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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051307-1
SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER CAMBRIDGE
C2014/7706
s.604 - Appeal of decisions
Nalbandian v Bureau of Statistics
(C2014/7706)
Sydney
10.11AM, TUESDAY, 20 JANUARY 2015
Continued from 18/12/2014
Reserved for Decision
PN239
SENIOR DEPUTY PRESIDENT HARRISON: May we have appearances in this matter? Mr Nalbandian, you're appearing for yourself today?
PN240
MR A. NALBANDIAN: That's right.
PN241
SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you.
PN242
MS V. MASTERS: Virginia Masters from the Australian Government Solicitor, appearing with permission on behalf of the Bureau of Statistics.
PN243
SENIOR DEPUTY PRESIDENT HARRISON: Yes, now, I think we have previously ruled in favour of granting you permission to appear today.
Mr Nalbandian, I thought what I would first do is identify the documents that the full bench has before us in this appeal, and then
I want to go through your submissions, not in detail, that will be a matter that can be attended to subsequently, but just right
at the beginning go through your submissions so we can understand how we marry up your submissions with your grounds of appeal.
Some of them it is clear and in some parts of the submissions it's not immediately clear which particular ground they're addressing,
so I'll ask you soon to assist the full bench in relation to that matter.
PN244
First, could we indicate that we have before us the appeal book and we have your amended notice of appeal, and also have before us, even though it's not in the appeal book, your original application that you filed back in March of last year for an order to stop bullying, so we have that application. We also have your submissions that you filed earlier this year on 2 January. Those submissions comprise some 34 pages, and we have the submissions of the Australian Bureau of Statistics that was also filed earlier this year. Now, they're the documents that are before the full bench.
PN245
MR NALBANDIAN: I've already prepared a submission about the grounds of my appeal, your Honour, I prepared a document sort of focusing on that. If you allow me to present this and provide you with a copy of what I'm presenting, I'm quite happy to do this.
PN246
SENIOR DEPUTY PRESIDENT HARRISON: First, in relation to the documents that I've identified immediately before you made that submission, you understand each of those documents that I've identified and you have a copy of them in your possession?
PN247
MR NALBANDIAN: I would think so, your Honour.
PN248
SENIOR DEPUTY PRESIDENT HARRISON: All right. Now, is there anything, Mr Nalbandian, that has been filed in relation to the appeal that I haven't identified? You're going to commence to address something in a minute, but we have your submissions, we have the appeal book, we have your notice of appeal.
PN249
MR NALBANDIAN: Well, yes, your Honour, but in my email to your chambers and to Ms Masters, my email of 2 January 2015, when I presented my submissions for the appeal book I found quite a few missing documents and some errors when the appeal book was prepared. We do recall that when we agreed to allow the appeal book to be prepared by Ms Masters and so generously volunteered to do this, I was a bit apprehensive because, you know, it doesn’t happen very often, you know, the opposite would offer such a service. I'm hoping that you would have my email in front of you which sort of shows all the missing parts and, you know, the wrong numbers in the documents that would impact on me.
PN250
SENIOR DEPUTY PRESIDENT HARRISON: First, do you copies of the email to chambers? Do you have multiple copies of it?
PN251
MR NALBANDIAN: Well, I sent this email.
PN252
SENIOR DEPUTY PRESIDENT HARRISON: You don't have it. Ms Masters, do you have in your possession the email Mr Nalbandian is addressing?
PN253
MS MASTERS: Yes, I do, your Honour.
PN254
SENIOR DEPUTY PRESIDENT HARRISON: All right. Do you want to say something, Mr Nalbandian, about the documents that have been contained in the appeal book, and in relation to that submission do you wish each member of the full bench to have in its possession a copy of an email you sent to chambers on 2 January?
PN255
MR NALBANDIAN: That would help, your Honour, because that would give you a better picture of what I'm talking about because it is important.
PN256
SENIOR DEPUTY PRESIDENT HARRISON: All right. Is that an email that was then the subject of a response from Ms Masters and/or her client?
PN257
MR NALBANDIAN: Yes, her response, your Honour, was - - -
PN258
SENIOR DEPUTY PRESIDENT HARRISON: And what date was that?
PN259
MR NALBANDIAN: It's dated 6 January 2015, 4.59 pm.
PN260
SENIOR DEPUTY PRESIDENT HARRISON: All right.
PN261
MR NALBANDIAN: The only thing - - -
PN262
SENIOR DEPUTY PRESIDENT HARRISON: Just a moment. There's two things now. Firstly, you want to address us in relation to concerns you have about the content of the appeal book?
PN263
MR NALBANDIAN: Yes.
PN264
SENIOR DEPUTY PRESIDENT HARRISON: All right. Then right at the beginning you indicated you had a document in your possession which was an additional document, it was not a document that had been filed so far and you wanted to provide a copy of that to us.
PN265
MR NALBANDIAN: That's right, because that would be a focus on the grounds that I'll be talking about of my appeal basis.
PN266
SENIOR DEPUTY PRESIDENT HARRISON: Did you provide a copy of that to Ms Masters or her client prior to this morning?
PN267
MR NALBANDIAN: I have it, your Honour, because my intention with my inexperience in this area, my intentions was to present it to the bench first and then if anybody wants it I'll provide a copy, basically. I don't have additional copies, but I think in my way of thinking - I don't know whether I'm allowed to do this, I thought I could present that verbally first, and then if anybody wants to have a copy of it I can provide that.
PN268
SENIOR DEPUTY PRESIDENT HARRISON: It's a matter for you to decide whether you want to provide a copy of a document to the full bench, and then I would give Ms Masters an opportunity - well, firstly, she has to receive a copy of it herself, and I give her an opportunity to make submissions to us as to whether we should receive it or not.
PN269
MR NALBANDIAN: Yes, your Honour.
PN270
SENIOR DEPUTY PRESIDENT HARRISON: It seems to me that it might be useful for you to provide a copy to Ms Masters early on because it is a summary of the submissions you've already filed, or it may well be that it is not a summary and comprises additional or new matters. Now, Ms Masters will look at that and they might be matters that would be relevant for her to make submissions to the full bench about as to whether we at this stage should receive this document, but we had a very long mention and programming, very long, almost the best part of a day, attending to the documents that should be before this full bench, accepting the proposal by the respondent that they should prepare the appeal book and attend to a number of matters that normally the appellant would attend to, and indicating that by certain days you would file documents.
PN271
Now, I don't know that at any time during that mention program or subsequently you have indicated that you want to file another document, or have I overlooked something?
PN272
MR NALBANDIAN: This is purely lack of experience from my part. I rang your office yesterday just to know what should I expect today, basically. When I spoke to the nice lady, without mentioning any names, she said that, "You will be required to focus on the grounds of your appeal," basically. So based on that advice I prepared something to focus on, you know, that anything that I want to say will be based on grounds of my appeal, so it was just lack of knowledge, I prepared that last night, so it wasn't done purposefully or anything like that.
PN273
SENIOR DEPUTY PRESIDENT HARRISON: The submissions that you filed after that long mention and programming were focusing on your grounds of appeal and identifying in relation to each of the grounds of appeal documents in the appeal book that related to that matter.
PN274
MR NALBANDIAN: They're all the same. I haven't really added any additional evidence or any additional material documents which would make a new - - -
PN275
SENIOR DEPUTY PRESIDENT HARRISON: You do intend to rely on this document and not rely on your submissions that you filed?
PN276
MR NALBANDIAN: No, my submissions go into details of everything, the whole picture, whereas this is a summary of - just a small summary of points which relate to - - -
PN277
SENIOR DEPUTY PRESIDENT HARRISON: Let's say we do this: we'll adjourn for a short time and have a copy made of this document that you wish to now provide to the full bench which comprises your description, a summary of the matters by reference to your grounds of appeal, and also we'll have copies made of your email to my chambers of 2 January and Ms Masters' response to that email, and that concerns the topic of your concern about documents that are contained in the appeal book.
PN278
MR NALBANDIAN: Yes.
PN279
SENIOR DEPUTY PRESIDENT HARRISON: Once we have all of those documents before us we will resume again. Ms Masters, at this stage, do you wish to say anything?
PN280
MS MASTERS: No, your Honour.
PN281
SENIOR DEPUTY PRESIDENT HARRISON: All right. We'll now adjourn.
<SHORT ADJOURNMENT [10.23AM]
<RESUMED [10.44AM]
PN282
SENIOR DEPUTY PRESIDENT HARRISON: The full bench has before it a copy of your email to my chambers, Mr Nalbandian, of 2 January, at 3.24 pm, and a copy of an email from Ms Masters to you of 6 January 2015, at 4.59 pm. What we would like to do is deal with that matter first, and then we can deal with the next matter, a document that you foreshadowed earlier was in your possession, and I think a copy is now being provided to Ms Masters. We don't yet have that document, but three copies have been made and are in court, so we'll address that secondly. First, tell us what you want to about what appears to be a submission that you're complaining about documents that are contained or are not contained in the appeal book. Is that what you want to say?
PN283
MR NALBANDIAN: That's right. That would disadvantage me to some extent, I think, your Honour. If I go through my email, I express my disappointment for not including a set of documents which I was relying on to present. Also, I found wrong page numbers on a few of them, as I listed, 192, 93, 94, 95, 96, 97. One part of the document was cut off, there's no ending I had to rely on, and the top part of a document was just blank, and a lot of pages appeared that I did not need, I did not request. The only reason why I was disappointed was because I sent or emailed all the documents, and I CCd the Fair Work Commission so we know what is provided to Ms Masters and the Fair Work Commission is the same, so all I asked was for to include what I'm emailing in my appeal book.
PN284
There wasn't really much extra workload or anything like that. My request was to whatever I'm sending, and that's what we agreed to, to include it in my appeal book. When I went through it and I found quite a few mistakes, I was very distressed about it because that would really mess up my presentation, and then I realised, "Look, it's too late now, let's focus on things, I'll just mention that and I'll just go on with whatever I'll be presenting." But the most disappointing thing about this - and I'm not really upset with Ms Masters or anything like that - in her email of 6 January, she's really blaming me for all the mistakes.
PN285
If you read the first paragraph, they're just blaming me for everything, "It was your fault, you know, that mistakes were made." She volunteered to do them, from memory, and I didn't suggest that, you know. I needed someone to do it for me and she volunteered for that, and I was too reluctant to say no because that would antagonise me with her Honour and Ms Masters because, you know, he's refusing the aid of somebody else, so I had to say yes reluctantly, but, you know, at the back of my mind it was, "Look, this is not the right thing to do." You know, you have a real good gut feeling, and I thought something would end up wrong, basically.
PN286
Well, it did, but I wanted to avoid any upset from anyone for me to say, "Look, no, I don't need your support." I don't expect the other to prepare my appeal book, I said yes just to please everyone, but I ended up losing at the end, basically, and on top of that - as I said, I'm not upset with Ms Masters, you know, she turned it around very cleverly, saying, "It's your fault we made a mistake, we didn't have to do this for you." It really hurts me, that's all.
PN287
SENIOR DEPUTY PRESIDENT HARRISON: I don't read Ms Masters' response as being that critical of you, Mr Nalbandian. In fact, her response is an entirely proper one and identifies in some detail the documents that are in the book and should properly be in the book, the documents that are not and the reason why they're not, and the opportunity that might be open to you to make an application for documents that you now wish to be before the full bench that were not before her Honour, for such an application to be made. An entirely proper response.
PN288
MR NALBANDIAN: I accept that.
PN289
SENIOR DEPUTY PRESIDENT HARRISON: All right. Is that all you wish to say about your complaints about the contents of the appeal book?
PN290
MR NALBANDIAN: Yes, as long as you know that was my feeling towards it, because, you know, we all read things differently, and I appreciate the court's decision. The only thing I just wanted to mention just very quickly to pass onto the next - - -
PN291
SENIOR DEPUTY PRESIDENT HARRISON: You understand that topic about the documents in the appeal book and that will be open to you and Ms Masters to take the full bench to and that will be considered by the full bench in this appeal, that issue has now closed?
PN292
MR NALBANDIAN: Yes.
PN293
SENIOR DEPUTY PRESIDENT HARRISON: You've said all you wanted to about it?
PN294
MR NALBANDIAN: Yes.
PN295
SENIOR DEPUTY PRESIDENT HARRISON: I've made an observation about Ms Masters' response, and that's it, that's not being returned it. That's it?
PN296
MR NALBANDIAN: That's it, yes.
PN297
SENIOR DEPUTY PRESIDENT HARRISON: What is the next thing you wanted to raise?
PN298
MR NALBANDIAN: The other thing I wanted to raise, I think, when I talked to people, I just wanted to mention that I strongly objected for the other party to be represented legally because it just shows an imbalance on fairness, justice and equity grounds, I think. It doesn’t sound great, for one person having been legally represented and the other person not having. I just wanted to mention that and just pass it on to your Honour.
PN299
SENIOR DEPUTY PRESIDENT HARRISON: You know that you have been given an opportunity and took the opportunity to file submissions about that matter, and you know that the full bench has ruled upon it?
PN300
MR NALBANDIAN: Yes, your Honour.
PN301
SENIOR DEPUTY PRESIDENT HARRISON: And we have indicated the reasons for the ruling will be contained in the decision that details in a substantive way with this appeal?
PN302
MR NALBANDIAN: Yes, your Honour.
PN303
SENIOR DEPUTY PRESIDENT HARRISON: All right. What is the next matter you wish to raise?
PN304
MR NALBANDIAN: That's all. If you want me to go through the grounds of my appeal, I could do that for you.
PN305
SENIOR DEPUTY PRESIDENT HARRISON: The next thing, I suspect, is how the full bench should deal with a document that you mentioned right at the beginning of these proceeding that you had prepared which I indicated the full bench does not yet have but Ms Masters was provided with a copy of it. What I'm going to do now is, firstly, ask Ms Masters what her attitude is to the full bench receiving that document.
PN306
MR NALBANDIAN: Yes, your Honour.
PN307
SENIOR DEPUTY PRESIDENT HARRISON: Ms Masters.
PN308
MS MASTERS: Thank you, your Honour. The document is largely unobjectionable. It appears, really, to be nothing more than speaking notes from Mr Nalbandian to work from. The only objection the Bureau of Statistics would raise in respect of the document is one paragraph in which Mr Nalbandian accounts for his current work circumstances, and make some observations about his present working situation. Those observations do not assist in the resolution of the matter before the commission, and we think it's not appropriate for fresh evidence to be given through written submissions.
PN309
SENIOR DEPUTY PRESIDENT HARRISON: Is the paragraph numbered, or is the page it is on numbered?
PN310
MS MASTERS: It's on page 6 of the document, it's the second full paragraph on that page. It begins, "Currently, I am given another work plan," and the Bureau will object to the whole of that paragraph being in the submissions.
PN311
SENIOR DEPUTY PRESIDENT HARRISON: What I'm intending to do, then, is for three copies to be before the full bench, have a look at that paragraph, make a ruling on whether that should stay in or not, but it would seem appropriate then that we mark the document because in effect it's the document that you're going either read from verbatim or address, and it would be easier for us to follow you if we have your notes in front of us.
PN312
MR NALBANDIAN: Yes, your Honour.
PN313
SENIOR DEPUTY PRESIDENT HARRISON: That's what we will do, so let's have a copy of this. Now, on page 6 of the document, the second full paragraph on that document, you object to, Ms Masters?
PN314
MS MASTERS: That's right, your Honour.
PN315
SENIOR DEPUTY PRESIDENT HARRISON: Ms Masters, the second two sentences refer to documents in the appeal book, and a matter that, from my reading, is an issue that has been the subject of complaint before, namely, the independence that may be ascribed to Ms Watkinson in light of her reporting responsibility to Ms Nicholson. I think that's been mentioned on more than one occasion below.
PN316
MS MASTERS: Your Honour, yes. The involvement of Ms Watkinson in assessing Mr Nalbandian's performance has been the subject of a considerable degree of correspondence, but it was not actually part of the original proceedings below.
PN317
SENIOR DEPUTY PRESIDENT HARRISON: I see.
PN318
MS MASTERS: The application below concerned the conduct of Mr Paul Roper.
PN319
SENIOR DEPUTY PRESIDENT HARRISON: Yes. I haven't gone to the page numbers in the appeal books, but are they documents that relate to exchanges between Ms Watkinson and Ms Nicholson?
PN320
MS MASTERS: No, your Honour, these references are to emails. The page numbers are references to emails sent by the applicant to your associate and documents attached to those emails.
PN321
SENIOR DEPUTY PRESIDENT HARRISON: All right. Mr Nalbandian, the paragraph on page 6 of this document we're addressing at the moment starts with the words, "Currently, I'm given," right down to the end of that paragraph Ms Masters objects to because she says that does not address matters which were before the Senior Deputy President and nor raised in your grounds of appeal, and you should not be able to - this document and your submissions to the full bench should not be able to address these matters, they are new matters. What do you want to say about that?
PN322
MR NALBANDIAN: Throughout my application, throughout lots of my emails, I've been protesting that you can't call someone an independent assessor where that person reports to the person who is trying to undermine you, basically, your Honour, so this is something I've already sent to a lot of people about this because I find it very, very stressful when people are sort of misleading other people saying, "We have an independent looking into this assessment," where the independent person reports to a particular person who has been the subject of my - you know, the force behind my fall down, basically, with so many issues that I can raise, without raising too much issues.
PN323
SENIOR DEPUTY PRESIDENT HARRISON: Do you accept what Ms Masters says, that this is a new matter and not a matter before the Deputy President?
PN324
MR NALBANDIAN: The only new matter that I can probably agree on with Ms Masters would be the work plan, but if you look at my other submissions and reports you'll find that this was predicted will happen. In her report, she was saying, "I will be assessed," you know, "Paul Roper will be doing this," she predicted this anyway, and what I'm saying is it has already commenced, you know, her prediction is sort of happening, that's all, so there's nothing absolutely new about it.
PN325
SENIOR DEPUTY PRESIDENT HARRISON: Certainly, you have raised criticisms of Ms Nicholson's correspondence with you, and that is in the appeal book and was the subject of submissions to her Honour, and you can make of that as you wish.
PN326
MR NALBANDIAN: Yes.
PN327
SENIOR DEPUTY PRESIDENT HARRISON: This seems to relate to another matter. Do you wish to say anything further about the objection by Ms Masters to us allowing you to retain this paragraph in this document?
PN328
MR NALBANDIAN: Yes. Well, the only thing I can sort of back my comments with is, you know, I'm making reference to the same pages that I've already made here.
PN329
SENIOR DEPUTY PRESIDENT HARRISON: Yes, they are there, and you can make reference to them for the purposes of what was before the Deputy President, and what you there complained about, that's a different issue. Have you said all you wish to about whether or not this paragraph should remain within this document that's been objected to by Ms Masters?
PN330
MR NALBANDIAN: I could just comment very briefly that the consequences of what is happening, what has happened, and because of what she has initiated, and she's being doing this ruthlessly over the last 12 months - - -
PN331
SENIOR DEPUTY PRESIDENT HARRISON: Mr Nalbandian, we do not accept fresh evidence on appeal unless it's brought to us in a proper way, and a proper way would include it being the subject of an appropriate affidavit, an appropriate submission, a provision in advance to the other side to allow them to take instructions on it and may be in a position themselves to file a document in response. None of that has occurred, so, therefore, if you're now about to address us on new matters you should cease doing so.
PN332
MR NALBANDIAN: No, I'm not.
PN333
SENIOR DEPUTY PRESIDENT HARRISON: All right. We do not propose to read or receive before us, in your submissions, the whole of the paragraph on page 6 of these submissions, commencing, "Currently, I'm given another work plan," down to the last sentence, "I had the copies with me," et cetera. Now, subject to that paragraph being struck out of this document, we will mark this document, Mr Nalbandian, A1, so that stands for Appellant 1.
EXHIBIT #A1 SUBMISSIONS OF MR NALBANDIAN
SENIOR DEPUTY PRESIDENT HARRISON: Whilst we're here doing that, shall we also mark your submissions? These are the submissions that you filed on 2 January of this year, and they're the ones which earlier I identified as comprising 34 pages.
PN335
MR NALBANDIAN: Yes, that's right, your Honour.
PN336
SENIOR DEPUTY PRESIDENT HARRISON: We will mark them A2.
EXHIBIT #A2 SUBMISSIONS OF MR NALBANDIAN DATED 02/01/2015
SENIOR DEPUTY PRESIDENT HARRISON: I also mentioned that we had before us your notice of appeal, but I don't think I made clear that what we had before us is your amended notice of appeal, and you amended your grounds and advised us of those amendments on 21 December 2014, and we have that amended notice of appeal here. I won't mark it, I just wanted the transcript to indicate that, that is before us. Did you want to read or summarise the matters in exhibit A1, Mr Nalbandian, or did you want us to read it first and then allow you to address it? How did you want to deal with A1?
PN338
MR NALBANDIAN: I'll read it, if you like, your Honour, and I'll expand on it. If you have any questions, you can ask me if you like. Maybe that's the way to go, I'm not sure what's the best way of doing it.
PN339
SENIOR DEPUTY PRESIDENT HARRISON: All right. You can read it and when you go through it, if upon reading it there's something you notice that might be a mistake or something you need to attend to, it might be a typo or it might be an incorrect reference to a person or someone, stop at that stage and let us know, and what you would then do is ask us to make a handwritten amendment to it. So now you want to read to us exhibit A1, which is a document which comprises submissions you wish to make to the appeal bench.
PN340
MR NALBANDIAN: Yes, the following will be my grounds of appeal, basically, why I'm appealing, the grounds of appeal. I've got, I think, about three or four points. The first one - - -
PN341
SENIOR DEPUTY PRESIDENT HARRISON: No, I just want to make this clear: your grounds of appeal are the document that you filed, the amended document you filed, on 21 December. This document is making submissions by reference to those grounds of appeal.
PN342
MR NALBANDIAN: That's right.
PN343
SENIOR DEPUTY PRESIDENT HARRISON: This is not a further notice of appeal containing new grounds. I haven't misunderstood that, have I?
PN344
MR NALBANDIAN: No, your Honour. What I'm saying is - - -
PN345
SENIOR DEPUTY PRESIDENT HARRISON: No, I just want to make sure I didn't - - -
PN346
MR NALBANDIAN: - - - these are all old - whatever I said previously, but I am expanding on it so we can all understand what I'm trying to convey.
PN347
SENIOR DEPUTY PRESIDENT HARRISON: All right. Yes, you proceed.
PN348
MR NALBANDIAN:
PN349
There are substantial factual errors in her Honour's finding. Based on the premise that human beings are complex creatures, it is impossible to detect or comprehend people's intention or motivation, only people's actions and deeds could determine bully acts and behaviour, and yet her Honour said that she was satisfied and finds that Mr Roper's concern about my performance are not motivated by an intention to bully me.
PN350
That's page 4, item 21 in the appeal book. Every time there's a reference to it, do you want me to refer to that particular book so we can look at what I'm saying?
PN351
SENIOR DEPUTY PRESIDENT HARRISON: It's a matter entirely for you, Mr Nalbandian, but if what - - -
PN352
MR NALBANDIAN: Page number 4 of the appeal book, number 21.
PN353
SENIOR DEPUTY PRESIDENT HARRISON: Let's use this terminology, if possible. Referring to the page number of the appeal book is good, we can all identify that.
PN354
MR NALBANDIAN: Yes.
PN355
SENIOR DEPUTY PRESIDENT HARRISON: When you're saying "number 21", what you're referring to is - - -
PN356
MR NALBANDIAN: Item 21, or, you know, you've got all the numbers on the left-hand side.
PN357
SENIOR DEPUTY PRESIDENT HARRISON: I'm trying to assist you, Mr Nalbandian.
PN358
MR NALBANDIAN: Thank you.
PN359
SENIOR DEPUTY PRESIDENT HARRISON: When you're referring to that item number 21, what you're taking us to is paragraph 21 of her Honour's decision.
PN360
MR NALBANDIAN: Yes.
PN361
SENIOR DEPUTY PRESIDENT HARRISON: Yes.
PN362
MR NALBANDIAN: Which is on page 4.
PN363
SENIOR DEPUTY PRESIDENT HARRISON: Yes, I understand.
PN364
MR NALBANDIAN: Do you want me to read it again, your Honour, or - - -
PN365
SENIOR DEPUTY PRESIDENT HARRISON: No, you were taking us to paragraph 21 of her Honour's decision, and you say that reflects and error.
PN366
MR NALBANDIAN: That reflects an error because she's basing it -
PN367
If we accept the premise that human beings are complex creatures, it is impossible to detect or comprehend people's intention or motivation. Only people's action and deeds could determine bullying acts and behaviour, yet her Honour asserted that she was satisfied and finds that Mr Roper's concern about my performance are not motivated by an intention to bully me.
PN368
And I came up with this example, I was sitting there last night:
PN369
I could not say with certainty that what was Ms Masters' true motivation when she volunteered to do the appeal book for me. I can't say with certainty whether her intention was good or bad, however, I could only look at her actions and deeds and make a decision.
PN370
We're not psychic people, we can't really base our belief on feelings, you know, so we normally look at people's actions and make a judgment of their intention, but you can't read people's minds and say, "I'm satisfied that his intention or motivation wasn't to bully me." It's very difficult to prove that, it doesn’t really prove that, it's a very weak way of presenting this.
PN371
Based on this principle, it is clear that none of the examples presented by Mr Paul Roper constitute underperformance. Indeed, some of the examples provided actually present clear evidence of bullying. Mr Roper has been using me more as his clerical assistant rather than treating me as a manager.
PN372
If you see all the issues that I'll be raising, it's just demeaning because I'm a manager and he's asking me to organise conferences for him, and he complains about this. They are very, very minor issues, and then he says it's underperformance, and he doesn’t treat me like a manager, so there is a bullying issue there, you know, without any question.
PN373
None of the examples provided by Mr Roper support the concept of reasonable management action.
PN374
On page 4, item 20, her Honour stated that:
PN375
Some of the issues raised by Mr Roper seemed to be of minor significance to me and would appear to be unlikely to demonstrate significant failure of performance.
PN376
Other matters more significant. Now, the only reason why her Honour was not able to be specific about other matters was because there are no other matters more significant. I will go through them if you like. All matters raised as insignificant, your Honour, and I was sitting with my kids yesterday and we looked at some examples for this. I've got it in my hand a newspaper saying, "Bureau of Statistics admits blundering on job figures."
PN377
MS MASTERS: Your Honour, objection. The appellant appears to be leading new evidence from the bench.
PN378
MR NALBANDIAN: I just wanted to compare the issues that I'll be raising with - - -
PN379
SENIOR DEPUTY PRESIDENT HARRISON: What say you confine yourself to the written submissions in A1 which are addressing her Honour's decision and presumably identify where you say she was in error, and also doing so by reference to your grounds of appeal. This is not the occasion to read from, hold up before us, or provide us with fresh evidence.
PN380
MR NALBANDIAN: It's just an example that I'm trying to prove to your Honour, that's all.
PN381
SENIOR DEPUTY PRESIDENT HARRISON: Move on, Mr Nalbandian.
PN382
MR NALBANDIAN: Sorry?
PN383
SENIOR DEPUTY PRESIDENT HARRISON: Move on, Mr Nalbandian.
PN384
MR NALBANDIAN: Okay. As I was saying, the examples I was going to produce show serious matters, but my matters are whether social club glassware had been used, not opening the dockling, booking the meeting room, claiming that I require significant supervision based on an alleged reminder of completing a flex sheet, fabricating deadlines, misplacing evaluation forms, and then saying, you know, when we found it I got blamed for that. My supervisor claimed that no-one spoke to me about anything to do with data issues, and at the hearing he was completely contradicted that, you know, how can you hear when you're sitting from one end to the other and comment on something like that, and that was a very important moment that typically he shows how he's trying to discredit me.
PN385
I mean, you can't hear from one end of a building, it's a big building, to the other claiming that no-one asked me about issues about the database. I make a big reference to that in my submissions, your Honour. I will go to each of these matters raised by Mr Roper to prove my point. Based on the significant matters, Ms Nicholson's threatening email to me is on page 358.
PN386
MS MASTERS: Your Honour, if I could just interrupt Mr Nalbandian momentarily. This email, along with various other documents within the appeal book, emails from Mr Nalbandian to your chambers, the respondent included those documents in the appeal book at the request of the appellant.
PN387
SENIOR DEPUTY PRESIDENT HARRISON: What? To my chambers, Ms Masters?
PN388
MS MASTERS: Yes, to your - - -
PN389
SENIOR DEPUTY PRESIDENT HARRISON: 358? Have I gone to the wrong page?
PN390
MS MASTERS: No, I do apologise. That was not copied to you. Some substance of those emails was subsequently forwarded to your chambers, I do apologise.
PN391
SENIOR DEPUTY PRESIDENT HARRISON: These emails were at a time that the matter was still proceeding before her Honour, and no appeal had been lodged - - -
PN392
MS MASTERS: I stand corrected.
PN393
SENIOR DEPUTY PRESIDENT HARRISON: - - - and I had no knowledge of the matter.
PN394
MS MASTERS: That's right. Then at page 369, Mr Nalbandian wrote Drake SDP's chambers to complain about Ms Nicholson's conduct in emailing him in respect of without prejudice settlement discussions, and essentially the balance of the appeal book at that point contains material that went backwards and forwards on a without prejudice basis. None of that material was taken as evidence in the proceedings below, but I understand it's of considerable concern to Mr Nalbandian because it forms the basis for his complaint now that Ms Nicholson along with Mr Roper has bullied him.
PN395
I wish to draw to your attention at page 387 of the appeal book, that's a copy of a letter from us to Mr Nalbandian making reference to those without prejudice communications that I've referred to and indicating that on account of Mr Nalbandian's disregard for the privilege that had attached to those without prejudice communications, as evidenced by his apparent disclosure of those communications to Comcare, the Bureau of Statistics would no longer treat those communications as privileged.
PN396
MR NALBANDIAN: Your Honour, I - - -
PN397
SENIOR DEPUTY PRESIDENT HARRISON: No, let Ms Masters finish, Mr Nalbandian, then you will have an opportunity to address us.
PN398
MS MASTERS: As indicated in our email to Mr Nalbandian referred to earlier today, dated 6 January, we put him on notice that the ABS would propose to seek leave to tender the letter at page 387 of the appeal book in these proceedings in the event that Mr Nalbandian sought and was granted leave to tender the previously without prejudice communications set out at pages 358 to 386 inclusive of the appeal book. In other words, the respondent has no objection to that material being before the commission, it will obviously assist Mr Nalbandian in presenting the evidence of his concerns regarding Ms Nicholson's conduct, but the material has to be taken as a whole, and we simply sought to explain that notwithstanding the material initially is marked as being without prejudice the bench should have no concerns about accepting it, if it wishes to do so.
PN399
SENIOR DEPUTY PRESIDENT HARRISON: Yes. You understand that, Mr Nalbandian, it was a matter that was foreshadowed in the correspondence to you that if you're going to refer to without prejudice correspondence, it would appear as part of your complaint of actions taken by Ms Nicholson, it is appropriate for the full bench to have in its possession other documents because they all need to be read together. Now, I am concerned that we need to be even talking about any documents at all that weren't before her Honour in evidence, so that's the first thing that we would need to address: why should the full bench be taken to any of this.
PN400
MR NALBANDIAN: Your Honour, I - - -
PN401
SENIOR DEPUTY PRESIDENT HARRISON: If they weren't in evidence, you need to assist us as to why they were not tendered to her Honour and why we should give you an opportunity to now do so.
PN402
MR NALBANDIAN: Your Honour, this is completely wrong and misrepresented. I have never provided a copy of without prejudice to anyone. She refers to Comcare, I have never provided a copy of Ms Nicholson's without prejudice to neither ABS or anybody else, I only referred my reply to her email, without prejudice email, to her Honour, Drake, but I have never provided a copy of the actual email without prejudice to anyone.
PN403
SENIOR DEPUTY PRESIDENT HARRISON: I understand that was not in evidence below, and so therefore there is no reason for us to be concerning ourselves with it now.
PN404
MR NALBANDIAN: No, your Honour, because I'm making a reference to 358, which indicates that I have replied to Donna Nicholson's email without producing her actual without prejudice letter or email, your Honour, so I've done the right thing.
PN405
SENIOR DEPUTY PRESIDENT HARRISON: This was all exchanges between you and the ABS, copies of which were not provided to her Honour as - - -
PN406
MR NALBANDIAN: Yes, we have provided that. Yes.
PN407
SENIOR DEPUTY PRESIDENT HARRISON: - - - evidence in the hearing and were not marked by her Honour as evidence in the hearing below.
PN408
MR NALBANDIAN: My understanding was she took that as evidence, and if we refer to - if you allow me to go through it, you will find what I'm saying, your Honour, but I'm getting confused with the interruptions and all that. You will find that I have raised this matter with her Honour, and she told me to put it in my summation. If you could allow me to continue with my presentation, you will find that this was mentioned, and my understanding was that she was going to consider it.
PN409
SENIOR DEPUTY PRESIDENT HARRISON: Firstly, could you identify the documentation that you are addressing, exactly which documents you're now addressing?
PN410
MR NALBANDIAN: I'm referring to 358.
PN411
SENIOR DEPUTY PRESIDENT HARRISON: So the document at appeal book page 358.
PN412
MR NALBANDIAN: Yes.
PN413
SENIOR DEPUTY PRESIDENT HARRISON: Only the document on that page?
PN414
MR NALBANDIAN: 358, 359, 360, 361, 363, 364, 365, 367, 368, and I quote - well, if we read that - I'm now referring to the without prejudice document, remember that what I said all the issues that have been raised about underperformance are so insignificant it's just embarrassing even to talk about it. Based on that, Ms Nicholson's threatening letter shows on page 359, and I quote:
PN415
Significant action will be required by you to lift your performance through a managing under performance process if you are to remain an ABS employee. Also, I note that if you do not accept the above option -
PN416
which was asking me to leave -
PN417
there is real prospect that at the conclusion of this matter the Fair Work Commission will simply dismiss your application for a stop bullying order, in which case the arrangement for you being supervised by Mr Roper may resume and ABS usual performance management processes may continue as before. If your performance does not improve, this may ultimately lead to your employment being terminated for poor performance.
PN418
Having mentioned all the issues I was accused of, like, using social club glassware, not using it, opening a dockling, booking a meeting room, these are very insignificant issues, and there's not one issue anyone raised about whether this is a significant issue. They're all very insignificant issues, and yet in her email she actually threatened my employment. Also on page 360, she said that, "You must not disclose this email or its contents to Fair Work Commission." Now, I want to make sure that we all understand I have never produced this letter, this email, to anyone except when I put this in my appeal book.
PN419
Ms Masters, she mentioned about me providing a copy to Comcare. That did not happen. Comcare, it was a completely different matter because Comcare is investigating breach of the occupational health and safety matter, and it's got nothing to do with the current matter before the Fair Work Commission, so this is a completely different matter. I have been sending, CCing the Fair Work Commission, my health has been extremely adversely affected and I've provided the certificates and all that, and there's, you know, a good chance of getting a stroke because of that, and my last email to all the parties concerned.
PN420
I've CCd to your Honour my doctor saying that Comcare must take action urgently because of the current situation. I will go to the next point now, item number 22, on page 4.
PN421
SENIOR DEPUTY PRESIDENT HARRISON: Should we understand any of that submission to be that if you don't think you are capable of proceeding with this appeal, Mr Nalbandian?
PN422
MR NALBANDIAN: I'm sorry, what do you mean by that, your Honour?
PN423
SENIOR DEPUTY PRESIDENT HARRISON: I'm just concerned that there should be no misunderstanding by this full bench as to what you are meaning when you were addressing your health concerns, and I just want to make sure that we don't misunderstand what in fact you are saying to us. You're capable of proceeding today with this appeal?
PN424
MR NALBANDIAN: Yes, your Honour.
PN425
SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you.
PN426
MR NALBANDIAN: I am.
PN427
SENIOR DEPUTY PRESIDENT HARRISON: Yes, proceed.
PN428
MR NALBANDIAN: Item number 22, on page 4, her Honour's statement that, "I am not persuaded that there is any justification for the applicant's belief in relation to threats to his employment," is one of the most serious misrepresentations of my case. My reply to Ms Donna Nicholson's threatening letter, pages 369 through to 382, would have provided ample evidence regarding Ms Donna Nicholson's true intention against me, your Honour. Pages 369 to 382.
PN429
SENIOR DEPUTY PRESIDENT HARRISON: Now, what you're addressing is an email that you sent to Drake SDP's chambers on 29 August 2014?
PN430
MR NALBANDIAN: That's right, and I explained what happened without producing a copy of the without prejudice email.
PN431
THE DEPUTY PRESIDENT: And you addressed in some detail the fact that you received a voluntary redundancy and you made comments about it in that email, and I understand, though, that you say nowhere, though, did you actually reproduce the letter in question.
PN432
MR NALBANDIAN: Absolutely. I have never produced the actual without prejudice letter to anyone, including Comcare.
PN433
SENIOR DEPUTY PRESIDENT HARRISON: You accept that you've addressed its existence, its detail, its content in some detail.
PN434
MR NALBANDIAN: I produced a copy of my reply to Ms Nicholson because I know that I can't produce the without prejudice email.
PN435
SENIOR DEPUTY PRESIDENT HARRISON: And you know that Ms Masters says that if we were to consider any of this submission about the correspondence you sent to her Honour's chambers we need to look at other documents to put it in context. Do you understand what Ms Masters said?
PN436
MR NALBANDIAN: Yes, you can put any other documents, your Honour. I'm not objecting to that.
PN437
SENIOR DEPUTY PRESIDENT HARRISON: Not any other documents, the documents that Ms Masters put in this appeal book because she suspected you were going to refer to these documents and this topic of, you're saying, Ms Nicholson making a without prejudice offer to you constituted in itself evidence of bullying behavior, and Ms Masters says if you're going to address that before this full bench there's other documents that will need to be read together with it to put the whole of this topic in context.
PN438
MR NALBANDIAN: Yes, your Honour, I don't have any objection to that, but - - -
PN439
SENIOR DEPUTY PRESIDENT HARRISON: Tell me this: what is the error that this whole submission relates to? What is the finding that her Honour made that this whole submission relates to, this whole submission about - - -
PN440
MR NALBANDIAN: Factual errors, your Honour.
PN441
SENIOR DEPUTY PRESIDENT HARRISON: - - - Ms Nicholson's VR offer?
PN442
MR NALBANDIAN: Well, she's saying that I'm not being threatened, my employment isn't being threatened. She disagrees with that, and there is an avalanche of evidence to say that based on all her emails to me and the way she treats me there is very, very strong evidence to show that my employment is being threatened based on insignificant issues that I've raised. That is the issue.
PN443
SENIOR DEPUTY PRESIDENT HARRISON: All right. Now, tell me this: there's another matter here too. Your originating application, the orders that you sought and the way the matter was run before her Honour identified Mr Roper as being the relevant employee who was bullying you, but no other employee was identified as the person against whom you sought the order. Is that correct?
PN444
MR NALBANDIAN: Yes.
PN445
SENIOR DEPUTY PRESIDENT HARRISON: So now you're addressing additional matters and identifying another person?
PN446
MR NALBANDIAN: No, during the process of the hearing this began to happen, like, she's been threatening me with, you know, daily intimidations of, you know, "Take this," or, you know, my employment would be - she's predicting the outcome of the bullying case, and I don't know whether it's the right thing to do. She's telling me that, you know, the bullying case will be rejected and you'll go back to Mr Roper being your manager, and if you don't improve your performance significantly it is likely that your employment will be terminated.
PN447
When we look at the issues raised, I just don't understand how anyone would say that, and I have provided my background in my appeal book and it shows that I have substantial experience in a lot of government departments, I hold a degree in economics, a masters of management in statistics, I've managed the GST when it was introduced, I was an auditor. All these things, you know, it's being pushed aside, and I've provided all of my memberships to all professional bodies. You know, I'm being treated like a clerical officer, and the issues raised are very insignificant and there is nothing, there is nowhere where it says, "Yes, there is one significant issue."
PN448
There is no significant issue. There's plenty of evidence to her Honour, Drake, to assume that there is - I have also went through a formal assessment, as you can see on pages 376, 377, 378, 379, 381, all done, but it wasn't good enough. She organised another person who reports to her to have another assessment.
PN449
SENIOR DEPUTY PRESIDENT HARRISON: So where are you now on your written submissions? Page 5?
PN450
MR NALBANDIAN: 369 to 382, where I'm showing that I've done - I've already completed the formal assessment, and yet Ms Donna Nicholson has produced another one for me, and now she has nominated someone who reports to her, Julie Watkinson, to assess me, and that's where my health has been deteriorating because no-one is saying, "Look, you can't do this, she is not independent, she's reports to you. Why are you doing this?" so because of this my health has deteriorated because there is no-one that I could talk to, but I have sent all of my emails to the head of the human resources and to the CEO of the Australian Statistician. He received my last email, and I sent an email to your Honour showing how serious my condition is becoming because of these unaddressed matters.
PN451
SENIOR DEPUTY PRESIDENT HARRISON: When you make a submission like that and you say you've sent something to me - - -
PN452
MR NALBANDIAN: Yes, your Honour.
PN453
SENIOR DEPUTY PRESIDENT HARRISON: - - - it is important that Ms Masters, and, indeed my colleagues on the bench, aren't concerned that I have been provided with something that I'm going to take into account that they're not aware of.
PN454
MR NALBANDIAN: No, I'm sorry, I've - - -
PN455
SENIOR DEPUTY PRESIDENT HARRISON: That, of course, should not occur, and I've been diligent to ensure that it should not occur. Now, I am concerned, though, that now what you've said is you've sent some medical evidence to me, and I think you just mentioned you copied it to Ms Masters - - -
PN456
MR NALBANDIAN: To Ms Nicholson, yes.
PN457
SENIOR DEPUTY PRESIDENT HARRISON: All right. What are you speaking of? Do you speak of a medical report that you've attached to your written submissions at A2, a report from Dr Natalie - - -
PN458
MR NALBANDIAN: Kordjian.
PN459
THE DEPUTY PRESIDENT: - - - Kordjian.
PN460
MR NALBANDIAN: No, I'm speaking of the last one, your Honour, sent to a number of people, including yourself, Saturday, 17 January, 2.23 pm. I checked with your office yesterday, and it should be on top of the file, apparently.
PN461
SENIOR DEPUTY PRESIDENT HARRISON: We'll just see if we can identify what advice you gave my chambers about your medical condition on Saturday, 17 January 2014.
PN462
MR NALBANDIAN: In relation to the email, your Honour?
PN463
SENIOR DEPUTY PRESIDENT HARRISON: Well, I'm assuming if you're referring to medical evidence it takes the form of a certificate or a report. Ms Masters is holding something up in her hand. Is this something you received, Ms Masters, on 17 January?
PN464
MR NALBANDIAN: Yes, that's the one that I sent to you. We all have a copy.
PN465
SENIOR DEPUTY PRESIDENT HARRISON: Ms Masters, let us know. You have it in your possession, so would you describe the document?
PN466
MS MASTERS: Yes, your Honour. It's a letter from the Willoughby Medical Practice, it's addressed to Comcare and concerns Mr Nalbandian, it's dated 16 January 2015, and it's written by Dr Kordjian. It reads, "To whom it may concern, Mr Nalbandian has returned for assessment today and feels even more stressed than previously. BP," which I assume is blood pressure, "has deteriorated further despite medication, which now has had to be increased. This workplace grievances have previously been highlighted in my last letter/certificate, ongoing and remain unaddressed. I believe this to remain a large contributor to his level of stress and subsequent deteriorating medical condition. I would like Comcare to investigate Mr Nalbandian's grievances as soon as possible not only for his own medical benefit but that of the workplace/workforce as a whole."
PN467
SENIOR DEPUTY PRESIDENT HARRISON: Yes. Thank you. So that was a medical certificate addressed to Comcare and its content is what Ms Masters has read into the transcript.
PN468
MR NALBANDIAN: That's correct, your Honour.
PN469
SENIOR DEPUTY PRESIDENT HARRISON: Yes, I understand. Now, in the same way in which I had earlier addressed a comment you made about your medical condition, do I understand that the submission you now make means that you feel you're unable to proceed with your appeal before this full bench because of your medical condition?
PN470
MR NALBANDIAN: Yes, I'm able to do this because it's very important because it affects my life, my family, and I have to do this.
PN471
SENIOR DEPUTY PRESIDENT HARRISON: I'm sorry, I meant to say whether you're unable, but you say you are able to proceed with this hearing.
PN472
MR NALBANDIAN: I am able to perform this because it is very important for me.
PN473
SENIOR DEPUTY PRESIDENT HARRISON: Yes, you proceed.
PN474
MR NALBANDIAN: I've lost my chain of thought.
PN475
SENIOR DEPUTY PRESIDENT HARRISON: I thought you might have been on page 5 of your speaking notes that you were going to read out to us.
PN476
MR NALBANDIAN: Yes, and I'll start with item number 3. Her Honour's statement that, "I am not persuaded that there is any justification for the applicant's belief in relation to threats to his employment," is one of the most serious misrepresentations of my case. My reply to Ms Donna Nicholson's threatening letter, pages 369 to 382, clearly shows there is ample evidence that Donna's intention to harm me and my family, provide ample evidence. She's got these copies of these documents, so it is highly questionable to say that, "I am not persuaded that there is any justification for the applicant's belief in relation to threats to his employment." That is not true, there is ample evidence there.
PN477
The fact that her Honour asked me not to mention this issue at the hearing and only to include it in my final submission does not mean that serious threats to my employment did not exist. If we look at pages 120 and 121, PN735, I said:
PN478
MR NALBANDIAN: I have sent you an email, dated 29 August 2014. I think you said you received it.
PN479
THE SENIOR DEPUTY PRESIDENT: Yes.
PN480
MR NALBANDIAN: I'm just wondering whether I can comment on it just for the record.
PN481
THE SENIOR DEPUTY PRESIDENT: No.
PN482
MR NALBANDIAN: Do you want me comment on it?
PN483
THE SENIOR DEPUTY PRESIDENT: No, you can comment on it in your submission. I've got a copy of it.
PN484
MR NALBANDIAN: You have a copy of it?
PN485
THE SENIOR DEPUTY PRESIDENT: Yes.
PN486
So she is aware of this thing, what I've already sent her, but she kept saying don't say it during the trial. It just makes you wonder because this is a very important issue to mention because what she's saying is there's no threats about my employment, it is not correct.
PN487
SENIOR DEPUTY PRESIDENT HARRISON: Proceed.
PN488
MR NALBANDIAN: Number 4:
PN489
I've protested in my summation report that Mr Roper did only rely on his emails and notes as evidence. A large number of emails had not been revealed to me until the hearing date. The reason why he prepared these emails and notes in the first place was to use them against me.
PN490
And I made a reference to page 83, PN360 to 367. This was ignored completely, because I've never seen his emails before. He suddenly produces these emails and you use them as evidence. Number 5, and this is very important, your Honour, and I will take my time to explain it to everyone because it is crucial to know this - - -
PN491
SENIOR DEPUTY PRESIDENT HARRISON: Just pause for a moment.
PN492
MR NALBANDIAN: Sure. Thank you.
PN493
SENIOR DEPUTY PRESIDENT HARRISON: Yes, I'm sorry. Now, you're at paragraph 5 of your submissions?
PN494
MR NALBANDIAN: Yes, number 5.
PN495
SENIOR DEPUTY PRESIDENT HARRISON: Numbered 5, on page 5 of the submissions. Yes, you proceed.
PN496
MR NALBANDIAN:
PN497
On the 28 May 2014 hearing, I produced a copy of Mr Roper's email, dated 13 January 2014, showing clear evidence that he took no action for at least five days before he sent the email to me on 13 January. My actioned email, dated 14 January, showing the task was completed within one day; page 343.
PN498
SENIOR DEPUTY PRESIDENT HARRISON: 343, yes.
PN499
MR NALBANDIAN: This shows the exact date I got it from our system, there is no question about authenticity or anything like that. Now, this goes to 343, 344, 345. The task is so insignificant it makes me embarrassed to talk about. The task was to make a booking for a conference room. He's using this as an underperformance for me. He's using that - I left it late and I'm not sure what he's accusing me of, but this is the objective, so this is what I produced on 28 May 2014. However, at the 2 September 2014 hearing Mr Roper produced an email showing identical information but a changed date to 8 January 2014.
PN500
My email shows 13 January, and he suddenly produced in our next hearing an email showing 8 January. I questioned the authenticity of this email, particularly when this was not presented at the 22 May 2014 hearing, to show identical emails with different dates. Mr Roper's subsequent explanation is far fetched and show how far he would go to cover his shortcoming.
PN501
SENIOR DEPUTY PRESIDENT HARRISON: When he gave evidence about the two dates of the email, I think he said it didn't accord with his recollection that he delayed forwarding on to you the email of - what was the date again? 8 May?
PN502
MR NALBANDIAN: No, 8 January. His email is 8 January and mine I the 13th, but - - -
PN503
SENIOR DEPUTY PRESIDENT HARRISON: When he gave evidence he said it didn't accord with his recollection that he delayed forwarding on an email until 13 January, which is what you were suggesting to him, then during the adjourned period he made inquiries as to ascertaining why the two emails may bear two different dates. Arising out of those inquiries, he swore a statutory declaration and that was tendered to her Honour when the matter resumed before her, and he explained in that why the two emails had the two different dates.
PN504
MR NALBANDIAN: Yes, your Honour, but - - -
PN505
SENIOR DEPUTY PRESIDENT HARRISON: You continue to maintain, do you, in light of that statutory declaration and the description of how it accounts for the two different dates, that he forged the document? You continue to maintain that, do you?
PN506
MR NALBANDIAN: I'm saying that when I checked with technical people I was assured that you can't produce - - -
PN507
SENIOR DEPUTY PRESIDENT HARRISON: No, if you're going to address matters that you cross-examined him on to challenge his statutory declaration, take us to the transcript where you did that.
PN508
MR NALBANDIAN: On 2 September or - - -
PN509
SENIOR DEPUTY PRESIDENT HARRISON: Take us to the transcript, any transcript, where you challenged the explanation given by Mr Roper in his statutory declaration which addressed why the two emails had two different dates.
PN510
MR NALBANDIAN: I can't really find it right now, but I assure you, your Honour - - -
PN511
SENIOR DEPUTY PRESIDENT HARRISON: Okay, then don't address a matter that wasn't before her Honour. Do you continue on appeal to maintain that Mr Roper forged a document?
PN512
MR NALBANDIAN: Yes, because what I'm saying is you can't reproduce the same document with a different date on it regardless of what you say, because I've tested it, it can't be done. It just cannot be done.
PN513
SENIOR DEPUTY PRESIDENT HARRISON: When his statutory declaration was tendered to her Honour it was marked exhibit ABS 4. It appears, I think, to have been marked on 2 September - yes, it was tendered to her Honour, it appears on 2 September, and it was marked ABS 4, and you cross-examined Mr Roper on it. now, take us in that cross-examination to what you said to challenge his explanation for the two different dates in the documents.
PN514
MR NALBANDIAN: Are you reading from a particular page, your Honour, or do you want me to look for it?
PN515
SENIOR DEPUTY PRESIDENT HARRISON: The document was tendered at page 63 of the appeal book, so that's around about the right area, I imagine.
PN516
MS MASTERS: Your Honour, if it may assist, the statutory declaration was discussed on day three of the hearing at PN102 through to PN143, and the document itself is at page 311. I think you have it already. It's at PN102, sorry, at page 58 of the appeal book.
PN517
SENIOR DEPUTY PRESIDENT HARRISON: In a nutshell, what is happening here is in your grounds of appeal and in the submission you now make you continue to maintain that Mr Roper forged the email. Is that your submission?
PN518
MR NALBANDIAN: What I'm saying is I have checked with a lot of people - - -
PN519
SENIOR DEPUTY PRESIDENT HARRISON: Is that the submission that you're making, he forged the date of an email? Is that the submission that you're making?
PN520
MR NALBANDIAN: I'm not sure what you mean by that, your Honour. I put that in my submission as well, yes. The 34 paged submission, is that what we're talking about?
PN521
SENIOR DEPUTY PRESIDENT HARRISON: I've marked them at grounds 5 and 6, but they're marked 2.6 and 2.7 and each refer to allegations that her Honour had ignored evidence presented at the hearing in relation to forged documents. Now, so far the only document that I understand is the subject for this ground of appeal is the email we are now addressing.
PN522
MR NALBANDIAN: That's right.
PN523
SENIOR DEPUTY PRESIDENT HARRISON: In turn, the nature of the forging which you say Mr Roper attended to was the changing of a date of an email.
PN524
MR NALBANDIAN: Changing of a date, and I have mentioned quite a few in my 34 paged report. This is a summary. What I'm presenting to the tribunal is the summary, grounds of my appeal, but if you the 34 pages you'll find quite a few areas that I'm using the word "forgery" because that's exactly what it is, forgery, so I'm not really focusing on that, I'm focusing on the grounds of my appeal at the moment, your Honour. I would highly recommend that we read my 34 paged report you will find quite a few, but I'm not going to focus on that.
PN525
SENIOR DEPUTY PRESIDENT HARRISON: So far the document that I understand is the document that has given rise to your submission that Mr Roper forged documents is an email that bears the dates 8 January and the same email also bearing a date of 13 January.
PN526
MR NALBANDIAN: Bit I've also mentioned the fact that he had produced quite a few documents during the hearing, that I had never seen them before.
PN527
SENIOR DEPUTY PRESIDENT HARRISON: Do you understand what accusing someone of forging documents means?
PN528
MR NALBANDIAN: Yes, I do, your Honour, but what I'm saying is there is no way. If I can print the same email and I get that date and then I'm being accused of not - I'm being accused of underperformance because of this factor, and suddenly somebody else produces an email which shows 8 January. If we're using the same source, how can I when I print I get 13 January and how can another person using the same source of information print and get 8 January?
PN529
SENIOR DEPUTY PRESIDENT HARRISON: Well, I think I'll make one comment and then ask you to make whatever other submission you wish to about this. Mr Roper attempted to describe all of that in his statutory declaration, which he tendered to her Honour and was marked ABS 4, and it seems that on appeal you do not accept the description given by him in that statutory declaration and that you say that her Honour was in error in failing to find that Mr Roper had forged the document, being an email dated 8 January.
PN530
MR NALBANDIAN: What I'm saying, your Honour, is it wasn't addressed in her findings, which keeps the very question, because what I'm saying to you is it's not possible. I've been using computers, I've been using databases for the last 25 years, and what I'm saying is when we're using the same source of information, when I print something, a document, and it gives me 13 January and after a while, after a couple of months somebody claims that he printed and he got 8 January, there is a problem there. It just can't happen. It is not possible to happen. Whatever you can produce, you know, a document about how it could have happened, maybe, but the fact is it can't happen. This is not possible. We can get technical people here and say:
PN531
Look, I'm using the same file and it gave me 13 January, and somebody else after two months has pressed the button and that person got 8 January. Now, he's saying that I'm wrong, you know, and that he's right, and he's accusing me of that of underperformance.
PN532
This is the issue. The issue is he's accusing me, and the subject matter is organising the conference room, which as a manager I shouldn't be doing this in the first place, your Honour. This is beyond belief, this is what I'm saying, I was engaged as a manager and he's treating me like a clerical assistant. He's saying that, "You do this, organise the conference room," and it's not my duty. What's making matters worse is he's blaming me for underperformance for not doing it, and he produces another email saying, "Look, that was sent to you on 8 January." The issue is much deeper than that.
PN533
SENIOR DEPUTY PRESIDENT HARRISON: Proceed.
PN534
MR NALBANDIAN: Sorry, I've lost track of my thinking. The Fair Work Commission's own guidelines state that, "All management actions must be conducted in a reasonable manner. If they are not they could still be bullying." Reference page 383. Also under Comcare examples of workplace bullying, it specifically states that:
PN535
Constant fault finding and criticism of a trivial nature. Often the criticism is based on distortion, misrepresentation or fabrication, constitute bullying. There is no doubt about it.
PN536
All these issues that I'm facing, you know, organising a conference room, whether we used the social club's glasses, these are very, very insignificant issues that even her Honour, Drake, said, "This is too insignificant to talk about," and yet I'm being currently assessed formally because of these minor issues. I'd like, now, to go through each of the reasons why Mr Roper had given his reasons for my underperformance, your Honour.
PN537
SENIOR DEPUTY PRESIDENT HARRISON: What you want to take us to is which document?
PN538
MR NALBANDIAN: This is my submission for the appeal book. My submission, I'll start with page 6.
PN539
SENIOR DEPUTY PRESIDENT HARRISON: Just so we understand what you're now taking us to, page 6 of the submissions that I have marked exhibit A2 refers to an email that you received from Mr Roper advising you of the reasons why he decided to proceed to a formal performance plan.
PN540
MR NALBANDIAN: Yes, I will go through it, but right now I am reading from my submissions, the 34 paged submission, but I'm not going to go through all that, I'm going to pick all the key areas and just the reasons why Mr Roper claims that I am underperforming.
PN541
SENIOR DEPUTY PRESIDENT HARRISON: And what this submission relates to is a document that's found at pages 138 and 139 of the appeal book.
PN542
MR NALBANDIAN: 138 and 139, you are correct, your Honour.
PN543
SENIOR DEPUTY PRESIDENT HARRISON: You're going to go through - - -
PN544
MR NALBANDIAN: Each one of them.
PN545
SENIOR DEPUTY PRESIDENT HARRISON: Yes. Now, what ground of appeal does this marry up with? It has to marry up with, presumably, a ground of appeal, when you say relying on the evidence Mr Roper gave about these five aspects in your cross-examination, she should have reached some finding, and either she didn't reach that finding or the finding she did reflects error, so I'm just trying to understand what the ground of appeal is.
PN546
MR NALBANDIAN: The ground is tied up with what constituted management - what's the right word - normal management practice, I think the word is.
PN547
SENIOR DEPUTY PRESIDENT HARRISON: All right. So you're going to address us as to why what Mr Roper relied on did not constitute normal management practice - - -
PN548
MR NALBANDIAN: Exactly.
PN549
SENIOR DEPUTY PRESIDENT HARRISON: - - - and to the extent that her Honour made a finding his actions or his decisions did she was in error. Is that what you're doing?
PN550
MR NALBANDIAN: That's right, your Honour, yes.
PN551
SENIOR DEPUTY PRESIDENT HARRISON: All right. We might just have a five minute break.
<SHORT ADJOURNMENT [12.03PM]
<RESUMED [12.17PM]
PN552
SENIOR DEPUTY PRESIDENT HARRISON: Mr Nalbandian.
PN553
MR NALBANDIAN: Do you want me to start, your Honour?
PN554
SENIOR DEPUTY PRESIDENT HARRISON: Yes, and bear in mind that when you're before a full bench what you are to persuade us of is that her Honour was in error in the findings that she made, because in relation to the matter you're about to address you addressed her Honour on all of these matters and you submitted to her that each of these five work performance concerns were of no significance, they were insignificant matters - - -
PN555
MR NALBANDIAN: That's right.
PN556
SENIOR DEPUTY PRESIDENT HARRISON: - - - and she heard that evidence and she made a finding about it, so what you do now, it's not really not running it again to see if you can attempt to get a different finding from us, you've got to persuade us she was in error in the findings she made. You might have read in some documents that an appeal is not an occasion for a full bench to make a finding it thinks a member should have made below, it is to make a finding only to substitute its own view if the member below was in error. I think you might have read the documents that tried to explain that difference about the role of an appeal bench to a member at first instance.
PN557
MR NALBANDIAN: Yes, your Honour, but the key words in her finding is - although, it says, "I find all the issues raised are minor and insignificant," but her other comment, it says, "Other issues are more significant," and I'm trying to find which is more significant, and this is the issue, because from my perspective - - -
PN558
SENIOR DEPUTY PRESIDENT HARRISON: What are you trying to do? Is it your submission that she should have identified - - -
PN559
MR NALBANDIAN: No.
PN560
SENIOR DEPUTY PRESIDENT HARRISON: I see.
PN561
MR NALBANDIAN: No, all I'm saying is - - -
PN562
SENIOR DEPUTY PRESIDENT HARRISON: You don't criticise her not identifying which issues were insignificant which were significant?
PN563
MR NALBANDIAN: No, your Honour.
PN564
SENIOR DEPUTY PRESIDENT HARRISON: This is important. You do not criticise her for saying that some issues were insignificant and some were significant, you don't criticise that finding.
PN565
MR NALBANDIAN: No, what I'm saying is none of the issues are significant, that's why it is an error or it is in error. None of the issues are significant, your Honour, and if there were any issues significant she would have mentioned them, your Honour. There are no issues which anyone would call significant, that's why it is very important to go to each one of them to see what I'm saying is correct or not, so my argument is none of the issues raised are significant, they all are insignificant and I can go through them and I can - - -
PN566
SENIOR DEPUTY PRESIDENT HARRISON: Did you argue that below to her Honour, that none of the matters that ABS relied on were significant? That was all put to her Honour below?
PN567
MR NALBANDIAN: In my summation, yes, your Honour.
PN568
SENIOR DEPUTY PRESIDENT HARRISON: Yes.
PN569
MR NALBANDIAN: But she came up with, "Other issues are more significant," and that's the issue. There are no issues more significant. Had there have been any issues more significant, she would have mentioned them. Can I go on?
PN570
SENIOR DEPUTY PRESIDENT HARRISON: I've got to indicate to you I don't currently understand what the error is. What is the ground of appeal? That might be easier. What is the ground of appeal that this submission relates to? I might better understand it if you identify that. Ground of appeal 2? Is what raises what you're addressing? It's marked 2.3.
PN571
MR NALBANDIAN: Are you looking for any particular - do you want to go to my original statement that you've got a copy of?
PN572
SENIOR DEPUTY PRESIDENT HARRISON: I'm actually trying to identify the ground of appeal that you're about to - - -
PN573
MR NALBANDIAN: Factual errors.
PN574
SENIOR DEPUTY PRESIDENT HARRISON: - - - address.
PN575
MR NALBANDIAN: The original documents?
PN576
MS MASTERS: No, it's not the original documents.
PN577
DEPUTY PRESIDENT LAWRENCE: It's the amended documents.
PN578
MR NALBANDIAN: The amended.
PN579
SENIOR DEPUTY PRESIDENT HARRISON: Yes.
PN580
MR NALBANDIAN: This morning's presentation is an amplification of what I said in my grounds of appeal, your Honour, and I can go very briefly, if you like - I'll just summarise it within words, if you like, what I said this morning.
PN581
SENIOR DEPUTY PRESIDENT HARRISON: No, which is your ground of appeal that relates to your saying her Honour was in error in saying there were some significant issues and that you wish to submit that there were no significant issues?
PN582
MR NALBANDIAN: 2.6.
PN583
THE DEPUTY PRESIDENT: 2.6?
PN584
MR NALBANDIAN: Yes, her Honour had ignored some significant issues based on irrefutable evidence presented, particularly in relation to forged documents.
PN585
SENIOR DEPUTY PRESIDENT HARRISON: Yes. Now, I thought the forged documents related to a matter we just earlier had an exchange about, namely, your submission that related to an email or emails in January 2014 that Mr Roper had prepared a statutory declaration.
PN586
MR NALBANDIAN: Yes, your Honour.
PN587
SENIOR DEPUTY PRESIDENT HARRISON: This relates to other documents?
PN588
MR NALBANDIAN: Other documents.
PN589
SENIOR DEPUTY PRESIDENT HARRISON: All right. What are they?
PN590
MR NALBANDIAN: I have listed in my submission, the 34 paged submission, that this particular one that I'll be going through each of the reasons Mr Roper gave us, it relates to 2.3.
PN591
SENIOR DEPUTY PRESIDENT HARRISON: No, I want to know what the forged documents are as opposed to the documents. What are the forged documents you're now referring to in ground 2.6 and the submissions you're about to go to will address - - -
PN592
MR NALBANDIAN: The submissions that I'm going to present to you, it relates to 2.3.
PN593
SENIOR DEPUTY PRESIDENT HARRISON: Yes, that's the section of the appeal ground I mentioned a little while ago.
PN594
MR NALBANDIAN: Yes, that's the one.
PN595
SENIOR DEPUTY PRESIDENT HARRISON: So the submissions you now want to make relate to ground 2.3. There you complain about her Honour's statement in her decision as raising more questions than answers due to lack of specificity.
PN596
MR NALBANDIAN: Earlier I mentioned that there are no significant issues, and she's saying that other matter appear more significant. But what I'm saying is this is not correct, there are no other matters important or significant which anyone can raise and anyone can produce, that is the issue. I'll go through very, very briefly, your Honours, and see whether you can tell me which issue will be, as her Honour describes, more significant. Now, the first one, it says:
PN597
The demonstrated and sustained ability to use the notes for communication and knowledge management to meet ABS expectations. I provided a copy of an email from the national database manager confirming I am one of the two database managers in our section; page 140.
PN598
You don't become a data manager, you know, because you don't have enough knowledge, you do become a data manager because you do have some knowledge. Now, Mr Roper didn't like that, so on the 2 September 2014 hearing he allegedly - he falsified his statement. I've got a lot to mention. He falsified his statement that, "I have never seen Tony being asked about the database, even though where he sits and where I sit," he's not near me. Page 70, this is very important because it really set the tone, I think, about what we're going to talk about, 70. In fact, it is very important just to get what I'm trying to convey here. I'm asking:
PN599
You claim that no-one comes and sees me about the issues about the database?---Yes. I never see Tony.
PN600
THE SENIOR DEPUTY PRESIDENT: How would you know what they were talking to him about?
PN601
245, "How would you know with people coming to talk to Mr Nalbandian about?" I'll let you read all that. The bottom line is you're finally at PN250, "He admitted that he was lying, he was fabricating, because what we ended up with is saying it can't be, you are lying, you are falsifying - - -"
PN602
MS MASTERS: Your Honour, I object. Mr Roper did not admit to lying when being cross-examined by Mr Nalbandian, and the transcript does not contain any such admission. Mr Roper conceded that he could not hear the content of every conversation that Mr Nalbandian had with everybody at his desk, but he did not concede that he had lied when he indicated in previous evidence that it was his understanding that people did not approach Mr Nalbandian for assistance with the use of a particular database.
PN603
SENIOR DEPUTY PRESIDENT HARRISON: I think that's a fair objection to the submission you just made, Mr Nalbandian.
PN604
MR NALBANDIAN: Your Honour, if I claim that, you know, someone is, you know, sitting from one corner to the other, that no-one, you know, comes and talks to that person about database, it just sounds ridiculous because you can't even see me from where you are sitting, and yet he was claiming that no-one has come - he hasn’t heard anyone coming and talking to me about the database. The fact that the argument was, you know, back and forth, you just can't claim that. Eventually, at PN240, he said, "Fair point. Thank you," which means an admission that he was wrong.
PN605
MS MASTERS: Your Honour, an admission that the evidence may have been overly generalised is not the same thing as an admission of a lie, which is what Mr Nalbandian has just accused Mr Roper of having done on oath, and the ABS won't change its objection - - -
PN606
SENIOR DEPUTY PRESIDENT HARRISON: Do you understand the difference?
PN607
MS MASTERS: - - - to that characterisation.
PN608
SENIOR DEPUTY PRESIDENT HARRISON: Do you understand the difference between that?
PN609
MR NALBANDIAN: But if I claim that I - - -
PN610
SENIOR DEPUTY PRESIDENT HARRISON: Don't argue with me. The objection is upheld. Move on.
PN611
MR NALBANDIAN: So you don't want me to go to the next point, your Honour?
PN612
SENIOR DEPUTY PRESIDENT HARRISON: I don't want you to attribute to any witness a concession that they had lied without taking us specifically to a paragraph or paragraphs of the transcript where it was put to them that they were lying and they made that concession. It is inappropriate for you to do that. Proceed.
PN613
MR NALBANDIAN: So if you're not telling the truth, what's the alternative of saying that? All right, I'll go to the next point now. Mr Roper was asked to name any function that he thinks that I didn't know how to use, and his answer was at page 66, 67, PN202. At the top of the page, he says, "I can't because - - -"
PN614
SENIOR DEPUTY PRESIDENT HARRISON: What photograph number was that?
PN615
MR NALBANDIAN: PN202. It's on the top of page 67. I'll read it:
PN616
Can you name any function that you think I don't know how to use?---I can't.
PN617
SENIOR DEPUTY PRESIDENT HARRISON: Yes, unhelpfully, I think this transcript must have started - yes, was commenced.
PN618
MS MASTERS: Your Honour, page 66. Yes, your Honour, day three did commence - - -
PN619
SENIOR DEPUTY PRESIDENT HARRISON: Yes, it commenced renumbering the paragraph numbers. Yes, so this is the PN202, at 66, 67. Yes, I have that.
PN620
MR NALBANDIAN: Okay. The only example Mr Roper was able to allege was in relation to sending dockling, that apparently he was not able to open. When I asked Mr Roper whether he had sent docklings to people who could not open his dockling, his answer was, "Yes, the fact is sometimes the docklings do not open for a number of reasons." Page 66 and 68, PN206, 207, and then PN213, what he's basically saying is that, "I received two docklings from you and I couldn't open them." It's underperformance, basically.
PN621
These are the reasons for failing me or, you know, declaring that it's underperformance. Under the heading of Demonstrates and sustained ability to use the notes for communication and knowledge management to meet ABS expectation. Now, does this constitute underperformance? I'm too scared to use fabrication because, you know, I can't comment on other people, what they do, what I assume, what I hear or not, but is that a reasonable management behaviour? You know, the reasons are just, you know, incredibly insignificant. How anyone can declare these issues as underperformance.
PN622
We'll go to the next one. Demonstrated and sustained ability to follow through instructions and guidance as directed from supervisor or senior manager. Mr Roper provides three examples, and each example, I will demonstrate again, it's unbelievably insignificant. The first one, in relation to community or statistician events using the social club's glassware:
PN623
At a meeting held on 29 November, the question was raised whether the social club glassware had been used. I made it very clear at the meeting that the social club glassware had not been used, but this wasn't good enough. I organised a meeting with our team member and confirmed that someone by the name of Jeff Dugar was in charge of that, and we decided that no such thing took place.
PN624
So Mr Roper, somewhere while he was walking away from me, he said, "Send an email to the chair of the social club, confirm that we did not use the social club glasses." He never said to me, "Do it now." He said to me, "Whenever you can, do it," and I had other pressing issues, a number of issues. One would argue that this is a very unsuitable task for a manager to do, just write an email to say that we didn't use the social club glassware. I would like you to refer to page 141, please.
PN625
SENIOR DEPUTY PRESIDENT HARRISON: Before you do that, what is COS? What is that an abbreviation for?
PN626
MR NALBANDIAN: Community of Statistician. COS, Community of Statistician's Event.
PN627
SENIOR DEPUTY PRESIDENT HARRISON: Where's the social club?
PN628
MR NALBANDIAN: It's a separate - it's on level 10. Every second Friday, there is a social club - - -
PN629
SENIOR DEPUTY PRESIDENT HARRISON: Sorry, B refers to the Community of Statistician's glassware, but you're referring to the social club's glassware.
PN630
MR NALBANDIAN: Yes, that's right.
PN631
SENIOR DEPUTY PRESIDENT HARRISON: So what it is? The Community of Statisticians?
PN632
MR NALBANDIAN: The Community of Statistician Event. It's an event - - -
PN633
SENIOR DEPUTY PRESIDENT HARRISON: Can I finish and then I'll allow you to answer.
PN634
MR NALBANDIAN: Yes, your Honour.
PN635
THE DEPUTY PRESIDENT: Do you understand what is being referred to is some issue about the social club's glassware being used by the Community of Statisticians, or in a Community of Statisticians Event? Is that what this is about?
PN636
MR NALBANDIAN: Yes.
PN637
SENIOR DEPUTY PRESIDENT HARRISON: All right.
PN638
MR NALBANDIAN: We normally hold two events every week, we invite people who are interested about topical issues and we organise specialist speakers who come in and sort of give us a presentation on current issues. It could be statistics, it could be anything, any other subject, so we organise this, we invite people and we normally hold it on level 10 where we have a section where, you know, social gathering is held, and they have their own glasses there. So when we held the event some of our people opened the cupboards, and the chairman of the social club is saying, "Why did you open the cupboards and using our glasses?" That's the issue, basically.
PN639
My task was to send an email to the chairman of the social club and confirm that we didn't use his glasses, basically. On page 141, you can clearly see that on that the social club storage cabinet was opened to allow access to the beer glasses which were purchased last year for the same function. Jeff Dugar was in charge of that area on that day. Now, this example, it is using it for underperformance for me. The subject matter is so insignificant you would think that, you know, you would do more important tasks rather than do this, but he's using this example as an underperformance issue, so that's one of the examples.
PN640
I said, "One would argue that such a task of whether it's suitable for a manager to do." I mean, he's using me as a clerical assistant, because he could have asked any other person to do it, and, again, I asked if this constitutes underperformance. In relation to the Community of Statisticians evaluation, that's the next one that he's used, I'm giving just a history of the event now for you to understand more. The Community of Statisticians is held once every year, and we invite people who are interested in particular topics, and this may involve statistics and other topical subjects. We organise specialist speakers, as I said earlier.
PN641
Now, the evaluation forms were collected by Anne Bartlett, who retired afterwards, and she passed on the evaluation forms to Mr Paul Roper. I had to research for those forms as Ms Bartlett left the organisation, retired suddenly, and I'm a hundred percent sure that Paul Roper was aware of that. As soon as the evaluation was found on Anne Bartlett's desk, when previously looked at her desk they were not there. They were finally there and I prepared the evaluation and it took me about ten to15 minutes. Reference to that is pages 85, 86, 87 and 88. It just shows what I had to do.
PN642
PN382, her Honour, the Senior Deputy President asked:
PN643
So this is not the summary that you wanted?---Yes, it is?
PN644
So what is the problem that you're saying?---So I don't know the reason why he's choosing this particular reason for my underperformance. As you can see, I don't think any normal person would take this as something important enough to declare I am underperforming, because it just doesn’t make sense.
PN645
The third example he's using is in relation to various alterations or feedback provided on the census engagement strategy. My very first census strategy report was done while he was there. I was asked to prepare the census engagement strategy, and I provided this within the require timeframe. This was my very first involvement in preparing the census engagement strategy. During the preparation of the strategy, I had to rely on two other managers to provide one for a the team under the management of my equivalent position, regional and Torres Strait Islanders Engagement Team, and another person for the Demography Team.
PN646
So both of them couldn't provide me with any plans, what they're going to do the next six months, because we were approaching December, January, and no-one knew what to do. I prepared mine and I was just waiting for their input, so as soon as I received their input the deadline was 22 January, and once I received replies from both of the managers I prepared that. Now, Mr Roper thinks it's not good enough. Just to give you an idea, page 149, when I received an input from the other two managers saying that, "Look, this is what we're going to do the next six months." 149.
PN647
It says, "Hi Tony, we have in mind the following engagement for 2014." Now, the fact that I completed my first engagement strategy within the required timeframe and I was continuously attempting to have discussions with the relevant staff, it doesn't make me that I am under performing, but now he's saying that I am under performing under his arbitrary and dubious standards. The first census engagement report was completed on 22 January, as was asked, and to date Mr Roper keeps saying that, no, I don't accept that.
PN648
I've got here reference page 79. I'll just see what's - yes, during my cross-examination, he just wouldn't accept that. I asked Mr Roper for any credible evidence considering the report was completed on time and strategies have been completed. We've completed all my strategies, but he's still saying, well, I wasn't happy. Again, I'm referring to this falsified - he only refers to his falsified personal notes on the emails which cannot be - - -
PN649
MS MASTERS: Your Honour, objection again. Mr Nalbandian is referring to Mr Roper having falsified personal records.
PN650
MR NALBANDIAN: I'm sorry about that. I'm just reading it. I'm going to cross out. Thank you. So the reason why he prepared these emails and notes for the first page was to use them against my reference page 83. 83 and 360, and PN367. Page 78, PN318, is the key, page 78, page 318.
PN651
Just to sum up, the sentences engagement strategy, I'm going to ask you just for a straight question and straight answer. I'm not going to comment on anything. The latest strategy that I prepared, it is being used and I asked them yes or no. "All the objectives had been carried out. Is that right?" And he said, "Yes." So I don't see why he keeps asking, you know, saying that I'm underperforming because I am doing - I have started building this census. As I said, I don't have a census background; I have economics/management background, but he still is after me.
PN652
I asked Mr Roper to explain how, when I began reporting to a different manager, I prepared and completed a second census engagement strategy. That was, again, implemented without any hassles. Page 76, this is important because he said, "I don't know," basically. I think he said, "I don't know." 76, PN292. Again, I questioned whether this constitutes underperformance, whether this is a reasonable management action.
PN653
His third reason for going through the second formal assessment is, "Demonstrated and sustained ability to communicate appropriately on project management." This is about the transport video briefing issue as an example of underperformance. This involves hiring and booking a conference room. One would argue again that is an unsuitable task for a manager and should not be involved someone at my grade to organise a conference room. Under Comcare definition of bullying, this in itself constitutes bullying as it belittles me as a manager.
PN654
Now, we talked about this particular email because it refers to my email of 13 January and his email of 8 January. We've already covered that. Again, I would ask whether this constitutes underperformance, whether this is a reasonable management action.
PN655
The next reason why Mr Roper - - -
PN656
SENIOR DEPUTY PRESIDENT HARRISON: Now, what you need to do, when you say you queried this, constitute reasonable management action, what you need to do before a full bench is say or take us to the submission you made to her Honour about this matter and then presumably take us, as you have, to her finding that there were some significant matters, and make a submission that now that finding there were some significant matters, could not have related to this booking. I'm just suggesting to you the difference between how you might run a case at first instance and what you need to establish on appeal. So you need to establish that you put this to her Honour below and that she made a finding that either reflects an error, or she failed to make any finding, as you urged upon her below, and say that she was in error in that respect.
PN657
MR NALBANDIAN: Yes.
PN658
SENIOR DEPUTY PRESIDENT HARRISON: So far, I think what you're doing is repeating what you put to her Honour below, you're running the same argument again you ran below to her.
PN659
MR NALBANDIAN: What I'm saying is she made a statement that she believes that some of the issues raised were insignificant, and she said there are - - -
PN660
SENIOR DEPUTY PRESIDENT HARRISON: You would certainly agree with that.
PN661
MR NALBANDIAN: Yes.
PN662
SENIOR DEPUTY PRESIDENT HARRISON: Yes.
PN663
MR NALBANDIAN: And she also said, that's the key words, there are other serious matters.
PN664
SENIOR DEPUTY PRESIDENT HARRISON: Some more significant - - -
PN665
MR NALBANDIAN: There are significant matters, I'm sorry.
PN666
DEPUTY PRESIDENT LAWRENCE: They appear more significant.
PN667
MR NALBANDIAN: Yes, that's right, your Honour. What I'm trying to establish here is there are no series - I can go through all of them and they're all similar to this, there's nothing. That's my argument. There are no serious matters or serious issues that can be called serious because - not to my knowledge.
PN668
MS MASTERS: Your Honour, if it would assist, I suppose the ABS's position would be this, I think we would comfortably accept that none of the specific examples that Mr Nalbandian took Mr Roper to were necessarily in and of themselves significant. However, Mr Roper's evidence was not simply that the arrangements made for locking or unlocking of cupboard doors, or booking of room, or provision of glassware, or whatever the specific issue was, was in and of itself the evidence of underperformance. Mr Roper's evidence was that these issues went to the underlying greater concerns around Mr Nalbandian's apparent lack of preparedness or capacity to listen to instructions, to follow instructions, to keep him informed generally about the way matters were proceeding, completion of tasks on time, completion of tasks having regard to the full scope of instructions given to him. All of that evidence was given by Mr Roper in the statement that was tendered on behalf of the Bureau of Statistics.
PN669
Mr Nalbandian was given the opportunity to cross-examine Mr Roper on that statement. He chose to drill down into the detail of specific examples. He chose not to cross-examine Mr Roper about the broader concerns that were illustrated by some of those examples. It is the broader concerns that really provide the basis for the overall conclusion that Mr Nalbandian's performance was not at the standard required of an APS level 6 employee. Mr Roper was never challenged on those broader conclusions that he had drawn. Her Honour evidently accepted that those concerns were more significant.
PN670
DEPUTY PRESIDENT LAWRENCE: I suppose the crucial question, Ms Masters, is what action the ABS proposed in response to those issues and whether that was reasonable action.
PN671
MS MASTERS: Thank you. I can tell you that the conclusions drawn by Mr Roper led to a formal letter being written by Mr Roper to Mr Nalbandian. That was on, I think, 31 January 2014, I think. I would need to check the appeal book to be certain, but it is in evidence. That letter put Mr Nalbandian on notice that there would commence a formal process referred to as the Managing Underperformance Process in which Mr Nalbandian would be given a period of 12 weeks to demonstrate that he could attain and sustain the required standard of performance at his level.
PN672
Mr Roper's conclusions, all in all, were no more than the trigger for the commencement of the formal performance management process, which gave Mr Nalbandian the opportunity to demonstrate his capabilities that occurred close to a year ago now. That 12 week process has not yet concluded as a consequence of these proceedings intervening, and an undertaking being sought by Drake SDP, and given by Ms Nicholson not to progress the managing and the performance process until the outcome of these proceedings became known.
PN673
MR NALBANDIAN: Your Honour, when we talk about - we have to talk about - we have to be specific. I don't understand this generalisation of these things because you can't generalise things; you have to be specific on where the problems are. She's just generalising things and I don't understand what areas do I need to improve. I don't understand that.
PN674
DEPUTY PRESIDENT LAWRENCE: Mr Nalbandian, isn't the point that her Honour, having heard all of that evidence, decided that the course of action that the ABS had proposed was reasonable in all the circumstances. If that process was allowed to take place, then all of those issues could be identified.
PN675
MR NALBANDIAN: No, the problem is much complicated than that. They organised - I've got a copy of the workload. It shows that they come up with so many deadlines that no-one can meet that, and they picked an assessor who works for Ms Donna Nicholson, and they are giving me a very hard time. That's why, hence, my health issues at the moment, because it is not as simple as you think it is, your Honour. It is much, much complicated.
PN676
I've got a copy of the work task I would like to give to all of you to have a look and give me an idea whether I'm saying the truth. This is all a setup, you see. It really gets complicated. That's why - - -
PN677
DEPUTY PRESIDENT LAWRENCE: As Senior Deputy President Harrison pointed out to you, the task for us is not to rehear this matter or to go through all the issues that were went through in detail by her Honour. The task is to identify whether there was an error in - whether the view that she came to that, well, this was a reasonable course of action is appropriate. That's the issue for us.
PN678
MR NALBANDIAN: But, your Honour, what you're saying is Mr Roper had no intention or he wasn't motivated by bullying. What I'm saying, you can't predict that, you can't really demonstrate that, because human creatures are very complex. The only way you can identify bullying is to see their action and deed. We're not psychic to say that, "I know your intention. I know your motivation." That's what's she saying.
PN679
DEPUTY PRESIDENT LAWRENCE: No, the Deputy President had a whole range of evidence before her and the question is: was she entitled to come to the conclusions that she came to based on the evidence that was before her.
PN680
MR NALBANDIAN: If that's the case, I would like to know how did she arrive to that, because by reading documents, your Honour, you can't say with certainty that I know what is your motivation or intent to take a certain action.
PN681
DEPUTY PRESIDENT LAWRENCE: She didn't just read documents; there was evidence, people went into the witness box, she came to those conclusions. So the question, what you have to persuade us of, is that she wasn't entitled to come to the conclusions that she came to.
PN682
MR NALBANDIAN: That's right. Well, as I said, I'm not a legal person and I'm doing my best, but I'm providing factual - - -
PN683
DEPUTY PRESIDENT LAWRENCE: Yes, I know, but - - -
PN684
MR NALBANDIAN: Yes. I'm providing factual information because if you say, "In my opinion," or, you know, "I don't think," who can tell what intention you have when you take a certain action? I normally look at the person's action and then think about whether her or his intention was that. But what she's saying in her findings, that it is - what I'm saying, it is impossible to detect or comprehend people's intention or motivation. She's saying that his intention wasn't bullying. What I'm saying is you have to look at his action to determine.
PN685
In all these examples that I'm giving you, shows that there is a bullying intention. That is the action, but I can't - well, no-one can read his mind. Reading his mind, I would find that either what is his intention and motivation, no-one can - it is impossible to predict anybody's intention and motivation for doing this. We could only see their action and deed. The fact that saying that other matters are serious, I don't understand what matters, because when I go through each one of the reasons that I was given, they're all very insignificant. I'm not really a wiser person.
PN686
So that is, you know, there's an error in that area because I don't understand other matters were more - I don't understand what it means. So when we go through each one of the reasons Mr Roper had given us, you see it's very, very minor. Every single of the issue provided is just minor. Sometimes it is very embarrassing. The actual duty or the task is not suitable for a manager like me. As I've said, I've implement the GST in this place, in government organisations. I've got a degree in management, economics. I should be doing that rather than wasting organising the conference room, organising whether we use glasses. This is more to do with management issues, or lack of it, I don't know.
PN687
But you can see it is totally unfair to be in this position where I haven't done anything, and when you receive an email saying that you need to significantly improve your performance in order to remain ABS employee. That really worries me because I don't know where I'm going to improve, because all the examples that I have given you are very insignificant and minor issues. I don't know where I can - so you can only, through her action, I can see that her intention is to jeopardise my employment, as simple as that, but because I don't have any evidence to say that, look, I have done this mistake, it was a big mistake, I should learn how to do it or correct it. There is no such issue. The issues are extremely minor.
PN688
If we use each one of the reasons Mr Roper gave me, it just doesn't make sense. It only gives me the idea that his intention is to harm me and my family, because if I get sacked we'll be out on the road. I mean, this is very, very serious stuff. I mean, you know, I don't think anyone should be treated this way in any organisation.
PN689
Also the importance of training on the job, this thing about prove that I know - you know, data about - you know, he couldn't prove that I did know anything about that, that he was claiming that I lack, you know, knowledge about that, and I proved him wrong, but he shouldn't have said that. I mean, his intention is to harm me because why would anyone claim that when it's not the truth.
PN690
If we look at - if I go through all the examples, you see they're all very minor. What Ms Masters is saying, though, is she's generalising it, and I don't understand what does that mean, "generalising it", because if we put all the reasons together, they're all very minor, and her Honour mentioned about some are serious, but there are no serious issues. I would like to know which one is serious. So that is a very incorrect interpretation of what has happened.
PN691
That is my argument. You can't read people's mind and you can only look at their action. Their action says that this person is accusing me for underperformance for minor issues, whether we use glasses, whether I organise the conference room, whether I'm prepared to report - not, you know - I prepared, you know, make the deadline, but it's not good enough. All these would indicate that there's an intention to bully me, because what else would anyone do? I've been the manager for 20 years. I've never treated people like that. So there is a serious problem there.
PN692
If you'll allow me to go through all the other examples, you'll see the same thing, all very minor, but Ms Masters is saying it's more - I don't understand this, because you don't understand it's very, very dangerous because I don't know what she means by that.
PN693
SENIOR DEPUTY PRESIDENT HARRISON: Well, I suspect what she means is reflected in the letter to you of 31 January 2014, which she referred to, at appeal book 197, where you advised why, in Mr Roper's opinion, you hadn't actually achieved an acceptable standard of work performance, and he sets out a number of matters. Now, I suspect you will be, perhaps, aided to better understand what Ms Masters' submissions are all about by considering that letter to you of that date.
PN694
MR NALBANDIAN: This actual letter, I am saying in my submission, is evidence for bullying, because based on the reasons why he's saying that I'm underperforming, this, when I asked - well, I'm going through it, and you'll find that, if you read my submission, you'll find that when I asked him to explain all of these things, he was told that, "Look, it wasn't me who wrote this; it was somebody else, Anne Bartlett, who retired." He couldn't explain to me, and I couldn't understand a single thing about these issues that was raised.
PN695
SENIOR DEPUTY PRESIDENT HARRISON: Now, we propose to take a luncheon adjournment. What's your best estimate, Mr Nalbandian, as to how much longer your submissions may take.
PN696
MR NALBANDIAN: Well, I need to go to each example that I was presented with, your Honour, just to prove my point that there is no significant issue, and it will take a few hours, I think.
PN697
SENIOR DEPUTY PRESIDENT HARRISON: What you need to do is take us to what the evidence was before her Honour and the submission you made, and then say why she was in error in what she said about this topic in her decision. What you don't need to do is rerun the case that you ran below. So, therefore, it's probably unlikely that we should grant you several hours, because that rather sounds like you're going to rerun the case below.
PN698
MR NALBANDIAN: No, I'm not going to do that.
PN699
SENIOR DEPUTY PRESIDENT HARRISON: All right. We're going to adjourn now until 2 pm. Now, it might be, Mr Nalbandian, that at some stage early this afternoon, we'll need to address this question what would be a reasonable period to allow you to make the balance of your submissions.
PN700
MR NALBANDIAN: Yes, your Honour.
PN701
SENIOR DEPUTY PRESIDENT HARRISON: So spend the break in identifying exactly what you say are the errors her Honour made and identify what the submission was that you made below to her, and the evidence you relied on. Don't rerun it again; just take us to the extracts.
PN702
Now, having said all of that, I suspect you've done this in your written submissions that I've marked exhibit A2. You don't need to go through all of A2 again. We're going to consider A2. You don't need to repeat all of it. That's probably all I can say at this stage.
PN703
MR NALBANDIAN: Yes, I will pick one area that I really feel very strongly about and we'll just focus on that, and that will be it, your Honour, so about two hours, I think, will be all right, less than two hours.
PN704
SENIOR DEPUTY PRESIDENT HARRISON: All right. Ms Masters, I don't know that the matter lends itself at all to any agreement or any concession about any of the remaining matters that need to be addressed, I just don't know, but I don't ask you, of course, to make any concession, but if you can think of any suggestion that might focus Mr Nalbandian on - sorry, have a discussion. See if the two of you can't identify a way in which the remaining errors might not be able to be identified and the reason why her Honour, the reason why it wasn't reasonably open to her Honour to have made the findings she did, which is really what the role is for this full bench.
PN705
MS MASTERS: Yes, your Honour.
PN706
SENIOR DEPUTY PRESIDENT HARRISON: I know in the past you have gone to some lengths to explain some of these matters to Mr Nalbandian. It would be very much appreciated if you would do that again. The important point I made there, Mr Nalbandian, is what you need to persuade us of is that it was not reasonably open to her Honour to make the findings she did. Not that we should make a different decision, not that you disagree with the decision she made, but it just was not reasonably open to her on the evidence and submissions to make the findings she did. We're going to now adjourn until 2 pm.
<LUNCHEON ADJOURNMENT [1.11PM]
<RESUMED [2.08PM]
PN707
SENIOR DEPUTY PRESIDENT HARRISON: Now, Mr Nalbandian, you took that opportunity to consider the matters you wish to raise and the remaining grounds of appeal you wish to say something about over and above what you've said already in your written submissions?
PN708
MR NALBANDIAN: I just started making a very short list of matters that I'll go through.
PN709
SENIOR DEPUTY PRESIDENT HARRISON: Yes. We had a discussion during the luncheon period and given the submissions that you made, which I've now marked A2, then the additional submissions that are made and contained in exhibit A1, and the submissions that you've made this morning until we adjourned at lunchtime, we think it would be an additional fair time to give you is another 45 minutes. Now, what we will do is run that 45 minutes from now, 10 past 2, and what you need to do is identify the best and most efficient way you can now use that time that we've given you to complete your submissions, your oral submissions. So proceed.
PN710
MR NALBANDIAN: I had the same problem during the hearing that I didn't have enough time to cross-examine Mr Roper and while you were saying why I didn't cross-examine him, because the very reason that I wasn't given enough time to do that.
PN711
SENIOR DEPUTY PRESIDENT HARRISON: That is not the ground of appeal that you've pleaded.
PN712
MR NALBANDIAN: No, but I'm saying this is what happened in the past, that's why - - -
PN713
SENIOR DEPUTY PRESIDENT HARRISON: Yes, well, you did not plead that as a ground of appeal that you were put at some sort of disadvantage because of that, so it's probably not going to be useful for you to develop that now.
PN714
MR NALBANDIAN: No.
PN715
SENIOR DEPUTY PRESIDENT HARRISON: Return to your grounds of appeal and to anything more you wish to say to us in addition to that which you've already put in exhibits A1 and A2.
PN716
MR NALBANDIAN: Thank you, your Honour. I will focus on two areas. If I can get a minute just to collect my thoughts. I've identified five grounds and I'll make them sort of a very short, sort of, to the point grounds. I contend that you can't determine anybody's intention or motivation by reading documents. She said that in my - she mentioned that she's satisfied that Mr Roper's intention was not to bully me. I contend that no-one can determine whether a person's intention or motivation can be read or predicted a hundred per cent by just reading documents.
PN717
My next grounds would be some of the issues raised by Mr Roper seems to be minor and insignificant. Other matters appears more significant. I am yet to find any other matter which can be called significant. Therefore, there is some error in findings. As I said, if we go through, I was going through all the reasons and I was stopped because of lack of time, but if we go through them all, there's not a single matter that can be called serious or significant and yet a statement was made, other matters more significant.
PN718
I believe Ms Donna Nicholson's threatening letter to me also predicting the outcome of the hearing, it contravenes the number of acts because it's predicting what will happen while the hearing was being heard and it does intend to - it does have the intention to pervert the course of justice. When I use the "pervert the course of justice", I'm thinking in terms of obstruction to justice, I think.
PN719
Number 4, I'm not persuaded that there is any justification for my belief there is a danger for my employment. Again, there are a number of documents which says that I am being threatened, my employment is being threatened, and yet this was completely ignored and made a statement that she's not persuaded that there is any issue about my employment. That is incorrect and shows error in judgment.
PN720
Number 5, I have made repeated statements that number of emails produced by Mr Roper, I had never seen them before and they were used against me. I had never seen them before or produced to me at any stage. That was ignored as well. So we have five reasoned grounds for the findings to contain factual errors.
PN721
I will now go, since I'm not really allowed to go to each of the reasons Mr Roper provided, to prove the point that there's not one significant matter that can be called other than insignificant. I will make a quick mentioning of two areas that I think I'm very concerned about and I would like to talk about because it is very important for me and for my case.
PN722
Page 197, I think we've seen 197, 198, 199 and 200 of Mr Roper's letter of warning to me dated 31 January. I strongly believe that this letter in itself is another example of bullying by Mr Roper. It starts with saying:
PN723
I am writing to warn you that I am not satisfied that you have, in the course of performing the duties required of your position and level, achieve an acceptable standard of work performance.
PN724
Now, if I had the opportunity, I would have gone through all the issues raised and not one of them had any significance. To receive such a letter, I believe, in the tone of this letter, and it started with a very intimidating letter, which I believe my illness and high blood pressure and other illnesses I ended up developing is because of this actual letter.
PN725
Now, at 2 September 2014 hearing, Mr Roper could not provide any explanation regarding the four points that he produced that appeared on the first page of the letter. He kept saying, and I do have some numbers that we can refer to - she kept saying that I didn't prepare this, your previous manager, who was about six months in that position, prepared this. I've got no idea what she meant and I said, "I don't have any ideas myself. Somebody must explain to me what do they mean," and he couldn't.
PN726
I would like to refer to page 93, 94 of the appeal letter. I could not get any explanation about the meaning of those four letters. Despite that, this particular letter has caused a lot of illness for me. Since then, this is probably a year ago now, since then I've had quite a few other illnesses because of this letter. The fact that no-one can explain to me what do they mean, "In adequate communication with your supervisor," I don't understand what - "Failure to follow through instructions. Limited use of understanding of important standard features of notes," which I explained to you that I'm a manager of that. "Higher level of supervision," which I've got no idea. I mean, it's just - if I as a manager reminds my subordinate to fill out or to complete a flex sheet, it doesn't mean there is underperformance. I made that very clear during the hearing, pages 93, 94, and I did not get a single reasonable answer.
PN727
In PN467, I said:
PN728
I don't understand it, Mr Roper. That's what I am saying, I don't have the opportunity to talk to Anne because she doesn't work here anymore and you're the one here.
PN729
PN470:
PN730
So I don't have the opportunity to query these things because I don't recall them, I don't relate to any of them, so this will not be taken by - this will be taken by the commission.
PN731
PN473, Senior Deputy President said:
PN732
Is there anyone else who could explain? Do that. It is a straight question apart from you and me?---No, no-one can.
PN733
So to date, I've got no idea what those four reasons mean. That's, to me, a reflection on the finding. Mr Roper allegedly reminded me about completing a flex sheet. He's using this as a case against me for underperformance and requiring a higher level of supervision. Her Honour Drake commented:
PN734
It can hardly be considered to be really truly significant now, can it? Many public servants of the Commonwealth have to maintain flex sheets and sometimes the busier they are, the more urgent their workload, less attention is paid to matters of administration.
PN735
Mr Paul Roper's reply was, "Fair point." Page 94, 95, I refer to the significant high level of supervision. Her Honour, Deputy President, said, "It can hardly be considered to be a really truly significant matter, can it?" PN481. And his answer was, "Fair point." So even though that letter was prepared and given to me, it contained a lot of inaccurate information and no-one could explain to me what did they mean. That was left as it is, no-one explained to me.
PN736
Mr Roper, throughout his letter of 31 January 2014, keeps mentioning about my grading every time he repeats the same examples. He repeats the conference room, the social clubs glassware, that's all he keeps repeating, and yet he provided me with this letter, which really started my illness. He refers to the video briefing. I strongly believe this cannot be taken as reason normal management performance action. It clearly shows a tendency to be insulting and offensive given the issues raised and its intimidatory tone, 85, 86. I believe this actual letter constitutes bullying because it doesn't explain what I had done and it starts with a very strong tone intimidating me.
PN737
He also created another issue. Mr Roper alleged that I could not find some records of council contacts, item number 15 of Mr Roper's statement. Again, the fact was Mr Roper received a number of reports on councils from me, but he kept finding excuses in order to criticise me. There's only one grade between us, yet he uses me as a clerical assistant. One would argue again that this task of researching for him is like using your clerical assistant, not as a manager. Under Comcare definition, bullying in itself constitutes by demeaning people, belittling people as a manager. This refers to page 74, PN275, 276, 279, 285.
PN738
Now, I have to go through these, my three names that I have to mention, because ABS have mentioned them throughout their reports. Toni Mitchell was my line manager from July 10 to 13. Tony provided the final review of my performance. Comments like, "Tony takes a keen interest in his team. He encourages and coaches his team to perform to a high professional standard level." He goes on, "I often see people come into Tony for advice." I would like you, please, to turn to page 214 to understand what I am referring now, page 214. Yes, page 214, this is one of the reports that I received from Ms Toni Mitchell.
PN739
I would also like to refer to pages 202, 203, 204, 205, 206. They're all reports saying, you know, I deserve a promotion and the only training I need is to gain experience from other areas. This should provide a good indication about my performance throughout 2010 and 11.
PN740
Now, page 220, this is a very important issue that I would like to mention, 220, this has really changed the relationship between me, myself and Toni Mitchell, and Anne Bartlett. It's quite a good example of bad management. In this email, I wrote that:
PN741
I would like to offer the following comments following last Friday's short meeting. They wanted to accommodate Anne Bartlett to be in our team and the only way they could do this was to transfer my duties to this person. So I'm saying I really think it is bad management practice to ask the staff member for a meeting to advise that a decision has already been made to transfer duties to somebody else without giving any reason or proper explanation. I certainly would never do this to staff who report to me. I believe the matter should have been discussed before you generously gave away my duties without having any other responsibilities to replace them. As a good management practice, I strongly recommend staff participation and consultation approach when such matters are indeed under consideration.
PN742
The most annoying thing about this was I've trained this person and I transferred her duties. She becomes my manager and she writes that letter. Apparently she wrote that letter, which really makes it, you know, how injustice or unjust can you get in this world. I've trained this person. I've transferred my duties to this person. When, at that time, my current line manager was transferred, she becomes my manager. Before she left, apparently she wrote this letter, the 31 January letter, because no-one else can explanation it to me. So we have a situation where I've trained the manager, they got my duties and they complained about me, apparently. They wrote the letter and they left.
PN743
On page 20 of my submission, I'm providing background information about this. Since I joined ABS, most surveys conducted about ABS management style and standard showed poor perception of staff members. Consequently a number of meetings were held to correct this perception. One of the fundamental principles in the process of changing this perception was to acknowledge the importance of transparency and fair management practice in the workplace to improve morale.
PN744
I've got 25 years experience, I am an accredited manager, I hope a masters degree in management, in stats. I am a member of the Australian Institute of Management. On page 81, 82, member of Economic Society, member of Marketing Institute. I have managed large teams and complex projects, including implementation of GST. I've given some proof on page 160.
PN745
I've implemented (indistinct) total management system in a number of state governments, I reviewed workers compensation system, I conducted internal audits in a number of state governments. Over this period, I have never seen or heard the manager deciding without any discussion or consultation with the affected person to transfer duties to another person just to accommodate one person.
PN746
I'll turn my attention quickly because of the time limit to Anne Bartlett. She was my line manager for about six months. In my email of page 220, titled Good Example of Bad Management, it would indicate that I trained this person and my duties were transferred to her to accommodate her to be in our section. When Anne Bartlett became my manager she began to mislead me by providing inaccurate information to create delays and misunderstanding.
PN747
MS MASTERS: Objection, your Honour. This is essentially the appellant giving evidence from the bar table again.
PN748
SENIOR DEPUTY PRESIDENT HARRISON: In fact, what he's doing is reading verbatim from A2, which so far all the submissions are addressing A2. The references to the appeal book are in A2.
PN749
MS MASTERS: I'll let it be. I withdraw the objection.
PN750
SENIOR DEPUTY PRESIDENT HARRISON: Mr Nalbandian, you're going through - - -
PN751
MR NALBANDIAN: Yes.
PN752
SENIOR DEPUTY PRESIDENT HARRISON: That's right. But I said at the earlier stage you didn't have to do so, to use the time given wisely, and you're perfectly entitled to do what you're doing now, is - - -
PN753
MR NALBANDIAN: Okay, I'll - - -
PN754
SENIOR DEPUTY PRESIDENT HARRISON: - - - going through very closely what you've already said in A2.
PN755
MR NALBANDIAN: That's right. These are very important issues that I really think - - -
PN756
SENIOR DEPUTY PRESIDENT HARRISON: That's fine. You're on page 21 of A2.
PN757
MR NALBANDIAN: 21, yes. Ms Bartlett was often away from work and, when she was in, she always talked about her vet assistant course. She used to take Monday and Tuesday off. No-one knew where she was going. I questioned her manager. That is all recorded in my statement. His answer was, "I didn't know what she was doing. I knew she was doing a course, but she was always away Monday, Tuesday every week."
PN758
She had a very important project to do; it's called External Capability, involves all the state government, involving state government. Not a single work was done on this project. When she left, the only time she suddenly left when I raised the issue who knows about her approval to do a vet course when the core business of ABS is statistics. No-one knew where she was and no-one did something about it, you can see the double standard there, and I was reprimanded for just raising this question.
PN759
I'm going to jump to 23 because of the pressure of time. I don't want to waste my precious time, so I'm going to be very selective in my statements. I talk about Mr Mark Harding, who was her manager and who was her direct manager and my director, and we asked him at 2 September 2014 hearing, Mr Harding was asked what action did he take in response to my email titled Good Example of Bad Management, page 22, Mr Harding. Mr Harding, his statement was, "In this case, we had made a decision to move things around without consultation."
PN760
Page 106, PN103, 104. My point was how anyone can justify one person, who is me, to train another person, who was Anne Bartlett, to eventually take away my duties and become my manager, and provide a copy of this email to Anne Bartlett in order to incite antagonism towards me. This cannot be called reasonable management action.
PN761
One would argue that since Anne Bartlett was one grade higher than me, I was performing duties higher than my substantive grading. I asked Mr Harding whether he volunteered to put his statement in support of Mr Paul. He was evasive with his example. I think he said he was instructed to do this by management.
PN762
So I'm going to jump that. I'm going to allow the panel to read the rest of very, very important issues that I don't have time, because I wanted to go - I wanted to cover - I'm jumping to page 26. I asked Mr Harding whether he was aware that Ms Anne Bartlett used to take time off Monday and Tuesday for (indistinct) course, I've got here. She used to take Monday and Tuesday off. Page 110, PN642, 647. Mr Harding's answer was, "I vaguely remember she had some duty but I don't recall the details."
PN763
Page 111, PN 651. The fact that no-one knew where she was going every week for two days, no-one said anything about it. She was in charge of this very important project about external capability, dealing with all the state's government, no a single action was done about it, and yet she was fine when I - and I'm being accused of not organising a conference room or whether we uses glasses here and there, which is really - that's what I've said the most, that it's very trivial things I'm being accused of and being, you know, placed underperformance in my, you know, state - frame of mind, and things are continuing, yet nothing has happened. I said that my research, there was no approval. In fact, the core business of ABS is statistic; how can she be doing vet course? Mr Harding could not explain why.
PN764
Page 111, PN 657, 658. I'm on page 27. I asked Mr Harding to explain why the failure to complete this project was not the matter of concern, that there is a difference in treatment between myself and Ms Bartlett. Page 112, PN66. In an effort to justify his action with comments, Mr Harding provided inaccurate and abstract information without mentioning a single specific project that Ms Bartlett was working on, which prevented Ms Bartlett taking any action regarding such a nationally important program.
PN765
Page 113, PN668. Now I'm going to jump to, because I'm a bit stressed because of the time factor, I'm going to jump to page 221. This is very important for me because it's got very misleading information that I have to address. This is ABS position. I'll go through one by one, please, if you can allow me, because this is very important because if I achieve anything today, I just wanted to mention this because it's been very, very stressful for me just reading this and not doing something about it. The first one, it says, this is from Donna Nicholson, "ABS are here today as we are concerned for Mr Nalbandian and are genuinely wanting to find the solution."
PN766
My reply, I'm going to read my reply to make it quick. I questioned Ms Donna Nicholson's comment that was genuine about finding a solution. All her action and behaviour can only indicate the contrary and shows that she was doing her best to harm me and my family. Ms Nicholson's threatening email to me, pages 358, 359, 360, 361, 363:
PN767
Significant action will be required by you to lift your performance through managing underperformance if you are to remain an ABS employee.
PN768
Page 359:
PN769
Also, you must not disclose this email or its contents to the Fair Work Commission, page 360. Using the following excuses to justify underperformance assessment, whether the social club glassware had been used, not opening dockling, hiding evaluation form and criticising me for not doing the summary on time, booking of meeting room, fabricating issues and deadlines, claiming to hear other people talk to me about database or the lack of it, claiming I require supervision based on alleged reminder of competing flex sheets.
PN770
Ms Nicholson showing her attitude towards me using and inciting members to be biased against me and treat me unfairly, using Ms J. Hansen who reports to her to be the independent review officer for reviewing my grievances. 372, currently using Ms Julie Watkinson, who reports to her again, 386, as an independent person assessing my performance, offering me a VR in front of a person who was bullying me, sending the wrong message, asserting the outcome of an application to stop bullying, it will be dismissed during the hearing, misleading Fair Work Commission regarding her points and revealing her hidden agenda under without prejudice - prejudice. Insisting on formal assessment despite having already completed performance assessment that was originally prepared for me.
PN771
Re item 2. It's in her email, statement, which is by way of background. "Since last year, Mr Nalbandian has had a number of formal complaints," ie this is a reply to her comments. Mr Paul William - - -
PN772
SENIOR DEPUTY PRESIDENT HARRISON: Mr Nalbandian - - -
PN773
MR NALBANDIAN: Yes, ma'am.
PN774
SENIOR DEPUTY PRESIDENT HARRISON: - - - what you're doing is making submissions about Ms Nicholson's opening submissions to her Honour.
PN775
MR NALBANDIAN: No, it was given, your Honour.
PN776
SENIOR DEPUTY PRESIDENT HARRISON: It wasn't?
PN777
MR NALBANDIAN: No. It was given by hand and I gave mine by hand anyway. Yes, your Honour.
PN778
SENIOR DEPUTY PRESIDENT HARRISON: Yes. Appeal book page 221, as I understand it, is that the opening submissions made by the ABS to her Honour?
PN779
MR NALBANDIAN: It was handed in, to my knowledge. Is that right?
PN780
MS MASTERS: Your Honour, if I may assist, I'm instructed that, in fact, these were almost speaking notes prepared by Ms Nicholson to assist - - -
PN781
SENIOR DEPUTY PRESIDENT HARRISON: At the commencement of the hearing?
PN782
MS MASTERS: Actually, at the conference phase, she then was making reference to them as an opening in the hearing below and Drake SDP invited her to submit them as evidence, and they were tendered and admitted as ABS 1. So, in effect, they did become written opening submissions.
PN783
SENIOR DEPUTY PRESIDENT HARRISON: Yes. So what you're doing now is making submissions to us about opening submissions made by the ABS.
PN784
MR NALBANDIAN: I haven't heard she, you know, making any opening. All I know is - - -
PN785
SENIOR DEPUTY PRESIDENT HARRISON: All I want you to know is that using your time doing this may not be the most useful way for you to persuade us that there are errors in the decision made by her Honour that in the decision that she made there was no reasonable basis for her to have made the findings that she did.
PN786
MR NALBANDIAN: Well, I started by giving my five reasons, grounds, your Honour. I hope it was recorded. Now, from my recollection, your Honour, I was given a copy of this by her Honour Drake as an ABS position, not as something, as an opening to any hearing. It says here, "ABS position," and I was given a copy of that. Then I'm just replying to that because it contains a lot of inaccuracies and it just needs to be addressed.
PN787
SENIOR DEPUTY PRESIDENT HARRISON: Did you make your submissions to her Honour? I understood that this initially may have arisen in a conference where I suspect there was no transcript taken.
PN788
MR NALBANDIAN: A private conference, your Honour, yes, with her Honour. I wasn't present at that, but her Honour gave me a copy of this afterwards.
PN789
SENIOR DEPUTY PRESIDENT HARRISON: Yes, all right.
PN790
MR NALBANDIAN: Yes.
PN791
SENIOR DEPUTY PRESIDENT HARRISON: All right. On appeal, you take us to the evidence before her Honour and you then take us to your ground of appeal, and you let us know what the errors were that she made in her decision that you say there was no evidence before her to make that finding, or that the finding wasn't reasonably open to her, or that she's misunderstood certain evidence. What you're doing at the moment doesn't seem to address any of those matters. You have distracted yourself by replying to what is, in effect, the ABS's opening submissions. It might have been marked as a document but what, in effect, it was their opening submissions.
PN792
MR NALBANDIAN: Everything that I'm saying, it relates to my five points, grounds of appeal. You can't determine intention and motivation by reading documents. Some of the issues raised by Mr Roper seem to be minor significant and other matters more significant. I have yet to find a significant matter that we can discuss. Ms Donna Nicholson's threatening letter and predicting the outcome of the hearing, I think that really contravenes a lot of Acts, and I question does her action tends to pervert the course of justice, and that is a serious question.
PN793
My fourth point was her Honour was not persuasive. She was not persuaded that there is any justification for my worry, my belief, there is, you know, anything affecting my employment, and there is definitely, definitely there are lots of avalanche of evidence to show that she is trying to terminate my employment. What else is there needed to - I mean, this is completely false. It is completely inaccurate. So I don't know how else I can express this.
PN794
Number 5, a number of Mr Roper's emails and notes had not been seen by me before the hearing. I mentioned that to her many times and I was ignored. So I have five grounds for appeal. They're all very factual and each one of them, what I'm talking about, there is relevancy because, you know, misleading Fair Work Commission regarding her position and revealing her hidden agenda under without prejudice, that would have a connection about her Honour saying, look, there is no justification for my worrying about my employment. There is connection. Everything that I'm saying to the five identified grounds for appeal, your Honour, five of them, they're all connected, everything that I'm saying, they're all connected.
PN795
Again, because, you know, this is my, I don't know, opportunity to reiterate what I'm saying because it is very important, my five grounds for appeal, what I'm saying, it's really connected because they're all connected. Everything that I'm saying is, in my submission, is all connected. They're all factual information. I'm not really making it up.
PN796
Item 2. Ms Nicholson is saying that, "Look, we've investigated his complaints about bullying." That wasn't right. Mr Paul Williams - - -
PN797
SENIOR DEPUTY PRESIDENT HARRISON: Where are you?
PN798
MR NALBANDIAN: I am on page 30. I'm on my page 30.
PN799
SENIOR DEPUTY PRESIDENT HARRISON: Yes.
PN800
MR NALBANDIAN: FG. I'm going to item 2 now, answering item 2.
PN801
SENIOR DEPUTY PRESIDENT HARRISON: You're on exhibit A2, your submissions?
PN802
MR NALBANDIAN: I'm on page 30 of my submission and I'm addressing page 221 in the appeal book. So I'm going through - there are eight items and I'm addressing each one of them because they represent inaccurate information yet again.
PN803
SENIOR DEPUTY PRESIDENT HARRISON: Yes. In Ms Nicholson's opening submissions to her Honour, you say that she said things that were inaccurate and for which there was no evidence.
PN804
MR NALBANDIAN: Yes, your Honour, but - - -
PN805
SENIOR DEPUTY PRESIDENT HARRISON: Your submission, which is marked A2 at pages 28, 29, 30, 31 and 32, you address all of these matters.
PN806
MR NALBANDIAN: Yes, your Honour.
PN807
SENIOR DEPUTY PRESIDENT HARRISON: Your time is soon to be up, so you can read from A2, if you wish, or you can make some other final key submissions.
PN808
MR NALBANDIAN: If that's the case, your Honour, I don't want to be pressed too much stress on me, I just wanted to - as long as, you know, if you read my statement in, you know, in relation to that particular document, I have provided all the factual information. Just to sum it up, I'll go through the five grounds again. Everything that I've put in, in my report, reflects to those five grounds of appeal.
PN809
I still think there is no way anyone can determine anybody's intention or motivation by reading documents. The only way you can determine somebody's intention or motivation, by looking at their action. I've provided a number of examples showing every reason presented by Paul Roper was insignificant. I am yet to see a significant matter that her Honour Drake mentioned that there are, you know, so there is some - just being careful with my words. There are some errors and it does not reflect on the truth.
PN810
I don't have any significant matters that I can comment on, defend myself, because everything that I would mention is so insignificant, it is embarrassing for me. So the fact is no-one, unless you're a psychic, you can't determine anybody's intention or motivation, and confidently say, "I believe his intention was not to bully me." No-one can say that because you can't, you can't be psychic, for most of us.
PN811
Some of the issues raised by Mr Roper seem to be minor significant and other matters more significant. That's my second ground. I'm just saying that there are no other matters, significant matters. You can go through them, if you like. But, you know, as Ms Masters commented, if you're going to generalise, generalising is very dangerous because I don't understand when somebody generalises things, because generalising things, you're missing a lot of things that, you know, it cannot be clarified, you've got to clarify that, if you make a generalisation about anything.
PN812
What I'm providing is actual information, each reason. Each reason, if you look at it closely, you find that there's no significant issue here. They're all insignificant, as far as I'm concerned. It is not a matter like I need to learn the skill or I lack a particular skill. It's all to do with organising conference rooms and glasses. Just, you know, just minor things. So other matter appear more significant is incorrect, making a statement like that. It is not correct. There are no other matters that be more significant.
PN813
Ms Donna Nicholson's threatening letter predicting the outcome of the hearing. That is, again, it is illegal. I don't know why, you know, enough emphasis hasn't been placed on that. It is, you know, it's not a good thing, it's not a good management thing to intimidate people and say it will be dismissed, and giving the, you know, threatening letter, "If you don't take this, we're going to do this. You're going to terminate your employment." That affected my health, because when I look at the reasons, all of the reasons - I don't want to generalise. Even if I generalise things, the reasons I have been given are insignificant and it doesn't warrant to have a letter like dated on 31 January saying, "I am warning you." That is bullying. You don't send people a letter like that without any justification. When we look at the actual each matter, it does not warrant a letter like that warning me. So that was, as far as I'm concerned, a bullying letter.
PN814
SENIOR DEPUTY PRESIDENT HARRISON: You need to wrap up your submissions now - - -
PN815
MR NALBANDIAN: All right, just two.
PN816
SENIOR DEPUTY PRESIDENT HARRISON: - - - Mr Nalbandian.
PN817
MR NALBANDIAN: I'm sorry? Do you want me to last two or do you want me to sit down?
PN818
SENIOR DEPUTY PRESIDENT HARRISON: You need to finalise your submissions now.
PN819
MR NALBANDIAN: Okay. Number 4 - - -
PN820
SENIOR DEPUTY PRESIDENT HARRISON: We're beyond the 45 minutes.
PN821
MR NALBANDIAN: Do you want me to sit down, is that - - -
PN822
SENIOR DEPUTY PRESIDENT HARRISON: No. Just make your final submission, would you? Just bring it all together and make - - -
PN823
MR NALBANDIAN: Yes, just the last four, five. I've mentioned the three grounds. The fourth and five, and that's it. Again, my fourth grounds for appeal, I am persuaded there is no justification for the belief there is any problems with unemployment issue. Again, that is incorrect. I have plenty of evidence, an avalanche of evidence to show that I have been threatened.
PN824
SENIOR DEPUTY PRESIDENT HARRISON: We've heard this many, many times. It is really not using the very limited amount of time you have left. And I've said before, you have addressed the ABS document at page 221 in exhibit A2, and you've done so in some detail. Is there any matter that you have not addressed that you need to address now very briefly?
PN825
MR NALBANDIAN: Well, what I'm saying is I have provided five grounds for appeal. Okay? One, two, three, four, five. So I've provided more detailed information, all in connection to those five grounds of appeal. So if you're still saying that I haven't, you're not happy with my presentation, your Honour, I'll leave that to you.
PN826
SENIOR DEPUTY PRESIDENT HARRISON: Have you completed - - -
PN827
MR NALBANDIAN: Yes, your Honour.
PN828
SENIOR DEPUTY PRESIDENT HARRISON: - - - your submissions now? Yes, Ms Masters.
PN829
MS MASTERS: Thank you, your Honour. Mr Nalbandian's appeal relates to findings made by Drake SDP in relation to the conduct of Paul Roper and also Donna Nicholson. Donna Nicholson was something of a late addition to the proceedings, having not been named in the initial application. I just want to take a moment to draw the bench's attention to the Commonwealth's position in relation to the jurisdiction itself. The jurisdiction provides for an application to be made but it doesn't actually provide for there to be a respondent per se.
PN830
It could easily be the case that an employer may be supportive of a worker's application for an order to stop bullying. For example, if a worker were being bullied by a customer in the workplace or bullied by a competitor's staff in the workplace. What this means is that, essentially, the proceedings are brought ex parte and the capacity for an individual who is accused of bullying to respond to those allegations is constrained by the structure of the jurisdiction. The employer is entitled to an opportunity to respond, but the person who is alleged to have engaged in the bullying conduct may or may not, at the discretion of the commission, be invited to put their own perspective.
PN831
DEPUTY PRESIDENT LAWRENCE: I'm not sure it is so much the discretion of the commission. There is an ability for them to lodge a form the same way - - -
PN832
MS MASTERS: I may be mistaken. It's my understanding that's done on the invitation of the commission. It's not of right.
PN833
DEPUTY PRESIDENT LAWRENCE: I think it's the common procedure that has been adopted, to my knowledge, certainly.
PN834
MS MASTERS: I stand corrected. In any event, it does create some ongoing, I suppose, difficulties from a practical basis in that because respondents are not in and of themselves necessarily named at the outset of proceedings, you can have sort of a role in iteration of concern as proceedings are underway, and hence we say that in this case with the apparent addition of Ms Nicholson as an alleged bully. I sort of note that, park that, that's simply a note I've been asked to make on behalf of the Commonwealth as a whole.
PN835
Moving forward, I would say in relation to Mr Nalbandian's appeal, the position of the bureau is that Mr Nalbandian's appeal and what we've heard today discloses no appealable error and leave for appeal should not be granted in this instance. Instead, what we have heard today is a series of fairly scandalous accusations about Ms Nicholson and also about Mr Roper. Those accusations were made first in the notice of appeal and then in the written submissions, and they have been repeated today without any degree of specificity.
PN836
Turning to the five grounds of appeal now identified by the appellant, the first and the one that I think we spent the most time on was the view that Drake SDP erred by failing to identify any single significant matter of underperformance. It's probably worth noting that these proceedings are not intended to constitute merits review of any assessments made by the bureau of statistics about an employee's work performance. However, as Mr Nalbandian asserts that the assessment of his work performance was in and of itself an act of bullying, it's necessarily been the case that Drake SDP had to peel away the facts of the assessment of Mr Nalbandian's performance.
PN837
During the hearing below, the appellant cross-examined Mr Roper on some of the issues that have been identified by Mr Roper as examples of the appellant's poor performance. I stress that the cross-examination went to some of the issues and not to all of them. Exhibit A2, which commences at page 222 of the appeal book provides much more substantial detail of the nature of Mr Roper's concerns.
PN838
Now, the issues that Mr Nalbandian chose to cross-examine Mr Roper on were, as I've indicated earlier in these proceedings, perhaps at the minor end of the scale of concerns. We have a situation where Mr Nalbandian has reduced through the application of logic the concerns held about his performance into the individual components. If you reduce things far enough, of course each and every component will end up looking absurd.
PN839
The evidence of Mr Roper establishes, however, that it was not the granular detail of the individual acts of poor performance that were of greatest concern to him. His evidence established that his broader concerns, the greater concerns were the sum of what these single incidents of poor performance indicated in terms of Mr Nalbandian's overall capability. If you look at Mr Roper's evidence, his written evidence at page 228 of the appeal book, Mr Roper talks about the fact that his concerns lay, for example, in Mr Nalbandian's limited capability for taking responsibility for managing projects, limited capability for communicating what was occurring, communicating with stakeholders and communicating with him.
PN840
If you look at Mr Roper's oral evidence appearing at page 80 and page 81 of the transcript, you'll see again that his attempts were to really identify specific examples to illustrate the broader concern about Mr Nalbandian's poor performance. The fact that these examples were intended more as emblematic of a broader concern was evidently accepted by Drake SDP.
PN841
Perhaps we see the clearest example of this in relation to the issue concerning the glassware. The true nature of Mr Roper's concerns were not about who was using what glasses or where they had come from, but if you turn to pages 225 and 226 of the appeal book, Mr Roper says that his concern - I apologise. Yes, at the bottom of page 225, he says:
PN842
Thus, for example, the matter of the use of glassware is relevant not so much in its own terms but, rather, because it represents an instance where Mr Nalbandian had been given an instruction in a selection executive meeting to complete a simple task and had to be reminded twice to do it, and to assure me that it had been done.
PN843
And that he then gave Mr Roper the assurance, and although the task would only have taken 10 minutes, the question was not the task only to a short period of time. The difficulty that Mr Roper identifies is that Mr Nalbandian's ability to follow through on instructions and guidance as directed was a performance concern that had been explicitly specified, and this was an example of where that performance capability, the capacity to follow through on instructions and guidance was coming up short.
PN844
Now, Mr Nalbandian says, when we look at the tasks actually allocated to him for performance, they were beneath him and that in itself constitutes an act of bullying. What we would say is that given the ongoing nature of the concerns about Mr Nalbandian's performance, it became necessary to provide Mr Nalbandian with very specific, very discrete tasks with very clear measures for performance so that his performance could be assessed in a way that was either a pass or a fail, as it were.
PN845
The second point Mr Nalbandian makes is that it is impossible - he says it is essentially impossible for Drake SDP to have discerned Mr Roper's motivation. We would say that's just plain wrong. Drake SDP is capable of assessing Mr Roper's motivation. The reason she is capable of doing that is that Mr Roper gave evidence himself of his motivation at page 223 of the appeal book statement of Mr Roper, exhibit ABS 2. Paragraph 7 of that document, Mr Roper said:
PN846
PN847
There is the evidence of Mr Roper's motivation from Mr Roper's own hand. Mr Nalbandian did not disturb that evidence on cross-examination despite extensive cross-examination of Mr Roper. The appellant says that Drake SDP failed to deal adequately with threats that were made by Donna Nicholson, and that she, Drake SDP, would not allow the appellant to address her on Ms Nicholson's communications.
PN848
Now, I think it's worth noting at the time that the communications that Mr Nalbandian wished to take her Honour to were, at that point in time, subject to without prejudice privilege, which is no longer attached to that material. We think there's a good reason why her Honour declined to hear Mr Nalbandian on that concern.
PN849
However, having said that, it is evident from the decision, from the text of the decision itself, that her Honour did have regard to the appellant's concerns about Ms Nicholson's conduct in the course of making her decision. At paragraph 18 of the decision subject of appeal now, she makes referred to the fact that the appellant had raised or allegations, or made allegations about intimidating conduct by Ms Nicholson up to and including conduct in the hearing before me and in discussions between the parties, and yet she's satisfied that there was no evidence in there of bullying behaviour.
PN850
Going to the concern that Mr Nalbandian raises about the behaviour constituting bullying, we would say that Ms Nicholson's conduct in indicating to the commission in her opening address that she wished to see this matter resolved, and at the same time or at sometime shortly thereafter, indicating to Mr Nalbandian that if he was unsuccessful with his application, then normal performance management process would resume and that might ultimately result in termination of his employment. It was no threat; it was simply giving Mr Nalbandian a very frank assessment about what might occur in the event that he was unsuccessful with his claim.
PN851
Now, it remains the case that Mr Nalbandian's employment is, I think, in a somewhat precarious situation. He's currently the subject of a managing underperformance process, as I mentioned earlier today, and no-one denies that's the case. All Ms Nicholson did when she wrote to the appellant was give him a very frank insight into the reality of his situation, but she didn't say anything that doesn't exist in the agency's own policies on performance management processes.
PN852
The third issues raised by the appellant as a ground of appeal is a claim that false evidence was given by Mr Roper. This is, we say, a scandalous accusation, entirely baseless and unwarranted, and sadly repeated today. The focus of today's discussion is that the appellant says that an email which bears the date of 8 January was falsified by Mr Roper. Now, Mr Roper provided a statutory declaration, ABS 4, and that statutory declaration explained how it is that the same email could come to bear two different dates.
PN853
The proposition that Mr Roper had falsified the documents attached to that statutory declaration was not put to Mr Roper in cross-examination. I think the highest we can take it is that the appellant expressed some incredulity about the material, but the transcript simply indicates that he put the propositions to her Honour and not to the witness, and indeed he never sought nor obtained the witness's response to any proposition that he falsified documents. It's clear, however, that Drake SDP accepted Mr Roper's sworn evidence about how it is that one email could come to apparently bear two different dates.
PN854
Now, the appellant did not today, when invited by you to do so, take you to other documents which he alleges were fabricated by Mr Roper, but he does, if my memory serves me correctly, maintain that the email of 8 January is not the only document fabricated by Mr Roper. It's unwarranted and unfair to make such serious accusations against a Commonwealth official without being able to at least point to which particular documents are said to have been falsified.
PN855
The fourth ground of appeal identified by the appellant in his submissions is that Drake SDP erred by concluding that there was no justification for his belief that his employment was in jeopardy. I think I've already discussed this to some extent. The Senior Deputy President's conclusion did not discount the reality of the appellant's perception. She, in fact, described the appellant's belief that action taken with respect to his performance was being done in a bid to establish a reason to terminate his employment as an honestly held belief. She did not conclude that the appellant's belief was dishonestly held. She simply didn't think it was a justified belief. She was instead satisfied that what was occurring was the ordinary exercise of managerial prerogative.
PN856
I think in a rather elliptical way, the appellant has suggested that Ms Nicholson's statements in her opening address in the matter below at ABS 1, that is at page 221 of the appeal book about her desire to see the matter resolve do not square with the content of her without prejudice communication to the appellant, which is now produced at page 359 of the appeal book. As I've indicated before, that communication, we would say, contains no threat. It's simply a frank assessment of the appellant's position.
PN857
Now, her Honour was not in the possession of Ms Nicholson's assessment, that is the document at page 359. All she had was the appellant's complaint about Ms Nicholson having made the assessment. In any event, you have it before you now, and if you're inclined to have regard to that further even, we would say that all it does is evidence that no threat direct, indirect, covert, open or closed was ever made by Ms Nicholson to the appellant.
PN858
The last of the five grounds of appeal identified by the appellant now is that there were in the matter below several emails from Mr Roper that he said he had never seen them before. It's my understanding from what I heard the appellant say, that these are references to the emails attached to the statutory declaration of Mr Roper dated 23 June 2014. That's exhibit ABS 4. That was the emails provided by Mr Roper in a bid to explain how it is that one email could come to apparently bear two different dates. Those emails were tendered in response to the proposition that had been put to Mr Roper by the appellant that Mr Roper had sat on a request made by Sterling Jones and failed to forward it to the appellant until 13 January 2015, and Mr Roper attempting to reconcile that proposition, and the email shown to him at that point in the cross-examination, with his own recollection that he had, in fact, forwarded the request to the appellant on 8 January 2014.
PN859
Unless you wish me to address you further, I think our written submissions cover anything further we would say in relation to the appeal. Perhaps - - -
PN860
SENIOR DEPUTY PRESIDENT HARRISON: I should probably have marked them at the beginning, Ms Masters.
PN861
MS MASTERS: Thank you.
PN862
SENIOR DEPUTY PRESIDENT HARRISON: The submissions of the ABS will be marked R1.
EXHIBIT #R1 SUBMISSIONS OF THE ABS
MS MASTERS: There's perhaps just one further point I would make, and that's in relation to the submissions made just now in relation to allegations of differential treatment by the ABS of Anne Bartlett and the appellant. Anne Bartlett is a former employee of the Bureau of Statistics, and I guess I would say only three things about that. The first is that Ms Bartlett's part-time work arrangements were essentially none of the appellant's business. Secondly, Ms Bartlett's activities when she was not at work were, again, essentially none of the appellant's business. The third point we would make is that Mr Harding gave evidence about Ms Bartlett's work priorities and why it was that a particular project had not been dealt with as a priority action item, and he gave quite extensive oral evidence about that at page 113 of the appeal book. PN668 deals with that issue.
PN864
DEPUTY PRESIDENT LAWRENCE: Can you just repeat again Mr Nalbandian's current status in a brief form?
PN865
MS MASTERS: Yes, all right. Mr Nalbandian is currently the subject of a managing underperformance process. The bureau has a three stage performance management framework. The first stage is that which every employee is subject to regular assessment and feedback on performance, a performance plan that operates on a year by year basis. If your performance is regarded as not meeting the required standard, you are then placed on what's referred to as a performance improvement plan, which is sort of an informal arrangement.
PN866
DEPUTY PRESIDENT LAWRENCE: PIP.
PN867
MS MASTERS: A PIP, indeed. It's an informal arrangement that sits between the employee and their immediate manager where the employee and the manager sit down to work out what impediments exist to the employee attaining and sustaining the required standard of performance. Some of those impediments may sit at the feet of the employee, an attitude issue, a comprehension issue, for example. Some of them may sit at the feet of the employer, lack of training, lack of resources required to be able to achieve tasks, for example. So that PIP process takes five to eight weeks, I'm told.
PN868
DEPUTY PRESIDENT LAWRENCE: That hasn't started yet?
PN869
MS MASTERS: No, that's been and gone.
PN870
DEPUTY PRESIDENT LAWRENCE: That's been and gone. Okay.
PN871
MS MASTERS: At the conclusion of the PIP process, if the manager takes the view that the employee hasn't managed to get their performance back into the green zone, they will formally warn the employee that their position is now at risk, I suppose. That's the warning letter that Mr Roper gave to the appellant on 31 January last year, 2014.
PN872
Then we move into the more formal managing under performance process. That's a two stage process running over up to 12 weeks. The first six weeks the employee is obliged to demonstrate that they have attained the required standard of performance. If they do so, then in the second six weeks they are required to demonstrate that they can sustain the required standard of performance.
PN873
Mr Nalbandian is currently approaching the end of the first six week period. He is the subject of assessment by Julie Watkinson and Mr Nalbandian has indicated to you today that he has concerns about her independence as an assessor on account of the fact that she works in the human resources stream and reports to Ms Nicholson, but we'll take you no further on that. Does that answer your question?
PN874
DEPUTY PRESIDENT LAWRENCE: Yes, I think that's a very good summary, actually.
PN875
SENIOR DEPUTY PRESIDENT HARRISON: As I understand it, sometime after the proceedings were before her Honour, there was an arrangement reached whereby Mr Roper ceased to be the manager of Mr Nalbandian.
PN876
MS MASTERS: Yes.
PN877
SENIOR DEPUTY PRESIDENT HARRISON: And an understanding that would continue for a period or something like that?
PN878
MS MASTERS: Whilst the proceedings below were on foot, and the application was filed in, I think, March, and the decision was not handed down until the end of October, so it's quite an extensive period while the proceedings below were on foot, two things occurred. Ms Nicholson gave an undertaking on behalf of the ABS that the managing underperformance process would be placed on hold and arrangements were made for Mr Nalbandian to report to someone else, not to Mr Roper, although he remained in the same work area.
PN879
At the point where her Honour handed down her decision, the brakes came off on the managing underperformance process and Mr Roper resumed responsibility as Mr Nalbandian's manager. Mr Nalbandian then made contact with Comcare, making a complaint about his health and safety being at risk as a consequence for having to work with Mr Roper. In recognition of Mr Nalbandian's concerns, the Bureau of Statistics has again implemented arrangements whereby Mr Roper does not directly supervise the work of Mr Nalbandian. Mr Nalbandian is now supervised by a fellow named Mike Kulmar. But again, he remains in the same work team.
PN880
DEPUTY PRESIDENT LAWRENCE: So Mr Nalbandian is on (indistinct) Comcare claims are being dealt with in accordance with the usual processes or - - -
PN881
MS MASTERS: I just need to clarify. Comcare has two responsibilities: they administer workers compensation, but they also investigate suspected breaches of the Work Health and Safety Act, and it is a complaint of a breach of the Work Health and Safety Act that Mr Nalbandian has made. So Comcare is dealing with that process in accordance with their own procedures.
PN882
SENIOR DEPUTY PRESIDENT HARRISON: Mr Nalbandian, you are now entitled to respond to the matters that have been raised by Ms Masters, so you concentrate on what she says. Generally responses are confined to cases that are referred to, so there's nothing you have to worry about with addressing case law, and responses often are confined to identifying something specifically said by a respondent and saying, "Well, no, that's wrong," and identifying a document that shows that the submission is wrong. So it's more confined in response; it's not having another go again at what you said in your submissions. So is there anything in particular said in response that you wish to respond to that Ms Masters has said?
PN883
MR NALBANDIAN: Well, she kept referring to underperformance and I am yet to see any matters that I can look at and say, "This is important." It's very generalised why you're saying I am underperforming. As I said, I haven't seen any tangible, anything that I can say, "Look, you lack experience," or, "you lack skills in one area. We would like you to improve on that."
PN884
If you go through all the matters and issues raised, they're all very insignificant and it could have been addressed by having a manager and team member sitting down and discussing things. As a manager for 20 years, 25 years, that's what I would do. I wouldn't put any member of my staff underperformance assessment arrangement because the issues raised don't warrant something like that. It warrants for a manager and a team member to sit down and address the issues. That's how we do it. I'm a qualified, certified manager. This is what we do things. We are creating a workplace where people would be very afraid to admit they don't know how to do a particular task because, if that's the case, no-one will learn about anything in the workplace, they all would be afraid of, "I might be underperformance assessment," you see, so the whole approach is incorrect.
PN885
I questioned many times about the informal arrangement, performance arrangement was conducted by, and we're still talking about it now and about the performance arrangement, and these are the issues that we've raised, it's all to do with the informal performance assessment that we've been through and we're still going through, which shows that the informal performance assessment was done very unfairly because I had just raised the issues and none of these issues can be described as significant, and yet we went through from informal to formal now, jeopardising my employment based on the issues that I have raised, and I haven't had the time to raise all of them, it's about, you know, issues that, you know, a manager shouldn't be involved in the first place to do it, like organising a conference room, organising - you know, checking out whether the glassware had, you know, been used or not. These are very, very insignificant issues and I find it very difficult to accept that to be in this position, you know, jeopardising my employment, I'm a single parent, I've got a younger child who needs very special care and I have to put up with this continuous intimidation about my employment.
PN886
If there is any strong, you know, issue about something very important, I would be the very first one to say, "Look, I'm going to learn this in order to avoid doing it or repeating," but I don't know what I need to do to improve. Just the new work plan that I would like to have a look at, it gives me about 15 deadlines to make within six weeks and the actual program extends to longer than six weeks, so it was prepared to fail me in the first place, and nobody is looking at that. The whole thing is just, you know, open and it very much favours the employer rather than the employee.
PN887
I didn't get my blood pressure through nothing, because when I see this unfairness going on, and you can't do much about it, I started having high blood pressure and anxiety, I've had problems sleeping because of all these unfair work practices. That's why I had to ask Comcare to investigate, because until now they are still insisting on about the informal assessment, you know, they're still talking about the glassware, the, you know, the - you know, for booking a room, things like that, very insignificant matters that I'm being punished now and I'm jeopardising my employment because of these issues. And I find it very, very difficult to accept. Thank you, ladies and gentlemen. Thank you.
PN888
SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you. Now, we will reserve our decision in this matter. Before I adjourn, I wish to indicate it is now not appropriate for there to be correspondence sent to my chambers about this matter. I would not wish to preclude the possibility, though, that there is something that the full bench needs to be informed of which the two of you agree it is a matter we should be informed of. So therefore, in the event agreement is reached, any correspondence with my chambers would then come from each of you and it would be clear that it is sent as a - well, I'll say a joint document, which isn't really the correct way to describe it, but hopefully that makes that clear. Other than that, it is not appropriate for correspondence to be forwarded to my chambers by one side or the other in relation to this matter as the decision is now reserved. We'll now adjourn.
<ADJOURNED INDEFINITELY [3.34PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 SUBMISSIONS OF MR NALBANDIAN PN334
EXHIBIT #A2 SUBMISSIONS OF MR NALBANDIAN DATED 02/01/2015 PN337
EXHIBIT #R1 SUBMISSIONS OF THE ABS PN863
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