CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Middleton v University of Sydney Business School [2023] NSWPIC 285	
		
APPLICANT:	Heather Middleton	
		
RESPONDENT:	University of Sydney Business School	
		
Member:	Lea Drake	
		
DATE OF DECISION:	19 June 2023	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for whole person impairment arising from alleged psychological injury due to adverse employment conditions encountered by the applicant in the course of her employment with the respondent; a multitude of causative factors including performance appraisal, intensive performance management, intensive supervision, negative feedback and criticism and a number of workplace incidents; whether real events; whether the employer’s actions were reasonable in all the circumstances surrounding the applicant’s employment; the breadth of the definition of discipline considered; section 11A(1); Held – psychological injury sustained in the course of or arising out of employment; employment the main contributing factor to injury; respondent failed to discharge its onus with respect to the section 11A(1) defence; matter to be relisted for referral by the Member for referral to the President of the Personal Injury Commission for assessment by a medical assessor. 	
determinations made:	The Commission determines:
1.	The applicant was a worker employed by the respondent when she sustained a psychological injury in the course of her employment.
2.	The course of the applicant’s employment with the respondent was the main contributing factor to the applicant contracting the disease. 
3.	The injury was not wholly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline either together or separately. 
4.	The injury was not predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline either together or separately. 
5.	The respondent has failed to establish a defence pursuant to s 11A (1) of the Workers Compensation Act 1987.	

STATEMENT OF REASONS
BACKGROUND
1.	The applicant commenced employment with the Business Codesign Unit of the University of Sydney Business School (the respondent) as a Research Assistant in April 2011. The applicant’s prior work history was in higher education teaching, education, evaluation and research. She has a PhD. She later obtained the more senior position of Research Associate. She was employed pursuant to a fixed term (3 year) contract of the type of rolling employment contract common in the higher education sector. The applicant had two probationary reviews. The first related to the continuation of her employment after the first year. Following that review her employment was extended for a further six month probationary period. Her permanent employment was confirmed following the second review. Her employment could have been terminated by the respondent without the applicant having access to an unfair dismissal remedy, at the end of the first period of probation, and again at the end of the six months extension of probation. Her employment was not terminated at the conclusion of either of the probationary periods on any other occasion for failure of performance despite the litany of complaint and dissatisfaction expressed by the applicant’s superior Ms Huber. The applicant alleges that the conditions to which she was subjected at work, both minor and extreme, caused her to develop a psychiatric condition which incapacitated her and caused her to cease work. The respondent does not deny injury and incapacity but alleges that the applicant’s incapacitating psychiatric condition arose out of the respondent’s reasonable actions arising from either her performance appraisal or discipline by the respondent.
ISSUES FOR DETERMINATION
2.	It is not disputed that Ms Middleton is suffering from a psychological disorder, a disease contracted in the course of employment pursuant to ss(4)(b), which causes her to be unfit for employment. The issue in dispute is whether the respondent has established a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). Is the condition suffered by Dr Middleton wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal? The respondent relies on reasonable management action with respect to appraisal and discipline.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
3.	This Application to Resolve a Dispute (application) was unresolved at the initial preliminary conference before another Member. It was listed before me for conciliation/arbitration in Sydney in person on Tuesday 18 April 2023. At the conciliation/arbitration the application was amended by consent to amend the deemed date of injury to 12 July 2021.
4.	An attempt to resolve the application at the conciliation/arbitration was unsuccessful.
5.	At my request Mr Perry, counsel for the applicant, undertook to prepare a chronology and provide it to the Tribunal and to the respondent’s counsel Mr Parker. The application proceeded on the basis that the chronology and any submissions arising would be provided after the arbitration.
6.	I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied.  I am satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute. 
RELEVANT LEGISLATIVE PROVISIONS 
7.	Section 4 and s 11A of 1987 Act are as follows:
“S.4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
means personal injury arising out of or in the course of employment,
includes a disease injury, which means—
(i) 	a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) 	the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)  	does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined. 
Regarding allegation 11
S11A.  No compensation for psychological injury caused by reasonable actions of employer
(1)	No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3)	A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)	This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(5)	(Repealed)
(6)	This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) 	 In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8)  	If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)—
(a)	the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) 	proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
EVIDENCE
8.	The following documents were in evidence before the Personal Injury Commission (Commission) and considered by me when making this determination: 
(a)	Application dated 14 February 2023 and attachments; 
(b)	Application to Admit Late Documents (Reply) dated 14 March 2023 and attachments;
(c)	Application to Admit Late Documents dated 17 March 2023 and attachments;
(d)	chronology provided by the applicant’s representative on 23 May 2023, and
(e)	response to the applicant’s chronology provided by the respondent’s representative on 2 June 2023.
FACTUAL ISSUES
9.	The applicant provided a very detailed statement detailing the events in her employment which she alleges gave rise to her injury and provided a statement to the respondent’s investigator. 
10.	The respondent provided statements/documentation from Dr Elaine Huber, Stephanie Wilson, Elizabeth Cowley and Ann Davis which attempt to respond to the factual issues raised and allegations made by the applicant as well as the applicant’s perception of events. The statements speak to the reasonableness of the actions taken by the respondent in dealing with the applicant’s failures of performance and attitude as well as its compliance with the requirements of its policies and procedures. 
11.	The respondent also provided a detailed factual report from Lee Kelly Commercial Investigations which provided a very helpful summary of the allegations of the applicant and the responses of respondent’s witnesses. 
12.	The applicant particularised the conduct/events/attitude she encountered in her employment which she perceives led to her injury and incapacity. In my summary I have not particularised every allegation or instance of behaviour perceived by the applicant to be critical, traumatic or damaging. I have provided an outline below: 
(a)	At commencement in April 2019 the applicant found her work exciting. It was a major new initiative. However, in approximately June 2019, the applicant began to have issues with her manager Ms Huber. The applicant alleges that Ms Huber engaged in continuous, negative and unfounded criticism of her work. She never made an open-ended enquiry about the applicant’s progress. Any interaction always commenced with a criticism. Ms Huber indicated that the applicant did not own anything in the project. She stated that the more senior persons owned some parts of the project and her task was to support them.
(b)	She was situated in an office with a talkative project officer. She found it difficult to conduct close research. She informed Ms Huber of her difficulty but was not provided with any solutions. The applicant had observed others relocating to other areas of the business school building to be able to work. She therefore occasionally relocated herself to another area. The applicant stated that she explained what she was doing and that she still achieved targets and attended meetings. However, Ms Huber advised her that if she was not in her allocated office that she was not at work. As result of this response from Ms Huber the applicant returned to her allocated office and recommenced work there, but she could not concentrate and was as a consequence, slower. The issue was resolved when all staff moved offices in July 2019.
(c)	The new project on which the applicant was to work commenced in August 2019. The applicant’s description of her difficulties included there being no project procedures and not being provided with a formal position description. She was just provided with general informal goals for the project and what her job was to be during the session. Her job description was the advertisement for the role.
(d)	The staff were divided into level A and B levels depending on their payroll level. The applicant did not think this division was likely to lead to the development of a team. There were no staff meetings, and the level B employees were part of projects that she did not know anything about. She wasn’t invited to meetings and had no idea what was going on, but when she requested that she attend meetings she was told by Ms Huber that she wouldn’t know which ones to invited her to.
(e)	She did not understand the substance of the project or where her role fitted into the project. The applicant sought clarification from Ms Huber regarding the project so that she could define her position and where her evaluation research fitted. Eventually she was told that her role was to support level B employees. She found this difficult because the Level B employees did not share information with her and were all extremely vague.
(f)	The one task that she was clear about was that the preparation and finalisation of the ethics application and accompanying forms was her responsibility. The deadline was October 2019. The applicant informed Ms Huber that she did not have enough information to meet that deadline. There was a misunderstanding between Ms Huber and the applicant. Ms Huber said to her “We’re not going to make the deadline are we?” Ms Huber told the applicant to the upload information to the shared drive. The applicant wrongly anticipated that would mean that the deadline was pushed out to the next deadline two weeks away and she intended to upload the information the next day. In fact, Ms Huber intended to meet the present deadline herself and worked all night from scratch since the applicant did not upload the documents onto the shared drive. Ms Huber was very angry. 
(g)	Following this incident, the applicant alleges that she was criticised at every turn, even for typos. Ms Huber was hyper-critical and the applicant began to feel anxious
(h)	The applicant had her mid-probation review in mid-November 2019. The applicant considered that review to be premature since she had not commenced the Research Associate role until August 2019. Ms Huber’s review of her work was extremely critical. The applicant described Ms Huber as trashing her. She alleged that the applicant had had no research output and that she did not communicate. She brought up the ethics incident again. Ms Huber went on seven weeks leave following the review.
(i)	The applicant considered the review to be inaccurate and unfair. The applicant provided a lengthy complaint concerning Ms Huber’s assessment by email to the associate Dean of Education, Mr Bryant. He spoke to the applicant and advised her that he would speak to Ms Huber and asked her to respond on her return.
(j)	In January 2020 Ms Huber returned to work. She was angry and confrontational towards the applicant. She asked for a meeting with HR present.
(k)	A meeting eventually took place between Ms Huber, the Associate Dean of Academic Resourcing and Development, Ms Davis, and the applicant. The applicant found the meeting to be unequal in that Ms Davis appeared to be there to support Ms Huber. The applicant alleges that Ms Davis whited out Ms Huber’s admission that she had not informed the applicant that she intended to work through the night and meet the original deadline for the ethics application.
(l)	After this meeting the pandemic struck. The applicant’s unit took on a supportive role, helping to get teaching units online. During this period Ms Huber continued to be critical.
(m)	The applicant made comments concerning a television commercial involving meerkats on the team’s channel. She apparently characterised one of the meerkats as a tyrannical boss and the other as an oppressed worker. The applicant received a phone call from Ms Davis who gave her a Code of Conduct Warning which is a prelude to a Code of Conduct Violation. It is the applicant’s understanding that Ms Huber interpreted the remarks as disrespectful to her and assumed that she was the meerkat characterised as tyrannical. Ms Huber did not seek an explanation from the applicant.
(n)	Following this incident, the applicant began to avoid Ms Huber. She was frightened of the consequences of any meeting where she was not present. She took fellow workers to her meetings. She was frightened that Ms Huber would be confrontational, angry and critical.
(o)	There was no follow-up meeting with Ms Davis after the January meeting. Instead, there was a meeting with Ms Huber two days after the applicant had returned from leave. She was not informed as to the purpose of the meeting. The applicant was informed that this meeting was somehow related to the January meeting and she was presented with a list of her alleged failings.
(p)	In this meeting Ms Huber accused the applicant of not doing work that she had already done. She informed Ms Huber that the work was done and was stored in the shared drive. Ms Huber again brought up the ethics application.
(q)	The applicant was placed on a Performance Monitoring Plan which involved weekly meetings for six weeks until the probation period had ended. The applicant suggests that the normal time span for a Performance Monitoring Plan is 12 weeks.
(r)	The Performance Monitoring Plan meetings were conducted in the same fashion and the same issues were discussed. These meetings were conducted with 
Ms Huber and Ms Davis.
(s)	The applicant wrote to the Deputy Dean of the faculty, Elizabeth Cowley, complaining about the injustice of her being on a probation monitoring plan. She did not receive any response.
(t)	The applicant found this period distressing. She had a normal workload and some additional tasks to perform whilst engaging in the performance monitoring plan.
(u)	Although the applicant was invited to bring a support person to her ongoing meetings, she felt unable to do so. She was afraid to ask her colleagues and she thought she was not entitled to union representation because she was still on probation. 
(v)	The applicant felt that there was collusion between Ms Huber, Ms Davis and other staff because a colleague used their exact words to criticise her at meeting in May 2020. The applicant later asked that colleague to speak about the issue, but he refused. Although Ms Huber was at that meeting, she did not intervene.
(w)	The applicant felt pressured to not follow her own judgement on issues within her skillset and to comply with requests from Ms Huber and other project leads because of her relationship with Ms Huber.
(x)	In June 2020 Ms Huber determined that the applicant had failed her probation. She was placed on a further six months probationary period and a Probation Monitoring Extension Plan.
(y)	The applicant found the decision to put her on a Probation Monitoring Extension plan to be demeaning and demoralising. She did not receive the incremental pay increase that she would otherwise have been entitled to. 
(z)	Although there were no major confrontations at the meetings, Ms Huber ended some of the sessions by throwing her hands up and exclaiming “Not good enough; this is not good enough”. When she raised the manner in which she was being addressed both Ms Huber and Ms Davis denied any difficulty and stated that the plan meetings were being conducted with complete respect.
(aa)	During this period the applicant refrained from raising the issue further due to her fear that her comments would be misconstrued or regarded as disrespectful. She did not want any basis to be established for awarding a Code of Conduct violation.
(bb)	Ms Huber and Ms Davis required a written reflection from the applicant each fortnight. She found this frustrating and considered that it reflected their lack of confidence in her. However, she provided the reflections.
(cc)	The applicant began to feel depressed and overwhelmed. She had no confidence that Ms Huber or Ms Davis would acknowledge any of her achievements or improvements. The tasks involved in the plan were only one tenth of the applicant’s duties and she felt frustrated by the fact that her other duties were not being taken into account. By August 2020 her condition had worsened. She found Ms Huber’s instructions to be garbled and hard to understand. It was her understanding that was also the position for other project leads.
(dd)	The applicant passed her Probation Extension Monitoring Plan, although 
Ms Huber and Ms Davis indicated that she had done “just enough” to pass. The applicant felt that her achievements would never be recognised and that there would always be blocks to her achievements being recognised. She feared that there would be further Probation Extension Monitoring Plans and that they would get rid of her.
(ee)	In November 2020 she began to take prescription antidepressants and took two weeks leave. She was worried she would lose her job. She also developed blood pressure and was placed on medication. She felt that the meetings were ambushes with new issues raised by Ms Huber. The applicant considered this process unfair. New tasks were invented at every meeting.
(ff)	The applicant felt she was always receiving negative feedback. In December 2020, in her written performance review, Ms Huber stated that the applicant’s work on ethics applications was so poor that the task had been removed from her and reallocated. This issue had never been raised with her personally or in any performance review meeting. 
(gg)	January 2021 a Ms Wilson became the applicant’s direct supervisor. Ms Huber remained her manager senior to Ms Wilson. The applicant initiated inquiries with Ms Wilson and Ms Huber regarding which member was now drafting the ethics applications. Ms Huber’s response was abusive. The tasks she was provided with in relation to the ethics application was the same that she had performed previously minus a small administrative task. Soon after this Ms Wilson increased her workload by 30% without any negotiation.
(hh)	Ms Wilson and Ms Davis then placed the applicant on an Active Monitoring Plan. Although Ms Wilson’s attitude was easier to deal with, the applicant perceived that at the end of the Active Monitoring Plan she would not be passed. The issues that were raised with her were trivial and the applicant felt Ms Wilson was following in the footsteps of Ms Huber. The applicant arranged for a union member to attend the Active Monitoring Plan meetings as a support.
(ii)	On one occasion Ms Wilson raised two mistakes with the applicant. The first involved the failure of a project lead to adhere to a timetable. There was a difference of opinion as to whose fault that was. The second group of allegations was withdrawn after the applicant established that there was no error on her part.
(jj)	The applicant failed her Active Monitoring Plan. The applicant contests the basis on which this decision was made.
(kk)	During her monitoring the applicant had flagged to the respondent’s officers the adverse effect the intense monitoring of her performance was having on her health.
(ll)	The applicant began to take various periods of stress leave in February, May and June 2021. In July 2021 the applicant ceased work and submitted a bullying complaint to the Dean of the Business School, Professor Whitwell.
(mm)	The applicant generally felt demeaned, as if she brought nothing to her role. 
Ms Huber did not acknowledge her expertise, she preferred to take the advice of the project leads and the applicant felt devalued. It was undermining. It ate away at her self-esteem. Her evidence was that “It was a horrible, isolating, nasty place to work at”.
(nn)	The applicant was reluctant to claim workers compensation as she thought it would affect her career. Eventually she could not go on.
13.	Ms Huber provided a statement in which she stated that the team thought that the applicant was a below average worker. She did not make their work easy. She did not provide support to other team members. There were a number of complaints that involved her. Since the applicant has not been employed the team seems to be making better progress.
14.	Regarding the particular allegations of the applicant, Ms Huber’s response, in summary, was:
(a)	In response to allegation regarding “continuous negative and unfounded criticism” of the applicant, Ms Huber stated that what the applicant took as criticism was in fact well-founded feedback. She was on a Performance Monitoring Plan because she would not accept feedback. The applicant was not able to accept that any issue raised by Ms Huber might have been of her making. She was oblivious to any impact on the team. She denied that she harangued the applicant. She considered the requirement for the applicant to provide progress reports to be reasonable management action designed to ascertain what was happening or why something had not been done.
(b)	As to the allegation that the applicant was refused permission to work outside the team office, Ms Huber stated that everyone was allocated to a desk in a shared office. This was a new team and Ms Huber wanted to build team rapport by staff working closely together and communicating. She said: “I think as an adult Heather could speak with others in her room and ask them to keep the noise down”.
(c)	As to the allegation that the applicant did not have a job description, Ms Huber responded that there are a range of academic positions. The applicant was a level A researcher. She said it was not uncommon for there not to be a particular position description. It enabled work to be directed to a particular project. Heather did not need a particular position description to be aware of those areas in which she was not performing. 
(d)	As to allegation that Ms Huber had said or inferred that the applicant owned nothing. Ms Huber denied this. She had said that the applicant did not take ownership. Ms Huber considers that the applicant felt insecure. She was meant to work cooperatively and collaboratively but she did not. The applicant felt that she was more knowledgeable than those project leads who were higher than her in the classification structure. Ms Huber may have told the applicant that no one owns ideas into 2020 when she was dealing with a dispute between the applicant and one of the project leads who the applicant had accused of stealing her ideas.
(e)	In relation to the allegation related to the applicant missing a critical milestone in an ethics project Ms Huber stated that the applicant did not share documents to Ms Huber for feedback before the deadline. The applicant did not upload documents to the shared drive and Ms Huber suspects that she did not know how. Ms Huber was very critical of the applicant’s performance in this regard. I do not need to particularise the details. 
(f)	Ms Huber’s evidence was that everything went downhill from that point. Everything she did was interpreted as critical of the applicant. Ms Huber detailed the many mistakes made by the applicant in the course of her work. She said might have said there were too many mistakes to tell the applicant about. She was too busy to micromanage the applicant’s failings. She started to send emails containing a list of the applicant’s mistakes. The applicant then complained that Ms Huber was overly critical and causing her stress as a result. As Ms Huber was no longer the applicant’s direct supervisor, she copied the applicant’s present supervisor into the emails containing her criticisms of the applicant’s work.
(g)	In response to the allegation that the applicant’s mid-performance review was premature, Ms Huber stated that it was undertaken at the correct time in November, as it was for everyone, because she was leaving for Antarctica in December. 
(h)	Ms Huber rejects the suggestion that there were any surprises in the review. The applicant’s performance was alarming and that had been discussed. Ms Huber suggested that the applicant has a selective memory. She did not like what was written in the review and wrote a 15 page rebuttal. Ms Davis suggested that I meet with the applicant and discuss her rebuttal document. I agreed to add some positive comments to the review although there were not many. It was then resubmitted.
(i)	In response to the placement of the applicant on a Probation Monitoring Plan until July 2020, Ms Huber states that she took direction from HR. It was delayed because of the intervention of COVID-19 and the resultant chaos in the Department, particularly because it had a majority of students from China. Nothing could be given to the applicant until HR had signed off on the plan and they could not speak to her until the plan was approved. It did not happen until April 2020 although it contained all the points of criticism that had been raised in January. Ms Huber described the plan as a very short one containing the requirements to be met and the need to provide evidence against each point. Parties were to meet and talk about each item and how the applicant was tracking. The plan was not ideal because of COVID-19 and some family circumstances of her own, undertaken whilst she was also supporting the whole faculty.
(j)	In response to allegations involving attacks on the applicant’s technical proficiency, Ms Huber categorically asserted that the applicant was technically incompetent. She provided examples of the applicant’s failures and incompetence and a detailed response to the applicant’s criticism of her management style and method of dealing with performance outcome plans.
(k)	The initial management plan was extended to December 2020 because HR considered the original plan to be too short, and therefore unfair. Ms Huber detailed the difficulties with which she had to contend regarding the applicant and her performance. She described it as two steps forward and one step back. In 
Ms Huber’s opinion the applicant could not collaborate. Ms Huber described the applicant’s inability to come to terms with her poor performance as being part of how she sees the world. The applicant cannot see that she is unsuitable and perceives everything as a criticism. Every identified fault is someone else’s fault. She denied being too direct except when the applicant needed things to be made clear. She denied the suggestion that she was never positive. She referred to meetings where she had referenced positive instances of the applicant’s work. In relation to speaking over the applicant in digital meetings, Ms Huber suggested that that was a common occurrence in online meetings. On some occasions she may have spoken over the applicant.
(l)	Ms Huber agreed that she wrote to the applicant on 9 December 2020 regarding the failure by staff to follow-up on transcripts of interviews. This was a matter raised with other employees as well. The applicant blamed another employee. 
(m)	Ms Huber stated that the applicant always had to have the last word. As a result she developed a technique of not responding to the applicant’s reply emails unless it was necessary.
(n)	Ms Huber stated that she found the applicant placing her remarks about meerkats, in particular the reference to her intimidating boss, as an example of the applicant’s technical incompetence. She had posted the references on a shared channel rather than her private one.
(o)	From February to June 2021, a number of run-ins occurred between the applicant and members of teams who had been upset by her conduct. They spoke to 
Ms Huber in tears or asked her to mediate over issues. Details of these instances were supplied by Ms Huber.
(p)	Ms Huber responded that the management plans were reasonable, and a great deal of effort had been made to ensure that they were. They were designed to improve her performance and she did achieve some of the goals.
(q)	Ms Huber denied that she turned trivial defects into major ones. She stated that attention to detail is very important in their work. Errors could delay the project. It is not trivial. Ms Huber detailed many errors made by the applicant. That the applicant would not take feedback and try to improve. Ms Huber stated that she offered the applicant help, particularly in with technical support. She asked a project officer, Craig, to assist the applicant.
(r)	The applicant would never accept that her rebuttal of the performance report was the reason that the plan process was commenced by HR.
(s)	Ms Huber denied that she was ever out to get the applicant. She does not understand this frame of mind. She does not understand what it means. What she was doing was managing the applicant’s performance. 
(t)	After Ms Huber ceased to be the applicant’s direct supervisor she began to ask her questions by email and keep her interactions to a minimum.   
(u)	There was an occasion when a fellow team member criticised the applicant at a meeting. He said that she was not constructive or helpful. The team were having issues working with the applicant who made their life difficult by not setting up meetings and not working well with stakeholders. Although the applicant wanted responsibility, she always said that the project was theirs, not hers.  
(v)	It is true that the applicant was not invited to the meetings of individual academics who had their own research agendas. Those academics did not want to work with the applicant. The applicant was always invited to monthly research meetings where everyone shared what research they are working on. 
(w)	Ms Huber provided details of the applicant’s conflict with other staff members and her failure to behave appropriately in relation to her workload and other matters. I have not detailed those issues.
(x)	Ms Huber considers that the applicant is a bully. She believes she has followed the rules provided to her by HR in managing the applicant. She has dealt with the applicant by following the proper processes and that she has been professional in all her undertakings. In conclusion she considers the applicant not suitable for her employment and not a team player.
15.	I have set out Ms Davis’s response to the particular allegations made by the applicant in summary. Ms Davis considered the alleged failures in the applicant’s work performance and attitude and drew conclusions about those matters. I do not consider it necessary to particularise each of Ms Davis’s responses regarding the merit of the applicant’s alleged performance failings and I have not included that material;
(a)	Ms Huber raised concerns about the applicant by email to Ms Davis dated 
13 January 2020. She had carried out a mid-probationary meeting on 
11 November 2019. Ms Huber informed her that those concerns had been raised with the applicant at the November meeting. She met with Ms Huber and the applicant on 23 January 2020. The delay was brought about by Ms Huber’s leave and the Christmas shutdown.
(b)	Ms Davis did not witness any unreasonable behaviour by Ms Huber in any meeting. She did not harangue the applicant. The meetings were structured in accordance with the relevant performance plan reviewing the applicant’s performance against the plan’s criteria. The meetings were conducted in a reasonable manner.
(c)	Ms Davis stated there is a generic position description for a Research Associate, but such descriptions do not cover tasks supposed to be performed in any particular project.
(d)	The applicant’s reference to not owning anything arose out of a statement at a meeting that work should be shared and that no employee owned any part of the work. It is all project work funded by the University. 
(e)	This was Ms Davis’s understanding, arising from the meetings she attended and her interaction with the applicant, that the applicant did not give other employees access to relevant information in a timely fashion, that ethics applications were not completed on time and that other staff had to finish them. Her expertise in ethics applications was not up to Ms Huber’s expectations.
(f)	In the performance meetings the applicant’s ethics applications were discussed. Ms Huber indicated that they were not of an appropriate standard. There were errors which the applicant was responsible for and although Ms Davis does not recall Ms Huber saying that there were “too many mistakes for me to tell you about”, she felt that it was not appropriate for every error to be particularised in these meetings. 
(g)	The January 2020 meeting was for the purpose of discussing Ms Huber’s review of the applicant’s performance. It was not positive. The meeting of 23 January 2020 was for the purpose of discussing the mid-probationary review, providing the applicant with feedback on her response that review and establish a way forward. This was to enable the applicant to understand and be able to perform to the required standard for the rest of her probation and subsequently throughout her employment.  
(h)	The applicant believes that she was being set up to fail. All the respondent wanted was for the applicant to fulfil expectations of the role she had. The plan was intended to identify what she needed to do and provide mechanisms to support her. “This initial PMP and all subsequent plans were designed to enable Heather to perform at the level that was expected”. 
(i)	The process surrounding the plans, from late February to 14 April, took longer than Ms Davis was happy with because people were trying to cope with COVID-19 and they already had heavy workloads.
(j)	In the course of the probation extension the applicant did not demonstrate the desired levels of improvement. 
(k)	Ms Davis did not consider the applicant was ambushed by new issues at the meetings. Issues were ones that the applicant would be aware were likely to occur. The applicant’s response to the issues raised in the meetings demonstrates that lack of understanding of her role.
(l)	Ms Davis’s evidence was that the applicant would deny that certain things had been discussed and agreed. At subsequent meetings she would say that she had no memory of the conversation or that it had not taken place.
(m)	Ms Davis said the meetings were not friendly, although she denied they were aggressive.
(n)	Ms Davis believes that the applicant’s posts in relation to the meerkat advertising campaign and its inferred link to her and Ms Huber was inappropriate and contrary to the Code of Conduct.
(o)	A Ms Wilson was appointed as the applicant’s supervisor in 2021. She had been new to her role in 2020 and it wasn’t thought appropriate to place her position supervising the applicant at that time. However, in 2021 she was “better embedded” in her managerial role. Direct supervision of the applicant was transferred to Ms Wilson. Ms Davis considered that arrangement would take some of the tension from the process because the relationship between 
Ms Huber and the applicant had broken down. She acknowledged that both 
Ms Huber and the applicant raised their voices.
(p)	During 2021 the applicant’s performance did not improve. Ms Davis provided various examples. She concluded from these errors and omissions by the applicant, some very serious, that close supervision of the applicant was required.
(q)	Ms Davis defended the procedures of the respondent as fair and functional.
(r)	She acknowledged that the plans probably impacted Heather’s mental and physical health.
16.	Ms Wilson provided a statement detailing her obligations in relation to the supervision of the applicant. She described the applicant’s aptitude for her position as below average to good. It varied as to particular aspects of the role. She struggled with some tasks and in others she was effective. She described the applicant’s attitude to the job as poor. She was defensive. She would not necessarily take responsibility for any errors. Overall, she was a below average worker.
17.	Ms Wilson gave evidence regarding the implementation of the Active Monitoring Plan commenced by her. She acknowledges that she mentioned the Code of Conduct and stated that it arose in relation to the applicant taking personal accountability for her behaviour. 
Ms Wilson said “I think context is important in terms of how that was used. As a staff member under a lot of stress those words might have jumped out at her. There is an air of seriousness about those words”.
18.	Ms Wilson provided a great deal of evidence about the performance issues dealt with in her meetings with Heather and in supervision of her work generally. I do not need to include these in my review of the evidence reasons explained later in this decision.
 CONSIDERATION
19.	I have summarised below the established relevant jurisprudence of this Tribunal as I understand it is: 
(a)	The onus is on the respondent to establish a defence pursuant to s 11(A) of the 1987 Act. 
(b)	The words reasonable action should be given a broad construction.  
(c)	The question of reasonableness is a matter be determined in all the circumstances of the case. It is an objective test, weighing the rights of the employer against the objects of the employment.  
(d)	The consequences of the respondent’s actions must be considered against the reasons given for it.  or
(e)	Consideration also needs to be given to the manner by which events were implemented. 
(f)	Reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action. 
(g)	An extended and continuing assessment process may not be a performance appraisal. The process and the time taken to engage in it must be objectively reasonable in all the circumstances of the case. 
(h)	If there has been disciplinary action it is necessary, when considering the reasonableness of that action, to have regard to all relevant circumstances, including the seriousness of the conduct that has led to the disciplinary action, the nature of the employer’s business, and the worker’s position in that business.  
(i)	Although an employer may be in strict compliance with its enterprise agreement or award requirements, its HR policy directives in relation to a Disciplinary Procedure or a Grievance Procedure, but compliance with those procedures is not sufficient to establish fairness if the objective circumstances of the case do not establish fairness. Compliance with those procedures and policies of the employer are relevant but compliance cannot establish reasonableness in the absence of fairness in all the circumstances of the case or, in any event, if those processes were not reasonable in all the circumstances of the case. 
(j)	When considering s 11(A) the question of causation must be addressed by medical evidence. This will depend on all the circumstances of the case. There may be numerous factors contributing to causation of the injury to the applicant and medical evidence is necessary to establish the causation of a psychological injury.
(k)	When determining whether the applicant’s medical condition was caused by the respondent’s reasonable actions, as identified in s11(A), the question of wholly causative or predominantly causative must be considered separately. It must be one or the other.   
20.	Training, performance management, the implementation of a Performance Management or Improvement Plan or any other initiative that might proceed from an employee’s performance appraisal or some other positive management programme of the employer, is not necessarily discipline within the meaning of s 11A.  It is a matter to be determined on the facts of each case.
21.	During her employment experience the applicant was not merely emotional, frustrated, annoyed, frightened or upset, although she has probably been all those things at times. She gave evidence about feeling rebuffed and unsupported. She felt Ms Huber’s reaction to her was unsympathetic and her treatment unnecessarily autocratic. 
22.	Having reviewed the evidence I am satisfied and find that the circumstance of the applicant’s employment, which she perceived as adverse, was a combination of issues which included: 
(a)	her perception of constant regular criticism by her supervisor Ms Huber as unjust and poorly motivated;
(b)	her interactions with fellow staff who did not value her contributions; 
(c)	her difficulty in understanding the technology with which the respondent managed the project; 
(d)	her appraisal by Ms Huber; 
(e)	what she regarded as the failure of the administration to support her rebuttal of Ms Huber’s appraisal; 
(f)	her subsequent intense performance improvement plans and supervision;
(g)	Ms Huber’s dismissive and autocratic manner;
(h)	The antagonism and tension between Ms Huber and the applicant in meetings between the Ms Huber and the applicant;
(i)	her fear of receiving a Code of Conduct Violation Notice, and 
(j)	the failure to be ready to meet a deadline on her ethics application and her misunderstanding of Ms Huber’s intentions in that regard. 
23.	I am satisfied that the applicant’s failure in relation to ethics application was being predominant event in the decline of the relationship between Ms Huber and the applicant. It is the evidence of both Ms Huber and the applicant that the relationship went downhill after the disaster of the ethics deadline failure. The applicant regarded everything Ms Huber said thereafter as a criticism. Ms Huber regarded the applicant as unreasonably defensive and unable to take feedback. 
24.	I am satisfied that the cumulative impact of all those issues listed in the preceding paragraphs and the day-to-day effect of working under the fear of criticism and anticipated failure were causative of the applicant’s resultant psychiatric condition.
25.	It is clear from the evidence before me that the applicant has suffered a recognisable psychiatric illness from these conditions of her employment. She has suffered an increase in blood pressure, as well as a diagnosable psychiatric condition. I am satisfied that the disease arose out of the course of the applicant’s employment with the respondent and that her employment was the main contributing factor to that injury.
26.	Extracts from the medical evidence are set out below. The medical evidence supports a finding of a diagnosable psychiatric condition.
27.	Dr Geoff McDonald, consultant psychiatrist, provided a report dated 17 September 2021. He diagnosed the applicant as suffering from an adjustment disorder at the time of termination of employment which was entering partial remission at the time of his examination on 9 September 2021. He stated that:
“The history provided by Ms Middleton is that her emotional symptoms commenced about May 2020, and gradually escalated to the time when she ceased work 12 July 2020, when she probably met the met criteria for Adjustment Disorder.”  
28.	In answer to the question, “….has employment being the main contributing factor to contracting the disease question?” he replied:
“The Adjustment Disorder developed in the context of supervision and Performance improvement Plans at the Business School 2019 to 2021, which she alleges was unfair. She denies any performance problem.”
29.	Dr Richa Rastogi, consultant psychiatrist, provided a report dated 23 August 2022 which stated:
“She felt overwhelmed by her work situation ,helpless and hopeless by constant
negative comments, isolation, exclusion and denigration.”
30.	Much of the respondent’s defence of this application was conducted as if the Tribunal had to determine who was right and who was wrong in the assessment of the applicant’s work performance and attitude. Was the applicant a poor performer with a difficult attitude or was she a victim of constant negative feedback and criticism? Both parties gave evidence in this regard, and I can understand why they wished to engage in the resolution of this issue. The relationship has been hard on all participants. 
31.	This approach misses the point. This debate would be entirely appropriate in an application for an unfair dismissal remedy. The applicant considers she was set upon by the respondent’s managers who were overbearing, dismissive and unnecessarily autocratic. 
Ms Huber clearly did not think that was the case. Neither did Ms Davis. In this application I do not have to determine whether the applicant was a competent performer in her role. For that reason, I have not dealt with the minutiae of the respondent’s witness’s recollection of her many instances of her performance failure. 
32.	My task is to determine whether the applicant was injured and consequently incapacitated by her perception of the real events which took place in her employment.
33.	I am satisfied that the applicant’s honestly held perception was of a bullying, demeaning and overly critical managers who engaged in micromanagement and excessive supervision including the events summarised earlier in this decision which caused her injury. The applicant may well have a personality prone to misperception. Ms Huber described her as incapable of acknowledging fault or collaborating. That may well be accurate, but it is clear from the authorities that the respondent must take the applicant as it finds her, applying the “eggshell skull rule” or the “eggshell psych principle”.
34.	Termination of employment at the end of the applicant’s two probationary periods was available entirely at the discretion of the respondent. I cannot understand why, and no explanations been provided, given Ms Huber’s intense dissatisfaction with applicant’s attitude to her work, her poor performance and her poor relationship with her fellow employees, the respondent did not bring the relationship to an end when it had the opportunity.
35.	Termination for failures performance in those areas I have outlined was also available to the respondent at any time after probation. Again, given Ms Davis’s and Ms Huber’s views on the applicant’s merits as an employee, this was a viable option for the respondent. 
36.	The decision-makers in in this saga clearly thought the applicant manifestly inadequate in her performance. A poor performer. It was suggested by counsel for the respondent that those involved were being kind, and that they considered her performance was salvageable. In my opinion, having reviewed the history and evidence, it is more likely that the respondent was inexplicably unable to be decisive, take the initiative and appropriately terminate a relationship that was causing angst to management, fellow employees and, more significantly, ultimately an injury to the applicant. This was a misguided approach which failed to face the situation frankly perhaps to avoid the confrontation and possible negative experiences involved in a termination of employment.
37.	Instead, against the background of Ms Huber’s committed views regarding the applicant’s competence and attitude and Ms Davis’s observation of poor conduct in meetings  the respondent undertook reviews and plans in an intensive approach to performance improvement which seems to have been doomed from the start and in the end contributed to an injury to the applicant’s health and capacity for work.
38.	The respondent has submitted that management’s Performance Improvement Plans of the applicant and its other supervisory activities were part of the performance appraisal and/or part of its discipline of the applicant. Neither the appraisal itself nor the processes which followed it, whether they amounted to discipline or not, were either wholly or predominantly, separately or together, the cause of the applicant’s condition and resultant incapacity. Many factors contributed.
39.	Despite my finding that causation was not wholly or predominantly related to the applicant’s appraisal or discipline I have decided to consider the respondent’s submission that the applicant’s condition arose wholly or predominantly from reasonable management action taken in relation to the applicant’s appraisal and discipline. 
40.	I will firstly deal with the applicant’s appraisal. Any reasonable action taken in relation to the applicant’s appraisal is available to the respondent as a defence and I have considered that evidence. The applicant’s performance was appraised by her manager Ms Huber. Ms Huber was critical of the applicant’s performance.  She was entitled to proceed as she did. The applicant’s evidence was that the appraisal and its outcome had a negative effect on her. She forwarded an extensive rebuttal to Ms Huber’s superiors. 
41.	I am satisfied that conducting the November 2019 appraisal of the applicant’s performance was reasonable management action and I am satisfied and find that the respondent’s appraisal of the applicant was a factor in the causation of the applicant’s psychiatric condition. The applicant’s experience of being appraised by Ms Huber was a stressful one, involving adverse conclusions which she considered to be unfair and unjust. The delay in apprising the applicant of the appraisal outcome was also a factor. I am satisfied that the appraisal contributed to the causation of the applicant’s psychiatric illness. 
42.	I am not satisfied that the applicant’s psychiatric condition was wholly caused by the reasonable action of the employer in undertaking an appraisal of the applicant’s performance. 
43.	I am not satisfied that the applicant’s psychiatric condition was predominantly caused by the reasonable action of the employer in undertaking an appraisal of the applicant’s performance. 
44.	I will now deal with the subsequent actions taken by the respondent following her unsatisfactory appraisal, including instituting Performance Improvement/Management Plans and undertaking other supervisory activities intended to improve her performance. 
45.	I am not satisfied that the activities were conducted in a reasonable manner. I find that they were conducted in a heavy-handed manner and were unnecessarily interventionist in the performance and supervision of the applicant’s work. I am also satisfied that the evidence supports a finding that Ms Huber was unsympathetic and unnecessarily autocratic, there are occasions when voices were raised by both parties and Ms Davis had to intervene to calm the situation; that the joint attendance of Ms Huber and Ms Davis at all meetings was intimidating and that the provision of a list of faults to the applicant’s new supervisor was an inappropriate procedure likely to demean and intimidate the applicant. This process encapsulated the situation the applicant faced. The tension in the relationship between the applicant and Ms Huber was palpable. Supervision of the applicant was transferred to 
Ms Wilson. The unhappy manager making the criticisms of her performance was not available to the applicant and her ability to contradict the criticisms in the absence of the person making them was likely to be adversely affected. She was constantly facing criticism and the prospect of failure. The required reflections also imposed an excessive work burden on the applicant who had to attend to her other duties. 
46.	I am satisfied that the procedures implemented by Ms Davis and Ms Wilson complied with the relevant policies of the respondent and were implemented with appropriate integrity. However, compliance with policy is not everything. Procedures may be objectively reasonable but the application of those procedures must be considered in the circumstances of each case. One must examine the entire process. The presence of Ms Davis, a senior manager, in addition to Ms Huber at meetings, the need for fortnightly reflections, the exasperation clearly expressed by Ms Huber (probably justified) and the provision of lists of the applicant’s failings to her new supervisor are all circumstances which speak to excessive supervision and control. I am satisfied that they were an unfair process. They also speak to the frustration experienced by Ms Huber at the lack of progress being achieved. I am satisfied that this process was not objectively reasonable in the context of the applicant’s known performance defects or the respondent’s need for resolution, even taking into account the needs of the project and the intervention of COVID-19.
47.	Regardless of how these interventions were conducted, even if they had been fired in a reasonable manner, I am satisfied that they were not part of the applicant’s appraisal and were not discipline. 
48.	The industrial understanding of what constitutes a Performance Improvement Plan is so widely understood in the industrial context of employment relationships that there are very few judicial/tribunal definitions available. A Performance Improvement Plan is a management process, mostly engaged in after a less than satisfactory appraisal, for the purpose of assisting and improving the performance of an employee. 
49.	Disciplinary processes or a more formal Performance Management Plans are alternative available options after a Performance Improvement Plan has not resolved performance issues. Formal Performance Management Plans can lead to disciplinary procedures and outcomes. Disciplinary procedures can lead to termination of employment. 
50.	It is a matter to be determined on the facts of each case exactly where a performance appraisal ceases, and subsequent improvement processes instituted by management commence. In the circumstances of this application, I am satisfied that the appraisal was undertaken by Ms Huber in November 2019 and its outcome conveyed to the applicant in January 2020. That was the end of the appraisal. A Performance Appraisal is not intended to be “an extended and continuing assessment”. 
51.	 What took place afterwards were performance improvement plans engaged in with great optimism by management to achieve change.
52.	Workplace policies set out separate processes for the implementation of disciplinary processes following misconduct and Performance Improvement Plans aimed at improving performance. 
53.	There are very few occasions when a management plan for the improvement of performance can be considered part of a performance appraisal. It is what follows an appraisal. The employee’s performance on such a plan can be considered in a subsequent appraisal or be the justification for moving to a disciplinary process possibly resulting in termination of employment. 
54.	I am not aware of any context in which a Performance Management Plan can be considered as discipline. Discipline is what follows identified misconduct. There are rare instances when poor performance is misconduct i.e.when poor performance is deliberate. There are some circumstances in which training may be recommended where misconduct has been identified. Those circumstances are very limited. For example, in circumstances where workplace bullying has occurred education and training might be an appropriate outcome. But even in those particular circumstances the resultant training is not discipline. It is an attempt at improvement by management. 
55.	I was taken by the respondent’s counsel to the judgment of Neilson J in Kushwaha and his Honour’s broad interpretation of the meaning of discipline. This decision has been subject to critical scrutiny and his Honour has himself cast doubt on the breadth of his definition of discipline in a later decision. 
56.	Discipline does have a broad general meaning. However, in an employment context it is the accepted jurisprudence of industrial tribunals that discipline, or a disciplinary process, arises as an employer’s proper response to misconduct. The process can involve a range of management actions and a range of outcomes can arise including termination of employment, but a Performance Improvement Plan is never discipline. The question of when management action to improve performance ceases and discipline or management disciplinary action starts is a question of fact to be determined in all the circumstances of each case. 
57.	The evidence of Ms Huber and Ms Davis supports this understanding. Both Ms Huber and Ms Davis were acting in accordance with the common understanding of Performance Improvement Plans in employment relationships as activities engaged in to improve the performance and attitude of the applicant, not to discipline her for misconduct or for any other performance issue in her employment. 
58.	Ms Huber was intending to provide feedback in what she considered was a process in accordance with the policies and procedures of the respondent guided by HR. She was attempting to lift the applicant’s performance to the level required by her for the benefit of the team and the project. 
59.	Ms Davis considered that the applicant was being provided with feedback, an opportunity to provide the respondent’s response to her own response document and provide a way forward, hopefully achieving performance to the required standard. What she wanted was for the applicant to fulfil her expectations of the role. The plan was intended to identify what the applicant needed to do and provide mechanisms to support her. “This initial PMP and all subsequent plans were designed to enable Heather to perform at the level that was expected”. 
60.	The Performance Improvement Plans and supervision to which the applicant was subject were not appraisals and they were not discipline. They were processes engaged in by the respondent to attempt to improve the performance of the applicant so that she could meet the requirements for the position and satisfy the not unreasonable objects set by Ms Huber as to competence, attitude and congeniality with fellow employees. They were the management action which flowed from the appraisal of her performance. 
61.	The applicant’s experience of being performance managed by Ms Huber and Ms Davis was a stressful one, involving actions which she considered to be unfair and unjust. I am satisfied that the applicant’s performance management by the respondent contributed the causation of her psychiatric illness. 
62.	I am not satisfied that the applicant’s psychiatric condition was wholly caused by the action of the employer in undertaking performance management of the applicant. 
63.	I am not satisfied that the applicant’s psychiatric condition was predominantly caused by the reasonable action of the employer in undertaking performance management of the applicant. 
64.	I am not satisfied that the applicant’s psychiatric condition was wholly caused by the action of the employer in undertaking a disciplinary process applicable to the applicant. 
65.	I am not satisfied that the applicant’s psychiatric condition was predominantly caused by the reasonable action of the employer in undertaking a disciplinary process applicable to the applicant.
SUMMARY 
66.	For the reasons set out above the Commission will make findings and orders as set out on page 1 of the Certificate of Decision.