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Australian Industrial Relations Commission Transcripts |
354 
, Transcript of Proceedings [2003] AIRCTrans 245 (29 January 2003)
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT1308
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2003/ 354
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION
and
AUSTRALIAN TAXATION OFFICE
Application under section 170LW of the Act for
settlement of dispute concerning the alleged
failure of the ATO to help a probationary
employee improve her work performance
MELBOURNE
10.45 AM, TUESDAY, 14 JANUARY 2003
Continued from 13.1.03
PN204
THE COMMISSIONER: Now, we move on to question two. Mr Lapidos.
PN205
MR LAPIDOS: Thank you, Commissioner. If I may at the outset make an application for an order from the Commission in relation to confidentiality. We have a concern in relation to protecting the privacy of our member that this case is about, and I understand that the Commission has some broad general powers perhaps of procedure to make various orders. I have had a general discussion with the Tax Office about the type of order we would like and I will confirm in a moment, but I understand that there is agreement in principle about it, and the type of thing that we will b
PN206
THE COMMISSIONER: What is the privacy issue that arises? Normally matters before the Commission are conducted with the lights on.
PN207
MR LAPIDOS: Yes. I understand that. Well, we will be going into some details about claims that have been made about our member and - - -
PN208
THE COMMISSIONER: Nothing unusual about that in proceedings, you know.
PN209
MR LAPIDOS: I understand that, but at the moment her employment hasn't been terminated.
PN210
THE COMMISSIONER: Yes.
PN211
MR LAPIDOS: I don't believe there have been any firm findings against her.
PN212
THE COMMISSIONER: Yes.
PN213
MR LAPIDOS: It is clear that the Office is considering various things, but no higher than that, and it may be there will be no termination, we do not know that there will be no findings made against her, and in the meantime if there is a transcript, for example, and that is published, all of a sudden people will see things on the record and have access on the Internet where they are unproven claims.
PN214
THE COMMISSIONER: But I assume you are talking about evidence.
PN215
MR LAPIDOS: Well - - -
PN216
THE COMMISSIONER: Or submissions?
PN217
MR LAPIDOS: Well, it depends on exactly how the proceedings - I mean, we are certainly intending that there be evidence and there will be submissions from the parties, but the submissions from the parties will address the evidence. I mean, I was conscious in preparing for today the decision that you referred to the parties on Thursday, and so one of the things I intended raising with you is to confirm that you really didn't want us to revisit each particular issue with a view to asking you to make a comment about whether you agreed with the respective merits of the perspectives on every particular case, because we are really only talking today, as I understand it, about whether help was provided as required under 108.2.
PN218
We wanted to avoid controversy and simply the proceedings by not contesting everything the Tax Office has put in writing. We don't actually agree with all the paper records that the Office have created, but I couldn't see any purpose, in terms of assisting you given that decision that you have provided us, with contesting everything where we had a different view about exactly what happened, because there are documents that record discussions. We don't agree that every single record, every single discussion is 100 per cent accurate as far as we are concerned. I couldn't see the value - if we - we could, and we are prepared if that is what you want us to do, to go into the detail of every single document and every single record and dispute those things where we have got a different view. But that is only going to make things more complicated and in my view wouldn't really assist you to come to the decision that we are asking you to make in the sense of answering a question that has been posed.
PN219
THE COMMISSIONER: Well, the decision that I gave to you was the decision in Pacific Coal which really said that it didn't believe it was the Commission's role to get into the minutiae of judgments made by supervisors and the like. Now, you can run your case however you think is appropriate, but you do so against the background of - - -
PN220
MR LAPIDOS: Well, that is right, Commissioner. I understood that we would have some leeway, and I am not saying we are not going to point out any issues whatsoever, but we certainly weren't proposing to go through it in detail and try and correct on the record everything we thought that was a problem with it. And yet a lot of these documents will go on the record and we have problems with them.
PN221
All we really wanted to satisfy you today was to help you answer the question that you are assisting the parties with.
PN222
THE COMMISSIONER: Yes.
PN223
MR LAPIDOS: And we weren't intending to use the proceedings as well to protect our member's reputation. The same thing applies - I mean, there could be some adverse inferences taken about other members of staff in the Tax Office who are also named in the documents. They are not necessarily - there is an argument their interests could be affected by publication of details and reference to what they have said. Some of those people aren't here today. It seems to me it is in everyone's interests.
PN224
What we would be comfortable with in terms of your decision, that you publish your decision whatever it happens to be, but instead of naming particular people, if you feel the need to name them, you could use a letter to identify someone rather than a name. We are also looking for you to restrict access to the court. There are a couple of people from the Tax Office here who are in the HR area. We don't have any objection to them remaining here and we have had a discussion with the Tax Office about their participation in the proceedings as well as any transcript or decision that might be used, and the Tax Office agreed to treat all this material as staff-in-confidence material which means it is restricted in the way it is dealt with inside the Tax Office.
PN225
I understand that in terms of any transcript that might be produced, if you make an order about confidentiality, it has not got an absolute protection, that someone has to make an application to the Commission and give reasons or something like that, and the Commission then exercises a discretion about whether to release it, and we rely on the Commission exercising its discretion properly in that circumstance.
PN226
THE COMMISSIONER: Yes.
PN227
MR O'SHEA: Commissioner, would it assist the Commission for me to just give the level of detail that we expect to go into. We don't expect to go into the minute details of the case, Commissioner. We simply tender in the documents to support our activities under clause 108 of the agreement, that is the ATO (General Employees) Agreement 2002, insofar as they are evidence that the activities were undertaken, not so much that the details of the documents are actually in question in the ATOs view. If that assists the Commission in making its decision in this confidentiality regard.
PN228
THE COMMISSIONER: Yes, thank you. Mr Lapidos, I am prepared to mark the transcript in confidence from now on, although I must express some apprehension in doing so, because it is unusual unless we are protecting the name of a child or the name of somebody other than this. I mean, litigation goes with it the harsh glare of the lights - - -
PN229
MR LAPIDOS: Yes.
PN230
THE COMMISSIONER: - - - and all that flows from that, and people normally take mature decisions based upon what they will face when they exercise their right to go to litigation.
PN231
MR LAPIDOS: Yes, I understand that, Commissioner. There is an alternative which I haven't really - - -
PN232
THE COMMISSIONER: No, but I am content to do it because in this case the point that you make is that you don't want to jeopardise the possibility of harming an employment relationship if one is to - - -
PN233
MR LAPIDOS: Continue.
PN234
THE COMMISSIONER: - - - be maintained. The reason I asked you whether there was evidence going to be given, well, I wouldn't expect evidence to jeopardise an employment relationship, nor would I expect evidence to be anything other than truthful.
PN235
MR LAPIDOS: That is right, and we have discussed that and that is certainly what - the evidence that we intend giving is definitely truthful.
PN236
THE COMMISSIONER: Yes. All right. Well, I will mark the transcript transcript-in-confidence at this stage and I may revisit it at some later stage. I will close the door.
PN237
MR LAPIDOS: Commissioner, I have had a very brief discussion with the Tax Office prior to the commencement about documents that were handed up to you on Thursday. I don't believe we are going to need to refer to any of the documents that were exhibited yesterday.
PN238
THE COMMISSIONER: Yes.
PN239
MR LAPIDOS: The Tax Office had the view that the documents that were handed up on Thursday may not have been treated as exhibits.
PN240
THE COMMISSIONER: The documents handed up - given to me in conference?
PN241
MR LAPIDOS: Sorry, on Thursday at the conference.
PN242
THE COMMISSIONER: No, they weren't. They are in conference and they won't be referred to unless the parties invite me to refer to them.
PN243
MR LAPIDOS: Well, I intend to invite you to do that because the reason for my concern is that I didn't bring additional copies of documents and I was hoping that at the appropriate times during proceedings we could refer to those and we could arrange for you to mark them as exhibits.
PN244
THE COMMISSIONER: Sure. Well, let me then tell you what I have got and you can tell me - now, I have got a document ATO Probation and Feedback Report dated 24 October 2002. I have a Performance Improvement Plan dated 15 November 2002. I have an ATO Probation and Feedback Report dated 15 November 2002. I have an ATO Individual Probation Record dated 24 October 2002 as well.
PN245
MR LAPIDOS: And there are two of those.
PN246
THE COMMISSIONER: I have two of those.
PN247
MR LAPIDOS: But slightly different versions.
PN248
THE COMMISSIONER: Yes, copy headed - one is headed "Copy from Lisa" and the other is headed "Copy from Beverley Fernandez". I have a Record of Feedback Session conducted by Karen Peters.
PN249
MR LAPIDOS: Yes.
PN250
THE COMMISSIONER: And I have a document Feedback Regarding Lisa Marie that begins with a note of 11.11.02.
PN251
MR LAPIDOS: Yes.
PN252
THE COMMISSIONER: I have a document that you prepared for the conference which were some notes and some attachments.
PN253
MR LAPIDOS: Yes, I don't think we need to refer to that one.
PN254
THE COMMISSIONER: I have a document ATO Miscellaneous Leave Instructions and Guidelines.
PN255
MR LAPIDOS: Yes, I don't think we need to refer to that either.
PN256
THE COMMISSIONER: An extract of the APC Code of Conduct.
PN257
MR LAPIDOS: Possibly.
PN258
THE COMMISSIONER: A large document - - -
PN259
MR LAPIDOS: And I may make some reference to that booklet, yes.
PN260
THE COMMISSIONER: - - - Termination of Employment. A Team Leader's Guide to Probation in the ATO.
PN261
MR LAPIDOS: Yes, that was - would have been the version provided by the ATO that a "1" on it; is that correct?
PN262
THE COMMISSIONER: Yes.
PN263
MR LAPIDOS: And then - because we were interested in referring to that. And then there is another document from the Tax Office 2.
PN264
THE COMMISSIONER: APS2, yes.
PN265
MR LAPIDOS: Then 3, 4, 5, and 6.
PN266
THE COMMISSIONER: Yes.
PN267
MR LAPIDOS: We would look at referring to most of those documents.
PN268
THE COMMISSIONER: Yes.
PN269
MR LAPIDOS: I certainly don't have any problem with them being exhibited.
PN270
THE COMMISSIONER: So those are the documents I have.
PN271
MR LAPIDOS: All right.
PN272
THE COMMISSIONER: Is there anything that I have missed?
PN273
MR LAPIDOS: There is a couple of others, but we will - propose to hand up to you in exhibit.
PN274
THE COMMISSIONER: All right. Well, you don't have to; if you are referring to one of those and you wish to exhibit it, then you don't have to hand one up, I do have a copy.
PN275
MR LAPIDOS: Thank you; all right, good. Commissioner, if I can exhibit a Tax Office document - or two separate Tax Office documents. The first one -
PN276
THE COMMISSIONER: Yes, what are these, Mr Lapidos. Do you want them marked together or just - - -
PN277
MR LAPIDOS: I think they can be marked together.
PN278
PN279
MR LAPIDOS: And also if I can refer - if I can also ask you to mark as an exhibit a document you have in your possession already, a Team Leader's Guide to Probation in the ATO.
PN280
THE COMMISSIONER: Yes. Are you going to be referring to this document, Mr O'Shea?
PN281
MR O'SHEA: Yes, Commissioner.
PN282
PN283
MR LAPIDOS: Commissioner, the purpose of exhibiting these documents is to invited you to conclude from an inspection or reading of them that they make no mention of clause 108 at all. These three documents are ATO created documents. My understanding is that they are nationally created by the Tax Office for use across the Tax Office in relation to probationary employees. The first document really is the ATO Principles for Managing New Employees on Probation. It is a relatively short document which is principles based, and rather than reading any particular parts of it, I have read through it and I can't see any reference in it to clause 108.2 or its predecessor, clause - from the 2001 agreement which was 95.2.
PN284
You will see under the heading 3 it refers to the ATO (General Employees) Agreement 2001, so presumably this document was created before the certification of the 2002 agreement, but as you would be aware from the proceedings yesterday, we are dealing with clause - clause 108 is not changed by the 2002 agreement, only renumbered.
PN285
The other issue that I wanted to look for in this document, ATO Principles, is that when you go through it, it explains the principles that managers should be complying with or following, and it goes into principle 1, the purpose of probation, and principle 2, everyone does it that is new unless there are exceptional circumstances; 3 talks about the period of it. Principle 4 talks about the need for advice about the duration. Principle 5 is that team leaders need to be given support. Principle 6, new employees need to be made aware of the probation process and their responsibilities, and there are various parts underneath that.
PN286
What I am asking you to look for is there is nothing in here that explicitly talks about the giving of help to probationers if they encounter difficulties during the probation period. So principle 7 talks about it being an integral part of the performance development and management system. That is an area of the 2000 agreement that was very substantially amended in the 2002 agreement, and even though there was substantial amendment in terms of the wording, in practice in a way there is no change in the sense that in the old system there is meant to be some support provided to employees generally and all those kind of general principles you might expect to see in terms of support for employees are there in the new.
PN287
Principle 8 talks about team leaders raising concerns about the performance of the probationer with them, that there is meant to be a mutual role in contributing to the relationship. It says:
PN288
If there is a performance or behavioural issue identified, that the new employee should be provided with feedback counselling ...(reads)... where a new employee fails to meet the standard during the period, they should be terminated unless exceptional reasons.
PN289
All those things in principle 9 are very much procedural fairness type issues. Principle 9 they are told if they are no longer on probation, and 10 is basically saying that an extension of probation is no longer available. Now, the other two documents that I have referred you to, How Do I Manage A Probation Process?, this is just a general advice document for a manager, just a brief document, and I would invite you to have a quick read through that, but the same applies in my submission.
PN290
And then in Common Exhibit 1, a Team Leader's Guide to Probation in the ATO, we have a similar thing, perhaps it is not surprising. It goes through a lot of the principles that were contained in the principles document, but in looking through it, I have not been able to find a reference to the need to comply with the old clause 95 which dealt with performance counselling nor the specific requirement in the old 95.2 which corresponds with the new 108.2 of providing help through fair procedures if a person has difficulty.
PN291
It certainly does throughout all of these documents have the expectation that if there are issues, they should be raised with the employee, with the probationary employee, that they should be given an opportunity to respond. There is a big emphasis on the need to document the feedback that is provided and the responses and in particular so the delegate can be informed if the delegate has to make a decision, but nothing that clearly spells out that the team leader should be providing help to people in any way that is contemplated, we would submit, under 108.2.
PN292
That wouldn't be very surprising in one sense, given that the Tax Office argued that clause 108, and presumably their view was in relation to the old clause 95, that it didn't apply to probationers even though the unions weren't aware of the Tax Office having that view up until the last few days.
PN293
I might mention also that to my knowledge the unions weren't consulted, and certainly the ASU wasn't consulted, in the preparation of these documents.
[11.08am]
PN294
THE COMMISSIONER: Yes.
PN295
MR LAPIDOS: Commissioner, can I call Mrs Eid to give evidence please?
PN296
PN297
MR LAPIDOS: Commissioner, this is the first time Mrs Eid has given evidence in any proceedings, other than perhaps when she got married, and I don't know if that quite constitutes - - -
PN298
THE COMMISSIONER: This will be far less traumatic, I can assure her.
PN299
MR LAPIDOS: So I have advised her to direct herself to you rather than the questioner.
PN300
THE COMMISSIONER: Yes.
PN301
MR LAPIDOS: So if everyone can understand that that is the reason why she will be looking at you because I have advised her to do that as being the appropriate way.
PN302
Mrs Eid, could you please tell the Commissioner when you first started your job with the tax office?---On 24 October 2002.
PN303
And, Commissioner, can I ask that a document be provided to Mrs Eid and exhibited. It was the document that the tax office had marked as 2 in the documents that I handed up to you.
PN304
PN305
THE COMMISSIONER: Do you have a spare copy to give the witness?
**** LISA MARIE EID XN MR LAPIDOS
PN306
MR O'SHEA: I do, Commissioner.
PN307
MR LAPIDOS: Thank you. Can I ask you to look at the one, two, three, the fourth page of the document, that is headed, "The Job" and if you can have a quick read under 2.1, vacancy details, if you can just read that to yourself quickly. Can you tell the Commissioner what you understood when you first came to the tax office, this was the job that you had applied for. In terms of the number of people doing the job, what did you expect it to be?---There were two positions for the job.
PN308
What distinguished the two positions? When you first got there, how did you understand that they were distinguished from each other?---One of us would do the early and one of us would do the later.
PN309
Is that basically what happened at the very beginning?---I was told - yes, at the very beginning, I was to do the earlier and Danielle was to do the later. But there was a third person and I was told that there were three of us in the role.
PN310
And roughly when were you told about the third person, after about what period of time?---The third person, being an EA, would have been within the first week or two.
PN311
And just to clarify who the three people are, initially the person who worked the later hours?---Danielle Orifici.
PN312
And the third person?---Christina Gibson.
PN313
After you had been there some days, there had been some discussions about your role, is that right? And how your role would differ from the others?---Correct.
**** LISA MARIE EID XN MR LAPIDOS
PN314
Can you explain to the Commission what you were told about that, how your role would differ from the others?---I was told that because I was a more experienced PA that I would be the primary EA and to delegate work to the others.
PN315
Can you tell the Commissioner a little bit about your experience and why you believe that you were told that?---That I have been a PA for the last seven and a half years.
PN316
And by PA you mean?---Personal assistant, sorry, which is very similar to the E - an executive assistant role, looking after managing directors and directors.
PN317
Now you are aware - there was feedback, formal feedback sessions provided to you, weren't there, during the course of your employment with the tax office?---Yes.
PN318
And if I can ask you, Commissioner, to exhibit perhaps the individual probation records. There are two separate documents, it may make sense if they are both the same exhibit, I am a little bit in your hands on that issue.
PN319
THE COMMISSIONER: Yes.
PN320
MR LAPIDOS: But we will end up referring to them both.
PN321
THE COMMISSIONER: Which one, which date?
PN322
MR LAPIDOS: I beg your pardon. It is called ATO Individual Probation Record. They are both dated - they both show that Lisa commenced on 24 October - - -
**** LISA MARIE EID XN MR LAPIDOS
PN323
THE COMMISSIONER: This is the document copy from Lisa and copy from Beverley, is it?
PN324
MR LAPIDOS: Yes, there were two documents in existence.
PN325
THE COMMISSIONER: Yes, very well. I will mark that - go on?
PN326
MR LAPIDOS: Is it possible to have one marked A and B, to distinguish between the two?
PN327
THE COMMISSIONER: Yes, yes, of course.
PN328
MR LAPIDOS: And to be - - -
PN329
PN330
MR LAPIDOS: And to be clear, Commissioner - - -
PN331
THE COMMISSIONER: Just - - -
PN332
MR LAPIDOS: - - - that is the one that contains its last entry with a date 17 December 2002.
**** LISA MARIE EID XN MR LAPIDOS
PN333
THE COMMISSIONER: Yes, yes.
PN334
PN335
THE COMMISSIONER: And that, the last date is 18/12.
PN336
MR LAPIDOS: If Mrs Eid could see ASU5 please. That is the one that was a document that was maintained by Beverley. That is the one with the last entry being on 18 December. If I can just let you - get you to have a look at the first page, against the date 17 November 2002, and have a quick read of that 1, 2 and 3. I wanted to ask you a question in particular about number 3. Commissioner, number 3, if I could invite you to read number 3 in particular, on that first page, it talks about self management principles, that Lisa had been reluctant to delegate work and attributes it to her strong work ethic. Can you tell me what you understood those comments from - those comments came from Beverley, is that correct?---Correct.
PN337
What did you understand her to mean in terms of your role that you had and explained to you as you - and advised to you earlier about you being the principal or primary EA?---Beverley had noted that I hadn't delegated much work to the others. I explained that was because I hadn't had very much work to delegate at that time and also I didn't know the other two girls very well. Beverley went on to say something very similar to what she has written here about building trust with the other girls and delegating work to them in the coming weeks and to build those relationships.
PN338
And did you take that on board?---Yes, I did, and I did that.
**** LISA MARIE EID XN MR LAPIDOS
PN339
So how did you start - what did you start doing? You started - - -?---Well, I started with some small tasks, things like - well, very much things that I was doing, collecting stationery, for example, the opportunity to order stationery, going through Robert's email like I was doing and printing it off, anything that I would come across that needed to be done, I would inform Beverley and Christina - sorry, Danielle and Christina of what I found that needed to be done and how I thought we should do it or whether they thought we should do it a different way or - - -
PN340
Was there a team meeting - I think this question might take you a bit by surprise, but so I shouldn't ask it. But anyway, was there a team meeting where there was, at this early stage, prior to the 7th, where there was a discussion about you being the primary EA and the others being slightly accepting delegations from you around this time so that everyone understood what everyone's respective roles were?---I can't recall a meeting specifically for that, no, not at all.
PN341
PN342
MR LAPIDOS: If I could - - -?---I need an extra copy.
PN343
If I could just get you to look at the first page of that against 7 November, it also says that there was an issue about you taking at least 30 minutes for lunch. Number 4?---Yes, yes, okay.
PN344
You weren't taking too long for lunch, were you?---No.
**** LISA MARIE EID XN MR LAPIDOS
PN345
The next document that I would like to exhibit, Commissioner, is a tax office document which is headed, "Feedback Regarding Lisa Marie" and it starts with the first date 11 November.
PN346
THE COMMISSIONER: Yes. Is that a document you will be referring to, Mr O'Shea?
PN347
PN348
MR LAPIDOS: If you could have a look at ASU6 please and it is - can you tell me when you first saw this document?---This was given to me on Christmas Eve, 24 December 2002.
PN349
And that was given to you by?---Beverley.
PN350
If I can get you to read the material against 11 November, can you just have a quick read of that? Do you see any relationship between that feedback from the provider, Christina Gibson, and the feedback that you were given on 7 November about delegating? What do you think the situation was?---Well, I was delegating but I don't think Christina liked it.
PN351
According to this document it says - - -?---According to the Feedback Regarding the Lisa Marie document.
PN352
So Christina has - according to this document, Christina has said that you were making her feel like a lackey, which presumably means you are telling her what to do. But is that what you understood your job was to be at that particular point in time?---Yes, that is right.
**** LISA MARIE EID XN MR LAPIDOS
PN353
And in the next - in the third paragraph there, also the document says that:
PN354
Christina also felt Lisa was picking the jobs that she wanted to do and delegating what she thought is unimportant.
PN355
Can you tell me the rationale that you used for allocating work to Christina?---Well, I was not aware of previous EA experience that Christina had had and I found sometimes it is good to start with small things and work your way up from there. And there wasn't really much other work at that time.
PN356
In terms - could I just get you to look at common exhibit 3, which is that timeline of events, and you can see against Monday the 21st that Christina Gibson commences, that is commences work for the tax office, that would be right, on 21 October?---Mm.
PN357
And then she has had - Christina has had a three day induction course from 22 to 24 October. That is right?---Mm.
PN358
Then you have started on 24 October?---Correct.
PN359
Danielle - can you just help me with her surname again?---Orifici.
PN360
Orifici commences on 28 October?---Correct.
PN361
And then you and Danielle have commenced three days of training on 30 October?---Correct.
PN362
So between 7 November and 11 November, no-one is very experienced with the tax office, are they?---That is right.
**** LISA MARIE EID XN MR LAPIDOS
PN363
Then if I can get you to come back to ASU6, the Feedback Regarding Lisa Marie, we have got against 13 November a record that states that:
PN364
Danielle rang about offering her resignation.
PN365
And it says that you were part of the reason, that you are very set in your ways and refused to listen or evaluate other ideas and suggestions. At this stage, were you noticing any problems in your relationships with Christina and Danielle?---No, no, I - not at all. In fact I was travelling home with Danielle from World Trade Centre and met her fiance and went out for lunch with her a few times, no problems at all.
PN366
And what about Christina?---No, not at all. I had hardly spent any time with Christina, no.
PN367
Was Christina doing that EA role at that stage, like as a full role, was she - - -?---Partly. I noticed she was doing some work for Bev, she was doing part EA work learning some other EA duties for Erin Holland's EA.
PN368
There was one thing I wanted to clarify with you, who was your manager at that stage? When you first commenced with the tax office on 24 October and for the first two or three weeks after that, who was your director or manager?---I was told that I was part of Peter Hill's team and that Peter Hill was my direct manager, but Beverley would be showing us what to do.
PN369
And did that change?---Yes.
PN370
When do you think that changed?---On Friday 15 November when Beverley advised me that I had something to do with Danielle resigning, that I was to be moved into her team as a backup EA to Christina and Danielle.
**** LISA MARIE EID XN MR LAPIDOS
PN371
And then on against - and coming back to ASU6, Feedback Regarding Lisa Marie, against the date 14 November, it talks about a call from Tracey Yannopoulos, being failing to forward copies of the daily summary. Do you recall when that issue was raised with you?---That was 15 November.
PN372
All right. So is 15 November the first time that you became aware that there are any significant problems other than the brief things that were mentioned to you on 7 November?---That is right.
PN373
If I can get you then to - Commissioner, if I can get you to mark as an exhibit the document that would have been provided to you, ATO Probation and Feedback Report dated 15 November 2002, and Performance Improvement Plan - Lisa Eid.
PN374
PN375
MR LAPIDOS: Thank you, Commissioner. Do you have those in front of you?---Yes, I do.
PN376
When did you first see these documents?---On 15 November.
PN377
Looking at ASU7, it has got some comments from you on the second page, is that correct?---Correct.
**** LISA MARIE EID XN MR LAPIDOS
PN378
When did you put those comments there?---On 18 November.
PN379
So you were given - so this document was created in two - in a couple of steps?---Correct.
PN380
And the initial document that you were provided with was what was on the first page, is that right?---That is right.
PN381
As well as the top part of the second page?---That is correct.
PN382
And what was added later were your comments, which were on at the bottom of page 2 and the top of page 3?---Mm.
PN383
And then subsequently again there are some comments from Robert Charles, which presumably were given after your comments were noted?---That is right.
PN384
You are familiar with - and what is your understanding - so you have seen both of these documents, the Performance Improvement Plan as well, you saw that on 15 November?---That is right.
PN385
Can you explain to the Commissioner your understanding of these two documents? Maybe you could start with the Probation and Feedback Report and what you understood it to be raising with you?---Beverley had raised - - -
PN386
And if you could give it in the context of the discussions that were held with you at the time they were provided to you. That was done by Beverley, is that right?---Correct. Beverley had raised three issues. One was about Danielle resigning, one was about Tracey and that I had not forwarded a copy of a daily summary to her, and the other was about Christina thinking - saying that I was inflexible and intimidating with my discussion with her. I responded to
**** LISA MARIE EID XN MR LAPIDOS
Beverley and I explained that I had discussed with Christina the daily summary that I had created, I had noticed that she was changing a lot of the fonts throughout the document and I asked if she would refrain from doing it so that we could have conformity within the document, otherwise Robert would get confused when he was reading it. And Christina had raised with me an idea - - -
PN387
Just before you do, can you just quickly explain what this daily summary is?---Sorry, the daily summary - Erin Holland's EA, Halina, has something very similar set up for Erin where it is a summary of all the emails that are coming through for Robert Charles because he is often in meetings all day long and doesn't have time to go through his emails. So I decided to create something similar for Robert.
PN388
And that was your idea, was it?---Yes. I included a couple of extra columns so that Robert could see what actions he needed to do and whether he had responded or not, things like that. And I rang Tracey Yannopoulos and asked her if she would like me to forward her a copy of that summary at the end of the day. She said yes.
PN389
Now, as a result of these two documents and the discussion, was there any change to your role as you understood it, was something communicated to you?---I was told that I would no longer be Robert's primary EA, that my name would be removed from the org chart and that I would be part of Bev's team and that I would provide backup EA work for Danielle and Christina.
PN390
And were you told why?---I was told that this was - - -
PN391
You can always look at the document if that will help you?---That is all right. I was told that this was because of the issues Beverley had raised.
PN392
And basically they were the complaint from Christina, complaint from Beverley and the complaint from Tracey, is that right?---Correct.
**** LISA MARIE EID XN MR LAPIDOS
PN393
Did the tax office do anything about - do you get the impression there was a problem with your relationships with these people at that stage?---No, not at that stage, not until the issues were raised.
PN394
No, but after the issues were raised, did you realise there was a problem?---Well, I wondered why nobody had said it to me, why Tracey had not just rung me, for example, and said, "Where is the daily summary" or - but there didn't seem to be any problem in our relationships. When Danielle had come back I was out having lunch with her again and, no, not at all. Christina was all smiles and, no.
PN395
So you thought that the change in your duties was fair enough?---No.
PN396
So your role then changed so that you were not delegating work, were not to delegate any more, is that right?---That is right.
PN397
So who told you what to do from then?---Christina and Danielle and Beverley.
[11.37am]
PN398
The document headed the Performance Improvement Plan, ASU8, at the bottom of the first section, 1 Behaviour says:
PN399
Failure to address these issues could result in your employment being terminated.
PN400
And there are similar words at the bottom of 2, Commitment to Sharing Responsibilities. What did you understand by those - that comment under each section?---That if issues like that had continued, I would be terminated.
**** LISA MARIE EID XN MR LAPIDOS
PN401
So did that concern you?---Yes.
PN402
Did you think anything needed to be done about it?---I thought that maybe other people weren't comfortable with being delegated to and I decided to stop bringing up ideas. Maybe that was intimidating them in some way. So I thought, well, I won't bring up ideas; I will let them bring them up.
PN403
Was there any special support provided to you prior to the 15th in terms of how to delegate work to other people?---No.
PN404
Any training program?---No, no.
PN405
Was there any special time when you sat down with someone from the Tax Office to talk about how you work with someone when you are delegating work?---No.
PN406
That went over with you principles of consultation with people that you are working with?---No.
PN407
PN408
MR LAPIDOS: Can you have a look at it.
**** LISA MARIE EID XN MR LAPIDOS
PN409
THE COMMISSIONER: It is headed Performance and Development Agreement for Ms Eid.
PN410
MR LAPIDOS: There is an e-mail attached to it.
PN411
THE COMMISSIONER: Yes, front e-mail.
PN412
MR LAPIDOS: Was this document given to you on the 15th?---Yes, it was e-mailed to me just as I had finished on the Friday.
PN413
And was the document discussed with you?---It was mentioned that I would be getting the document but we never actually went through the document.
PN414
So it was mentioned to you on the 15th when you had - - -?---It was mentioned to me on the 15th in my meeting with Beverley, yes.
PN415
But you didn't actually sit down on the 15th and go through it?---No.
PN416
And was there another opportunity for you to go through it?---No, I have not gone through it.
PN417
I mean, did you - sorry. Maybe I can change that question. Did you go through it on another occasion with Beverley or another manager type person?---No, no.
PN418
So was there any explanation - you did an induction course early on?---Yes.
PN419
Shortly after joining the Tax Office. Was there any explanation provided to you about performance agreements, that you can recall?---Not that I can recall, no. There were - the course that I was doing, I was told by the trainer, was focused to non-ongoing casuals on a two month stint.
**** LISA MARIE EID XN MR LAPIDOS
PN420
So you read the e-mail from Beverley that was attached to it?---Yes.
PN421
And the significance of the document, what did you think the significance of the document was?---I thought that I would need to perhaps add other ideas to this and put down how I am following these for my mid-year review on 28 February.
PN422
Commissioner, I didn't bring a copy of the 2001 agreement with me.
PN423
THE COMMISSIONER: I have it. Do you want to borrow mine?
PN424
MR LAPIDOS: If you have a look at clause 94, I think it is - no, if I can just address you on it for just a moment.
PN425
THE COMMISSIONER: Yes, all right.
PN426
MR LAPIDOS: Just to explain the context of this document, because the 2002 agreement wasn't certified until 20 November and this document was provided on 15 November, and so that clause provides for performance agreements with staff, as does the new agreement.
PN427
THE COMMISSIONER: No, it is not 94.
PN428
MR LAPIDOS: My memory is a bit rusty. It would be shortly - sorry, it must be after, later. There is a performance development and management system referred to.
PN429
THE COMMISSIONER: Yes. Performance system.
**** LISA MARIE EID XN MR LAPIDOS
PN430
MR LAPIDOS: Yes.
PN431
THE COMMISSIONER: 125.
PN432
MR LAPIDOS: It says not the 2002 agreement.
PN433
THE COMMISSIONER: In the 2002 agreement it begins clause 125, section F, Skilling and Development Performance System.
PN434
MR LAPIDOS: All right. Well, in any case that clause does deal with performance agreements and providing assistance to employees. Did you have a read through the document at all?---Yes.
PN435
And it talks about the role that you will play and that does that under the heading Key Outcomes: What Your Goals Are?---Right.
PN436
So you have got a number of outcomes or goals: managing the business, your executive assistant role, you are shaping the future, you have got a role in security risk management, health and work environment, self management and development. Do you understand all of those things were part of your job?---What do you mean? Did I understand at the time of after I read it?
PN437
After you had read it?---Yes.
PN438
But there had been no detailed discussions about all these things, and the next heading Work Activities, Strategies and Performance Measurement?---No.
PN439
If I can refer you to page 10 of that document, it has got a learning and development plan there. Those things in the learning and development plan on page 10, did you have any input into those things?---No.
**** LISA MARIE EID XN MR LAPIDOS
PN440
But there was an opportunity for you - you could have raised it up to you - because you were told it is a living document; if you want to change things you can liaise with Beverley?---Mm.
PN441
I don't have anything further to ask you about that. If you can look again at common exhibit 3 against the entry for 18 November. That is the time line of events. From 18 November it says that you signed the formal feedback documentation and performance improvement plan. So that is after you have provided - written up your notes in response?---Correct.
PN442
And you have had a further discussion with Beverley; is that right?---Yes. Yes, it is.
PN443
And then, according to this, Bev is on leave for a couple of - out in Campbellfield workshop for a couple of days?---Mm.
PN444
And then, according to this, against 26 November, you have an informal session where you discuss the performance improvement plan; is that right?---That is right.
PN445
What was your understanding of that review? Was there any concerns raised with you?---No, everything was good.
PN446
Just to help me for a moment, is it summarised, to your awareness, the contents of that meeting, in any other document other than this time line?---The individual probation record.
PN447
Yes?---On the second page. That is ASU4 and ASU5. The day of the feedback session, 26th of the 11th, "Comments: check on PIP progress, discuss - - -
**** LISA MARIE EID XN MR LAPIDOS
PN448
If I could invite you to have a quick look at that, Commissioner.
PN449
And the two documents, the way they have got different handwriting, seem to have identical notes, but there is no concerns raised with you, according to the document?---No, no. No concerns.
PN450
Then coming back to the time line of events on common exhibit 3, it shows you as being on sick leave on 2 and 3 December - - -?---That is right.
PN451
That is correct?---That is correct.
PN452
And then you have a further discussion on 4 December regarding the performance plan and that is with Beverley?---That is with Beverley.
PN453
And there is very little said about it in that time line of events but there is a little more in the individual probation plan in ASU4 and 5, some slight difference between the two documents. If we look at ASU4 for a second, it talks about discussion on the PIP, discussion on the multi source feedback issue and feedback from you on your performance and other issues. And on Beverley's copy in ASU5 there is some additional material there which refers to the multi source feedback and it says something like, "Documented in notebook. Failure to document outcome of this action." I will get you, if you don't mind, to just explain to the Commissioner a little about this multi source feedback issue, explain what multi source - a brief explanation of your involvement with multi source feedback in terms of how it was raised with you?---I had a form from Peter Hill, who was my direct manager, for multi source feedback. I gave it to Robert. Robert said that I was to look after multi source feedback. I asked Beverley if she could help me because I had no idea what it was but she was busy and said she would help some other time. I then went back to Robert and said, Robert, look, I am not sure how to do it; what do I do? And he advised me to speak to two other EAs, which he named. One of them I couldn't get a hold of, the other one I did and she showed me how to input the data from this form that I had had into some software that I needed to
**** LISA MARIE EID XN MR LAPIDOS
put onto my computer. So we went through that and did all that and that was as far as I knew what multi source feedback was. I then decided to prepare a tip sheet for Danielle and Christina so that they would know how to do it. I think that was toward the end of the day, though, and I thought I would do it - didn't have time to stay so I went home. I was away Monday - I was away the 2nd and 3rd. 4 December I have come in. I e-mailed - finished the paper, e-mailed the tip sheet paper to Danielle and Christina. It was important that they saw that before I advised them about Peter Hill because I wouldn't have understood what I was talking about. And then I told her about Peter Hill's form, that I had done it. That was in the morning around 9 o'clock. Later in the afternoon - we didn't have this meeting - I didn't have the meeting with Beverley that day until, I think, around 3 in the afternoon. Beverley raised the issue of multi source feedback and that performance targets had not been met because I hadn't completed multi source feedback. As far as I knew, I had completed it. Beverley was quite angry with me and threatened me with termination. Then later on in the discussion she mentioned about passing on the information to Christina and Danielle about - with regards to Peter Hill's form and I explained to her why I hadn't given it to them at the time, because I wouldn't have understood what I was talking about. I wanted to finish the paper for them to explain what it was. And that was the extent of multi source feedback at that time.
PN454
Could I ask you to have a look at ASU6, which is the document headed Feedback Regarding Lisa Marie, and look at the entry against 4 December, and that is a Tax Office record of that discussion you had that afternoon on 4 December and basically it says that Beverley is satisfied with part 1 of the performance improvement plan, and part 1 of the performance improvement plan is about - it is in ASU8 - that is about behaviour. So on 4 December, according to the document, Beverley was pleased. There is no further incidents to report; that she was satisfied with your behaviour but she had a concern still about the second section, commitment to sharing responsibilities. And is it the case that the example she gave you was this multi source feedback?---That is right. That was the only example. That was the only issue.
PN455
If I can ask you to keep on looking at ASU6, Feedback Regarding Lisa Marie, and the final two entries on 16 December, one in relation to Tracey and the other in relation to Robert Charles. In relation to Tracey, were you ever given any detailed information about the feedback that Tracey had provided and the doubts that she had raised with you?---No, nothing.
**** LISA MARIE EID XN MR LAPIDOS
PN456
Do you know today exactly what her concerns?---No, no.
PN457
Were you given any document?---No, no. I was not - that was not elaborated on in any way.
PN458
But you had a meeting subsequently, did you not - was there a further meeting with Beverley to talk about your performance?---Beverley called me at home on 18 December.
PN459
You were on sick leave on the 18th; is that right?---Correct.
PN460
In fact, you were away for a few days on sick leave?---Correct.
PN461
In fact, if you look at the common exhibit 3, which is the time line of events, it says that on 18 December you called in sick, again on the 19th and again on the 20th. That illness, was that work related in any way?---No, no, not work. I think I caught it from someone at work the previous week but - - -
PN462
According to the time line of events, you have spoken to Karen on Wednesday the 18th?---Yes.
PN463
And on the 20th it doesn't - according to this you had spoken briefly to Beverley?---That is right.
PN464
Now if I can ask you to look at the entry in the time line of events against 17 December. It says Karen finishes delivering feedback to you. Did Karen talk to you about the concerns that Tracey had? There is a document where - - -?---Yes.
**** LISA MARIE EID XN MR LAPIDOS
PN465
A record of feedback. This is a document that you would have, Commissioner, entitled Record of Feedback Session for Lisa Marie Eid Conducted by Karen Peters and it is colour printing on it.
PN466
THE COMMISSIONER: Yes, I have got that.
PN467
PN468
MR LAPIDOS: Can - - -?---I don't recall Karen mentioning anything about Tracey Yannopoulos. In fact - no, I don't think she did. I don't remember discussing Tracey at all.
PN469
Karen has spoken to you on 13 December, Friday, 13 December?---Yes.
PN470
And then the way this document ASU9 is constructed, it is a little bit confusing but the first section is against Friday, 13 December on page 1. Then on page 2 there is another little section Friday, 13 December. That is all before 16 December anyway?---Yes.
PN471
So the first time it could have been raised with you - concerns from Tracey - were then on 17 December. So if I can get you to look through this document on 17 and 18 December and see if you can find anything recorded in there where someone from the office has raised the concerns that Tracey has. Did you find anything in there?---No, there is nothing there.
[12noon]
**** LISA MARIE EID XN MR LAPIDOS
PN472
That entry on the - in the time - in the document, feedback, regarding Lisa Marie, against 16 December it talks about feedback from Robert Charles and he has raised the issue of multi sourced feedback, and he provided to you with the names of two EAs who could help, and that he has also said that you hadn't contacted him to say that you were having any difficulties. Did you contact those two EAs?---Yes.
PN473
And did you get through to them?---One of them I couldn't get through to, she was away or wasn't in the hours I was in. The other one I got through to.
PN474
And did you get some assistance from that person?---Yes.
PN475
And was there a reason for not telling Robert about difficulties?---At that stage I wasn't aware of any difficulties. I thought what I had done was what was supposed to be done for multi source feedback.
PN476
So when did you find out that multi source feedback - you first found out there was a problem with multi source feedback on 4 December though?---On 4 December, that is correct, and Robert was interstate that week. The following week he was away on leave.
PN477
So in a way, as far as you were aware, what was raised on the 16th might have had something to do with the 4 December issue?---Possibly. I am not sure. I haven't discussed this before, but maybe.
PN478
If I can ask you to look at Common Exhibit 3 again which is the time line of events, against 17 December it says:
PN479
I sought independent advice from Don Gray in relation to the actions I had taken up to this point and the strength of my documentation. Don responded that I had a sound basis for termination, given that several incidents had occurred after the performance improvement plan was in place.
**** LISA MARIE EID XN MR LAPIDOS
PN480
Were you aware of that at all at that time, on the 17th?---No. Not on the 17th, no.
PN481
When was the first time you became aware then; on Friday, the 20th. You can have a look at that entry on the time line of events. It also says that:
PN482
I sent Don Gray, HR practice, all the material that had been written up from 13 December and I asked him to see if termination was an option. Don responded that the history was comprehensive enough to substantiate termination. He provided me with templates, etcetera.
PN483
Were you spoken to on 20 December?---That is the day Beverley called me in to tell me not to come in to work Monday, the 23rd.
PN484
You were on sick - - -?---I was on sick leave on 20 December.
PN485
Can you just explain again what has happened?---Beverley called - - -
PN486
Yes, what time did she call you, roughly?---Maybe lunchtime.
PN487
Right?---I am not sure though. Beverley called me to - she said to me, "Oh, why don't you take the day off on Monday" being 23 December. And I said, "Oh, what for?" She said, "Oh, oh, just take a day off, you know. Why don't you have the day off on Monday?" And I said, "Well, given I've been away sick, I'd rather come into work." And then she said, "Oh, look, I won't actually be in the office, I'll be in" - I think she said Adelaide - "and we need to have a meeting." And she wouldn't be able to have a meeting with me until Tuesday. So she said, "Oh, look, just take the day off on Monday. It will be miscellaneous leave, and come in on Tuesday and we'll have our meeting when you come in."
**** LISA MARIE EID XN MR LAPIDOS
PN488
And did she say anything to you during that conversation that she was looking at proceeding to terminate your employment?---Not in that conversation, no.
PN489
When did you first become aware that she was looking at that?---On Wednesday, 18 December, Beverley had called me in the afternoon.
PN490
No, she has called you on 20 December?---Yes.
PN491
Oh, she has told you not to come in, yes?---She has called me to tell me not to come in.
PN492
Yes. So when did you first - oh, that is - go on, sorry to interrupt?---That is all right. Bev called me on 18 December.
PN493
Yes?---I think it was about, I don't know, 1.30 in the afternoon or something. And she said that she had spoken to, or was speaking to an independent arbitrator, and she mentioned Don Gray once in the conversation, and that she was seriously considering termination.
PN494
And then on - if you look at the entry on Monday, 23 December, it says you had a conversation with Beverley; this is in the time line of events?---Yes, I can see that one. Did I - I am not sure, but I have a feeling she called to see how it was going, and she said to me about tomorrow, the meeting, about coming in. We didn't discuss termination or anything like that.
PN495
Did you talk about the time of the meeting?---We talked - that is right, we talked about the time of the meeting, and I think the meeting was - she said, "Oh, look, whatever time, eight, nine." I said, "Well, I start at 8 o'clock so I'll come in at my normal time of 8 o'clock." And she said, "Yeah, that's fine." That is what we discussed in that phone call.
**** LISA MARIE EID XN MR LAPIDOS
PN496
And when did you first seek advice, external or other advice about your situation?---On that day.
PN497
So you contacted the ASU then?---Mm.
PN498
And if you can turn the page in that time line of events and have a look at 24 December. It doesn't actually - do you recall when you first met Beverley that morning in person, on 24 December?---It was between 8.30 and 9, I think.
PN499
Yes, and what did she - - -?---..... 8.30.
PN500
Can you remember what she said to you when she first saw you?---Yeah, we came up to level 3. That was in the office because there were other people there. It wasn't in a meeting room or anything. And her first comment to me was, "Have you brought your resignation?"
PN501
What is the situation with her talking to you about your resignation; do you remember where that came from?---In one of the discussions - and I think it was the discussion on Wednesday, the 18th, I am not sure - I was asked that if a decision was to be made to terminate me, would I prefer to resign? And I remember saying, "Well, naturally I would prefer to resign than be terminated, wouldn't anybody?" But I am not sure what day that was. It was around that time but I am not sure which day.
PN502
And during the - that morning you had a meeting with Beverley?---Mm.
PN503
And also with Robert Charles?---Yes.
PN504
And was the issue of your return to work raised?---No.
**** LISA MARIE EID XN MR LAPIDOS
PN505
Coming back to work, rather than being on miscellaneous leave?---Yes, I think it was; not raised by Beverley or Robert though. I am just trying to think. Oh, I remember asking to come back to work myself. I remember saying, "Well, do I come back on the 2nd?" Because the Tax Office closed down the following day for Christmas, and I asked to come back to work on the 2nd and I was told, no. I was told to stay on miscellaneous leave until 21 January.
PN506
And what was negotiated at that meeting?---It was negotiated - - -
PN507
Some time lines?--- - - - that I - on the 15th I would be able to - I would have until the 15th to hand in a submission to Robert Charles, and on the 21st that myself and Jeff would go into the Tax Office to meet with Robert and Beverley to discuss the submission and any further points we might have.
PN508
And you came back later in the day, did you not?---Yes.
PN509
And the purpose - - -?---No, I stayed - on the 24th?
PN510
On the 24th?---No, I stayed after you had left.
PN511
Right, and what was the purpose of staying on the 24th?---I wanted to print off some e-mails that I could use for my submission, some evidence that I had.
PN512
And did you collect any documents, other documents; did the Tax Office provide you with any documents?---The Tax Office provided me with a letter.
**** LISA MARIE EID XN MR LAPIDOS
PN513
PN514
MR LAPIDOS: Do you have a copy of it there?---No, that is in my notes.
PN515
If I can get you to have a quick - refresh your memory of the letter. It talks about a summary, attached summary. What was the attached summary?---The attached summary was the document entitled: Feedback regarding Lisa Marie, the record of feedback session for Lisa Marie by Karen Peters, a copy of my individual probation records, the performance improvement plan. I think that is it.
PN516
And if you look at the second paragraph, the last sentence:
PN517
You have been provided with feedback on these difficulties and have had opportunities to rectify your conduct.
PN518
Is that how you felt, you had been given those opportunities?---With some, yes, and with some, no.
PN519
I do not have any further questions, Commissioner. Thank you.
PN520
THE COMMISSIONER: Thanks, Mr Lapidos. Mr O'Shea.
**** LISA MARIE EID XN MR LAPIDOS
PN521
MR O'SHEA: If it please the Commission, can we reserve our right please to ask Ms Eid questions during our presentation?
PN522
THE COMMISSIONER: Now is an appropriate time to cross-examine.
PN523
MR O'SHEA: Could we have five minutes then to - - -
PN524
THE COMMISSIONER: Yes, of course you may.
PN525
MR O'SHEA: - - - gather our thoughts please, Commissioner.
PN526
THE COMMISSIONER: No, that is not a problem. I will adjourn for ten minutes to allow you to collect your thoughts.
PN527
MR O'SHEA: Thank you, Commissioner.
PN528
THE COMMISSIONER: The matter is adjourned briefly.
SHORT ADJOURNMENT [12.13pm]
RESUMED [12.36pm]
PN529
THE COMMISSIONER: Yes, Mr O'Shea.
PN530
**** LISA MARIE EID XXN MR O'SHEA
PN531
MR O'SHEA: Do you have, Ms Eid, a copy of document evidence marked Common Number 3, I believe it is entitled: Time line of events?---Yes.
PN532
Thank you. I just wanted to check, there was some discussion before about your reaction to discussion on Thursday, 7 November - I believe it is the second point down on the page - particularly point 4, I just want a small point of clarification. It mentions taking at least 30 minutes for lunch, and I note in your testimony before that there was no discussion about taking extra time. That is correct, isn't it; you weren't spoken to about taking extra time?---No.
PN533
Can you tell me what the point was about, do you know or can you recall?---On the 7th. I think, from memory, on a couple of occasions if Danielle was busy or Christina and I hadn't been able to take a lunch break, and then they wanted to go for lunch, I would just take a 15 minute break instead of a full 30 minutes.
PN534
And how did that affect your timesheet, do you know?---How did that affect my timesheet?
PN535
Yes, in terms of commencement and finishing times?---Sorry?
PN536
In terms of commencement and finishing times?---I didn't know until I filled it in on the computer. When I tried to put in the 15 minutes, it didn't allow me to. And I actually asked another staff member who had been with the ATO for about ten years, and she said, "Oh, you just add 15 minutes to your finish time."
PN537
Yes?---So I did that, and I put it down on my flex sheet when I gave it to Beverley, and Robert - I spoke to Robert about that a couple of weeks - a week or two later and he said, "Oh, look, better if you don't." And I said, "Okay, I won't."
**** LISA MARIE EID XXN MR O'SHEA
PN538
So you can't recall why that was mentioned?---Why?
PN539
Or don't understand why the lunch break was mentioned?---Beverley mentioned I think OH and S - - -
PN540
Yes, that is correct?---And that I needed to take 30 minutes for lunch.
PN541
Yes?---So I did, I then took - okay, I will take 30 minutes every day then.
PN542
Okay. So you understood the reasons after discussion with Ms Fernandez about that?---Yes.
PN543
Okay, thank you. I have got several questions about the 7th, and your recollections of 7 November 2002, if that is okay. I will primarily lead from that Common 3 document as well. You mentioned in your testimony before that the 15th was the first time that any details or documents were mentioned, and that the 7th was quite brief; is that correct?---No, not that the 7th was quite brief.
PN544
Okay?---I don't recall saying it was quite brief.
PN545
Yes. Well, what do you recall about the 7th in terms of the length of the meeting; how long was it, was it in five minutes, was it an hour?---I am not sure how long it would have been. I know that we discussed - Beverley was talking about my work ethics. I was - I spent quite a bit of time - that's right, I spent quite a bit of time asking Beverley for information on the role. I had actually written up before the meeting a few pages of information on things that I felt I needed to know the answers to for my role. That took quite a bit of time, and I went through that with Beverley. She was going to come back to me on quite a bit of that information. Beverley asked me, let me think, that she had noted about, you know, not delegating enough work perhaps to Danielle, and I said, "Well, one reason is there hasn't been very much to delegate. And two is, I am not sure how experienced they are and what they can do." Yes.
**** LISA MARIE EID XXN MR O'SHEA
PN546
Okay. And there were no documents discussed, if I recall your testimony correctly, there were no other documents discussed at that meeting?---No. Beverley had mentioned - hang on. I think it was called - I am not sure if it was the 7th, or the meeting on the 15th. I think it was a capability dictionary, I think.
PN547
A capability dictionary?---Or a link to that document or something.
PN548
If I could hand up a copy of the capability dictionary as evidence, Commissioner. Sorry, if I don't have enough copies. If I might share the document we have and - - -?---I am not sure if that was the 7th or the 15th, so it might have been the 15th. Don't know.
PN549
MR O'SHEA: I might have an extra copy here for Ms Eid.
PN550
THE COMMISSIONER: Thanks, Mr James.
PN551
MR O'SHEA: So, do you recall being given this document at the meeting of the 7th?---This is - hang on. I am not sure if it was on the 7th that I was given it. I have seen something very similar to this.
PN552
So you have seen the document?---This is a little bit different to one I have.
PN553
Yes, okay?---But something similar.
PN554
So you have seen the document, but you can't recall whether it was given to you on the 7th or the 15th?---Yes. Look, I am not sure.
**** LISA MARIE EID XXN MR O'SHEA
PN555
Can I refer you to, if I may, there was a Performance Development Agreement, which is noted as Common 4. Do you have document Common 4 there, Ms Eid? Do you have document Common 4 there?---Yes.
PN556
Thank you. That is the - after the e-mail covering sheet. It is Operations APS4 Base Performance Development Agreement 2002-2003. If I recall your testimony correctly before you have actually said that you didn't receive this until the 15 November meeting. Is that correct?---Mm. I received it after the meeting, not at the meeting. I received it via e-mail from Beverley.
PN557
So you received that via e-mail after the meeting. At no time at all do you recall this being shown to you at the meeting of 7 November?---I am not sure whether she might have had one with her or not. I don't - we didn't go through the document, and it wasn't explained about the document. Put it this way. I didn't leave that meeting understanding what the document was all about.
PN558
Right. So you believe you saw the document, but you are not sure whether - - -?---I am not sure if I saw it, I am not.
PN559
You are not sure if you saw it?---But I know she e-mailed it to me after. I didn't have a copy.
PN560
I am sorry. I mean on the 7th? You don't recall at all on the 7th?---On the 15th, are we talking about?
PN561
No. I am talking about the 7th. The meeting you had with Ms Fernandez on 7 November 2002?---Are you talking about the performance document, or the capability dictionary?
PN562
Yes. The performance - Common 4?---I am not sure. I am not sure.
**** LISA MARIE EID XXN MR O'SHEA
PN563
If I could draw your attention to the - what is it? Yes, a checklist somewhere here. Could I refer you to ASU5? Have you got that document there, Mrs Eid?---It is - 1, 2, 3, 4. Yes.
PN564
Okay. We have got the first entry on the first page there. At point 2:
PN565
As performance agreement discussed under the date of feedback session 7/11 ...
PN566
That would be your signature on the right hand side?---Mm.
PN567
Okay. So you are unable to recall seeing the document at that meeting?---Mm.
PN568
But you would say that the signature says that you saw that?---Doesn't that refer to the information I was providing her though? I was giving Beverley information about things I needed for the role.
PN569
So - I am sorry. I have - you have signed that against point 2 on the basis that - - -?---Mm. I had listed with Beverley a range of things that I felt were needed for my role, that I didn't have, just so that I could perform the role. Isn't that the performance agreement they were talking about?
PN570
Well, our understanding, the ATOs understanding, Mrs Eid, is that Common 4 is the performance agreement?---Right. I put that to mean the information that I discussed with Beverley, because I - let me think. What did - I am not sure if she mentioned putting that together - the information I was giving her, into a document or not. But I was of the understanding that that was the performance agreement. Not as in a performance agreement document.
PN571
I see?---No.
**** LISA MARIE EID XXN MR O'SHEA
PN572
All right. I am not sure that we have any further questions for Mrs Eid. Thank you, Mrs Eid.
PN573
THE COMMISSIONER: Thank you. Mrs Lapidos?
PN574
MR LAPIDOS: Thank you, Commissioner. I don't think I have any further questions, Commissioner.
PN575
THE COMMISSIONER: Thank you. Well, I will hear your summary, or do you want to do that now, or will we do that at 2 o'clock?
PN576
MR O'SHEA: I think I would prefer 2, if that was possible.
PN577
PN578
THE COMMISSIONER: Yes, Mr Lapidos.
PN579
MR LAPIDOS: Thank you, Commissioner. Commissioner, just to remind you of the powers that you have under 141.5 of the Dispute Avoidance Procedures, under Step 3, at 3(b), we are asking you to determine whether or not the Tax Office has complied with procedural obligation, employee entitlement or condition under the agreement. That is what we think 108.2 is. And we are asking you to find that it hasn't. And we will make submissions to you then, at the conclusion of this, about steps that we ask you to take. That we are asking you to make a determination about what steps the Tax Office should take that are necessary to achieve compliance. Commissioner, as you have already set down the question it does - has 108.2 been complied with, what we put into evidence before you were the Probation Guidelines, the Principles, and How Do I Manage a Probation Process in ASU3. And The Team Leaders Guide to Probation, in Common Exhibit 1.
PN580
And we weren't able to find anything in those principles that made any reference to clause - to the predecessor, to clause - to the predecessor, clause 2, 90 108.2, because it was a document that was prepared prior to this current agreement. That documentation was strong on having managers raise issues with probationers, documenting discussions. There is clear expectations of the procedural fairness being accorded to probationers, but not the type of help that we say is envisaged by clause 108.2. Procedural fairness does help a probationer when issues are raised, but procedural fairness itself is not the help that the clause envisages, because the clause is talking about helping the probationer improve their performance.
PN581
Now, the issues that the Tax Office said were the issues were described in ASU8, the performance improvement plan. And they were described in 2, "Terms of Behaviour and Commitment to Responsibilities". So, ultimately, the question is what has the Tax Office done to address those issues of concern. Robert Charles wrote a letter to Mrs Eid on 24 December in Common Exhibit 5. Now, I do owe you an apology, because when Mrs Eid was on the stand she described the attachments that were attached to that document. And I have forgotten to ask the tax office for - about this. But there was one document that - which you would have earlier, which was 18 December ATO Production[sic] and Feedback report.
[2.09pm]
PN582
And, just for the sake of completeness, I realise it is not strictly appropriate at the moment, but it was merely overlooked. I don't think there is any need for any additional evidence of it, but just to have it there with the record. If we could get that marked as an exhibit. It is ATO Probation and Feedback Report, dated 18 December 2002. I don't believe it was actually marked as an exhibit, by accident.
PN583
THE COMMISSIONER: The Record of Feedback Session?
PN584
MR LAPIDOS: No.
PN585
THE COMMISSIONER: No?
PN586
MR LAPIDOS: It is headed "ATO Probation and Feedback Report, Confidential".
PN587
THE COMMISSIONER: Yes. Yes, dated 18 December. Yes. Thank you.
PN588
MR LAPIDOS: 18 December. Would you mind, Commissioner?
PN589
THE COMMISSIONER: No, no. That is fine.
PN590
MR LAPIDOS: I don't think the - the tax office doesn't mind?
PN591
PN592
MR LAPIDOS: Thank you very much, Commissioner.
PN593
MR O'SHEA: Do you have a copy of that? I am sorry, I am sure I have got this - - -
PN594
MR LAPIDOS: I am sure you have got it somewhere but, if you have a look at it. And, Commissioner, its relevance here is it was an attachment to the letter from Robert Charles, which was Common Exhibit 5, and in that letter Mrs Eid gave evidence of the attachments that were attached to that letter. And they were Exhibits ASU5, 6, 7, 8, 9, and now 10. And the particular issue that we wanted to draw your attention to in relation to the letter is, he says in the second paragraph:
PN595
Since you commenced on 24 October there have been concerns about your conduct and behaviour working as a member of your team. Please see attached summary. You have been provided with feedback on these difficulties and had opportunities to rectify your conduct.
PN596
We have not disputed that sentence at all, but what is missing from the letter, and from the whole approach from the Tax Office, is in reference to the help that they have provided Mrs Eid to improve her performance. Commissioner, what I would like to invite you to do is to recollect Mrs Eid's evidence about her commencing with the Tax Office. She was a very experienced personal assistant. She came to the job expecting to effectively share the job with one other person, that she would be the early morning starter and the other person would be the late morning - the late, end of day finisher.
PN597
What happened in practice was that there was a third person, came to share the role as well, in those very early days. Mrs Eid gave evidence that she was told that she was to be the primary personal assistant - executive assistant, I beg your pardon. And that part of her role was to help the others, because they were new to the Tax Office and new to that type of role. And that was confirmed, her verbal evidence is confirmed in ASU5. Corroborated, if you like. Where, against the feedback session on 7 November 2002, at point 3, the concern is raised with her, Lisa has been reluctant to delegate work to other members.
PN598
She had been told to delegate work to other team members. The members of her team are the other two APS4s that are sharing this EA role. There is an explanation provided here. This can be partly attributed to her strong work ethic and independent nature, and her need to build trust and confidence in the abilities of other team members. She hasn't got that - she hasn't yet built that trust and confidence yet. They are all new to the Tax Office. Lisa is still trying to come to grips with the job. She is learning the capabilities of the other people. So she is told by Bev, in this document:
PN599
In the coming week I encourage her to build those relationships by delegating tasks and communicating instructions from Robert to the other members of the team.
PN600
And that is what she did, and that is what her evidence was. But what has happened when she has done that? I did also ask her a question about whether there was a team meeting to talk about these changed roles. She had no recollection of a team meeting. I also asked her about whether there was any training given to her about delegation of tasks to people at level. There was no such training. Not surprisingly in those circumstances where there hasn't been a team meeting to explain changed roles, keeping in mind that Danielle presumably was recruited under the same impression as the other EA doing the late shift. All of a sudden she finds that she is not the primary person, and Lisa is telling her what to do.
PN601
What happens in fact is we have feedback provided to the Tax Office from Christina, which is in ASU6, saying she feels like a lackey. Well, it is not very surprising if you think that you are sharing a role with two other people, you are not told that one of them has been - that the Tax Office has decided that one of them is the primary EA, and that her role is to delegate tasks and to help build other people's confidence up and their abilities up in that role. And, all of a sudden, poor Lisa finds that she is being told what to do. Not by Beverley, which she might well have expected, presumably. But by someone who is at exactly the same level as her.
PN602
The evidence that Mrs Eid gave on all of these points, none of it has been disputed by the Tax Office. And so, not surprisingly, Christina is upset. "I am - she is making me feel like a lackey. Why? Because I am being - she is telling me what I am meant to do. She is another APS4 at the same level as me." And in fact, Christina has actually been in the Tax Office for longer than Lisa. By a week or two, but - and what else does Christina say in ASU6 against the date of feedback, 11 November '02. Lisa is picking the jobs that she wanted her to do. That she wanted Christina to do. And delegating what she thought as unimportant work to Danielle and herself.
PN603
But what was Lisa actually doing? She was doing what she had been told by Beverley. Beverley had said, "Delegate tasks. Build relationships. Build your confidence in the other people." And she gave evidence that that is exactly what she did. She knew that those people were new to the Tax Office, new to the EA role. And what has happened? So she has given them the simpler tasks. That is what she explained to you. A perfectly normal reaction. Because there wasn't the support that really should have been provided to the whole team about those changing roles, from what their initial expectations had been, it is not surprising that all of a sudden Lisa is not happy.
PN604
Not only that, before you know it Danielle is not happy. She has rung up on 13 November, according to ASU6, to offer her resignation. And Bev has talked to her - talked her into re-considering the situation. According to ASU6, Danielle says part of the reason was Lisa. Presumably, she is upset for exactly the same reason that Christina is upset. Christina in a way, under 11 in the same document, has said - complained that Lisa is delegating tasks to both Danielle and herself. So it sounds like that they have commiserated with each other about the plight that they have found themselves in compared to what their - what may well have been their legitimate expectations. And what has the Tax Office done when - in response? In response to Danielle, what Beverley has done according to ASU6 is, she has advised Danielle she would look to resolve these issues, and would affect a change in the work environment. And that is indeed what she did.
PN605
There is nothing in here to suggest that there was any consultation with Lisa before she made her decision in terms of the documentation we see that is provided to her on 15 November. And what happens on 15 November? We see, according to ASU7 and 8, the Probation and Feedback Report in ASU7, where at the bottom of the first page of ASU7 Lisa is praised:
PN606
The systemic part of your duties you have been doing well. Booking travel, printing, e-mails. You have worked hard. Your phone manner is courteous, provides a professional image of Robert and Erin's office.
PN607
All sounds great so far. And it keeps on going:
PN608
I am impressed with your strong work ethic.
PN609
A probationer couldn't ask for any more. But then:
PN610
The main area of concern at present is the relationship management. I have had several complaints in relation to your behaviour and communication style ...
PN611
for doing what she was supposed to do. For not being adequately supported as any ordinary member of the Tax Office should do. What has happened here is that instead of - a concern was raised. Lisa was on probation. The proper thing to do, under 108.2, is first of all, understand that help is needed. Presumably there is some need for some mature analysis of what the problem is. Unfortunately, what we see is what I would describe as a knee-jerk response. This document, HEO Probation and Feedback Report, ASU7, we have got evidence from Lisa that this document was provided to her as is, and that she subsequently - it was handed to her, and she subsequently made comments on it.
PN612
So this wasn't an agreed document. It wasn't like Beverley has sat down with her and said, "Look, we have got these concerns because I have had complaints from Christina and Danielle. Let's talk about, and work out, what is causing them to be upset." We haven't had a process like that at all. In fact, rather than helping Lisa in doing her job, what has actually happened is she has really been punished. And what has happened, and you see it in ASU8, at the bottom of the first page of ASU8 under 2:
PN613
In order to increase your understanding of the role required of you, as of Monday, the 18th, you will work under my direction. The role is unchanged in the sense that you are still supporting Erin and Robert, but you are backing-up the other two EAs.
PN614
So instead of being the primary EA, now she is the back-up EA. And Mrs Eid gave evidence about her reaction to that. She didn't feel it was fair. And, in fact, throughout these documents Mrs Eid keeps on raising questions about what is going on and why, and is clearly, I think perhaps "stunned" wouldn't be an unfair characterisation of the type of process she has gone through. It is certainly not the type of situation that I expect the Tax Office to follow. What does the ASU say that should have happened in those circumstances? I have given a hint of it already. There should have been an analysis of the concerns that were being raised about Lisa, with Lisa.
PN615
Nothing particularly unusual to expect that. If there had been a proper discussion, a thoughtful discussion, presumably that might have also involved Christina and Danielle, people would have come to an understanding about why people's noses were out of joint. And something could have then been done to address it. Because, there is no doubt in my mind, in my submission, the Tax Office has got the power to say, out of three people who were performing an EA role, "Well, one of you is going to be the primary EA." Because it is - it fits into the nature of their record-keeping systems, or their telephone directories, or whatever it happens to be.
PN616
One person happens to be more experienced than the other. There might be a question about whether some higher duties should be available or not. But, leaving that aside, we haven't even contemplated that question. I don't see that under the ordinary public service rules it is not available for them to make a decision, as long as the decision is properly made. And so, what should have happened is they all should have been got together, and had a frank discussion about what has gone wrong, and worked out how to remedy it. Unfortunately, that is not what occurred.
PN617
There is another significant piece of evidence that I would like you to consider, Commissioner. And that is, again in ASU6 against the entry on 15 November. That is the date of the giving of this performance feedback, the date of making of the Performance Improvement Plan, the date that the performance agreement has been e-mailed to Lisa. And, in this report which we believe is made after the event, but we don't actually know when this document was actually made, we have a very frank assessment from Bev Fernandez. Just over halfway down the paragraph:
PN618
I believe Lisa does not understand the need for teamwork, and is not suited for this role.
PN619
And Bev appears, in my submission, to have carried that view throughout the rest of her time with - in her dealings with Lisa. So from there the die is cast, and Lisa is behind the eight ball in terms of her relationship with Bev. So, we have got the Performance Improvement Plan in place on 15 November. And then, on 26 November feedback is provided. That feedback is provided, is noted in - 26 November. There is a brief note in ASU4 - 5. It is also briefly noted in Common Exhibit 5.
PN620
Certainly nothing negative actually noted in either place. And I have asked Lisa about her recollection of that meeting and whether anything negative was raised with her on 26 November. And no, she couldn't recall anything negative being raised with her. Then the next feedback session is on 4 December. That is again mentioned on the - in Common Exhibit 3, on page 3 against 4 December. It is written in a very neutral tone, and the only issue of any import, I suppose, there is the discussion of the Multi-Source Feedback issue, MSF. There is more detail provided in ASU6 by Bev.
PN621
And what is the feedback there? Bev is pleased that there is no further incidents to report. Not surprising, because we have heard from Mrs Eid that as a result of what Bev has told her, that she is longer primary EA, her role is no longer to delegate tasks, she has stopped doing it. And she is so concerned that, not only that, it has actually affected her preparedness to proffer initiatives in the way she had done earlier. So all of a sudden, presumably Christina and Danielle are very happy. They have got no further complaints. Certainly not at that stage, because - well, they have really won out of the exercise. And that is that.
PN622
In terms of the Multi-Source Feedback issue, it is raised there on 4 December and I asked Mrs Eid to give you some evidence about that. And the issue in relation to 4 December is mentioned twice. Once in ASU6 against the 4 December document, where Bev writes:
PN623
I then spoke to her regarding the MSF issue. The matter I took up with Lisa was not about making a mistake, but rather about not sharing information and not documenting what the status of the request was. Lisa responded, "Do I have to document everything I do? Answer, "Yes." I advised that in the normal course of sharing a role it was imperative to document what work has been undertaken.
PN624
It is also reiterated in ASU9. And if you look at ASU9 on the third page, roughly halfway down the page, against Wednesday, 18 December. This is after Beverley has already decided that - to recommend termination. But, in any case, what - she is responding to Lisa's queries and providing feedback. And she says:
PN625
I raised this issue with Lisa saying at no stage was she told off for not getting the process right. I said that I had clearly articulated that I felt the process was complicated and difficult to obtain the right information, and could understand why she had not fully completed the request.
PN626
So it is no problem, really, in what she has done, because it was difficult and all those types of things:
PN627
I said -
PN628
this is Beverley said -
PN629
the issue remained that there was no documentation of the action that she had taken, and she had not shared her difficulties with anyone else. I said that the key to sharing those role and providing a seamless service, meaning to Robert Charles and perhaps to Erin Holland as well, is to document what action has been taken so others could pick up where she had left off.
PN630
Now, Mrs Eid addressed this issue in evidence to you, Commissioner. What she said was, she hadn't been trained specifically in Multi-Source Feedback. She had to go to Robert Charles to seek some advice about where to go. Presumably she has gone to Robert Charles because there is no-one else available. An EA at the 4 level wouldn't normally go to the Assistant Commissioner as the first port of call, but there was no-one else readily available. He has suggested that she contact two other EAs who worked for someone else, to get information about it. Mrs Eid has said she did that. She got on - one wasn't available. One was, gave her feedback.
PN631
And what did Mrs Eid say? She said there was a delay in providing documentation to the other two EAs. Why? Because she was working on a tip sheet. She is - he old habits of working hard, using her initiative, die hard. So what has happened is she is preparing a tip sheet on Multi-Source Feedback because she knows the other two EAs are not familiar with Multi-Source Feedback. And she doesn't - she has told you that what has happened is she didn't see the point in giving them some raw information when they had no context to it. So she was finishing this tip sheet so she could provide them with the information so they could get it in context.
PN632
Not challenged by the Tax Office. In fact, I don't believe any of Mrs Eid's evidence, in fact, was challenged by the Tax Office. So what we have here is a criticism of Mrs Eid on 4 December, which you would think, given in light of her evidence, there might be some question about how fair the criticism was. But in any case, where was the assistance that she was provided to deal with these things? This is the problem throughout this case, in terms of all the documentation, keeping in mind the Tax Office principles, and the probationary - the guidelines or managers is to document everything that is going on. While there is a fair bit of documentation about quite a lot of things, and we have avoided muddying the waters by looking at the detail or disputing the detail about i's dotted and t's crossed. What is not clearly there is the help that was provided.
PN633
Now, not to be unfair to the Tax Office, if you look at ASU8, there was something there in the Performance Improvement Plan - sorry to jump around a little, Commissioner.
PN634
THE COMMISSIONER: That is all right.
PN635
MR LAPIDOS: On the right hand side it says, the heading is "What We Will Do to Assist You." And this document is prepared by Bev, and says:
PN636
In order to assist you I will once again stress to you I am available to discuss any situations you are unsure of how to handle, or moderate any situations that arise. I also encourage you to use Karen Peters to assist you.
PN637
Well, that is sort of fine. But it leaves it up to Mrs Eid to come to Bev, rather than Bev taking the initiative to work out what sorts of help that Lisa needs. And what we know from the evidence, from Lisa, is that this document was just given to her. It was not constructed out of a process of consultation with her, out of a process of discussing what the issues were from her perspective, and what type of help she would find of assistance.
PN638
Now there was also the performance agreement and the Tax Office was keen to suggest that - Lisa gave evidence that it was e-mailed to her on 15 November and that e-mail is not in dispute. The Tax Office tried to suggest that it was given to her about a week earlier, around 7 November. Lisa doesn't have a clear recollection of that. In my submission, whether it was given to her on the 7th or not probably doesn't bear on anything.
[2.36pm]
PN639
But, in any case, I will invite you to look at the structure of it. So there is, on the first page of the actual document, the heading:
PN640
My job, the context.
PN641
And on the left hand side:
PN642
Prime area of responsibility, collective responsibility, guiding principles
PN643
Those things tend to be - they are just generic types things. But where I particularly wanted to take you to was to - and there is all the various things that should be done - to look at page 10 and the help. This is what is called a learning and development plan. None of these are designed to address the issues that Bev has raised with Lisa on the 15th. There is only a few of them:
PN644
Learn to navigate and locate information on ATO Connect.
PN645
Not an issue.
PN646
Learn to use the extended telephone facilities.
PN647
Hasn't been raised as an issue.
PN648
Building people networks.
PN649
There might be an argument that that is one of the issues, effectively. And what is she meant to do:
PN650
Attend team meetings and utilise contact established when carrying out the A functions.
PN651
But I believe, here, that people networks are far broader than the actual team member, team member she works with. And there is no suggestion anywhere that Lisa hasn't attended team meetings.
PN652
Apply - understand and apply travel and delegation policies.
PN653
Has not been raised.
PN654
Understand the organisational structure.
PN655
Not been raised with her.
PN656
Understand the big picture planning.
PN657
Not been raised.
PN658
Enhance Excel skills.
PN659
Not been raised. None of these things are relevant to the concerns that the Tax Office raised in the initial performance improvement plan or in any of the other documentation that has come subsequently. I certainly don't mean to suggest the Tax Office provides no support whatsoever to any of its staff. Then, and I am trying to summarise the main points, Commissioner, I haven't tried to go through every single thing. Then we come to what I believe is a critical date, 16 December. Because, on that date, according to ASU6, we have Tracey Yannopoulos providing feedback to Bev. What does Tracey say:
PN660
Tracey has provided further feedback and raised doubts regarding Lisa's ability ...(reads)... or provide her with information, that Lisa has been slow to understand.
PN661
Well, I certainly don't have any clear understanding of what Tracey is actually saying in terms of any concrete thing. And Mrs Eid gave evidence about this particular question:
PN662
Were these issues raised with her at any time?
PN663
The answer:
PN664
No.
PN665
Does she know what types of things Tracey is talking about here? No. Not been raised with her. So I think we could safety argue, not only has there been no help to try and sort out any problems that may exist with Tracey because it could be there is a difficulty in there relationship because Tracey works at Box Hill and Lisa works at Moonee Ponds. And while the crow flies it is not so far, it is not so easy to build relationships when people are at opposite ends of the metropolitan area, where Tracey is a very experienced tax officer and Lisa is a very new tax officer.
PN666
And I might add, speaking about Tracey - if I can refer you to ASU9, on page 2. Do you have it, Commissioner?
PN667
THE COMMISSIONER: Yes.
PN668
MR LAPIDOS: I am sorry. Against the third row, I suppose you would call it, against Wednesday 18 December, the author, Bev Fernandez:
PN669
I explained that the -
PN670
This is Bev speaking or writing -
PN671
I explained that the relationship between the EA and PA, between the Executive Assistant ...(reads)... and would be finding their feet.
PN672
She means her feet:
PN673
I explained this is the reason she should consult regularly with the Personal Assistant so you keep abreast of the work that the Personal Assistant is undertaking for the Assistant Commissioner.
PN674
Fair enough comment. But, given that the Personal Assistant has got some concerns about communication with the Executive Assistant or one of the executive assistants, the logical thing to do, to have them talk about it. Not so difficult to organise, even if they are at opposite ends of the metropolitan area, because meetings can be arranged. Misunderstandings can occur. Misunderstandings are easiest dealt with when relationships are on an even keel. And when there is insufficient contact that is when things can get out of whack, presumably.
PN675
So, that is what has happened on the 16th and then what has happened on the 17th, the decision has been made, the die has been cast. We know this from common exhibit 3, which is the timeline of events. And what has happened, 17 December Karen seeks independent advice. This is the bottom of page 3, Karen - I beg your pardon:
PN676
Beverley seeks independent advice from Don Gray in HR Practice in relation to the actions ...(reads)... after the performance improvement plan was in place.
PN677
From then on there is no prospect, whatsoever, of Lisa getting any assistance because the manager has made her mind up. And we can see from there the events. Lisa happens to be sick but what has happened is against Friday the 20th, we know that there is the document you have marked as ASU10 and in ASU10 Bev writes:
PN678
Lisa's current behaviour and communication style is not at an acceptable level ...(reads)... it is my recommendation to terminate the employment.
PN679
And what has happened is Lisa is on sick leave, Bev contacts her while she is on sick leave, on the Friday, and says:
PN680
Don't come back on Monday, just come in for the meeting on Tuesday.
PN681
At the meeting on the Tuesday 24 December, according to the evidence of Mrs Eid, when she first meets Bev Bev asks her:
PN682
Well have you decided to resign?
PN683
There is meetings between Mrs Eid and Beverley and a separate meeting with Robert Charles, where the issue of returning to work is raised. And the office insists on her staying at miscellaneous leave. No opportunity to get any assistance whatsoever. and that is the pattern throughout the whole thing. What we seek, Commissioner, is that you make a finding that the Tax Office didn't comply with its obligations. And really the process has fallen off the rails at an early stage, unfortunately. And that really the time it fell of the rails, in my submission, was before there were even concerns about Mrs Eid's performance. Because I believe the significant event was the change in duties that occurred prior to 7 November.
PN684
And while, at that time, what should have happened wasn't an issue in terms of 108.2 because it was before there were concerns about her performance, there are other provisions in the agreement and in the Public Service Act, about consultation with employees, that if you are changing their roles in some way you should talk to them about it. Certainly the Tax Office can decide to do it - no problem about that. Mrs Eid didn't have a problem with being assigned the primary EA. What should have happened is, that decision should have been implemented properly.
PN685
The other people should have been informed of the reasons why the office was considering it. Hear from them whether they had any concerns about it and then a final decision made. It was the failure to do that one simple thing, properly, that has led to the catastrophe that we are facing at the moment. And then, when the complaints started coming in as the inevitable result of a mistake - because I don't think it was really any more than a mistake - Mrs Eid wears the consequences. And instead of getting assistance under 108.2, what has happened is there is a kneejerk reaction as Bev tried to help Danielle and convince her not to leave and don't worry we will fix it up - and it has gone from there.
PN686
In terms of the final part of 141.5, if you do agree with us that the Tax Office hasn't complied with its obligations under 108.2, you are empowered, as I said, to determine what steps are necessary to achieve compliance. What we seek, Commissioner, is that you say that Mrs Eid should be restored to her executive assistant role, as the primary EA, that there be a team meeting where everything can be explained to all the people, any concerns that they might have should be properly considered, and that things start off afresh from there. And proper support provided to everyone. Thank you, Commissioner.
PN687
THE COMMISSIONER: Thanks, Mr Lapidos. I propose to adjourn for 10 minutes.
SHORT ADJOURNMENT [2.49pm]
RESUMED [3.02pm]
PN688
THE COMMISSIONER: I don't need to hear from you, thank you, Mr O'Shea.
PN689
Yesterday, I determined the proper application of clause 108 of the ATO General Employees Agreement 2002. This decision is an extension of that matter. I propose now to announce my decision and to reduce my reasons to writing and they will be made available to the parties as quickly as possible. I reserve the right to edit these reasons to ensure elegance of language.
PN690
The decision yesterday concluded the following: In accordance with clause 141.5 of the agreement, I determined that the proper application of clause 108 of the agreement is that it applies to probationers. I also determined that a probationer whose performance is at risk of falling below the general standard expected for the classification is entitled to be advised of that through informal discussion. Further, the probationer, through informal discussion should be given help to improve their work performance to a satisfactory level.
PN691
Against that background, I now turn to the second question which, because of the decision made, becomes relevant. That question was, "has clause 108.2 been properly applied in the facts and circumstances of this case?"
PN692
Having regard to the findings made yesterday, the question must be answered in the context of informal discussions. In essence, for 108.2 to be properly applied, there must have been informal discussions which, firstly, would have advised Mrs Eid that her work performance was at risk of falling below the general standard expected for the classification level and secondly, given her help to improve her performance. Significant material has been exhibited which demonstrates that the ATO has a structured and formal approach to probationary employees.
PN693
From the determination made yesterday, this approach is in addition to that required by the agreement. Lest it be thought otherwise, I do not criticise the ATO, indeed the reverse is the case. The process appears to me to be one which gives employees the best opportunity to succeed and to be treated fairly.
PN694
I shall now examine each of the requirements for informal discussion. It is clear from the material that not only informally but formally Mrs Eid was advised that her performance was at risk of falling below the general standard expected. There were written probation and feedback reports. These reports make it clear that aspects of the work was not at an acceptable level. I determine that the actions by the ATO on this aspect are not inconsistent with the proper application of the agreement.
PN695
PN696
The next aspect is whether or not informal discussion was held to help Mrs Eid improve her performance. The ATO developed a performance improvement plan, individual performance plan, feedback sessions as well as a buddy system. Help should not be seen or limited to formal structured training. These aspects, in my view of the ATOs approach, constitute help. The issue I need to consider is whether or not the documents themselves were shams and not created for the help and assistance of Mrs Eid but simply to create a paper trail pre-dismissal.
PN697
There is no evidence of any impermissible reasons for the conclusions reached about Mrs Eid and there is extensive material on how the ATO believed that Mrs Eid could take steps to improve her work performance. I find that there is nothing inconsistent with the procedures adopted by the ATO with the proper application of the agreement.
PN698
In making these findings, I am not making any positive or negative findings about the merit of Mrs Eid's concerns about certain factual disagreements. Those are matters which will be made known to Mr Charles when Mrs Eid will have a full opportunity to put her views on the assessments made by her team leader. Many of the matters raised by Mr Lapidos may properly be raised to Mr Charles. The merits of those matters will properly be a decision for Mr Charles.
PN699
I will have the last page of this transcript reproduced quickly so it can be accessed by the parties. Thank you for your assistance. The matter is adjourned sine die.
ADJOURNED INDEFINITELY [3.09pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #ASU3 TWO TAX OFFICE DOCUMENTS, ONE HEADED - HOW DO I MANAGE A PROBATION PROCESS? PN279
EXHIBIT #COMMON1 DOCUMENT TITLED A TEAM LEADER'S GUIDE TO PROBATION IN THE ATO PN283
LISA MARIE EID, SWORN PN297
EXAMINATION-IN-CHIEF BY MR LAPIDOS PN297
EXHIBIT #COMMON2 TAX OFFICE DOCUMENT PN305
EXHIBIT #ASU4 ATO INDIVIDUAL PROBATION REPORT, COPY FROM LISA PN330
EXHIBIT #ASU5 ATO INDIVIDUAL PROBATION REPORT, COPY FROM BEVERLEY FERNANDEZ PN335
EXHIBIT #COMMON3 ATO DOCUMENT NUMBER 5 PN342
EXHIBIT #ASU6 DOCUMENT HEADED - FEEDBACK REGARDING LISA MARIE PN348
EXHIBIT #ASU7 ATO PROBATION AND FEEDBACK REPORT DATED 15 NOVEMBER 2002 PN375
EXHIBIT #ASU8 PERFORMANCE IMPROVEMENT PLAN PN375
EXHIBIT #COMMON4 PERFORMANCE AND DEVELOPMENT AGREEMENT PN408
EXHIBIT #ASU9 RECORD OF FEEDBACK SESSION FOR MS EID PN468
EXHIBIT #COMMON5 LETTER FROM ROBERT CHARLES, DATED 24 DECEMBER PN514
CROSS-EXAMINATION BY MR O'SHEA PN531
EXHIBIT #ATO4 COPY CAPABILITY DICTIONARY PN549
WITNESS WITHDREW PN578
EXHIBIT #ASU10 ATO PROBATION AND FEEDBACK REPORT PN592
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