly, this email did not support a finding that Mr Crabtree had been given any direction relevant to approval of training materials.

82      There is also a tension between the Employer's position that the occupant of the Level 6 Senior Project Officer position was expected to work autonomously and independently, and the suggestion that training materials had to be pre-approved by Ms Parkin. Again, the basis for criticising Mr Crabtree in this instance may have been misplaced.

83      There may also be some validity in Mr Crabtree's complaint that the scope of his role had not been sufficiently clearly defined prior to 18 March 2020 for him to have understood that he required particular authorisation to assist a colleague in Curriculum Support.

84      Nevertheless, there are four factors which indicate that the concerns overall were not unreasonably or unfairly held. First, a significant number of examples of workplace events were referred to as underpinning the concerns. These 14 examples contained a relatively high level of specificity.

85      Second, the source of the information from which the examples were compiled was various individuals involved in the relevant events, including recipients of training and ICT staff. The examples were not concocted by Ms Parkin and do not simply reflect Ms Parkin's subject views or opinions.

86      Third, while Mr Crabtree disputed some of the facts contained in the examples, much was not disputed by him. Significantly, where the allegations related to outcomes which involved risk or damage, Mr Crabtree did not dispute the outcomes or the potential for adverse consequences to the Department of those outcomes. His response primarily sought to deflect his culpability by reference to him not being adequately trained, or not being informed subsequently of any problems in a timely way.

87      Fourth, aside from the three matters discussed in paragraphs [80], [81] and [83] above, the factual allegations that formed the examples underpinning the concerns were cogent and credible. There was no evidence before the Board which indicated anything implausible about the examples relied upon.

88      While the Board is satisfied that, overall, the Employer was justified in holding the concerns about Mr Crabtree's performance and conduct that it did, we should make it clear that we are not making any finding that the examples underpinning the concerns were all or individually substantiated. It may be, that had the enquiry required it, the case would have been run differently by the parties and more comprehensive evidence would have been before the Board in relation to the individual allegations. The necessary enquiry was narrower, so the evidence presented was appropriately limited.

Was Mr Crabtree given adequate notice of the concerns?

89      As outlined above, there is no dispute that Mr Crabtree was notified of the concerns at the meeting between him, Ms Parkin and Ms Knox-Robinson on 2 July 2020. He was provided with the minutes of that meeting. Those minutes comprehensively set out the concerns held by Ms Parkin and set out in detail examples of conduct informing the concerns. The concerns were then set out comprehensively in a letter to Mr Crabtree dated 3 July 2020 which also indicated clearly that if there was no improvement, the employment would be brought to an end.

90      Mr Crabtree complains that the issues were not raised with him at the time that they occurred or earlier than 2 July 2020. Ms Parkin explained that while she had concerns from very early in the employment, she initially put it down to teething problems. The COVID‑19 pandemic not only disrupted the working relationship while work was conducted remotely, but also changed Ms Parkin's priorities and the demands on her time. It was not until Mr Crabtree returned to working at the office on about 25 May 2020 that she began to have clarity as to the need for management of Mr Crabtree's performance and conduct.

91      Nevertheless, as at 2 July 2020, Mr Crabtree was approximately five months into the probationary period, and had a further one month of the probationary period remaining. Even if it could be said that the Employer missed opportunities to raise the concerns sooner, it still raised the concerns at a time when there remained four weeks in which Mr Crabtree could demonstrate improvement and suitability for ongoing employment.

92      The Board considers Mr Crabtree was, in these circumstances, adequately counselled and informed that he was not meeting the required standards of performance and conduct.

93      After receiving clear notice, and with the knowledge that he had four weeks remaining of the probationary employment to establish improvement in performance and suitability for the role, Mr Crabtree took the following two weeks from 3 July 2020 to 19 July 2020 as personal leave. While he produced a medical certificate stating he had a medical condition, he provided no other evidence as to the nature of his medical condition in circumstances where:

(a) he was fit to work on 2 July 2020 and 20 July 2020;

(b) the medical certificate, and leave sought, covered precisely the same period that he had previously sought to take as study leave;

(c) he later sought to revoke part of his personal leave and to take part of the period as annual leave (as he had insufficient personal leave credits to cover the period); and

(d) he attended a university course and worked on university assignments in the period.

94      The Board infers from the above that Mr Crabtree chose not to attend work in the period 3 July 2020 to 19 July 2020. In arriving at this conclusion, the Board does not find that Mr Crabtree did not have a medical condition on those dates. No doubt Mr Crabtree was under stress and there was likely some health benefit to him in not attending work. However, it was his desire not to attend work and instead complete the university course rather than his medical condition which was the primary reason for him seeking a medical certificate and taking personal leave.

95      In other words, Mr Crabtree made a deliberate choice to be absent from work for a large proportion of the time available to him to establish an improvement in his performance and conduct.

96      The real problem for Mr Crabtree, then, was not that he was not given adequate notice of the concerns. The problem was that after he was given notice, he did not utilise the opportunity to focus on his employment nor on demonstrating he was capable of performing the role.

97      Mr Crabtree's conduct subsequent to being given notice of the concerns on 2 July 2020 is the clearest signal that he was the author of his own destiny. By using his work log-in credentials to access and "clone" the training materials on the Department's website on 4 July 2020 for non-work related activities, Mr Crabtree:

(a) placed his personal interests above the interests of the Department;

(b) created a risk that the Department website would be compromised;

(c) accessed the Department's materials in circumstances where he had no legitimate reasons related to his employment to do so;

(d) copied the Department's materials without authority or approval and without his supervisor's knowledge.

The Board accepts the respondent's counsel's submission that this admitted conduct alone was enough to show the lack of suitability for ongoing employment, and justified termination.

98      If anything more was needed, Mr Crabtree's requests for detailed instructions from Ms Parkin to complete the Disability Services and Support workshop between 23 July 2020 and 24 July 2020 is it. This was a task that was listed as the second of 6 items in a list of priorities which were contemplated as forming part of a performance management plan. The draft performance management plan expressly states that the Employer's expectations of the role are to:

Independently conduct workshops with stakeholders to identify and assess content for migration (emphasis added).

99      Mr Crabtree's communications with Ms Parkin concerning this task were cordial, but pedantic, cautious and circumspect in the extreme. His requests that Ms Parkin "clarify what your expectations are for the audience identification part of the workshop" and provide "suggested activities" virtually invited Ms Parkin to personally undertake the work that she had delegated to him. Mr Crabtree painted a clear picture that he was either unable or unwilling to conduct the workshop independently. The demand for such detailed guidance also contradicts his prior complaints that tasks allocated to him were menial or below his competencies, and his references in the communications themselves to his "professional experience".

100   The Board agrees with the respondent that Mr Crabtree's approach to this particular task on the draft performance management plan justified a view that the probationary employment should be brought to an end. Mr Crabtree was clearly on notice, and had had sufficient notice, when he communicated his unwillingness to work independently on this task.

Was Mr Crabtree given adequate training and support during the probationary period?

101   Mr Crabtree submits that principles set out in East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth mean that the employer must provide adequate support and training before it can fairly terminate employment during the probationary period. What the Full Bench said in that case about training was that an employee on probation could expect to receive "reasonable training" [emphasis added]. We accept the Employer's submission that this means that, in assessing whether there was some failure on the Employer's part, or a lack of training, the seniority of Mr Crabtree's position and his professed qualifications and experience must be taken into account as attenuating the training requirements. In other words, what is reasonable training must be assessed by reference to the seniority of the position, its particular responsibilities and the occupant's past experience and qualifications.

102   As a Level 6 Senior Project Officer, Mr Crabtree's key responsibilities included to:

(a) Plan, implement and evaluate elements of the Department's public website and provide specialist communications advice and support to business areas; and

(b) Provide professional learning to business areas on best practice when identifying and communicating content for an online environment and provide training on the use of the platform.

103   In applying for the position, Mr Crabtree held himself out as "a highly experienced and qualified digital marketing professional" holding a Graduate Diploma of Web Communication from Murdoch University. His past experience included coordination of government marketing and communications projects at a state and local level.

104   According to Ms Knox-Robinson, the Employer expected that the occupant of the Senior Project Officer role would be able to work autonomously and with little supervision.

105   In his Notice of Appeal, Mr Crabtree says "I did not receive an induction or any training in the role". This was not the evidence. Ms Parkin's evidence was to the effect that Mr Crabtree received an induction by way of a one-on-one meeting with her on 12 February 2021, a team meeting also on that date and one‑on‑one training on 17 February 2020 with Mr Palmer on website administration. Mr Crabtree was also provided with information to undertake online professional learning and TRIM training on 4 February 2020. This evidence was not challenged by Mr Crabtree.

106   While Mr Crabtree points to numerous weekly team meetings being cancelled by Ms Parkin, he does not dispute the evidence to the effect that at least six meetings proceeded either in person or via MS Teams in the five or so months of employment to 28 July 2020. This was in addition to the various other interactions and communications that were in evidence between Ms Parkin and Mr Crabtree in relation to particular tasks.

107   Mr Crabtree did not identify any particular topic or task on which he says he needed to be trained in order to properly fulfill his role. For example, in response to the allegation concerning causing the server node to crash by exporting the website, Mr Crabtree says that he used "the normal methodology and processes I have used over the past 20 years of professional experience". He then also says that he was given "just a basic introduction to the platform, and provided no training material or detailed instruction into the use of the Liferay platform, it was an assumption of mine that the export function would operate as per the normal behaviour of a fully functioning website management platform". While he raises the issue of training he also makes it clear that he considered his existing knowledge and experience was adequate for him to draw upon. He does not identify how or why additional training would have caused him to adopt a different approach to the task.

108   Mr Crabtree's argument that the training he was given was unreasonably inadequate was also at odds with his formal grievance, which alleged that the tasks he was given were menial and below his Level 6 position. He points to no evidence that he had requested any particular training or additional support before 2 July 2020.

109   Finally, we note that the incident on 4 July 2020 whereby Mr Crabtree has attempted to copy training materials from the website, and allegedly deleted those materials in the process, cannot be put down to a lack of training or support. As indicated above, this incident on its own could be said to be determinative of Mr Crabtree's future employment.

110   For all of these reasons, we do not consider termination of Mr Crabtree's employment could be said to be harsh, unjust or unreasonable because of a lack of reasonable training or support. Accordingly, the Board declines to adjust the Employer's decision.

Remedies sought

111   Given the Board's conclusion that the termination of the probationary employment was not unfair so as to warrant any adjustment, it follows that Mr Crabtree's appeal must be dismissed. It is not necessary to consider further the issue of remedy. However, even if the Board had taken a different view, it would not have adjusted the decision or granted a remedy to Mr Crabtree in any event.

112   Mr Crabtree's employment was for an 18 month fixed term for a particular project. The term of the contract was due to end on 30 June 2021. Mr Crabtree advised the Board at the commencement of the hearing of his appeal that he no longer sought reinstatement, and instead was seeking monetary compensation.

113   The Board's jurisdiction under s 80I is to "adjust" the decision appealed against. It does not have jurisdiction to award compensation in the same way the Commission does when dealing with claims of unfair dismissal under s 23A of the IR Act. Nor does the Board have the power to make a declaration unless it is associated with substantive orders: State Government Insurance Commission v Johnson (1997) 77 WAIG 2169 and Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 at [616].

114   The Employer's counsel drew the Board's attention to Mr Crabtree's email to Ms Leavitt regarding his formal grievance dated 18 August 2020 in which he states:

In regards to outcome, there will need to be a further discussion to decide on appropriate actions from the above, however the behaviour of both Kim Parkin and Jane Knox‑Robinson have decimated the working relationship, so a return to my current role is untenable, as you could well imagine. Part of the outcome I will be seeking is for a transfer to another Public Sector agency, given that I am employed under the Public Sector Management Act, along with positive references from the organisation. I would like a formal apology from both Kim Parkin and Jane Knox‑Robinson, and see them undertake professional development to adhere to the principles, behaviours and expectations of public sector employees.

115   To the extent that the probationary period was a time not only for the Employer to assess Mr Crabtree's suitability for the role, but also for Mr Crabtree to see whether the role was right for him, it appears from the 11 August 2020 email that he had decided it was not.

116   Perhaps more significantly, for the Board to adjust the decision to dismiss would mean that the dismissal is quashed and Mr Crabtree is reinstated to a role under a contract that ceased on a date in the past. This would mean that the Employer would bear the cost of reinstatement without having any services performed by Mr Crabtree and with no future utility to any party. For those reasons alone, the Board would not be inclined to make an order adjusting the decision.

Conclusion

117   The decision to terminate Mr Crabtree's probationary employment was not exercised harshly or unreasonably or otherwise in a manner that is contrary to the purpose and principles of probationary employment. No adjustment to the decision appealed against is warranted, and so the appeal must be dismissed.