Holdsworth and Australian Postal Corporation [2009] AATA 59 (28 January 2009)

Last Updated: 29 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 59

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W 200600108

GENERAL ADMINISTRATIVE DIVISION		)
	Re		FRANCES HOLDSWORTH

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Deputy President S D Hotop Dr P A Staer, Member

Date 28 January 2009

Place Perth

Decision

The Tribunal affirms the decision under review

..........[sgd S D Hotop].......

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant employed by respondent as postal delivery officer – applicant alleged to have breached respondent’s Code of Ethics – informal counselling undertaken – Disciplinary Inquiry instituted – Disciplinary Inquiry Report recommended that applicant be transferred – delegate decided to transfer applicant – applicant suffered mental ailment involving anxiety and depression – applicant’s mental ailment contributed to in material degree by employment – applicant suffered mental ailment as result of transfer decision – Disciplinary Inquiry and transfer decision reasonable disciplinary action taken against applicant – applicant’s mental ailment not a compensable injury – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), s4(1), s7(4) and s14(1)

Boral Resources (Queensland) Pty Ltd v Pyke (1989) 93 ALR 89

Comcare v Eames (2008) 47 AAR 505

Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall [1992] FCA 353; (1992) 37 FCR 75

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

REASONS FOR DECISION

28 January 2009

Deputy President S D Hotop Dr P A Staer, Member

INTRODUCTION

1. Frances Holdsworth (“the applicant”), who was at all material times employed by Australian Postal Corporation (“Australia Post”) (“the respondent”), made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) on 22 September 2005 for an illness described as “depression, anxiety” as a result of “prolonged stress and being falsely accused of misconduct and unreasonable disciplinary action”.
2. On 2 November 2005 a delegate of the respondent made a determination that the respondent was not liable under the SRC Act to pay compensation to the applicant.
3. Following a request on 29 November 2005 by the applicant’s solicitors to the respondent for a reconsideration of the abovementioned determination, another delegate of the respondent made a “reviewable decision” on 13 February 2006 affirming that determination.
4. On 13 April 2006 the applicant made an application to the Tribunal for review of the abovementioned reviewable decision.

THE RELEVANT LEGISLATION

5. The relevant provisions of the SRC Act (as in force at all material times) are as follows:

“4 Interpretation
(1) In this Act, unless the contrary intention appears:
...
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...

disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
...

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
...

7 Provisions relating to diseases
...
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
...

14 Compensation for injuries

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
...”
Section 16 of the SRC Act provides for the payment of compensation for the cost of reasonable medical treatment obtained by an employee in relation to an injury, and s 19 of that Act provides for the payment of compensation to an employee who is incapacitated for work as a result of an injury.

THE EVIDENCE

6. The evidence before the Tribunal comprised:
   • the “T Documents” (T1–T63, pp 1–477) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
   • Exhibits A1–A6 tendered by the applicant;
   • Exhibits R1–R22 tendered by the respondent;
   • the oral evidence of the applicant and of the following witnesses:
     • - Dr John Miller, Mark Holdsworth and a former work colleague of the applicant (who were called by the applicant); and
     • - Dr Lawrence Terace, Mark Butterworth, Anthony Beck, Debra Payne, Michael Owen, Richard Brooks, William Newnham, Anthony Middleton, and four former work colleagues of the applicant (who were called by the respondent).

THE FACTUAL BACKGROUND

7. The applicant has been the subject of two Disciplinary Inquiries instituted by the respondent under its Employee Counselling and Discipline Policy and Procedures (see paragraph 27 below).

The first Disciplinary Inquiry

8. By letter dated 1 September 2004 the applicant was formally notified that an Inquiry would be held into allegations that she had “breached the Australia Post Code of Ethics”. That formal notification informed the applicant as follows:

“ The alleged breaches that will be the subject of the Inquiry are that you:

1. Failed to treat everyone with courtesy, patience and respect causing disadvantage, discomfort or embarrassment to fellow employees.

Particulars:
1.1 On Monday 16.8.2004 you did deliberately drop a container of mail from a height that caused it to make a loud bang on hitting the floor. You did this behind Postal Delivery Officer ... who could not have seen what was going to happen causing her to be frightened and embarrassed by this action. After witnessing the reaction of Ms ... you and fellow Postal Delivery Officer ... did snigger and giggle at Ms ...’s reaction and the discomfort caused to her.
1.2 When walking behind some members of the Night Shift team including Ms ... you do regularly make odd and immature noises in your throat and make comments like ‘we are now standing in the no fun zone’ or ‘no personality people’ and ‘having their lip dragging on the ground’.
1.3 When removing mail from the sorting frames of some team members you do not show them politeness and respect in that you display the behaviour described in 1.2 above and by reaching into their frame without informing them of your intention.
1.4 Deliberately treating some members of the Night Shift team differently causing them to feel unwelcome or not a part of the team. This includes talking openly and in a loud voice to selected team members in the presence of others.
1.5 You do regularly place mail upside down and back to front in mail trays for those Postal Delivery Officers that you have issues with and those that they associate with. This conduct is not consistent with standard operating procedures.
1.6 The behaviours referred to in 1.2 to 1.5 above are not directed at all of your work colleagues, and show signs of specifically targeting some colleagues with whom you have a particular issue, and others with whom they associate.
2. Engaged in conduct that intimidates and offends other employees.
Particulars:
2.1 As set out in Particular 1.1 to 1.6 above.

3. Failed to consistently perform work to an agreed or prescribed standard or higher.

Particulars:
3.1 As set out in Particular 1.5 above.
3.2 During the week ending 20.8.2004 when the regular Night Shift Supervisor was absent on sick leave you were observed by your peers to slow down your work rate and engage in conversation not relevant to your work with Ms ... This resulted in your peers having to unnecessarily perform additional work.

4. Failed to observe a lawful direction.

4.1. During your shift ending 24.8.2004 you and Ms ... did change from casual shoes to safety shoes when the Night Shift Supervisor was working on the loading dock. This conduct was contrary to an oral direction issued to you by the Night Shift Supervisor on 24.6.2004 and re-iterated at the team brief of 25.6.2004 that you were to change your shoes during your own time.
...
If the alleged breaches are proven, the Inquiry Officer may recommend to the Authorised Officer (State Operations Manager, Mail and Networks Division) that you be:

• Dismissed;
• Transferred to another position or location at the same or lower level;
• Reduced two increments for a period of 12 months (or equivalent monetary penalty); or
• Counselled.

...” (T23)

9. The Inquiry Officer, Mark Butterworth, subsequently interviewed the applicant and 13 other Australia Post staff members in the period 15 September – 8 October 2004. (T27)
10. In his “Report on Code of Ethics Inquiry – Frances Holdsworth”, dated 21 December 2004, Mr Butterworth stated his findings as follows:

“Findings

1. Failed to treat everyone with courtesy, patience and respect causing disadvantage, discomfort or embarrassment to fellow employees.
   

1.1 Particulars:
On Monday 16.8.04 after Postal Delivery Officer Frances Holdsworth did deliberately drop a container of mail from a height behind Postal Delivery Officer ... that you did join Ms ... in sniggering and giggling at Ms ...’s reaction and the discomfort caused to her.
Finding:
This alleged incident was not reported at the time and there were no witnesses. The allegation cannot be substantiated. – NOT PROVEN
1.2 Particulars:
When walking behind some members of the Night Shift team including Ms ... you do regularly make odd and immature noises in your throat and make comments like ‘we are standing in the no fun zone’ or ‘no personality people’ and ‘having their lip dragging on the ground’. When questioned by the Night Shift Supervisor you deny that you are talking about these work colleagues.
Finding:
According to Ms ... incidents involving the alleged ‘comments’ and ‘throat noises’ occurred on 17.8.2004 and 18.8. 2004 respectively. Ms ... did not report them to the Team Leader or Delivery Manager at the time and there were no witnesses to them. However, the allegation as detailed in the Notification of Inquiry letter was that Ms Holdsworth regularly made the noises and comments and was not specific to an incident. A number of the Night Shift staff interviewed did state at interview that they had heard Ms Holdsworth and Ms ... make the alleged ‘throat noises’ and ‘belittling comments’ on many other occasions over the preceding 15 months. Given the number of other Night Shift staff who have heard Ms Holdsworth conduct herself in the alleged manner, on the balance of probability this allegation is PROVEN.
1.3 Particulars:
When removing mail from the sorting frames of some team members you do not show them politeness and respect in that you display the behaviour described in 1.2 above and by reaching into their frame without informing them of your intention.
Finding:
This alleged behaviour, which involved Ms ..., was not reported at the time and there were no witnesses. The allegation cannot be substantiated. – NOT PROVEN
1.4 Particulars:
Deliberately treating some members of the Night Shift team differently causing them to feel unwelcome or not a part of the team. This includes talking openly and in a loud voice to selected team members in the presence of others.
Finding:
This allegation as detailed in the Notification of Inquiry letter was not specific to an incident. There are many witnesses who have stated that they are treated differently by Ms Holdsworth in this way. Given this, on the balance of probability this allegation is PROVEN.
1.5 Particulars:
You do regularly place mail upside down and back to front in mail trays for those Postal Delivery Officers that you have issues with and those that they associate with. This conduct is not consistent with standard operating procedures.
Finding:
The only incident of this nature identified by my investigations occurred over 9 months ago and related to a Postal Delivery Officer who no longer works for Australia Post. There was no evidence presented by those interviewed to suggest that this sort of conduct occurs on a regular basis. The only behaviour relevant to this allegation occurred too long ago and cannot be substantiated. NOT PROVEN
1.6 Particulars:
The behaviours referred to in 1.2 to 1.5 above are not directed at all of your work colleagues, and show signs of specifically targeting some colleagues with whom you have a particular issue, and others with whom they associate.
Finding:
This allegation is not specific to an incident. There is no doubt in my mind based on the evidence presented by those interviewed that some individual staff members are being treated differently and with less respect than others by Ms Holdsworth. PROVEN
2. Engaged in conduct that intimidates and offends other employees.
2.1 Particulars:
As set out in Particular 1.1 to 1.6 above.
Finding:
The evidence presented by those interviewed clearly indicates that the conduct displayed by Ms Holdsworth in the workplace and referred to in Particulars / Findings 1.2, 1.4 and 1.6 both intimidated and/or offended not only Ms ..., but other Night Shift team members even though they might have decided not to report the conduct at the time. It is pertinent to mention that both Ms Holdsworth and Ms ... appear to be very deliberate and calculated in their actions towards other employees, which amounts to intimidation and harassment within the workplace. PROVEN

3. Failed to consistently perform work to an agreed or prescribed standard or higher.

3.1 Particulars:
As set out in Particular 1.5 above.
Finding:
As mentioned in Finding 1.5 above my investigations found that this conduct was restricted to an isolated incident that occurred some time ago, rather than recent or regular occurrences. This allegation cannot be substantiated. NOT PROVEN
3.2 Particulars:
During the week ending 20.8.2004 when the regular Night Shift Supervisor was absent on sick leave you were observed by your peers to slow down your work rate and engage in conversation not relevant to your work with Ms ... This resulted in your peers having to unnecessarily perform additional work.
Finding:
This allegation as detailed in the Notification of Inquiry letter was reported to the Team Leader. The Team Leader spoke to Ms Holdsworth at the time and requested that she resume her work and engage in less chat. In addition, there are many witnesses who have stated Ms Holdsworth and Ms ... regularly slow down their work during the supervisor’s absence. On the balance of probability I find this allegation PROVEN.
4. Failed to observe a lawful direction.
4.1 Particulars:
During your shift ending 20.8.04 (sic) you and Ms ... did change from casual shoes to safety shoes when the Night Shift Supervisor was working on the loading dock. This conduct was contrary to an oral direction issued to you by the Night Shift Supervisor on 24.6.04 and re-iterated at the team brief of 25.6.04 that you were to change your shoes during your own time.
Finding:
This allegation as detailed in the Notification of Inquiry letter was reported to the Team Leader. The Team Leader had previously implemented and communicated an office policy that required safety shoes to be changed outside work-time. This policy was well known by all staff including Ms Holdsworth and Ms .... In addition, there are many witnesses who have stated Ms Holdsworth and Ms ... regularly change into their safety shoes during work-time and in breach of the office policy. On the balance of probability I find this allegation PROVEN.”

Mr Butterworth's report concluded as follows:

“ 7. Prior Current Breaches of the Code of Ethics:
Ms Holdsworth has not been the subject of any formal action under the Australia Post Employee Counselling and Discipline Process. She has however been informally counselled on a number of occasions in relation to her conduct in the workplace.
8. Recommendation
It is recommended that Ms Holdsworth be:

• TRANSFERRED TO ANOTHER LOCATION AT THE SAME LEVEL WITH AN EQUIVALENT NUMBER OF WEEKLY HOURS.

9. Reasons for recommendation
The conduct displayed by Ms Holdsworth in the workplace is clearly unacceptable and is contributing to the undermining of the effectiveness and staff morale of the Night Shift group. It is conduct which has had and continues to have serious consequences in the workplace. Furthermore, the behaviour displayed is not what you would expect from a mature woman. Particularly after the investigation conducted in July 2003 and the steps taken at the time and since then to ensure that all Night Shift staff have a clear understanding of their responsibilities and what is expected of them in the workplace in respect of both the Code of Ethics and Harassment Policy.
Given that the mediation and briefing sessions have failed to achieve a change in behaviour as evidenced by Ms Holdsworth continuing to forego her personal responsibility for conducting herself in an acceptable manner in the workplace, it is critical that Australia Post deals with this now. In the circumstances Australia Post is left with no other alternative than to take formal action under the Australia Post Employee Counselling and Discipline Process. In reaching the recommendation that Ms Holdsworth be transferred to another Delivery Centre/Facility I have given careful consideration to the options available to me.
Summarised:

• Dismissal or a two increment reduction for 12 months was considered too harsh given that there has been no prior formal action taken under the Australia Post Employee Counselling and Discipline Process.
• A formal or warning counselling is considered inappropriate because Ms Holdsworth does not recognise the seriousness of the breaches and there (sic) ongoing nature. Nor does she accept personal responsibility for her actions. Similarly it means that all parties would remain in the same workplace making it difficult for both the Team Leader and Delivery Manager to manage the group and the team dynamics. Furthermore it is most unlikely, based on past experiences that if Ms Holdsworth was to receive a warning counselling and remain at Nedlands that she would cease conducting herself in the manner that she has demonstrated in the workplace for some time.
• Transfer is considered the only real option because it effectively separates the parties involved in the conflict and sends a clear message to all parties and for that matter the whole of the Night Shift group that conduct of this nature is unacceptable in the workplace. Neither should it be tolerated.” (T26)
  

11. Mr Butterworth sent a copy of his report to the applicant under cover of a letter dated 21 December 2004 whereby she was informed that the Report had been submitted to Mr Mike Owen, State Operations Manager, Mail and Networks Division for his consideration and that she might forward a written statement to him or seek a meeting with him. (T28)
12. By letter dated 21 December 2004 the applicant informed Mr Owen that she wished to meet with him “to discuss the alleged breaches of the Australia Post Code of Ethics”. (T29)
13. By letter dated 23 December 2004 Mr Butterworth (on behalf of Mr Owen) informed the applicant that she was “required to attend an Inquiry interview with Mr Mike Owen” on 5 January 2005 at which she would be “given the opportunity to respond to the findings and recommendations made against [her] as set out in the notification of Inquiry Recommendation letter dated 21 December 2004”. (T30)
14. On 24 December 2004 the applicant wrote to Mr Owen as follows:

“Thank you for the meeting you have arranged on the Wednesday 5th January 2005. I would like to request a copy of the full allegations and any relevant documentation pertaining to these alleged breaches. I have previously requested these by phone to the original inquiry officer Ms Anna Mora on the 2.9.04 and again to the new inquiry officer Mr Mark Butterworth on the 10.9.04 and again at the first and only interview with Mr Mark Butterworth on the 24.9.04.
I would also request a copy of all relevant information ie witnesses, documentation, evidence that assisted Mr Butterworth in his findings.
I require this information before our scheduled meeting on the 5th January 2005 because even though Mr Butterworth has completed his recommendation I still do not understand these allegations. In the interest of fair play and natural justice I therefore request them at your earliest convenience.
I believe the documentation to date supplied to me only to be a broad outline rather than the full detailed allegations and also there seems to be some inconsistencies.
Due to the lack of time afforded me to respond and attend this meeting I would appreciate that this request is dealt with expeditiously, as you can appreciate this is causing me undue stress.” (T31)

15. Following her meeting with Mr Owen on 5 January 2005 the applicant wrote a long letter (comprising 11 typewritten pages), dated 17 January 2005, to Mr Owen criticising Mr Butterworth’s conduct of the Disciplinary Inquiry, the adverse findings made by him, and his recommendation that she be transferred. (T35)
16. On 2 March 2005 Mr Owen wrote to the applicant as follows:

“NOTIFICATION OF DISCIPLINARY DECISION
I refer to the recent Inquiry undertaken by Mark Butterworth into your alleged breaches of the Australia Post Code of Ethics as stated in the Notification of Inquiry letter dated 1 September 2004.
Having carefully considered the Inquiry Report, findings and recommendation; the information contained in your written submission; and that which you shared with me at our recent meeting I have decided to transfer you to Osborne Park Delivery Centre with effect from Monday 7 March 2005.
I would ask that you report to Delivery Centre Manager Brian Yorke at 11.55 pm on Monday 7 March 2005. I have also arranged for you to be given paid leave for Thursday night shift of this week so you can make any necessary arrangements prior to commencing at your new location.
The reason for my decision is that our investigations since our discussion confirm that you and Ms ... are contributing significantly to the instability of the Nedlands Delivery Centre night shift group by engaging in conduct that intimidates and offends fellow employees. While you have both provided documentation aimed at outlining your views and opinions concerning the management of the workplace it does not justify your collaborative intimidatory behaviour or the effect it is having on the workplace group as a whole.
It is appropriate to mention that I have considered this matter carefully and I am now providing you with an opportunity to reconsider your commitment to the Corporation’s Code of Ethics and the standards of behaviour expected of everyone employed by Australia Post. In stating this I cannot stress enough importance (sic) for you to conduct yourself in a professional manner in your dealings with all fellow employees.
If you consider the penalty imposed in relation to your breaches of the Code of Ethics to be harsh, unreasonable, unjust or unfair you may submit a written application requesting a review of the decision by a Board of Reference. The application must be lodged with the Manager, Human Resources, Australia Post, GPO Box 9000, Perth WA 6848 within 14 days of this letter ie by Tuesday, 15 March 2005.
...” (T36)

17. By letter dated 11 March 2005 the applicant informed the respondent that she wanted to appeal against Mr Owen’s decision because she believed it to be “harsh, unreasonable and unjust”. (T37)
18. By letter dated 19 April 2005 the respondent notified the applicant that her appeal would be heard by a Board of Reference on 27 April 2005. (T39)
19. On 2 May 2005 the Board of Reference Chairman, Mr V J Connell, made the following report:

“Ms Francis (sic) HOLDSWORTH was employed on night shift sorter duties as Postal Delivery Officer on Night Shift at Nedlands Delivery Centre. An Inquiry Officer was appointed by Australia Post to inquire into certain allegations that the employee had breached the Australia Post Code of Ethics and an appropriate sanction should be applied to her as a consequence of her alleged actions.
During the course of this hearing by the Board of Reference, as Chairman, I observed to the parties that in my view there should have been documented attempts by the Corporation to specify the alleged shortcomings of the employee with the opportunity to change the alleged behaviour and a commitment to review progress prior to a decision and a sanction being decided upon by the Corporation.
After considerable discussion it was agreed by the parties to fully and finally resolve this appeal by instead of any penalty being applied in this case Ms Holdsworth voluntarily sought a change of work location which was agreed to by Australia Post arranging for Ms Holdsworth to continue her employment at Osborne Park Delivery Centre (sic).” (part of T41)

20. On 10 May 2005 the applicant wrote to Mr Connell as follows:

“Further to my appeal on the 27th April 2005 at 9.30am and in response to your letter dated 2nd May 2005 received on the 5th May 2005, I would like to put forward in writing that I am unhappy with the outcome. To my knowledge the appeal would be based on whether Australia Post’s decision to transfer me to another location would be harsh, unjust, unfair and unreasonable.
As pointed out at the appeal it was a breach of the EBA 6 to transfer for a first breach of the Code of Ethics. After considerable consideration I do not believe that a transfer of me would be a resolve (sic) that I would be seeking. It (sic) was of the opinion that my health needed to be considered in the decision to take a voluntary transfer, but I strongly believe that if I was to go to another centre my health could suffer because it would be a consistent reminder that I have been punished for an alleged first breach of the Code of Ethics, and have been given no counselling or insight into the behaviour that is described as ‘collaborative and intimidating’.
I was under extreme pressure to agree with the informal recommendation by the chairperson. I was given no other options and also not given any time to consider the recommendation and given no opportunity to seek advice.
I would appreciate that you consider my views on this matter and I look forward to a response at your earliest convenience.” (part of T42)

The second Disciplinary Inquiry

21. By letter dated 11 March 2005 the applicant was formally notified that an Inquiry would be held into allegations that she had “breached the Australia Post Code of Ethics and committed misconduct”. That formal notification informed the applicant as follows:

“ The allegations that will be the subject of the Inquiry are that you:

1. Engaged in conduct directed towards Nedlands Delivery Centre Night Shift Supervisor ... that had no proper purpose and by your conduct you intimated her.
   

Particulars:
1.1 Shortly before 11pm on Thursday 3 March 2005 while Night Shift Supervisor ... was driving to work you followed her in your motor vehicle down Loftus Street then into Government Road, and when Ms ... stopped in the driveway at the gates to the Nedlands Delivery Centre staff carpark, you stopped your vehicle immediately behind her vehicle, across the entrance to the driveway. There was a passenger in your motor vehicle, Ms ...
1.2 When a motor vehicle driven by another employee of the Corporation drove down Government Street (sic) you drove away.
1.3 Earlier that day you had been advised of your immediate transfer from the Nedlands Delivery Centre and you had been directed by Delivery Manager Anthony Beck not to return to the Delivery Centre without having obtained prior approval from him. You had not obtained prior approval from Mr Beck and had no proper purpose for being in the vicinity of the Nedlands Delivery Centre in the circumstances set out in 1.1 and 1.2.
1.4 Ms ... was intimidated by your conduct and in the circumstances, viewed objectively, your conduct was intimidating.

2. Failed to observe a lawful direction.

Particulars:
2.1 On the completion of your shift on the morning of Thursday 3 March 2005 Delivery Manager Anthony Beck directed you not to return to the Nedlands Delivery Centre without having obtained prior approval from him.
2.2 You returned to the Nedlands Delivery Centre shortly before approximately 11pm on Thursday 3 March 2005 in the circumstances set out in 1.1 above. You had not obtained prior approval from Mr Beck.
The Inquiry will be conducted by Richard Brooks, Production Manager, Perth Mail Centre.
...
If the allegations are proven, the Inquiry Officer may recommend to the Authorised Officer (State Operations Manager, Mail and Networks Division) that you be:

• Dismissed;
• Transferred to another position or location at the same or lower level;
• Reduced two increments for a period of 12 months (or equivalent monetary penalty); or
• Counselled.

...” (T48)

22. The Inquiry Officer, Richard Brooks, subsequently interviewed the applicant (on 21 March 2005) and 5 other Australia Post staff members (on 17 March 2005), and was provided with a statutory declaration made by the applicant on 21 March 2005 (T55) and a statutory declaration made by Mark Holdsworth, the applicant’s husband, on 21 March 2005 (T56).
23. In his “Report on Code of Ethics Inquiry – Francis (sic) Holdsworth”, dated 20 April 2005, Mr Brooks stated his findings as follows:

“ 4. Findings
Australia Post takes compliance with the Code of Ethics very seriously. In particular where allegations of harassment and intimidation are made the Corporation’s Discipline Process require (sic) investigations into those allegations to be undertaken. Any decision on whether those allegations are sustained is only made following careful investigation of all the relevant circumstances and after giving any individual involved an opportunity to consider and respond to any allegations which may have been made against them.
Breach 1: Allegedly engaging in conduct directed towards the Nedlands Delivery Centre Night Shift Supervisor ... that had no proper purpose and by Ms Holdsworth’s conduct intimidated Ms ... Not Proven
Based on the evidence provided by Ms ..., which I find to be credible and which was corroborated by other witnesses, and other information gathered during the Inquiry, I am satisfied that an incident did occur at the Nedlands Delivery Centre at approximately 10.50pm on Thursday 3 March involving a white Honda vehicle.
On the issue as to whether Ms Holdsworth was the driver of the white Honda vehicle, while I find the evidence provided by Ms ... credible, I have also considered the evidence provided by Ms Holdsworth to the effect that she was home in bed at the time of the incident. I have been unable to identify witnesses who are able to verify that Ms Holdsworth was in fact the driver of the Honda vehicle, and therefore have been unable to reconcile the conflicting evidence.
I do note however, that the description of the vehicle involved in the incident is similar to Ms Holdsworth’s vehicle.
After careful consideration of all of the evidence, I am unable to find this breach proven even though there is a body of evidence to the contrary.
Breach 2: Failed to observe a lawful direction. Not Proven
Based on the Findings of Breach 1 this breach is not proven.”

Mr Brooks’ Report concluded as follows:

“ 5. Recommendation
Not applicable given that the allegations against Ms Holdsworth have not been proven.” (T58)

24. Mr Brooks notified the applicant by letter (undated) of the outcome of the Disciplinary Inquiry. (T59)
25. On 26 April 2005 Debra Payne, Acting State Operations Manager, Mail and Networks Division, wrote to the applicant as follows:

“As you are aware, the Australia (sic) Postal Corporation (‘the Corporation’) takes compliance with the Code of Ethics very seriously, and accordingly it is incumbent on both the Corporation and employees to ensure that the Code of Ethics is complied with. In addition, the Corporation’s Disciplinary Process requires that where there has been an alleged breach of the Code of Ethics, an investigation must be undertaken and where substantiated disciplinary proceedings commenced to address the breach.
I have read the Inquiry Report prepared by Richard Brooks and having read and considered the evidence and findings of Mr Brooks find that an incident did occur at the Nedlands Delivery Centre on the night of Thursday 3 March 2005 involving a white Honda vehicle.
However, given the inability to reconcile the conflicting evidence, I am satisfied that the alleged breach of the Code of Ethics cannot be substantiated. On that basis no further action will be taken in relation to this matter.” (T60)

THE AUSTRALIA POST CODE OF ETHICS

26. The Australia Post Code of Ethics (T61) states (inter alia):

“ ...
Workplace relationships
Australia Post is committed to equal employment opportunity and selects and promotes employees according to merit. Our relationships and decisions are characterised by integrity and fairness and a desire to work together. We commit to:
- Treating everyone with courtesy, patience and respect and not causing disadvantage, discomfort or embarrassment to fellow employees.
...
- Ensuring that there is no direct or indirect discrimination or harassment
Work practices and performance
Honesty and high performance standards will prevail. We commit to:
- Being aware of, and complying with, Australia Post policies and all applicable laws, industrial awards and agreements governing our business conduct, and seeking clarification if needed.
...
- Consistently performing work to an agreed or prescribed standard or higher.
- Exercising due care in our work.
...
- Acting and behaving in a manner that never intentionally causes damage to Australia Post’s business interests, employee relations or public reputation.
- Not engaging in conduct that intimidates, offends or damages the property of other employees, customers, suppliers or the public.
...
IF THE CODE IS BREACHED
Behaviour in breach of the Code of Ethics is damaging to the business and to public and work relationships.
Action or omission that contravenes this Code constitutes misconduct and will be subject to counselling or disciplinary action appropriate to the circumstances and seriousness of the behaviour. Disciplinary action may include dismissal.
If the conduct involves non-compliance with relevant laws, it will normally also be referred to Corporate Security or any other relevant area, or to the appropriate law enforcement authorities.
...”

THE AUSTRALIA POST EMPLOYEE COUNSELLING AND DISCIPLINE POLICY AND PROCEDURES – SECTION 6

27. The Australia Post Employee Counselling and Discipline Policy and Procedures (“ECDPP”), Section 6 (T63), contains the following relevant provisions:

“ ...
6.2.1 AUSTRALIA POST CODE OF ETHICS
The minimum standard of behaviour and/or performance expected of all employees of Australia Post is set out in Australia Post’s Code of Ethics. The achievement and maintenance of those standards to which we individually and collectively commit, is critical to achieving high levels of customer service and meeting the Corporation’s business requirements in a highly competitive commercial environment.
The Code of Ethics is supplemented by the Australia Post Employee Counselling and Discipline Process (the Process), which is applied in cases where it is considered that an employee’s behaviour and/or performance is inconsistent with the standards in the Code of Ethics. The Process includes employee review rights to a Board of Reference. The review rights apply when an employee is subject to disciplinary action ie the employee is dismissed, transferred to another position of the same or a lower level, had imposed a two (2) increment reduction for 12 months (or equivalent penalty) following a Disciplinary Inquiry conducted under the Discipline component of the Process. The review rights also apply when an employee is suspended without pay pending a Disciplinary Inquiry decision.
6.2.2 AUTRALIA POST EMPLOYEE COUNSELLING AND DISCIPLINE PROCESS

1. OBJECTIVE

The Employee Counselling and Discipline Process, has three (3) distinct but not necessarily sequential components namely, ongoing informal Face-to-Face Feedback, Counselling (Formal and Warning) and Discipline (Disciplinary Inquiry).
The decision as to which of the three components to initially apply will be based on the seriousness of the shortfall in the employee’s behaviour and/or performance against the standards in the Code of Ethics. That decision will depend on the facts and circumstances as identified by, or conveyed to, the employee’s manager or supervisor. Where the manager or supervisor does not identify the behaviour and/or performance issue first hand, he or she must closely question the information source in order to obtain sufficient facts to determine the seriousness of the shortfall and the appropriate intervention. The status of these facts and circumstances at the time of initiating the Process is that of allegations which will either be established or not established during the application of the Process, and in particular, after the employee has been given the opportunity to respond to the allegations.
Giving prompt informal Face-to-Face Feedback to employees about their behaviour and/or performance is an important management responsibility. Where it is established during the informal discussion that there is a minor shortfall between the required standard of behaviour and/or performance and an employee’s actual behaviour and/or performance, the feedback should be constructive, ie developed and delivered to encourage an employee to achieve and maintain behaviour and/or performance that is consistent with the Code of Ethics.
The objective of the Counselling component of the Process (ie both Formal and Warning Counselling) is to:

1. promptly draw to the attention of an employee, a more serious alleged shortfall(s) of the Code of Ethics standards; and

(ii) where the behaviour and/or performance is proven during the course of the Formal or Warning Counselling interview to be below those standards, to assist the employee to achieve and maintain behaviour and/or performance that is consistent with the standards in the Code of Ethics.
Accordingly, the Counselling component is primarily based on personal counselling at progressively higher levels of line management, appropriate to the seriousness of the misconduct and/or deliberate under-performance against an agreed or prescribed standard.
In the event that reasonable efforts to assist an employee to achieve and maintain the required change through Counselling is ineffective, or there is an alleged very serious breach of the Code of Ethics, a Disciplinary Inquiry will be initiated. The outcome of a Disciplinary Inquiry may lead to disciplinary action in the form of the employee’s dismissal, transfer to another position of the same or a lower level, or the imposition of a two (2) increment salary reduction for 12 months (or an equivalent penalty).
Where it is established during the Formal Counselling interview or Warning Counselling interview or the Disciplinary Inquiry interview that an employee’s failure to achieve and maintain the required change is not deliberate on the part of the employee, the matter should be dealt with under clause 3 – ‘Inefficient/Incompetent Employees’, of the Australia Post Principal Determination. It should not continue to be progressed under the Employee Counselling and Discipline Process.
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6.2.3 OVERVIEW OF THE EMPLOYEE COUNSELLING AND DISCIPLINE PROCESS
A broad outline of the Process to be applied when a manager or supervisor considers that there is a shortfall in an employee’s behaviour and/or performance against the standards in the Code of Ethics is as follows:
a) MINOR SHORTFALL(S)

1. Giving regular personal Face-to-Face Feedback to employees about their behaviour and/or performance is an important management responsibility. All feedback needs to be constructive ie developed and delivered to encourage and recognise behaviour and/or performance that is consistent with the Code of Ethics. Where it is considered that there is a minor shortfall in an employee’s behaviour and/or performance against the standards in the Code of Ethics, the employee’s line control supervisor should promptly draw the behaviour and/or performance issue to the attention of the employee in an informal face-to-face discussion. The employee should be informed of the specific details that have given rise to the discussion and be given the opportunity to respond.
2. If the discussion confirms that a minor shortfall has occurred, the employee should be:
   • advised of the standard expected under the Code of Ethics which emphasises high performance behaviour and performance which is critical to achieving high levels of customer service and meeting the Corporation’s business requirements in a highly competitive commercial environment; and
   • engaged in jointly identifying what needs to be done to achieve and maintain behaviour and/or performance which is consistent with the Code of Ethics.

...

4. While there is no need to formally document the discussion, a supervisor/manager must make a brief diary note to assist in the monitoring of the agreed action(s). It is essential that follow-up action(s) take place at the agreed time(s).
   2. LACK OF IMPROVEMENT OR MORE SERIOUS SHORTFALL(S)

If the unacceptable behaviour and/or performance continues, or is repeated in spite of the discussion(s) and agreed action(s), or a more serious behaviour and/or performance issue is identified, the line control supervisor will need to decide whether the issue would be likely to be resolved by further Face-to-Face Feedback or whether it would be more appropriate to take action in accordance with one of the formal components of the Process.
Where it is clearly established that an employee’s failure to achieve and maintain the required change is not deliberate on the part of the employee, the matter should be dealt with under clause 3 – ‘Inefficient/Incompetent Employees’ of the Australia Post Principal Determination. It should not continue to be progressed under the Employee Counselling and Discipline Process.
c) FORMAL COMPONENTS
Unlike the Face-to-Face Feedback component of the Process which is informal, the other two components, namely Counselling (Formal and Warning) and Disciplinary Inquiry, are formal.
The three components of the Process will not necessarily be applied sequentially in all cases. The component of the Process used by a supervisor or manager will involve the exercise of judgement and will depend upon his or her assessment of the known facts and the particular circumstances of the individual case under consideration. It is possible that a manager may commence with one component of the Process but change it to another after having given the employee the opportunity to respond to the allegation(s).
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6.2.8 FORMAL COUNSELLING
a) OVERVIEW

1. A Formal Counselling is a personal interview between an employee and his or her supervisor or manager and must be remedial and supportive.
2. Formal Counselling would be held in circumstances where misconduct and/or deliberate under-performance against an agreed or required standard which has previously been discussed with the employee through Face-to-Face Feedback with his or her immediate supervisor, is repeated or continued and further Face-to-Face Feedback is considered ineffective. It may also apply where other alleged deliberate misconduct occurs (eg failure to adopt safe work practices or use safety wear and/or equipment supplied by Australia Post or failure to show courtesy and respect to a fellow employee or failure to observe a prescribed work procedure or standard etc *).

[*These examples are used for illustrative purposes only. Each situation must be considered on an individual basis.]

3. The objective of Formal Counselling is, where the conduct and/or performance issue is proven, to assist the employee in understanding what needs to be changed, why the change is necessary and to jointly discuss and agree on how the employee can achieve the required change(s) within a reasonable time-frame and maintain that change. The required change(s) in the employee’s behaviour and/or performance is formally documented.

b) APPROPRIATENESS OF FORMAL COUNSELLING
In determining whether Formal Counselling is appropriate, a supervisor or manager must decide, on the facts and circumstances as known prior to hearing the employee’s response, whether:

• the situation can be resolved through further Face-to-Face Feedback;
• the case should be handled at the next management level and addressed through a Warning Counselling or a Disciplinary Inquiry; or
• Formal Counselling is sufficient.

...
6.2.9 WARNING COUNSELLING
a) OVERVIEW

1. If an employee’s behaviour and/or performance does not improve after Formal Counselling or the nature of the allegations warrants it, Warning Counselling should normally be undertaken by the next level of management (ie the person to whom the employee’s line control supervisor reports) in order to emphasise the seriousness of the employee’s situation.
2. The purpose of the Warning Counselling is, where the alleged more serious misconduct and/or apparent deliberate under-performance against an agreed or prescribed standard is proven during the Warning Counselling interview, to:
   • emphasise to the employee that his or her behaviour and/or performance is unacceptable, explain to the employee why it is important to change by referring to the relevant sections of the Code of Ethics and the actual or potential work consequences of his or her behaviour and/or performance;
   • establish the employee’s commitment to making the necessary improvement; and
   • make clear to the employee that further misconduct and/or deliberate under-performance against an agreed or prescribed standard may lead to a Disciplinary Inquiry, the consequences of which may be the employee’s dismissal or transfer to another position of the same or a lower level or the imposition of a two (2) increment reduction for 12 months (or an equivalent penalty).

b) APPROPRIATENESS OF WARNING COUNSELLING
The Supervisor/Manager who is responsible for undertaking the Warning Counselling must decide on the facts and circumstances as known prior to hearing the employee’s response on the more serious alleged misconduct and/or deliberate under-performance whether:

• further Formal Counselling would achieve the necessary improvement;
• Warning Counselling is appropriate; or
• details of the current allegation(s) should be referred to the next level of management to consider whether it is appropriate to conduct an immediate Disciplinary Inquiry.

...
6.2.10 DISCIPLINARY INQUIRY
a) OVERVIEW

1. When it is clear that the required improvement in behaviour and/or performance has not been achieved and/or maintained after a Warning Counselling (ie where all reasonable attempts to assist the employee have been unsuccessful), or where very serious misconduct (eg violence, misappropriation of monies etc *) is alleged to have occurred, a Disciplinary Inquiry should take place.

[*These examples are used for illustrative purposes only. Each situation must be considered on an individual basis.]
...
c) PREPARATION FOR DISCIPLINARY INQUIRY
Written advice of the Disciplinary Inquiry to the employee must include the following information:

• details of the very serious alleged breach(es) of the Code of Ethics and the specific particulars of the employee’s behaviour and/or performance that is considered to be unacceptable and the reason why it is unacceptable. Be as precise and objective as possible.

[In the interests of natural justice, the employee must be provided with accurate particulars and not broad allegations so that the employee knows the full case against him or her and has a fair and satisfactory opportunity to present a case in response.]
...
e) DISCIPLINARY INQUIRY FINDINGS, REPORT AND RECOMMENDATIONS

1. If the allegation(s) is proved to be unfounded (ie the employee provides an acceptable reason for his or her behaviour and/or performance) or is not proved, the employee and supervisory staff must be informed immediately. The formal documentation relating to the Disciplinary Inquiry is, consistent with the relevant archival requirements, to be retained on the employee’s personnel file for 18 months after the completion of the Disciplinary Inquiry.
2. If the Inquiry Officer finds the allegation(s) proved and there are no mitigating circumstances and that the breach(es) constitutes:

(a) serious and wilful misconduct; and/or
(b) serious and deliberate under-performance against an agreed or prescribed standard; or
(c) serious misconduct; or
(d) ‘grossly negligent conduct’,
he or she should then access the employee’s personnel file and refer to any Counselling or Discipline records. The Inquiry Officer will need to exercise his or her discretion on the use or relevance of such records that are within the record retention periods specified in section 6.2.7(a) above – ‘Records’ and the weight that is to be placed on that material.

3. Where an employee’s previous Counselling or Discipline record is taken into consideration in determining the next appropriate course of action, the employee must be informed of the material that has been used.

iv) Based on a consideration of all the facts, the Inquiry Officer will then:
(a) submit the Disciplinary Inquiry Report [including recommendation] to the Delegate. [The recommendation may be disciplinary action ie dismissal, transfer to another position of the same or lower level or the imposition of a two (2) increment salary reduction for 12 months (or equivalent penalty) or that arrangements be made for the conduct of a Face-to-Face discussion, a Formal or a Warning Counselling.]
and
(b) where the recommendation is disciplinary action, also provide the employee with a copy of the Disciplinary Inquiry Report [including recommendation(s)] together with written advice that:

• the Disciplinary Inquiry Report and recommendation(s) have been referred to the Delegate (provide name and contact details) for consideration and decision; and
  • the employee may, if he or she so chooses, either directly or through his or her representative, forward a written statement to the Delegate or seek a meeting with the Delegate; and
  • either of these two (2) actions should take place within five (5) calendar days of the date of the advice; and
  • the representation of the employee or his or her representative to the Delegate may only be on the question of the recommended penalty and procedural issues. The merits of the case will not be reviewed.

...
6.2.11 DISCIPLINARY ACTION
a) ACTION BY DELEGATE
The Delegate will:

• consider the Disciplinary Inquiry Report together with any written or verbal representations made either by the employee or through his or her representative. That representation may only be on the question of the recommended penalty and procedural issues. The merits of the case will not be revisited. The role of the Delegate is to listen and take notes of issues raised by the employee, not to engage in a debate or discussion of the contents of the Inquiry Report. At the conclusion of the representation, the employee is to be informed that his or her comments have been noted and will be taken into consideration before the Delegate makes a final decision. ...
• be satisfied that the employee has had reasonable opportunity to respond either verbally or in writing to the allegations against him or her; and
• take whichever of the following actions is considered to be appropriate based on the evidence provided:

1. Accept the Inquiry Officer’s recommendation(s); OR

2. If the recommendation(s) is considered inappropriate (ie either too harsh or too lenient), implement a more appropriate course of action ie:

a) conduct or arrange a Warning Counselling; or

2. transfer the employee to a position of the same or lower classification; or

100. where the breach of the Code of Ethics is sufficiently serious to be only marginally short of dismissal and transfer action would either advantage the employee or result in too harsh a penalty, reduce the employee’s salary by two increments for a period of 12 months (or equivalent penalty); or

d) dismiss the employee; OR

3. Reject the recommendation(s) on the basis that no disciplinary action is required.

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2. DISMISSAL OR TRANSFER

1. Restrictions

No employee is to be dismissed or transferred for the following reasons:

1. For a first breach of the Code of Ethics, unless the employee’s work conduct is established as constituting serious and wilful misconduct; or ‘grossly negligent conduct’*, or
2. If the employee is inefficient or incompetent, or unable to discharge, or incapable of discharging the duties of his or her position for reasons that are not deliberate on the part of the employee. (Refer Clause 3 of the Australia Post Principal Determination.)

* ‘Grossly negligent conduct’ would apply in isolated circumstances. Such conduct would involve a reckless act or omission which causes or could cause significant damage or harm and which would adversely effect the employment relationship.
Decisions involving dismissal or transfer which are based on gross negligence as opposed to serious and wilful matters should not be made without a prior referral to the Corporate HR Group.
...” (original emphasis)

Appendix 1, which comprises an overview chart of the Employee Counselling and Discipline Process, lists (inter alia) the factors for determining the appropriate formal component of the Process to be used, as follows:

Formal Counselling	Warning Counselling	Disciplinary Inquiry [Before conducting the Discipinary Inquiry, the Inquiry Officer must document the reason(s) for proceeding to the Inquiry]
a serious alleged Code of Ethics shortfall (eg deliberate work misconduct such as apparent failure to adopt safe work practices, treat a fellow employee with courtesy and respect or to observe a prescribed work procedure or standard), even though a first occurrence repeated alleged shortfall in behaviour and/or performance after face-to-face feedback and further face-to-face feedback considered ineffective	a more serious alleged shortfall in behaviour and/or performance even though a first occurrence further misbehaviour and/or deliberate under-performance against an agreed or prescribed standard during Formal Counselling review period Formal Counselling ineffective	very serious alleged work misconduct (eg violence, misappropriation of monies) or ‘grossly negligent conduct’ even though a first occurrence reasonable attempts to assist employee to rectify unsatisfactory behaviour and/or performance unsuccessful further shortfall in behaviour and/or performance during Warning Counselling review period Warning Counselling ineffective

As regards the abovementioned “determining factors”, Appendix 1 states:

“NB: to be used as a guide only. The stage accessed will depend on the facts and circumstances and seriousness of the alleged shortfall/breach in the employee’s observance of the Code of Ethics standards.”

THE AUSTRALIA POST ENTERPRISE AGREEMENT 2004–2006

28. Clause 16.1 of the Australia Post Enterprise Agreement 2004-2006 (“EBA6”) provides that this Agreement is binding on Australia Post and the specified unions and employees of Australia Post. As regards “Employee Discipline”, cl 8.15 provides:

“The arrangements outlined in Attachment A shall apply.”

Attachment A, which is headed “EBA 6 Conditions of Service”, relevantly states:

“10. Employee Discipline

1. Australia Post has the right to dismiss an employee, impose a penalty of a reduction of two (2) increments for a period of 12 months (or equivalent penalty), or to transfer an employee to another position of the same or a lower classification for behaviour or performance which warrants such action, including:

(i) misconduct or wilful neglect of duty or grossly negligent conduct;
(ii) incompetence or inefficiency for reasons within the employee’s control;
(iii) failure to observe the Code of Ethics.

2. Except in the case of serious and wilful misconduct or grossly negligent conduct (see below), Australia Post shall ensure that:

(i) employees are counselled and/or given a warning in order to assist them to maintain acceptable standards of behaviour and performance;
(ii) no employee is dismissed or transferred for a first breach of the Code of Ethics.
Grossly negligent conduct would apply in isolated instances only. For the purpose of this clause, such conduct involves a reckless act or omission which causes or could cause significant damage or harm and which would adversely affect the employment relationship. Decisions involving dismissal or transfer which are based on gross negligence (but not serious and wilful matters) should not be taken without prior referral to the Corporate HR Group.
...

4. In exercising these rights, Australia Post shall not take action which is harsh, unjust or unreasonable.
5. Australia Post shall furnish written advice to an employee of a decision under clause (1) and of reasons for the decision together with details of the procedures for lodging an application for review.
6. Where transfer, dismissal or penalty under clause (1) is considered to have been harsh, unjust or unreasonable, the employee concerned may submit an application for review of the decision by a Board of reference. Any such application must be lodged within 14 days of the transfer, penalty, or dismissal, in accordance with procedures established by Australia Post. ...

Board of Reference

7. For the purposes of clause (6), the Industrial Registrar of the Australian Industrial Registry shall be requested to appoint a Board of Reference for the duration of the Agreement.
8. A Board of Reference shall be constituted by a Chairperson as may be agreed upon by the parties, or, where the parties are unable to agree, as nominated by the Industrial Registrar.
9. A Board of Reference shall seek to resolve any application for review submitted to it, having regard to whether the decision was harsh, unjust or unreasonable.
10. A Board of Reference, in reviewing a decision in relation to which an application is made:

(i) may form (sic) itself in such manner as it thinks fit;
(ii) has discretion as to the procedure to be followed;
(iii) is not bound by the rules of evidence; and
(iv) shall proceed without regard to legal form.” (T62)

THE APPLICANT’S EVIDENCE

29. The applicant’s evidence-in-chief is set out in her witness statement, dated 18 August 2008, as follows:

“I was humiliated, demeaned, belittled at my place of work which was the Australia Post, Nedlands Delivery Centre by management and staff. I was made the subject of two inquiries.
The first inquiry was handed to me by my Manager, Mr Anthony Beck, on the 2.9.04. When he handed me the inquiry I asked him to explain to me what it was and where were these allegations coming from, he responded by telling me that he knew nothing about them and nothing about the person or persons making the allegations, the only thing he explained to me was that these allegations could be proven on probability. I asked Mr Beck to explain what that meant and what he said to me was that if enough people out there say it happened then it would be proven.
I got home that morning and stayed awake to make contact with the inquiry officer and find out what I needed to do and to ask who the claimant or claimants were. Ms Anna Mora was the initial inquiry officer and she told me that at that point she had no idea about the details of this inquiry and she would get back to me with the relevant information and answer some of my queries. Ms Anna Mora did call me back to let me know that she will no longer be the inquiry officer and I would need to wait to be notified of the new inquiry officer.
I was notified of the new inquiry officer on the 10.9.04 and once again I made immediate contact with him to let him know I was aware that he was appointed, the new inquiry officer being Mr Mark Butterworth. I again wanted to know who the claimant or claimants were and any other relevant information pertaining to this inquiry. Mr Butterworth couldn’t provide me with any information.
During the next couple of weeks an interview time was made, to allow me to respond to these allegations. The interview was arranged at 5 am on the 24.9.04. Mr Butterworth came in to the Nedlands Delivery Centre at 11 pm on the 23.9.04. I initially thought that maybe I had been confused and got my times wrong, but Mr Butterworth called a meeting with all of the staff and announced that there would be an inquiry and he would be conducting interviews. He then proceeded to interview the night shift staff before he had interviewed me. I felt embarrassed that the night shift staff had the opportunity to view all of my (sic) baseless and unfounded allegations before I had even got a chance to respond to them, but I didn’t say anything.
At 5am my interview took place with a union representative, Mr Gary Carson, as my witness. I felt the way Mr Butterworth interviewed me and spoke to me was in a very negative and hostile manner and I felt that he had already made up his mind about these allegations, an example of this was when I asked him who had made these allegations towards me, he told me that it was a complaint made by one of my colleagues Ms ..., and that Mr Graeme Woodthorpe and Ms Debra Payne upgraded her complaints to an inquiry. He had confirmed to me on more than one occasion that there was only one complainant and this was Ms ... When I questioned one of the allegations that was made, I asked him how could Ms ... even make this allegation when she wasn’t even present on this date, he just got angry and just said ‘WELL DID YOU DO IT’, he didn’t explain anything about the allegation or clarify it. Through the months ahead when more documentation was provided to me I noticed that the dates had been changed.
I was told by Mr Butterworth that it would be necessary to have a second interview. This was arranged on the 22.10.04. Mr Butterworth notified me that a second interview wasn’t necessary because he had sufficient information.
On the 13.11.04 I was told by a colleague that there was a result to the inquiry and was told by my supervisor that I was going to be transferred. I found this news quite distressing because I personally had not been made aware of any recommendations or decisions. I got home and told my husband what had happened and he told me to call Mr Butterworth to find out whether this was true. I was quite upset so my husband made the call for me. I was really worried that my supervisor would further punish or victimize me for making Mr Butterworth aware that she was telling certain members of staff this information and I was also worried that the staff that had told me would be victimized or punished for disclosing this information. Mr Butterworth confirmed to my husband that he had not made a decision and I would be notified as soon as it was (sic). The next day the Manager, Mr Anthony Beck, had a meeting with all of the night shift staff to tell them that we were not to discuss the inquiry and that there was still no decision made. I was really embarrassed that again my colleagues were made aware of my future in the company and that my position in the company was still in question.
On the 21.12.04 (four days before Christmas) Mr Butterworth came to the Nedlands DC to hand deliver his recommendation for the inquiry. His recommendation was that I be transferred, but I was told it was only a recommendation and that Mr Mike Owen (State Manager Mails and Network) would make the final decision.
A meeting with Mr Mike Owen was arranged for the 5.1.05 and I was given the opportunity to discuss with Mr Owen the inquiry. He later gave me the opportunity to put in writing some of the reasons why I should not be transferred. I did provide Mr Owen a very detailed letter of why I believed I should not be transferred and some examples of this were that there was no procedural fairness applied and that it was a breach of the EBA 6.
This decision was confirmed in writing by Mr Owen and given to me by Mr Beck on the 3.3.05 at 6am. Mr Beck told me that I was required to leave the premises immediately and not to speak to anyone and I would be escorted off the premises. He also explained to me that I was not to go to work that night and was to have the night off and that if I needed to return to Nedlands DC, I would need to get prior permission. I was escorted off the premises by Mr ... in full view of all the employees at the Nedlands DC. I was completely humiliated by this experience. I could not believe that the company could treat me in such a disrespectful manner but it seemed that the whole thing was staged and designed to humiliate, embarrass and belittle me.
In the whole time I had been employed at Nedlands DC, which was approximately 5 years, I had never witnessed anything like that except for 5 minutes before whereby I witnessed one of my colleagues Ms ... who was also involved in the same inquiry. I had however seen codes of ethics being breached which I considered far more serious by other staff and I was never made aware of any inquiries or asked to be called as a witness.
I went home that day and felt shaken by what I had just experienced. I stayed awake all day and went to bed reasonably early because I had not slept all day and was tired. I slept all through the night and didn’t go anywhere and I woke the next day. That morning I received a telephone call from Ms Debra Payne and she told me that I was now involved in a second inquiry because I had allegedly Breached a Code of Ethics. She told me that 3 people at Nedlands DC had seen me drive past. I couldn’t believe what I was hearing. I tried to tell Ms Payne that I was home in bed, and she just kept telling me that she had 3 witnesses and the inquiry was going ahead. I was so shocked, my daughter was home with me at the time of the telephone call and she was also at home at the time of the alleged incident, so I thought maybe if I put my daughter on the phone to confirm my whereabouts Ms Payne would maybe believe me and not go ahead with the inquiry. She got quite angry when my daughter was on the phone and wouldn’t listen to anything she had to say. She wasn’t interested in anything I or my daughter had to say. She spoke to me like I was guilty. I was so shocked and amazed that I could now be involved in an inquiry whereby I breached the code of ethics while I was in bed. I was in bed because the company told me I must have the night off and was not allowed to attend work. In my opinion I felt that maybe they had set me up and that the company was either looking for ways to have the decision of the first inquiry reinforced and that they would not breach the EBA 6 or that it was their intention to dismiss me. Either way I lost complete trust in the Company and that they had no duty of care to me they just wanted to get rid of me.
The inquiry went ahead and my husband and I supplied Statutory Declarations stating our whereabouts of the alleged incident (sic). Even though the inquiry was never proven, the way the results were worded was that they believe that an incident did occur.
My appeal for the first inquiry was on the 27th April 2005. Mr Vince Connell was the chairman. Mr Connell observed that in his view there should have been documented attempts by the Corporation to specify the alleged shortcomings of myself with the opportunity to change the alleged behaviour and a commitment to review progress prior to a decision and a sanction being decided upon by the Corporation.
I was under extreme pressure to agree with the informal recommendation. I was given no other options and also not given any time to consider the recommendation and given no opportunity to seek advice.
My health, ie mental health, started to decline very soon after the inquiry result was handed to me and when I was escorted off the premises. I felt I couldn’t trust people and became withdrawn and frightened to be anywhere that I didn’t consider safe. I got progressively worse. By that I mean I was unable to drive my car, always needed somebody near me so that they could clarify my whereabouts. I started to have panic attacks and they would cripple me, I would struggle to breathe, I would have to go and lie down because I felt like I was going to die, sometimes I would go to bed and just try and fall asleep and I truly believed I was not going to wake up because I was dying. I tried to cope with it myself and not talk about it to anyone, because maybe they would think I was crazy, because I didn’t really understand what was happening. There were days where I couldn’t get out of bed because I felt exhausted. I didn’t even have the energy to do anything. I couldn’t even have a shower because it felt like it would be too exhausting. One day I was lying in bed and when my husband came in I asked him to sit with me. I explained to him that I was too scared to be alone and could he just stay with me and not leave my side. My husband was quite concerned about me so he helped me have a shower and took me to the doctor’s while I lied (sic) in the back seat of the car. When I got to the doctor’s I felt a bit more at ease, because I thought if something happens, at least I’m at the doctor’s. When I went into the doctor’s office I explained to him that I was feeling frightened and we also discussed admitting me to hospital, so that I felt comfortable knowing there were people around because it was necessary for my husband to be able to go to work as he couldn’t be with me all of the time. I personally decided that I would try and push through the fear and stay at home by myself. The doctor prescribed medication for me in the form of Zoloft and that did help me. I went to Dr Helena Piirto for a few visits, but to be honest I could not afford to keep going. I tried to deal with it myself, and as long as I didn’t have to go to work at Australia Post it was easier for me to deal with.
The thought of going to work for a Company that I considered to have no interest in providing me with a safe working environment and not showing any interest in why I was feeling this way and not providing me with any counselling to help me deal with the injustices that I believed I experienced (sic). They weren’t interested in helping me at all. They did however request that I attend their doctor, Dr Lai, on the 9.6.05, but he wasn’t really there to advise me of what I should do, he was there I guess just to make a diagnosis whether I was unfit for work. I never heard anything about that visit. I have not returned to work simply because I don’t feel comfortable going to a different centre. Australia Post is insistent that I do not return to Nedlands DC.
I personally feel that I may have coped a lot better had I been allowed to return to Nedlands DC because at least all of my colleagues would have seen that an injustice had occurred and that it would have been rectified. Given that I haven’t been allowed to return just shows my colleagues that in fact the inquiry and the action that they took was justified.
The injustices that I had experienced were brought to the attention of the diversity department and I also put in writing to the regional manager Mr Graeme Woodthorpe in January of 2004 that I felt that I was involved in a constructive dismissal. He met with me and we discussed some of the issues. He later wrote back to me and confirmed in writing just some of the issues I had raised and that they would be rectified.
I believe I was working in a climate that was not fair and that I was being treated very differently to others. I believe I was repeatedly focused on. I also believe that if I had not experienced these injustices at my place of work I would not have developed this illness.
I would have probably not developed this illness if Australia Post had followed due process, and not breached the EBA 6.” (Exhibit A1)

30. In cross-examination the applicant said that the circumstances which caused her to be distressed in March 2005 were the decision to transfer her (because she believed that this constituted a breach of EBA 6) and her being “escorted off” the premises of the Nedlands Delivery Centre. As regards the latter event, she said that it occurred at 6.00 am on 3 March 2005, 30 minutes before the night shift was due to end. She added that she believed it had been “staged” at that time “so that every staff member would be there” to witness the event. She said that, although she was upset about it, she was aware at that time that she had the opportunity to appeal and “things would be rectified then”.
31. The applicant confirmed that she had received a telephone call from Debra Payne in the morning of 4 March 2005 in the course of which Ms Payne had told her that 3 witnesses had seen her drive past the Nedlands Delivery Centre late on the previous night and that there would be an inquiry into that matter. She agreed that she had then become extremely agitated and vigorously denied having been at the Nedlands Delivery Centre the previous night, and had told Ms Payne that she was at home in bed that night. She acknowledged, however, that although she rejected that allegation, Australia Post was obliged to put it to her and to investigate it.
32. The applicant was referred to the following diary notes made by William Newnham in respect of conversations he had with her in 2001 (when he was Manager of the Nedlands Delivery Centre) regarding her behaviour in the workplace:

“ 7.06.01 Spoke to Fran regarding her attitude to ... Fran said that she did not have a problem with ... and that ... was the one with the problem. I asked Fran why she did not talk or say hello to ..., she replied ‘no reason’. Fran also said that she knows ... talks about her but could give no examples. Fran also mentioned that ... was a problem when emptying frames of mail. Will contact Tim Law to discuss.
12.06.01 Spoke to Fran regarding ... and informed Fran that they would not being (sic) working in close proximity until this issue has been sorted out. Fran acknowledged the fact. Fran had not noticed any change either way.
3.7.01 Spoke to Fran and ... regarding their behaviour towards each other. They both agreed to be polite to each other and cooperate while working together.
12.12.01 Spoke to Fran regarding her behaviour towards ... Fran said that she feels ... is watching over her work and reporting her to ... Fran is not happy with this.
12.12.01 Spoke to Fran and ... and informed them that if this behaviour continues that they both will be put on a code of ethics. All sledging and negative comments to cease.”

Asked whether she regarded any of those diary notes as inaccurate, she responded:

“They’re not inaccurate ... there’s just not enough information to really gather why I was there in the first place.”

She agreed, however, that in 2001 she was having “frequent difficulties” in her relationship with another member of the night shift staff and that those diary notes reflected those difficulties.

33. The applicant was next referred to a diary note of 15 November 2002 made by Mr Newnham as follows:

“ 15.11.02 Spoke to Fran regarding the issues on nights. Fran must take control and delegate workloads to all staff. Fran must not be seen to favour certain staff members and must alienate herself from the so called groups. Fran must treat all staff accordingly (sic).”

She confirmed that that note indicated that at that time she was acting in a supervisory position, namely, Team Leader, and that it had been alleged that she had been favouring some staff members over others.

34. The applicant was also referred to a diary note of 1 September 2003 made by Mr Newnham as follows:

“ 1.9.03 Spoke to Fran regarding comments made to PDOs. Fran said ‘I’m not allowed to talk, they don’t like the sound of my voice’, or words to that effect. Fran did not deny this and this is an informal warning.”

She acknowledged that she had been the subject of a warning by Mr Newnham and that she was aware that that was a disciplinary action. Asked what the diary entry was referring to, she recalled an “open forum” staff meeting at which various members of the night shift staff had said that they did not like the sound of her voice and preferred that she did not talk, and added:

“So maybe that’s what I was referring to.”

Asked what she understood she was being warned about, she responded:

“I really have no clue, actually.”

35. As regards the Disciplinary Inquiry conducted by Mr Butterworth, the applicant said that she regarded it as unfair that Mr Butterworth interviewed other night shift staff members before he interviewed her because he might thereby have formed an opinion before he spoke to her. She also said that the “quite aggressive” way in which he questioned her led her to think that he had already made up his mind against her.

THE MEDICAL EVIDENCE

Dr John Miller

36. Dr Miller, a general practitioner, prepared a report, dated 10 October 2007, regarding the applicant as follows:

“ I have been asked to provide a report on this lady in relation to her stress related illness beginning in early 2005.
I first saw her on April 1, 2005 when she complained of being harassed at work and of being accused of serious misconduct through changing her shoes at work and in driving past the workplace. She described how she was unable to drive her children to school and was unable to drive her car as a result of her anxiety. She further described being found curled up on the floor of her garage and of her obsession with the problems at her work.
I diagnosed an anxiety disorder and prescribed the medication sertraline.
She remained anxious and fearful of surveillance.
On April 11 I referred her to a clinical psychologist but through an error she ended up seeing a Dr H Piirto who is a psychiatrist.
Her anxiety symptoms improved slowly on the Zoloft and her panic attacks ceased. On June 8, 2005 she reported that she was again able to drive. I discussed the question of her making a claim under Worker’s Compensation with her first on May 2nd but she did not feel this was an appropriate avenue until June 16 when I completed a First Certificate.
On September 2, 2005 I reassessed Mrs Holdsworth and found her to be much improved. I provided a repeat prescription for sertraline on Feb 3, 2006, and have not treated her since.” (Exhibit A2)

37. The “Workers’ Compensation FIRST Medical Certificate” issued by Dr Miller on 16 June 2005 contained, inter alia, the following details:
    • date of injury/disease, onset of complaint: 4 March 2005;
    • worker’s description of injury/disease: “I have become depressed and anxious”;
    • worker’s description of how it occurred: “I have been accused wrongly of misconduct and of stalking a colleague. This has led to my anxiety, depression and inability to drive my car without taking medication and to avoiding certain parts of Perth;
    • clinical findings/diagnosis: “depression, recurrent acute anxiety”.

Dr Miller certified the applicant to be totally unfit for work from 4 March 2005 to 18 August 2005. (T5)

38. On 2 August 2005 Dr Miller issued a “Workers’ Compensation PROGRESS Medical Certificate” regarding the applicant’s “depression, anxiety” in which he certified her as totally unfit for work for 30 days from that date. (T6)
39. On 15 August 2005 Dr Miller issued a further progress medical certificate in which he stated that there had been “no change” in the applicant’s condition and certified her as totally unfit for work for 30 days from that date. (T7)
40. On 13 September 2005 Dr Miller issued a further progress medical certificate in which he stated that there had been “no change” in the applicant’s condition but that he required the advice of her psychiatrist, Dr Piirto, before determining her fitness for work. In his oral evidence Dr Miller confirmed that, on 13 September 2005, he considered that the applicant was fit to return to work on that date.

Dr Peter James

41. The Tribunal had before it progress clinical notes made by Dr James (a member of the same medical practice as Dr Miller) regarding consultations with the applicant in the period before 1 April 2005 when she first consulted Dr Miller (Exhibit R3). A clinical note of 8 March 2005 refers (inter alia) to “work stress”, “transferred – ‘escorted’”, “false ‘stalking’ accusation”. A clinical note of 22 March 2005 states:

“Still feeling stress from malevolent work place.”

Dr Helena Piirto

42. Dr Piirto, Consultant Psychiatrist, provided a report, dated 25 May 2005, to Dr Miller regarding the applicant as follows:

“ ...
I assume that you are familiar with Frances’ work place stresses stemming from late 2004. I have reassured her that she is not overtly paranoid, as in my experience work place difficulties come in all sorts of shapes and forms and it is not uncommon for people to be unfairly targeted for one reason or another. Based on the history given to myself, I feel it probable that Frances presented with Major Depression with Panic Symptoms which has partially responded to Sertraline appropriately prescribed by yourself.
...” (part of Exhibit R2)

43. On 1 August 2005 Dr Piirto certified that the applicant “continues to be unfit while dealing with stressors” from 1 August 2005 to 5 September 2005. (T9)

Dr Lawrence Terace

44. Dr Terace, Consultant Psychiatrist, provided a report, dated 30 November 2006, to the respondent’s solicitors. In that report Dr Terace noted that he had seen the applicant for the purpose of examination on 13 November 2006 (for one hour) and on 30 November 2006 (for 45 minutes), set out the background to the applicant’s claim for compensation as provided to him by the respondent’s solicitors, set out the history as provided to him by the applicant, and stated the following opinions and conclusion:

“ ...
3.2 There is no current diagnosis. Ms Holdsworth’s present psychological experiences are within the bounds of normal mental function.

• 4.1 Ms Holdsworth probably did meet criteria for a recognisable psychiatric condition as of about March 2005 which I would then have called –

Adjustment disorder/disturbance (309.28) with Mixed Anxiety and Depressed Mood...
I found no evidence that this was severe, and rather it was probably mild to moderate in nature. The condition was temporary and has since resolved.
5.1 On the balance of probabilities it was the disciplinary action that contributed to a material degree to any depression or anxiety suffered by her in the past.
5.2 The psychiatric history supports the view that the cause of any former psychological condition was a product of the following interacting factors-
5.2.1 Inherent personality and constitutional factors
5.2.2 Disciplinary measures, and her fears of termination of employment as a product of the disciplinary measures.
6.1 There is no ongoing psychological disorder.
6.2 I found no evidence of the continuation of a significant psychological condition for the past 12 months.
7.1 In my opinion, any former psychological condition was temporary, and has long resolved.
...
9.1 No specific medical treatment is presently required.
CONCLUSION

1. There is sufficient psychiatric evidence to support the view that Ms Holdsworth probably did meet criteria for a temporary, but recognisable psychiatric condition in the past as a consequence of disciplinary matters.
2. This is probably consistent with the description of ‘Depression and anxiety’ as per the claim for compensation lodged as of the 12th August, 2005 (sic).
3. However, I did not find sufficient evidence to support that Ms Holdsworth was totally disabled from a psychiatric standpoint, despite the certification by Dr Miller’s medical certificates first being as of the 16th June 2005, certifying her unfit for work between the 4th March, 2005 and the 18th August, 2005.

(I also note backdated certification for incapacity for a period exceeding 3 months. I also note the report available from Dr Piirto dated the 1st August 2005 stating that the applicant – ‘Continues to be unfit while dealing with stressors’.)
In my opinion, this would have been a very unpleasant time for Ms Holdsworth and she probably would have then met criteria for the recognisable psychiatric condition of –
3.1 Adjustment disorder/disturbance (309.28) with Mixed Anxiety and Depressed Mood ...
However, I am not convinced that Ms Holdsworth was so disabled that she was unable to return to work, and rather the matters of this case appear to predominate around her industrial grievances/belief that she was unreasonably disciplined by her employer. Certainly, the workplace would have been unpleasant for her under those circumstances (or perceivably so), but unpleasantness does not mean incapacity.

4. Certainly there is no evidence of any present psychiatric condition. Ms Holdsworth’s present psychological experiences are equivalent to the ordinary terms of demoralisation and frustration about her grievances towards her employer about the consequence of the disciplinary action. Despite her failure to return to work, Ms Holdsworth is presently capable of returning to her former employment. Thus, I found no true or present psychiatric incapacity, nor any specific need for psychiatric treatment in the present.” (original emphasis) (Exhibit R5)
   
45. In a supplementary report, dated 14 August 2008, Dr Terace answered questions asked of him by the respondent’s solicitors as follows:

“ ...

4. Could it be said that Ms Holdsworth’s reaction in March 2005 to the disciplinary action taken and its consequences and/or potential consequences, was within the boundaries of normal mental functioning and behaviour?

Yes, it is most likely that her reaction in March 2005 to the disciplinary action taken and its consequences and/or potential consequences was predominantly within the boundaries of normal mental functioning and behaviour, but it is possible that she was disabled briefly eg for a few days.

5. Is it more likely than not that Ms Holdsworth was never disabled for work as a consequence of any psychiatric illness, but rather made a decision not to return to work? If you consider that it is more likely than not that Ms Holdsworth was never disabled for work, what are the reasons for your view in this regard?

In my opinion, it is more likely than not that Ms Holdsworth was briefly disabled for work as a consequence of any psychiatric illness, and then also made a decision not to return to work which has been sustained.” (original emphasis) (Exhibit R6)

THE EVIDENCE OF THE LAY WITNESSES CALLED BY THE RESPONDENT

Former work colleagues of the applicant at Nedlands Delivery Centre

46. The Tribunal heard evidence from four persons who formerly worked with the applicant on the night shift at the Australia Post Nedlands Delivery Centre. It is unnecessary, however, to refer to their evidence in detail in these reasons.

Management staff members of Australia Post

William Newnham

47. Mr Newnham was the Delivery Centre Manager at the Nedlands Delivery Centre from July 2000 to February 2004. His witness statement (Exhibit R14) – in which the applicant is referred to as “Fran” – refers generally to staffing issues relating to the night shift group at the Nedlands Delivery Centre as follows:

“ ...

4. During the time I was at Nedlands there were numerous ongoing staffing issues and complaints I had to deal with that involved the Nedlands night shift group.
5. These issues took up valuable time for everyone, and the work environment was impacted on by people avoiding each other and not being able to work closely together as a group.
6. Most of the issues that were raised in the workplace involved Fran and Fran was spoken to by me on numerous occasions concerning the many issues that were being raised with me by the other staff. On several occasions, when I spoke to he I told her that I expected her to improve her behaviour, and I explained that whether it be at Australia Post or any other workplace people need to be treated with respect, that is, we all needed to treat others the same way we would expect to be treated.
7. During the period from 2001 to 2004 I convened a number of mediation sessions (group meetings) with the night shift group as a result of the complaints and allegations that were brought to my attention. These mediation sessions were group gatherings of the whole night shift where they all received the same message.
8. Although I had to speak to Fran about issues or allegations that had been made involving her on numerous occasions, rarely did the allegations go any further due to the person making the complaint not being prepared to be more specific or not being willing to take the matter further. That is, other staff members weren’t prepared to follow through by formally registering their complaints. This did not make it easy for me to be able to deal with, or resolve matters raised.
9. Whenever someone came to me with a complaint, I would say to the person that unless they are able to give more specifics and be prepared to follow through on the allegation raised, there was no formal action I could take against the individual. Very rarely was anyone prepared to take it to the next step, but when this did occur, I would get the whole group together for a ‘mediation’ to remind them of their obligations to work effectively with each other in the workplace.”
   

Mr Newnham referred to his diary notes of conversations he had with the applicant regarding her workplace behaviour in the period June 2001–January 2004, including a diary note of 1 September 2003 which states as follows:

“Spoke to Fran regarding comments made to PDOs. Fran said ‘I’m not allowed to talk, they don’t like the sound of my voice’, or words to that effect. Fran did not deny this and this is an informal warning.”

Mr Newnham’s witness statement continues:

“ 11 When I spoke to Fran on 1 September 2003, I made it very clear to her that she was receiving an informal warning.

12. All of my diary notes were entered either on the day the events happened or within the next 1-2 working days. I also made separate diary notes for other staff members in the group, and these were entered onto an individual record that I maintained for them.
13. In July 2003, when the allegations and complaints involving Fran continued to be raised by people, I referred the matter up the line to Graeme Woodthorpe, Area Manager, and he arranged for Tony Middleton to conduct an investigation of the night shift group.
14. In early December 2003 a team briefing on the Code of Ethics and Harassment Policy was conducted involving all staff in the group. I arranged for this session to be conducted due to a number of ongoing allegations still being raised. I sat in on the session with the staff, but even at this session when asked, no one was prepared to admit that there were any issues. It clearly stood out at this briefing however, that there were 3 separate tables where each ‘group faction’ sat and this reflected the factions that existed within the night shift. Some people were known to change factions over the time I was at Nedlands.
15. I hoped that by talking to Fran individually as well as talking to the group as a whole there would be improvement in the behaviour at work, but nothing really ever seemed to improve the group dynamics over any long term, and there was always some form of issue or allegation arising. I always hoped there would be some improvement, but at the same time I had serious reservations because of the night shift history.

...”

48. In his oral evidence Mr Newnham confirmed that his abovementioned conversation with the applicant on 1 September 2003 involved “informal counselling” and that, during his period of service at the Nedlands Delivery Centre, “no disciplinary process past informal counselling” was ever undertaken in relation to the applicant.

Anthony Middleton

49. Mr Middleton’s witness statement (Exhibit R16) is as follows:

“ 1 I am employed in the position of Network Support Manager at Australia Post’s Mail Delivery Centre, Boud Avenue, Perth Airport. I have occupied this job since October 1999.

2. In July 2003, I was asked by Graeme Woodthorpe, Area Postal Manager to conduct interviews with all of the Nedlands night shift workers and to provide a written report to him on my findings.
3. As I recall, the reason for me being asked to conduct the interviews was to independently investigate a telephone complaint (or complaints) that had been received from a Nedlands night shift worker regarding the behaviour of another (or other) employees at Nedlands.
4. I had no prior knowledge of any of the Nedlands night shift workers at the time I conducted my interviews.
5. I interviewed all Nedlands night shift staff on 28 and 29 July 2003, except ... who was absent on both nights. My report dated 4 August 2003 was then provided to Graeme Woodthorpe. ...
6. My report included my thoughts based on the information I obtained from the interview, and I also included some recommendations for Australia Post management to consider.

...”

50. Mr Middleton’s abovementioned report of 4 August 2003 (in which the applicant is referred to as “Fran”) concludes as follows:

“ My thoughts-
At this stage, I don’t feel there are really any issues worth pursuing at the Area Manager’s level. The treatment of staff by Fran is probably due to a lack of people skills and her reaction to not getting the supervisor’s position. While we can’t make Fran like everyone, we can certainly use the Code of Ethics to ensure she treats them with respect, if that’s required. When ... takes over, it may become a non-event.
Likewise, I feel Fran’s remarks about ... are probably just sour grapes. If the behaviour continues when ... takes up the supervisor’s role, then Bill Newnham can invoke the Code of Ethics to handle the situation.
There was no mention of deliberate sabotage from anyone I spoke to.
...
Recommendations:
I think that the entire group should be spoken to regarding going through the PDO’s drawers. The facility manager can do this at the local level. At this meeting the DM should also quote from the AP Code of Ethics, regarding acceptable behaviour in the workplace (under the Workplace relationships heading). It needs to be pointed out in no uncertain terms, that any breach of the COE will not be tolerated. Minutes of the meting should be made and all those in attendance should be required to sign acknowledgment with a copy placed on file.
...” (T27, pp230–231)

Anthony Beck

51. Mr Beck’s witness statement (Exhibit R7) is as follows:

“ 1 I am currently employed in the position of Delivery Centre Manager Level 3 (‘DCM’) at the Australia Post Delivery Centre in Nedlands. I have occupied this job since February/March 2004.
...

4. Before moving to Nedlands I had heard unconfirmed comments at area manager meetings which all DCMs attended, that there were some problems at Nedlands, but all delivery centres experienced issues at some time or another that needed to be addressed.
5. When I first started at Nedlands, I very soon realised from the anecdotal comments made by staff that there were behavioural issues that existed within the group. Most of the comments that were brought to my attention involved Frances Holdsworth (Fran) and another employee..., and it soon became apparent to me that Fran was the instigator of behaviour that led to number (sic) of the ‘complaints’ that were raised with the team leader ... and me.
6. In my opinion Fran ‘pulled the ropes’ behind the scenes and formed a factional group with one or two other staff to support her motives, and this contributed to the behavioural complaints that were made. My own observations clearly led me to believe that Fran saw herself as the ‘unofficial team leader’ within the group who didn’t like other people’s authority.
7. During the first six months after I started, due to the fact that the people who raised concerns weren’t prepared to carry them through, I conducted team briefing sessions on harassment and the code of ethics to remind everyone of their obligations while at work. As there was no one prepared to carry through with their issues or grievances against Fran, I was unable to specifically deal with the issue formally with her. I believe however, that Fran probably knew that the team briefings were mainly brought about by her actions.
8. From my observations, I considered Fran to be ‘high maintenance’, and there were occasions when I raised my concerns about the general behaviour within the night shift with Debra Payne (HR Manager) and Tim Law (Counsellor) to assist me in trying to address the behavioural problems that existed.
9. Before my time at Nedlands, Fran had occupied the team leader role in a relief capacity. After I commenced, based on the behavioural issues evident I considered it best not to have Fran act in the position except maybe for very immediate emergency situations. Unfortunately, no one else was prepared to act in the position when the team leader was away because they knew (or felt) that they would be intimidated by Fran and/or ... ... did act in the team leader’s job for a while but the behaviour involving Fran stressed him out and he no longer wanted to do the relief. The situation was becoming so bad that I started looking for someone outside of the night shift to take on the team leader acting role.
10. In September 2004 the whole matter involving Fran (and ...) came to a head when ..., another staff member, went on sick leave pending a workers’ compensation claim alleging stress and harassment towards her by Fran and ... I advocated that it would be in the best interests of everyone to conduct an inquiry to address the behavioural issues involving night shift.
11. In September 2004, an inquiry was conducted by Mark Butterworth and he interviewed all of the night shift staff and prepared a report on his findings. The outcome of this inquiry was that Fran was to transfer to another centre.

...”

Mark Butterworth

52. Mr Butterworth, who formerly held the position of Manager, Business Support, in the Mail and Networks Division of Australia Post, was the Inquiry Officer who conducted the first Disciplinary Inquiry regarding the applicant in the period September–December 2004 (see paragraphs 8–10 above), and he gave evidence relating to the process of the Inquiry, and his findings and recommendation. His witness statement (Exhibit R1) refers to the allegations (the subject of the Inquiry), lists the persons whom he interviewed (comprising night shift staff members at the Nedlands Delivery Centre and certain management staff including Mr Beck, Mr Middleton and Mr Newnham), and continues:

“ 13 ... Based on what I was told in these interviews, it was apparent to me that within the Nedlands Night Shift group there had been, and continued to be, behaviour that was inappropriate and was having an adverse impact on the workplace as a whole.

14. Any analysis of the allegations revealed that they involved inappropriate conduct directed at a number of fellow employees over a long period of time. The inquiry particulars though were related to that inappropriate behaviour directed specifically towards Night Sorter ...
15. During the Inquiry process I established that the Delivery Manager and Team Leader were in the practice of ‘diarising’ incidents that they had reported to them. There were many diary entries relating to alleged inappropriate behaviour by Ms Holdsworth, including changing shoes during work hours and inappropriate behaviour directed at ... Most of these incidents related in my view to personality clashes and relationship issues involving Ms Holdsworth, ... and ... There were, however, other reported incidents between Ms Holdsworth, ... and other staff who no longer worked for Australia Post.
16. There was a long history of workplace relationship issues involving Ms Holdsworth. Former Delivery Manager Bill Newnham mentioned at interview that he had over a period of about three years immediately prior to his transfer to another Delivery Centre in March 2004 held a large number of informal meetings to discuss issues/concerns/disagreements raised by Ms Holdsworth, ... and ...
17. Mr Newnham indicated that he had attempted to deal with the personality clashes and relationship issues through mediation and had provided support to all three staff members through his availability to discuss and mediate incidents. In addition, he arranged and supported briefing sessions to ensure that all staff at the Delivery Centre were aware of the Code of Ethics and Harassment Policy.
18. Ms Holdsworth acknowledges that briefing sessions had been conducted reinforcing the Code of Ethics and Harassment Policy. Ms Holdsworth acknowledged that some personal responsibility had to be undertaken by all staff, however there was little evidence from Ms Holdsworth this had occurred.”
    

Mr Butterworth’s witness statement then refers to the investigation conducted by Mr Middleton in July–August 2003 (see paragraphs 49–50 above), and continues:

“ 20 Interviews conducted in relation to the investigation in 2003 clearly identified unsatisfactory workplace behaviour similar to that which was the subject of my Inquiry. It was obvious to me that some Night Shift staff including Ms Holdsworth had chosen not to address their inappropriate behaviour or accept personal responsibility in the workplace irrespective of the earlier investigation and the corrective action taken.

21. I formed the view that Night Shift staff had found it difficult to report breaches of the Code of Ethics to the Delivery Manager and Night Shift Team Leader due to a lack of supporting evidence and witnesses. I considered the breaches were well known and that the majority of the Night Shift staff had witnessed them at different times. Some Night Shift staff appeared to have ‘turned a blind eye to’ or to have simply ignored incidents that they knew were contrary to Australia Post policies for fear of intimidation or reprisal by Ms Holdsworth and/or ...
22. There was very little evidence of Ms Holdsworth taking individual responsibility for her part in the poor working relationships that existed within the Night Shift group. Ms Holdsworth did not demonstrate a willingness to be part of the ‘team’ and did not accept that her behaviour was adversely impacting on the working relationships within the facility.
23. During my Inquiry I received evidence that established in my view, that Ms Holdsworth’s conduct at work was having an adverse impact on attendance, work productivity, working relationships and the private lives of other employees. I considered these adverse impacts to be extremely serious.
24. At no stage during the Inquiry process did Ms Holdsworth acknowledge that her conduct in the workplace was unacceptable nor did she indicate that she would accept any responsibility for her conduct. Rather she demonstrated a lack of respect for the Inquiry process itself and for the seriousness of the allegations made against her. I considered that she demonstrated a blatant disregard for the need to observe the Code of Ethics.”
    

Mr Butterworth’s witness statement then refers to the findings which he subsequently made in respect of the allegations, and, as regards the basis for his recommendation, concludes as follows:

“ 29 I noted and considered carefully the fact that Ms Holdsworth’s behaviour had not previously been the subject of any formal action under the Australia Post Employee Counselling and Discipline Process. I noted however, that Bill Newnham, the Delivery Centre Manager, had undertaken numerous remedial actions aimed at improving her behaviour including repeated attempts at mediation, briefings on the Code of Ethics and Harassment Policy and an informal warning, and that despite these actions there had been no improvement in her behaviour. In addition, Anthony Beck, the new Delivery Centre manager who was in charge when I completed the Inquiry during late 2004, had also had several discussions with Ms Holdsworth in relation to inappropriate behaviour in the workplace. As inquiry officer, all of these actions left me in no doubt that Ms Holdsworth was well aware of Australia Post Policy in respect to appropriate behaviour, Harassment Policy and the POST Code of Ethics.

30. I carefully considered what would be the appropriate recommendation in this case. The conduct displayed by Ms Holdsworth was clearly unacceptable and was undoubtedly having an adverse impact on attendances at work, productivity at work, working relations generally and the private lives of other staff members. At interview, several staff members had confirmed that they had taken leave rather than attend work. ... I considered these impacts to be extremely serious. I was very concerned that Ms Holdsworth demonstrated no uncomfortableness, nor expressed any remorse concerning the adverse impacts that her behaviour in the work place was having on other staff members and the on work productivity of the Night Shift overall.
31. I understand the working operations of Delivery Centres and could appreciate fully the extent of the impact of the behaviours exhibited by Ms Holdsworth. I have in the past managed a Delivery Centre myself and I have also worked at a Delivery Centre prior to being a manager. I have a very good knowledge of the operations of Delivery Centres from a broad perspective (ie from the perspective of both staff and managers).
32. I considered the behaviours exhibited by Ms Holdsworth to be very serious in that they were disrupting the Night Shift staff, adversely affecting other staff members and reducing productivity. Had there been prior formal action under the discipline process, it is likely I would have recommended that Ms Holdsworth be dismissed. However, taking into account that the previous actions taken against Ms Holdsworth in respect of her behaviour at work were informal counselling and an informal warning, I proceeded to recommend that she be transferred to another location at the same level with an equivalent number of weekly hours.
33. I considered a formal or warning counselling to be inappropriate because it was clear to me that Ms Holdsworth did not recognise or acknowledge the seriousness of her breaches of the Code of Ethics, or the adverse impact her behaviour was having on other staff members and on the operations of the Nedlands Delivery Centre overall. She had demonstrated that she accepted no personal responsibility for her actions at all. I considered that counselling would not result in her changing her behaviours as required because previous remedial actions had not altered her behaviours in the work place at all. This included an informal warning given to Ms Holdsworth by her Delivery Manager, Bill Newnham, in September 2003.
34. I considered transfer the only real option because it would separate the parties involved in the work place conflict and would also send a clear message to Ms Holdsworth that conduct that is in breach of the Code of Ethics is unacceptable in the Australia Post work place and should not be tolerated.
35. I considered this recommendation to be completely reasonable taking into account the behaviours that had been established and the very clear adverse impact of these behaviours on the operations of the Nedlands Delivery Centre.

...”

53. A supplementary witness statement of Mr Butterworth was also tendered in evidence (Exhibit R17) but it is unnecessary to refer to the contents of that statement in these reasons.
54. In his oral evidence Mr Butterworth confirmed that he believed the applicant’s breaches of the Code of Ethics to be serious and wilful.

Michael Owen

55. Mr Owen’s witness statement (Exhibit R12) is as follows:

“ 1 I am the State Operations Manager, Mail and Networks Division, of Australia Post in Western Australia. I have worked for Australia Post for 29 years and I have been the State Operations Manager since February 1999.

2. It was my role to consider the inquiry report, findings and recommendations of Mark Butterworth dated 21 December 2004, and to decide whether to implement his recommendation. The recommendation of Mark Butterworth was that Ms Holdsworth be transferred to another location at the same level with an equivalent number of weekly hours.
3. Mark Butterworth had written to Ms Holdsworth on 21 December 2004 advising that his report had been submitted to me for consideration. Ms Holdsworth was also advised that she could either forward a written statement to me or seek a meeting with me.
4. Ms Holdsworth wrote to me on 21 December 2004 confirming that she would like to meet with me. I subsequently met with Ms Holdsworth on 5 January 2005 from 3:30 pm to 5:00 pm. In addition to the meeting on 5 January 2005, Mr Holdsworth provided written submissions to me dated 17 January 2005. I gave Ms Holdsworth the opportunity to provide written submissions as well as meeting with me as I know that people can get nervous during meetings and forget to say things or make points, and I wanted to give Ms Holdsworth an opportunity to put to me all matters that she believed I should take into consideration. I read and considered the written submissions of Ms Holdsworth.
5. After giving the matter full consideration, I decided to accept the recommendation of the Inquiry Officer and to transfer Ms Holdsworth to the Osborne Park Delivery Centre. My reason for doing this was that the investigations undertaken though the inquiry had confirmed that Ms Holdsworth’s behaviour was contributing significantly to the instability of the night shift group at the Nedlands Delivery Centre, and indeed, was impacting on the wider working group at the Nedlands Delivery Centre. I was satisfied that Ms Holdsworth had engaged in conduct that intimidated and offended other employees and that this collaborative intimidatory behaviour was having a detrimental effect on the workplace as a whole. I did take into account her submissions to me, but considered that these did not justify her behaviour at work.
6. Ms Holdsworth did express the view to me that she did not want to be transferred, however, there was considerable instability at the Nedlands Delivery Centre and I needed to keep the workplace and the work operations stable. The behavioural issues at Nedlands were adversely affecting our operations, that is, they were adversely affecting the efficient processing of mail. The needs of the many at the Nedlands Delivery Centre, and the operational needs of the Corporation, outweighed the desire of Ms Holdsworth to remain at that workplace.
7. The operational problems within the night shift group at Nedlands that were due to the behavioural issues included absenteeism and a high rate of overtime, which had a detrimental flow-on effect to the shifts that followed. For example, the night sorting of mail needs to be significantly progressed before the postal delivery officers can commence their work in the mornings. When there are delays in the night shift this can flow on to delays in the next shift.
8. I advised Ms Holdsworth of my decision to transfer her to another centre by letter dated 2 March 2005. I considered that the transfer of Ms Holdsworth to the Osborne Park Delivery Centre was reasonable and appropriate in the circumstances. It would remove Ms Holdsworth, and another employee, from the Nedlands Delivery Centre workplace. It would not, however, otherwise be of detriment to Ms Holdsworth as she was being transferred to a position of the same classification with the same hours of work. I also saw this decision as providing Ms Holdsworth with an opportunity to start afresh and to reconsider and renew her commitment to the Corporation’s Code of Ethics and the standards of behaviour expected of everyone employed by Australia Post. In my letter to Ms Holdsworth I indicated that I could not stress enough the importance for her to conduct herself in a professional manner in her dealings with all fellow employees. ...
9. I also advised Ms Holdsworth that if she considered the penalty imposed by me to be harsh, unreasonable, unjust or unfair, that she could submit a written application requesting a review of my decision by a Board of Reference. Ms Holdsworth proceeded to seek a review by a Board of Reference.
10. A Board of Reference was convened on 27 April 2005. Mr Vince Connell chaired the Board of Reference. Mr Connell was well qualified to take on this role having done so on numerous occasions before and having previously been a Commissioner in the Australian Industrial Relations Commission for 15 years.
11. At the Board of Reference review, Ms Holdsworth attended with Bryan Watkins, Assistance Secretary of the CEPU and her husband Mr Mark Holdsworth. I attended with Graeme Woodthorpe, Area Manager.
12. At the Board of Reference review submissions were made and discussions took place. Mr Connell allowed both parties to talk and he also spent time with both parties individually. Ms Holdsworth also consulted with Bryan Watkins and her husband. Bryan Watkins submitted that Ms Holdsworth should not be transferred because clause 10 of the Australia Post Enterprise Agreement 2004 – 2006 (‘EBA6’) specifies that except in cases of serious and wilful misconduct, or grossly negligent conduct, Australia Post shall ensure that no employee is dismissed or transferred for a first breach of the Code of Ethics.
13. Our view was that Ms Holdsworth had exhibited a pattern of behaviour that had consistently breached the Code of Ethics and which had warranted and resulted in managers taking action, including counselling, in the past. We considered that when the circumstances were looked at, including the impact of behaviours on the wider group at Nedlands, it would be unreasonable and inappropriate to leave Ms Holdsworth in the Nedlands night shift group. In this regard, we had a wide reaching concern for the other employees at Nedlands and for the operations at that centre generally. We saw the EBA6 as being a high level process that can’t cover every possible factual circumstance, and we also considered the recurring breaches of the Code of Ethics by Ms Holdsworth and the consequences of those breaches to be serious and wilful.
14. It was ultimately agreed at the Board of Reference review that Ms Holdsworth would voluntarily seek a change of work location and continue her employment with Australia Post at the Osborne Park Delivery Centre. This was confirmed in Mr Connell’s Board of Reference report dated 2 May 2005. ... It was my perception that Mr Connell was critical of the absence of documented attempts by managers to specify Ms Holdsworth’s shortcomings in the past, but was also of the view that it was appropriate in the circumstances for her to be transferred to a different delivery centre. It was to this background that the mutual resolution was achieved whereby Ms Holdsworth was to voluntarily seek a change of work location and Australia Post was to agree to arrange for her to continue her employment at the Osborne Park Delivery Centre.
15. I am aware that subsequently Ms Holdsworth wrote to Mr Connell by letter dated 10 May 2005 advising that she was unhappy with the outcome.”
    
56. In his oral evidence Mr Owen said that he regarded a decision by a Board of Reference as a recommendation and not binding. He added that, if the Board of Reference chaired by Mr Connell had recommended that the applicant not be transferred from the Nedlands Delivery Centre, he would not have accepted that recommendation because of the effect the applicant’s remaining at the Nedlands Delivery Centre would have on the “broader workforce” at that Centre.

Richard Brooks

57. Mr Brooks, Operations Manager at the Perth Mail Centre, was the Inquiry Officer who conducted the second Disciplinary Inquiry regarding the applicant in the period March–April 2005 (see paragraphs 21–23 above). A witness statement of Mr Brooks was tendered in evidence (Exhibit R13) and he gave oral evidence. It is, however, unnecessary to refer in detail to his statement or oral evidence in these reasons.

Debra Payne

58. A witness statement of Ms Payne, Manager of Human Resources at Australia Post in Western Australia, was tendered in evidence (Exhibit R8). In that statement reference is made to (inter alia) a telephone conversation between Ms Payne and the applicant (who is referred to in the statement as “Fran”) on 4 March 2005 as follows:

“ ...

18. I telephoned Fran on 4 March 2005 and spoke with her. Notes of my telephone conversation are attached ... These notes were prepared by Bryan Thomas. I also provided a statement to the compensation delegate regarding this conversation. ... The first part of my conversation related to the Board of Reference hearing that was to be conducted. This related to Fran’s appeal against the decision of Mike Owen to transfer her to a position at the Osborne Park Delivery Centre. I then went on to indicate to Fran that it had been alleged that she was observed outside the gates of the NDC [Nedlands Delivery Centre] at 11.00 pm the previous night (3 March), and that there were witnesses to this. Fran became extremely agitated when I raised the vehicle incident. She strongly denied that she had been the person driving the vehicle concerned and said that she was asleep in bed at that time. One purpose of my call was to advise Fran that a decision had been made to undertake an inquiry into the allegation made by ... because the allegation made was considered to be serious and there were other witnesses to the incident. About half way through the conversation about the vehicle incident Fran virtually forced her daughter onto the phone to confirm to me that her mother had been at home on the previous night. It was my impression that the daughter was reluctant to speak with me and I thought that it was inappropriate in any event that I talk with her. In these circumstances I did not discuss anything with Fran’s daughter and simply said that I needed to speak to her mother and could she ask her mother to come back onto the phone. During this conversation Fran indicated on more than one occasion that she had a migraine and that she might not be able to understand what I was telling or asking her.

...

23. Of relevance to the background of my conversation with Fran on 4 March 2005, is the fact that I had also had a long telephone conversation with her on the previous day (3 March 2005) regarding the direction she was given not to return to the NDC without approval. Fran had telephoned me during the day. I remember this telephone conversation very clearly because it was lunch time, I was in Hay Street Mall and I was on the phone to her for about 40 minutes. Fran was very unhappy at the fact that she had been directed not to return to the NDC. I remember having to reiterate that she had been given a specific direction not to return to the NDC without approval from the centre manager and that she was required to follow that direction. During this conversation Fran had continually gone back over the circumstances of the first inquiry saying she did not understand the allegations, the inquiry process or the recommendation made. I kept bringing her back to the fact that a direction had been made and that she was required to follow this direction It was clear that Fran did not accept that she could be directed to not attend the NDC and she queried on numerous occasions on what basis she could not attend the NDC. I confirmed with her that under no circumstances was she allowed to visit the NDC without Anthony Beck’s approval. During my conversation on 4 March 2005, Fran expressed similar resistance to following a direction, this being the direction not to discuss the vehicle incident with other staff, and also resisted her advising me of the reasons for her potential non-attendance at the Osborne Park DC (sic).
24. During my telephone conversation with Fran on 4 March 2005 I was firm and assertive and I was seeking very clear ‘yes’ or ‘no’ answers. I had anticipated that it was likely that this telephone call would be hostile and difficult, noting that the 40 minute telephone call on the previous day had been both. I was also concerned that the content of the conversation not be misrepresented. For this reason I had a witness present to this call, Bryan Thomas.
    
59. The notes of the telephone conversation of 4 March 2005 (referred to in para 18 of Ms Payne’s witness statement) relevantly state as follows:

“ ...
11.45am Recorded message left on home telephone for Fran to ring Debra back.
Debra rang mobile and Fran answered telephone.
Debra initially spoke to Fran in terms of legal representation at Board of Reference hearing given that she had promised to get back to her as a result of an enquiry Fran had made on Thursday 3.3.2005. Debra essentially explained that BOR hearings were a non legal process and that it was up to the Chairman whether or not he allowed legal representation.
Fran claimed that she did not know the allegations of the Inquiry and Debra explained to Fran that she had been given access to the Inquiry documentation and Inquiry report and was aware that she had had discussions with Bryan Watkins as he had telephoned her.
Debra then took the opportunity to explain that it had been alleged that Fran was observed outside the gates of the Nedlands Delivery Centre at 11pm last evening (Thursday 3.3.2004 (sic)) and that there were witnesses. Fran said that she was asleep in bed at that time.
Debra explained that it was proposed to convene a new Inquiry to investigate the allegation that she was there despite having been directed not to return to the Delivery Centre given that she was to be transferred to the Osborne Park Delivery Centre.
Debra directly asked Fran on a number of occasions as to whether she was at the Delivery Centre at approximately 11pm last night. Fran said ‘no’ and that she had witnesses that would verify this. Fran then said that it was getting beyond a joke, that they were false allegations and that she was in bed asleep. She said that it was getting insane and that she was prepared to go to the police station and sign a stat dec to the effect that she was in bed and not at the Nedlands Delivery Centre as alleged. Fran repeated how she was prepared to complete a stat dec on more than one occasion.
Fran said that the allegation was false and that she would have her daughter (17 years old) who was on the internet at the time verify that she was in bed at 11pm last evening. Daughter came to the telephone and said the ‘Mum was in bed’. Debra then said that she needed to speak to her mother.
When Fran returned to the telephone Debra indicated to her that it was a significant allegation and that it will be the subject of an Inquiry. Debra explained that Fran would receive formal notification of the Inquiry and be interviewed in the next two weeks.
...
Fran then proceeded to say that she was incredibly stressed and harassed and unbelievably traumatized and that she made a choice on Thursday evening to go to bed at 8pm and was there through to 7am.
...” (T46; part of Exhibit R8)

60. A supplementary witness statement of Ms Payne was also tendered in evidence (Exhibit R18) but it is unnecessary to refer to the contents of that statement, or to her oral evidence, in these reasons.

ANALYSIS

61. The issues which arise for determination in this case are as follows:
    • whether the applicant has suffered a mental ailment; and if so
    • whether that mental ailment was contributed to in a material degree by the applicant’s employment by the respondent; and if so
    • whether that mental ailment was suffered by the applicant as a result of reasonable disciplinary action taken against her; and if not
    • whether that mental ailment resulted in incapacity for work and, if so, the period of such incapacity for work.

Has the applicant suffered a mental ailment?

62. The medical evidence before the Tribunal unequivocally supports the proposition that the applicant contracted a mental ailment in March 2005. That medical evidence, however, is not entirely consistent as regards the appropriate diagnosis of that mental ailment:
    • Dr Miller’s diagnosis was “anxiety disorder”;
    • Dr Piirto’s diagnosis was “major depression with panic symptoms”;
    • Dr Terace’s diagnosis was “adjustment disorder/disturbance with mixed anxiety and depressed mood”.

It is unnecessary for the Tribunal to make a finding as to the precise diagnosis of the applicant’s mental ailment. Suffice it to say that the Tribunal is satisfied, on the basis of the medical evidence before it, that in March 2005 the applicant contracted a mental ailment by reason of which she experienced symptoms of anxiety and depression. As regards the date on which the applicant contracted that mental ailment, the Tribunal is satisfied, on the basis of the applicant’s evidence and the evidence of Dr Miller, that the relevant date is 4 March 2005, being the date of onset of the applicant’s mental ailment as specified in the relevant workers’ compensation medical certificates issued by Dr Miller (see paragraphs 37–40 above).

63. Accordingly, the Tribunal finds that the applicant suffered a mental ailment, involving symptoms of anxiety and depression, on 4 March 2005.

Was the applicant’s mental ailment contributed to in a material degree by her employment by the respondent?

64. The respondent conceded at the hearing that the applicant’s mental ailment “arose from her employment” by the respondent. On the basis of the evidence before it, the Tribunal regards that concession – which it takes to be consistent with a concession that the applicant’s mental ailment was contributed to in a material degree by her employment by the respondent – as appropriate.
65. Accordingly, the Tribunal finds that the mental ailment suffered by the applicant on 4 March 2005 was contributed to in a material degree by her employment by the respondent. It follows that that mental ailment is a “disease”, as defined in s 4(1) of the SRC Act, and the Tribunal so finds.

Was the applicant’s mental ailment (being a “disease”) suffered by her as a result of reasonable disciplinary action taken against her?

66. In accordance with the definition of “injury” in s 4(1) of the SRC Act, a “disease ... suffered by an employee as a result of reasonable disciplinary action taken against the employee” does not constitute an “injury” within the meaning, and for the purposes, of that Act.
67. In Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 the Federal Court of Australia (Full Court) held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of “injury” in s 4(1) of the SRC Act, that disease is not an “injury” (as defined in s 4(1)), and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. In other words, in order to be caught by that proviso, it is sufficient that the relevant disease is suffered as a result of any of the circumstances specified therein, and it is not necessary that that disease be suffered solely as a result of any of those specified circumstances.
68. The applicant submitted that her relevant mental ailment was suffered by her as a result of:
    • the decision by Mr Owen on 2 March 2005 to transfer her from the Nedlands Delivery Centre to the Osborne Park Delivery Centre, following the recommendation made by Mr Butterworth in his Disciplinary Inquiry Report dated 21 December 2004, and the consequential action taken on the instruction of Mr Beck whereby she was “escorted off” the Nedlands Delivery Centre premises at approximately 6.00 am on 3 March 2005 in full view of the night shift staff; and
    • the telephone call she received from Ms Payne at approximately 11.45 am on 4 March 2005 wherein Ms Payne told her that there were three witnesses who saw her in her car outside the Nedlands Delivery Centre at approximately 11.00 pm on 3 March 2005 (contrary to a direction of Mr Beck that she not return to the Nedlands Delivery Centre without his prior approval) and that a Disciplinary Inquiry was to be held in relation to this matter.

The applicant submitted that none of the abovementioned circumstances constituted “reasonable disciplinary action” within the meaning of the definition of “injury” in s 4(1) of the SRC Act.

69. The respondent did not appear to dispute that the applicant’s mental ailment was suffered by her as a result of the Disciplinary Inquiry conducted by Mr Butterworth and the subsequent decision of Mr Owen on 2 March 2005 to transfer her, and also as a result of the abovementioned telephone call by Ms Payne on 4 March 2005, but the respondent submitted that each of those circumstances constituted “reasonable disciplinary action” within the meaning of the definition of “injury” in s 4(1) of the SRC Act.

Did Ms Payne’s telephone call of 4 March 2005 constitute “reasonable disciplinary action”?

70. In Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall [1992] FCA 353; (1992) 37 FCR 75 the Federal Court of Australia (Cooper J) said (at 83):

“In the context of the definition of ‘injury’ in s 4(1) of the [SRC] Act, the phrase ‘disciplinary action’ means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth. ...”

There can be no dispute that a Disciplinary Inquiry conducted in accordance with Section 6.2.10 of the ECDPP (see paragraph 27 above) constitutes “disciplinary action” within the meaning of the definition of “injury” in s 4(1) of the SRC Act. Thus, it is common ground that the Disciplinary Inquiry conducted by Mr Brooks in the period March–April 2005 (see paragraphs 21–23 above) constituted such “disciplinary action”. The question is whether Ms Payne’s telephone call to the applicant at approximately 11.45 am on 4 March 2005 was itself a component of that “disciplinary action”.

71. The respondent submitted that Ms Payne’s telephone call was “the notice to the applicant of the commencement of the” Disciplinary Inquiry conducted by Mr Brooks and was, accordingly, part of that “disciplinary action”.
72. The Tribunal does not accept the respondent’s submission. As is made clear in Chenhall (at 84), the question whether any particular conduct is, or is not, “disciplinary action” within the meaning of the relevant statutory definition of “injury” is to be determined by reference to the relevant disciplinary regime (see also Comcare v Eames (2008) 47 AAR 505 at 514). In the present case the relevant disciplinary regime is contained in the ECDPP. Section 6.2.10(c) of the ECDPP contemplates that written notification of a Disciplinary Inquiry will be given to the employee and provides that such written notification must include (inter alia) the following information:

“● details of the very serious alleged breach(es) of the Code of Ethics and the specific particulars of the employee’s behaviour and/or performance that is considered to be unacceptable and the reason why it is unacceptable. Be as precise and objective as possible. [In the interests of natural justice, the employee must be provided with accurate particulars and not broad allegations so that the employee knows the full case against him or her and has a fair and satisfactory opportunity to present a case in response.]
● the name and contact details of the person conducting the Disciplinary Inquiry, together with the time, date and location of the Inquiry interview with the employee.”

Such written notification of the Disciplinary Inquiry to be conducted by Mr Brooks was given to the applicant by letter dated 11 March 2005 (see paragraph 21 above). In the Tribunal’s opinion the relevant “disciplinary action taken against” the applicant, within the meaning of the statutory definition of “injury” – namely, the Disciplinary Inquiry to be conducted by Mr Brooks – commenced when the applicant was given the abovementioned written notification of the Inquiry and of the details of the alleged breaches of the Code of Ethics and “misconduct” that were to be the subject of that Inquiry (cf Eames at 514). By contrast the relevant information given to the applicant by Ms Payne in the telephone call at approximately 11.45 am on 4 March 2005 comprised, in the Tribunal’s opinion, merely informal notice, of a general nature, that it was proposed to hold a Disciplinary Inquiry into an allegation that she was “observed outside the gates of the Nedlands Delivery Centre” at 11.00 pm on 3 March 2005 “despite having been directed not to return to the Delivery Centre” (see the notes of the telephone call made by Bryan Thomas (who Ms Payne had arranged to witness that call and make notes of the conversation) set out in paragraph 59 above). There is, furthermore, no evidence that Ms Payne informed the applicant of the name and contact details of the Inquiry Officer, and the Tribunal is not satisfied, on the evidence before it, that the relevant Disciplinary Inquiry had been established or constituted by the time of Ms Payne’s telephone call. In the Tribunal’s opinion, the information given to the applicant by Ms Payne in that telephone call was clearly insufficient for it reasonably to be said that that telephone call constituted the commencement, or indeed any part, of the disciplinary action involving the Disciplinary Inquiry conducted by Mr Brooks.

73. Accordingly, the Tribunal finds that Ms Payne’s telephone call to the applicant at approximately 11.45 am on 4 March 2005 did not constitute “disciplinary action” within the meaning of the definition of “injury” in s 4(1) of the SRC Act. It necessarily follows that the Tribunal further finds that that telephone call did not constitute “reasonable disciplinary action” within the meaning of that statutory definition.

Did any of the other circumstances referred to in paragraph 68 above constitute “reasonable disciplinary action”?

74. Although much of the evidence and submissions at the hearing related to the conduct of the Disciplinary Inquiry by Mr Butterworth in the period September–December 2004, it seems to the Tribunal that the appropriate matter for the Tribunal’s consideration and determination is whether the subsequent “disciplinary decision”, made by Mr Owen on 2 March 2005, to transfer the applicant from the Nedlands Delivery Centre to the Osborne Park Delivery Centre, and/or the consequential action taken on the instruction of Mr Beck whereby the applicant was “escorted off” the Nedlands Delivery Centre premises at approximately 6.00 am on 3 March 2005, rather than the preceding Disciplinary Inquiry itself, constituted “reasonable disciplinary action” within the meaning of the definition of “injury” in s 4(1) of the SRC Act. That is because the critical question for the Tribunal’s determination is whether the applicant’s mental ailment (being a “disease”) was suffered by her “as a result of reasonable disciplinary action taken against” her (within the meaning of that statutory definition), and the applicant does not contend, and the medical evidence before the Tribunal does not go so far as to support the proposition, that the Disciplinary Inquiry itself (which was completed on 21 December 2004) played a causative part in her suffering that mental ailment on 4 March 2005. The Tribunal will, nevertheless, consider the process of that Disciplinary Inquiry in determining whether the subsequent “disciplinary decision” of Mr Owen, and/or the consequential action of “escorting” the applicant off the Nedlands Delivery Centre premises, constituted “reasonable disciplinary action”.
75. The Tribunal notes at the outset that there can be no dispute that the Disciplinary Inquiry conducted by Mr Butterworth, the subsequent “disciplinary decision” made by Mr Owen, and the consequential action of “escorting” the applicant off the Nedlands Delivery Centre premises, each constituted “disciplinary action” within the meaning of the definition of “injury” in s 4(1) of the SRC Act, and the Tribunal so finds.
76. The question whether the relevant disciplinary action was “reasonable” is, however, much more problematic. In order to determine that question, a very important consideration, in the Tribunal’s opinion, is whether that disciplinary action was taken in accordance with the ECDPP and EBA6.
77. The Tribunal will first consider the provisions of the ECDPP regarding the application of natural justice in the proceedings of a Disciplinary Inquiry and in the making of a disciplinary decision by a Delegate, having regard to the applicant’s submission that she was denied procedural fairness in the proceedings of the Disciplinary Inquiry conducted by Mr Butterworth in the period September–December 2004.
78. Section 6.2.10(c) of the ECDPP provides that the written notification of a Disciplinary Inquiry to an employee must include, inter alia, details of the alleged breaches of the Code of Ethics and “specific particulars of the employee’s behaviour and/or performance that is considered to be unacceptable ... so that the employee knows the full case against him or her and has a fair and satisfactory opportunity to present a case in response”. Section 6.2.10(d) provides, in relation to the procedure of the Inquiry, that (inter alia):

“● In the interests of natural justice, the employee must be fully informed of the case against him or her.

● Where witnesses or other employees ... are interviewed, the employee who is the subject of the Disciplinary Inquiry must be given the opportunity to respond to any allegations made.” (original emphasis)

As regards the taking of disciplinary action, Section 6.2.11(a) requires the Delegate, before making a decision, to (inter alia):

“● consider the Disciplinary Inquiry Report together with any written or verbal representations made either by the employee or through his or her representative;
● be satisfied that the employee has had a reasonable opportunity to respond either verbally or in writing to the allegations against him or her; ...”

79. In the present case, according to the evidence before the Tribunal, Mr Butterworth, in the course of the Disciplinary Inquiry, interviewed the applicant and eight other members of the night shift staff at the Nedlands Delivery Centre, six of whom were interviewed before the applicant, and two of whom (including the Team Leader) were interviewed after the applicant. Two weeks before the commencement of the interviews, however, the applicant had been given written notification of the Inquiry which set out the allegations against her and contained detailed particulars of the conduct allegedly engaged in by her in breach of the Code of Ethics. After the Inquiry Report was delivered on 21 December 2004, the Delegate, Mr Owen, met with the applicant on 5 January 2005 for approximately 1½ hours and also gave her the opportunity to provide written submissions (which she did in the form of a type-written letter, comprising 11 pages, dated 17 January 2005) before making a decision on 2 March 2005 that she be transferred. In the Tribunal’s opinion the overall decision-making process, culminating in the transfer of the applicant, was conducted fairly and in accordance with the requirements of natural justice in that the applicant was given detailed prior notice of the relevant allegations and a reasonable opportunity to respond to them, and was not prejudiced by the manner in which the interview process was conducted by Mr Butterworth.
80. The Tribunal notes that the applicant also asserted that Mr Butterworth conducted the Disciplinary inquiry in such a way that she perceived that he was hostile to her and had “already made up his mind” about the allegations before he interviewed her, and that his findings were not impartial. Suffice it to say that the Tribunal is satisfied, on the whole of the evidence before it, that there is no reasonable basis for a perception of bias on the part of Mr Butterworth in relation to his conduct of the Disciplinary Inquiry.
81. Accordingly, the Tribunal does not accept the applicant’s submission that she was denied natural justice or procedural fairness in the Disciplinary Inquiry conducted by Mr Butterworth which ultimately led to the decision by Mr Owen on 2 March 2005 that she be transferred. The Tribunal notes that the applicant did not submit that she was denied natural justice by Mr Owen in the making of his decision of 2 March 2005. In any event the Tribunal is not satisfied, on the evidence before it, that Mr Owen’s decision involved a denial of natural justice to the applicant.
82. The applicant also submitted that the recommendation of Mr Butterworth in the Report of the Disciplinary Inquiry, and the “disciplinary decision” of Mr Owen, that she be transferred were in breach of EBA6 because no allegation or finding of “serious and wilful misconduct” had been made against her, and the breaches of the Code of Ethics found by Mr Butterworth involved “a first breach of the Code of Ethics” by her. In order to consider that submission it is necessary to revisit the relevant provision of the ECDPP and EBA6.
83. Section 6.2.10(e) of the ECDPP, which is headed “DISCIPLINARY INQUIRY FINDINGS, REPORT AND RECOMMENDATIONS”, relevantly provides:

“ ...

2. If the Inquiry Officer finds the allegation(s) proved and there are no mitigating circumstances and that the breach(es) constitutes:

(a) serious and wilful misconduct; and/or
(b) serious and deliberate under-performance against an agreed or prescribed standard; or
(c) serious misconduct; or
(d) ‘grossly negligent conduct’,
he or she should then access the employee’s personnel file and refer to any Counselling or Discipline records. ...
...
(iv) Based on a consideration of all the facts, the Inquiry Officer will then:
(a) submit the Disciplinary Inquiry Report [including recommendation] to the Delegate. [The recommendation may be disciplinary action ie dismissal, transfer to another position of the same or lower level or the imposition of a two (2) increment salary reduction for 12 months (or equivalent penalty) or that arrangements be made for the conduct of a Face-to-Face discussion, a Formal or a Warning counselling.]
...”

Section 6.2.11, which is headed “DISCIPLINARY ACTION”, relevantly provides:

“ a) ACTION BY DELEGATE
The Delegate will:
...

• take whichever of the following actions is considered to be appropriate based on the evidence provided:
  1. Accept the Inquiry Officer’s recommendation(s); OR
  2. If the recommendation(s) is considered inappropriate (ie either too harsh or too lenient), implement a more appropriate course of action ie:
     1. conduct or arrange a Warning Counselling; or
     2. transfer the employee to a position of the same or lower classification; or
     100. where the breach of the Code of Ethics is sufficiently serious to be only marginally short of dismissal and transfer action would either advantage the employee or result in too harsh a penalty, reduce the employee’s salary by two increments for a period of 12 months (or equivalent penalty); or
     4. dismiss the employee: OR
  3. Reject the recommendation(s) on the basis that no disciplinary action is required.

...
b) DISMISSAL OR TRANSFER
i) Restrictions
No employee is to be dismissed or transferred for the following reasons:

1. For a first breach of the Code of Ethics, unless the employee’s work conduct is established as constituting serious and wilful misconduct; or ‘grossly negligent conduct’, or
2. If the employee is inefficient or incompetent, or unable to discharge, or incapable of discharging the duties of his or her position for reasons that are not deliberate on the part of the employee. ...

...” (original emphasis)

As regards EBA6, Attachment A thereto, which is headed “EBA6 Conditions of Service”, relevantly states:

“10. Employee Discipline

1. Australia Post has the right to dismiss an employee, impose a penalty of a reduction of two (2) increments for a period of 12 months (or equivalent penalty), or to transfer an employee to another position of the same or a lower classification for behaviour or performance which warrants such action, including:

(i) misconduct or wilful neglect of duty or grossly negligent conduct;
(ii) incompetence or inefficiency for reasons within the employee’s control;
(iii) failure to observe the Code of Ethics.

2. Except in the case of serious and wilful misconduct or grossly negligent conduct ... Australia Post shall ensure that:

(i) employees are counselled and/or given a warning in order to assist them to maintain acceptable standards of behaviour and performance;
(ii) no employee is dismissed or transferred for a first breach of the Code of Ethics.
...”

84. As regards the “disciplinary decision” of Mr Owen, dated 2 March 20005, to transfer the applicant, the respondent submitted that that decision was not in breach of the ECDPP or EBA6 because the breaches of the Code of Ethics which Mr Butterworth had found to be proven in his Disciplinary Inquiry report of 21 December 2004 constituted “serious and wilful misconduct” on the part of the applicant within the meaning of Section 6.2.11 (b)(i) of the ECDPP and clause 10.2 of Attachment A to EBA6.
85. The Tribunal does not accept that submission. The phrase “serious and wilful misconduct” refers to action which in fact constitutes misconduct of a serious nature and which is performed intentionally or deliberately in the knowledge that it constitutes misconduct: see, for example, Boral Resources (Queensland) Pty Ltd v Pyke (1989) 93 ALR 89 at 115. An allegation of “serious and wilful misconduct” against an employee is, in the context of workplace relations, a very serious matter. Its seriousness is implicitly recognised in Section 6.2.10(e)(ii) of the ECDPP. The allegations against the applicant, which were the subject of the Disciplinary Inquiry conducted by Mr Butterworth, were expressed to be “allegations that [she had] breached the Australia Post Code of Ethics” (see the formal notification to the applicant of the Disciplinary Inquiry, dated 1 September 2004, referred to in paragraph 8 above). Although an allegation of a breach of the Code of Ethics necessarily constitutes an allegation of “misconduct”, it does not of itself necessarily constitute an allegation of “serious and wilful misconduct”. Given the seriousness of an allegation of “serious and wilful misconduct”, and having regard to the mental element necessarily involved therein, such an allegation must be made in express terms and sufficient particulars thereof must be provided to the employee in accordance with the requirements of natural justice (see Section 6.2.10(c), (d)(iii) of the ECDPP) before a finding of “serious and wilful misconduct” can lawfully be made by an Inquiry Officer. In the present case, Mr Butterworth found that certain alleged breaches of the Code of Ethics had been proven, but he did not make an express finding that the applicant had engaged in “serious and wilful misconduct” – quite properly, in the Tribunal’s opinion, given the absence of an express allegation of “serious and wilful misconduct” in the subject-matter of the Disciplinary Inquiry. Likewise, Mr Owen, in his “disciplinary decision” of 2 March 2005 that the applicant be transferred, did not, as a basis for that decision, expressly determine that the applicant’s workplace conduct involved “serious and wilful misconduct”. The Tribunal would add that, having regard to the evidence before it and the findings made by Mr Butterworth, it is not satisfied that the applicant’s workplace conduct was of such a nature as to constitute “serious and wilful misconduct” within the meaning of the ECDPP and EBA6.
86. The question then arises whether Mr Owen’s “disciplinary decision” to transfer the applicant was made on the basis of a “first breach of the Code of Ethics” by the applicant. If the answer to that question is in the affirmative, it will follow, in the Tribunal’s opinion, that Mr Owen’s decision to transfer the applicant was not made in accordance with Section 6.2.11(b)(i) of the ECDPP and Clause 10.2 of Attachment A to EBA6.
87. There is no dispute that the first occasion on which a breach of the Code of Ethics by the applicant was found to be proven by a Disciplinary Inquiry constituted under the ECDPP was the occasion of Mr Butterworth’s Disciplinary Inquiry Report of 21 December 2004. The question is, however, whether it had been established that the applicant had committed a breach or breaches of the Code of Ethics, for the purposes of the ECDPP and EBA6, prior to the breaches of the Code of Ethics found by Mr Butterworth to have been committed by her.
88. The ECDPP relevantly states:

“ ...
6.2.1 AUSTRALIA POST CODE OF ETHICS
The minimum standard of behaviour and/or performance expected of all employees of Australia Post is set out in Australia Post’s Code of Ethics. ...
The Code of Ethics is supplemented by the Australia Post Employee Counselling and Discipline Process (the Process), which is applied in cases where it is considered that an employee’s behaviour and/or performance is inconsistent with the standards in the Code of Ethics. ...
6.2.2 AUSTRALIA POST EMPLOYEE COUNSELLING AND DISCIPLINE PROCESS

1. OBJECTIVE

The Employee Counselling and Discipline Process, has three (3) distinct but not necessarily sequential components namely, ongoing informal Face-to-Face Feedback, Counselling (Formal and Warning) and Discipline (Disciplinary Inquiry).
The decision as to which of the three components to initially apply will be based on the seriousness of the shortfall in the employee’s behaviour and/or performance against the standards in the Code of Ethics. That decision will depend on the facts and circumstances as identified by, or conveyed to, the employee’s manager or supervisor. Where the manager or supervisor does not identify the behaviour and/or performance issue first hand, he or she must closely question the information source in order to obtain sufficient facts to determine the seriousness of the shortfall and the appropriate intervention. The status of these facts and circumstances at the time of initiating the Process is that of allegations which will either be established or not established during the application of the Process, and in particular, after the employee has been given the opportunity to respond to the allegations.
Giving prompt informal Face-to-Face Feedback to employees about their behaviour and/or performance is an important management responsibility. Where it is established during the informal discussion that there is a minor shortfall between the required standard of behaviour and/or performance and an employee’s actual behaviour and/or performance, the feedback should be constructive, ie developed and delivered to encourage an employee to achieve and maintain behaviour and/or performance that is consistent with the Code of Ethics.
The objective of the Counselling component of the Process (ie both Formal and Warning Counselling) is to:

1. promptly draw to the attention of an employee, a more serious alleged shortfall(s) of the Code of Ethics standards; and
2. where the behaviour and/or performance is proven during the course of the formal or Warning Counselling interview to be below those standards, to assist the employee to achieve and maintain behaviour and/or performance that is consistent with the standards in the Code of Ethics.

Accordingly, the Counselling component is primarily based on personal counselling at progressively higher levels of line management, appropriate to the seriousness of the misconduct and/or deliberate under-performance against an agreed or prescribed standard.
In the event that reasonable efforts to assist an employee to achieve and maintain the required change through Counselling is ineffective, or there is an alleged very serious breach of the Code of Ethics, a Disciplinary Inquiry will be initiated. The outcome of a Disciplinary Inquiry may lead to disciplinary action in the form of the employee’s dismissal, transfer to another position of the same or a lower level, or the imposition of a two (2) increment salary reduction for 12 months (or an equivalent penalty).
...
6.2.3 OVERVIEW OF THE EMPLOYEE COUNSELLING AND DISCIPLINE PROCESS
A broad outline of the Process to be applied when a manager or supervisor considers that there is a shortfall in an employee’s behaviour and/or performance against the standards in the Code of Ethics is as follows:
a) MINOR SHORTFALL(S)

1. Giving regular personal Face-to-Face Feedback to employees about their behaviour and/or performance is an important management responsibility. All feedback needs to be constructive ie developed and delivered to encourage and recognise behaviour and/or performance that is consistent with the Code of Ethics. Where it is considered that there is a minor shortfall in an employee’s behaviour and/or performance against the standards in the Code of Ethics, the employee’s line control supervisor should promptly draw the behaviour and/or performance issue to the attention of the employee in an informal face-to-face discussion. The employee should be informed of the specific details that have given rise to the discussion and be given the opportunity to respond.
2. If the discussion confirms that a minor shortfall has occurred, the employee should be:
   • advised of the standard expected under the Code of Ethics which emphasises high performance behaviour and performance which is critical to achieving high levels of customer service and meeting the Corporation’s business requirements in a highly competitive commercial environment; and
   • engaged in jointly identifying what needs to be done to achieve and maintain behaviour and/or performance which is consistent with the Code of Ethics.

...” (original emphasis)

It is clear, in the Tribunal’s opinion, that the abovementioned extracts from the ECDPP contemplate that a breach of the Code of Ethics may be proven or established, for the purposes of the ECDPP, not only at a Disciplinary Inquiry but, indeed, at the stage of any of the “components” of the Employee Counselling and Discipline Process, including the “informal Face-to-Face Feedback” component.

89. In the present case the Tribunal accepts the evidence of Mr Newnham that, in the period June 2001 – January 2004, he had spoken to the applicant on numerous occasions about her workplace behaviour, as reflected in his diary notes (T27, pp 221–222). Those diary notes include the following:

“ 7.06.01 Spoke to Fran regarding her attitude to ... Fran said that she did not have a problem with ... and that ... was the one with the problem. I asked Fran why she did not talk or say hello to ..., she replied ‘no reason’. Fran also said that she knows ... talks about her but could give no examples. Fran also mentioned that ... was a problem when emptying frames of mail. Will contact Tim Law to discuss.”
“ 12.06.01 Spoke to Frank regarding ... and informed Fran that they would not being (sic) working in close proximity until this issue has been sorted out. Fran acknowledged the fact. Fran had not noticed any change either way.”
“ 3.7.01 Spoke to Fran and ... regarding their behaviour towards each other. They both agreed to be polite to each other and cooperate while working together.”
“ 12.12.01 Spoke to Fran and ... and informed them that if this behaviour continues that they both will be put on a code of ethics. All sledging and negative comments to cease.”
“ 15.11.02 Spoke to Fran regarding the issues on nights. Fran must take control and delegate workloads to all staff. Fran must not be seen to favour certain staff members and must alienate herself from the so called groups. Fran must treat all staff accordingly (sic).”
“ 1.9.03 Spoke to Fran regarding comments made to PDOs. Fran said ‘I’m not allowed to talk, they don’t like the sound of my voice’, or words to that effect. Fran did not deny this and this is an informal warning.”

The Tribunal notes that the applicant, in her oral evidence, did not dispute the accuracy of any of the abovementioned diary notes and she acknowledged that she was aware that the “informal warning” given to her by Mr Newnham on 1 September 2003 constituted disciplinary action (see paragraphs 32–34 above).

90. The Tribunal is satisfied, and finds, on the basis of Mr Newnham’s evidence, that it had been established to Mr Newnham’s satisfaction that the applicant, by reason of her behaviour in the workplace, had breached the Code of Ethics on several occasions in the period June 2001 – September 2003, as indicated, most notably, in his abovementioned diary notes of 12 December 2001, 15 November 2002 and 1 September 2003.
91. Accordingly, the Tribunal is satisfied that Mr Owen’s “disciplinary decision” of 2 March 2005 to transfer the applicant was not made on the basis of a “first breach of the Code of Ethics” by the applicant, given (as the Tribunal has found) that it had been established, for the purposes of the ECDPP, that the applicant, by reason of her workplace behaviour, had previously breached the Code of Ethics on several occasions in the period June 2001 – September 2003. The Tribunal finds, therefore, that Mr Owen’s decision to transfer the applicant did not contravene Section 6.2.11(b)(i) of the ECDPP. The Tribunal likewise finds that that decision did not contravene Clause 10.2 of Attachment A to EBA6.
92. The Tribunal is satisfied that it was in accordance with the ECDPP for Mr Butterworth, on the basis of the findings made by him in the Disciplinary Inquiry, to make a recommendation that the applicant be transferred (see Section 6.2.10(e)(iv)(a) of the ECDPP), and for Mr Owen to accept that recommendation (see Section 6.2.11(a) of the ECDPP). The Tribunal is also satisfied that Mr Owen’s decision of 2 March 2005 to transfer the applicant was valid pursuant to Clauses 10.1 and 10.2 of Attachment A to EBA 6.
93. Having regard to the abovementioned discussion and findings, the Tribunal concludes that the “disciplinary decision” of Mr Owen, dated 2 March 2005, to transfer the applicant was “reasonable disciplinary action taken against” her, within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
94. As regards the consequential action whereby the applicant was “escorted off” the Nedlands Delivery Centre premises at approximately 6.00 am on 3 March 2005 in accordance with the instruction of Mr Beck, the Tribunal accepts that that action was taken against the applicant by way of implementing Mr Owen’s decision to transfer her from the Nedlands Delivery Centre, and it is satisfied that that action constituted “disciplinary action taken against” the applicant, within the meaning of the definition of “injury” in s 4(1) of the Act. The applicant submitted, however, that that action was taken at 6.00 am (that is, approximately 30 minutes before the expiration of the night shift) in full view of the night shift staff for the apparent purpose of humiliating and embarrassing her, and was accordingly unreasonable. The Tribunal notes, in this connection, that the applicant did not cross-examine Mr Beck in relation to this matter. The Tribunal is satisfied that the abovementioned action was taken pursuant to Mr Owen’s decision letter of 2 March 2005 (see paragraph 16 above) in which he referred to his decision to transfer the applicant and then stated:

“I have also arranged for you to be given paid leave for Thursday night shift [ie commencing at 11.00 pm on 3 March 2005] of this week so that you can make any necessary arrangements prior to commencing at your new location”

and that it was taken at a time close to the normal end of the night shift. The “escorting”, according to the evidence, involved the applicant’s being accompanied by an Australia Post officer (of higher grade) as she emptied her locker and left the premises, and it did not involve any physical contact. It may be that Mr Beck’s action of instructing an officer to escort the applicant off the premises was unnecessary and somewhat precipitate but, on the basis of the evidence before it, the Tribunal is not satisfied that that action was malicious, heavy-handed or otherwise unreasonable.

95. Accordingly, the Tribunal finds that:
    • the Disciplinary Inquiry conducted by Mr Butterworth (including the Disciplinary Inquiry Report) in the period September–December 2004; and
    • the “disciplinary decision” of Mr Owen, dated 2 March 2005, to transfer the applicant from the Nedlands Delivery Centre to the Osborne Park Delivery Centre;

each constituted “reasonable disciplinary action taken against” the applicant, within the meaning of the definition of “injury” in s 4(1) of the SRC Act. As regards the consequential action taken on the instruction of Mr Beck whereby the applicant was “escorted off” the Nedlands Delivery Centre premises at approximately 6.00 am on 3 March 2005, the Tribunal prefers not to make a positive finding that that disciplinary action was reasonable.

Finding

96. The Tribunal is satisfied, on the basis of the applicant’s evidence and the medical evidence, that the “disciplinary decision” of Mr Owen, dated 2 March 2005, to transfer the applicant from the Nedlands Delivery Centre to the Osborne Park Delivery Centre, was a significant contributing factor in her contracting the relevant mental ailment on 4 March 2005.
97. It follows that the applicant’s mental ailment (being a “disease” as defined in s 4(1) of the SRC Act) was suffered by her partly as a result of “reasonable disciplinary action taken against” her (within the meaning of the definition of “injury” in s 4(1) of the SRC Act), namely, the “disciplinary decision” of Mr Owen, dated 2 March 2005, to transfer her from the Nedlands Delivery Centre to the Osborne Park Delivery Centre, and the Tribunal so finds.

CONCLUSION

98. The Tribunal concludes, therefore, that the mental ailment (being a “disease”) contracted by the applicant on 4 March 2005 is not an “injury” (as defined in s 4(1) of the SRC Act), and that, accordingly, the respondent is not liable pursuant to s 14(1) of the SRC Act to pay compensation to the applicant in accordance with that Act in respect of that mental ailment.
99. Before parting with this matter, the Tribunal notes that, although it has found that the Disciplinary Inquiry conducted by Mr Butterworth and the “disciplinary decision” made by Mr Owen constituted “reasonable disciplinary action”, in its opinion the manner in which the respondent’s relevant management staff applied the Australia Post Employee Counselling and Discipline Process under the ECDPP in the applicant’s case was less than optimal. The Tribunal endorses the view expressed by Mr Connell, Chairman of the Board of Reference, in his report of 27 April 2005 regarding the applicant’s application for a review of Mr Owen’s “disciplinary decision” of 2 March 2005, as follows:

“ ... there should have been documented attempts by the Corporation to specify the alleged shortcomings of the employee with the opportunity to change the alleged behaviour and a commitment to review progress prior to a decision and a sanction being decided upon by the Corporation.” (T41, p340)

Furthermore, it seems to the Tribunal (having regard to Mr Newnham’s diary notes – see paragraph 89 above) that probably by the end of 2001, and certainly by September 2003, there was, from the respondent’s perspective, more than enough evidence that “informal face-to-face feedback” had not proved to be effective as regards improving the applicant’s workplace behaviour and that it was appropriate to invoke either the “Formal Counselling” or the “Warning Counselling” component of the process. The adoption of such a course – especially the “Warning Counselling” component – would surely have been a far more effective way of impressing upon the applicant, at a relatively early stage, the seriousness with which her workplace behaviour was apparently regarded by Australia Post management and making her aware of the serious disciplinary consequences, namely, a Disciplinary Inquiry and disciplinary action including dismissal or transfer, which were likely to follow if she did not satisfactorily improve her behaviour, and may well have obviated the holding of a Disciplinary Inquiry and the subsequent taking of such disciplinary action in her case.

DECISION

100. For the above reasons the Tribunal affirms the decision under review.
     

I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member

Signed: E Jordan .....................................................................................

Associate

Dates of Hearing 18–22 August, 13, 17 November 2008

Date of Decision 28 January 2009

Representative of the Applicant Self-represented

Counsel for the Respondent Ms P Giles

Solicitor for the Respondent Sparke Helmore