APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 25 JANUARY 2016 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2017 WAIRC 00031 CORAM :PUBLIC SERVICE APPEAL BOARD Commissioner T EmmanueL - CHAIR MR g rICHARDS - BOARD MEMBER mR a lEE - bOARD MEMBER HEARD : Monday, 12 December 2016 DELIVERED : THURSday, 19 January 2017 FILE NO. : PSAB 7 OF 2016 BETWEEN : Paul Edward Chorley Appellant AND Director General Department of Transport Respondent CatchWords : Industrial Law (WA) - Appeal against decision to terminuate employment - Substandard performance - Appeal filed outside of 21 day time limit - Application for extension of time - Board satisfied applying principles that discretion should be exercised - Extension of time granted - Procedural fairness considered - Principles applied - Held performance substandard - Appellant not harshly, oppressively or unfairly dismissed Legislation : Industrial Relations Act 1979 (WA) s 27(1)(n), s 80I Public Sector Management Act 1994 (WA) s 79, s 79(3)(c) Industrial Relations Commission Regulations 2005 (WA) reg 107(2) Result : Appeal dismissed Representation: Appellant : In person Respondent : Mr S Barrett and Ms A Tovey Cases referred to in reasons: Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 Miles v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817 === REASONS FOR DECISION === ¶1 These are the unanimous reasons for decision of the Public Service Appeal Board (Board). Background ¶2 Mr Chorley filed an appeal to the Board under s 80I of the Industrial Relations Act 1979 (WA) (Act). He appeals the decision of the Department of Transport (Department) to terminate his employment for substandard performance under s 79(3)(c) of the Public Sector Management Act 1994 (WA) (PSM Act). ¶3 Mr Chorley filed his appeal 85 days out of time. ¶4 Mr Chorley received pro bono assistance through the Western Australian Industrial Relations Commission Pro Bono Scheme. The Board understands this assistance included advice about his claim and preparation for hearing, including drafting submissions and his outline of evidence. ¶5 From 10 June 2008 until 21 November 2014 Mr Chorley was employed in the position of Level 7 Manager Freight & Logistics. After 21 November 2014 Mr Chorley was a Level 7 Displaced Officer. ¶6 On 6 March 2014 Mr Chorley was told by his managers that his performance was not satisfactory and that he would be placed on a Performance Improvement Plan (PIP). Several days later, Mr Chorley broke his collarbone and was unable to work for around six weeks. ¶7 Between 28 May and 20 June 2014, Mr Chorley met with his supervisor, Ms Brits, and the Department’s Executive Director Transport Strategy and Reform, Mr Hughes, to develop Mr Chorley’s PIP. ¶8 Between 12 August and 18 December 2014 Mr Chorley had four PIP review meetings with Ms Brits and Mr Hughes. As part of the process, the Department provided Mr Chorley with support and training including a writing course, mentoring and peer review. ¶9 At the final PIP review meeting, Ms Brits and Mr Hughes told Mr Chorley that his performance was below the standard expected of a Level 7 officer. ¶10 On 4 March 2015, the Department’s Director General wrote to Mr Chorley to start a substandard performance process under the PSM Act. Mr Chorley responded to the Director General and denied that his performance was substandard. ¶11 On 8 April 2015, the Department appointed an independent investigator to assess whether Mr Chorley’s performance was substandard in accordance with s 79(5) of the PSM Act. ¶12 On 18 December 2015, the independent investigator found: the PIP process was fair and reasonable; Mr Chorley was afforded adequate time and provided with sufficient support in his work; and Mr Chorley’s performance was substandard. ¶13 On 15 January 2016, the Director General wrote to Mr Chorley informing him that his performance was substandard and proposing to terminate Mr Chorley’s employment for the following reasons: Mr Chorley’s lack of acknowledgment or responsibility for his substandard performance which would likely carry over to any role within the Department. Mr Chorley blaming his management team which led to additional work for them and a breakdown in relations. The seriousness of Mr Chorley’s substandard performance including that his written communication skills were below what was expected of a Level 7 position and that his work was grammatically poor with basic spelling errors. ¶14 Mr Chorley was given the opportunity to respond in writing before a final decision was made. ¶15 On 20 January 2016 Mr Chorley responded to the Director General. He accepted full responsibility for his conduct and acknowledged that it had not always been appropriate. Mr Chorley accepted that the quality of his work was not of the standard expected of a Level 7 officer. Mr Chorley explained that from 2006 to April 2015 he was being treated for adult attention deficit hyperactivity disorder (ADHD). This treatment created anxiety which caused him to react aggressively to stressful situations. The ADHD treatment also made it difficult for him to focus on his work properly which resulted in him making errors. Mr Chorley explained that he had personal stress in his life and had been diagnosed with mild depression in April 2015 which was also when he stopped treatment for ADHD. ¶16 Mr Chorley did not include medical reports or other evidence to support his statement that he had medical conditions. This was also the first time Mr Chorley had told the Department about his ADHD condition. ¶17 On 25 January 2016, the Director General wrote to Mr Chorley confirming he had considered Mr Chorley’s response. The Director General acknowledged that working with ADHD and mild depression is challenging but did not consider that it was a reason for poor performance over a number of years and it did not change the Director General’s view that Mr Chorley’s ongoing employment with the Department was not sustainable. The Director General informed Mr Chorley that his employment would be terminated effective 25 January 2016 under s 79(3)(c) of the PSM Act. ¶18 Mr Chorley asks that the Board adjust the Department’s decision to dismiss him and seeks reinstatement or 52 weeks’ compensation. Extension of time ¶19 Under s 27(l)(n) of the Act, the Board has power to extend the 21 days prescribed by reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA). ¶20 Kenner C sets out the principles that apply to extensions of time in Public Service Appeal Board matters in Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817 [10]-[14]. When deciding whether to extend the time to commence proceedings, the Board must consider the length of the delay, the reasons for the delay, whether Mr Chorley has an arguable case and whether the Department will be prejudiced by the delay. ¶21 The Department does not object to the Board granting Mr Chorley an extension of time. Length of the delay ¶22 Mr Chorley was dismissed on 25 January 2016. He had 21 days to file his appeal to the Board. Mr Chorley filed his appeal on 11 May 2016, a delay of 85 days. This is a long delay. Reasons for the delay ¶23 On 4 February 2016, which was 10 days after he was dismissed, Mr Chorley filed a notice of referral in the Commission in relation to his dismissal (APPL 6/2016). ¶24 The Board understands Mr Chorley’s submission to be that he was confused about which body had the jurisdiction to hear his appeal. He filed APPL 6/2016 contesting his dismissal. He was not aware that the Public Service Appeal Board has exclusive jurisdiction in relation to government officers. ¶25 Once Mr Chorley understood that he had made a mistake about jurisdiction, he filed his appeal to the Board and discontinued APPL 6/2016. ¶26 It is not surprising that an unrepresented party would be confused about whether the Commission or the Public Service Appeal Board has jurisdiction to deal with his or her claim. ¶27 The Board finds Mr Chorley has an acceptable reason for his delay. Does Mr Chorley have an arguable case? ¶28 In considering an extension of time to appeal, an assessment of the merits is made ‘in a fairly rough and ready way’: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [9] (Brennan CJ & McHugh J). It would not be unfair to refuse an extension of time if the Board is satisfied that Mr Chorley has no prospect of success. ¶29 Mr Chorley’s notice of appeal, the Department’s response and the evidence show issues for determination. Mr Chorley has an arguable case. Prejudice to the Department ¶30 Mr Chorley served the Department with his notice of referral in APPL 6/2016 on 8 February 2016, 14 days after his dismissal. That application was broadly the same as his notice of appeal in this matter. ¶31 So, although Mr Chorley’s delay in filing this application was long, the Department could not be said to be prejudiced by Mr Chorley’s delay in filing the correct application. In any event, the Department does not object to the Board extending the time for Mr Chorley to file his appeal. Conclusion on extension of time ¶32 Given the reason for Mr Chorley’s delay, that Mr Chorley has an arguable case and the lack of prejudice to the Department, the Board will extend the time for Mr Chorley to file his appeal to 11 May 2016. Mr Chorley’s grounds of appeal ¶33 From Mr Chorley’s notice of appeal, written submissions, oral evidence and submissions at hearing, the Board understands Mr Chorley’s grounds of appeal to include: issues of substantive unfairness: Mr Chorley’s performance was not sufficiently substandard to justify termination; a number of personal issues contributed to Mr Chorley’s performance; the extensive length and quality of Mr Chorley’s service was not adequately considered; Mr Chorley’s work was adversely affected by the workplace culture; and Mr Chorley had no immediate prospect of employment within the Public Sector; and issues of procedural unfairness: Mr Chorley’s PIP process lacked procedural fairness: Mr Chorley was not given a Job Description Form (JDF) after 21 November 2014; the PIP document was not updated; the PIP process lacked positive direction; Mr Chorley and Ms Brits had a poor relationship; and the PIP process should not have involved both Ms Brits and Mr Hughes; and Mr Chorley was not given the opportunity to show his improvement after the PIP process and before his employment was terminated. The test to be applied ¶34 The test to be applied in a claim of harsh, oppressive or unfair dismissal is whether the employer has abused its right to dismiss: Miles v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385. ¶35 A dismissal might be unfair for a range of reasons. EM Heenan J in Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893 states: 72 Because there is such a wide variety of factors which may affect any individual case, no universal or exhaustive list of the circumstances which may constitute harsh, oppressive or unfair dismissal can be given. Often, however, the issue in a particular case will require a consideration of the length or quality of the employee's service, the culture of the workplace, the prospects for other employment of the individual employee, and the employer's treatment of past incidents and of other employees. Where misconduct is alleged or relied upon there will be a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate any mitigating circumstances. Factors such as these going to the reasons for the particular dismissal are frequently referred to in the authorities in this area as matters of ‘substantive’ fairness, as opposed to issues of ‘procedural’ fairness which relate to the manner in which the employee was notified of the proposed termination, what opportunity, if any, he or she was given to respond and the time and method employed in effecting the termination. This distinction between substantive and procedural issues going to the question of whether or not a particular dismissal was harsh, oppressive or unfair can be useful in certain cases but it entails the danger of regarding the statutory test as having separate application and different meanings in different contexts. Such an approach must be rejected because, however the issue may arise, the decision for the Commission, or a court in any particular case, is simply whether the individual termination of employment was harsh, oppressive or unfair and that test must always be applied without any gloss. For a criticism of how the distinction between procedure and substance in this area is elusive and how it may be unhelpful and contrary to the true meaning of the statutory phrase, see McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Ltd (supra) at 465. 73 In this State a test which has been adopted by the Commission, and approved by this Court, is to consider whether the dismissal amounted to an abuse of an employer's right to dismiss thus rendering the dismissal harsh or oppressive - Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635; Miles v Federated Miscellaneous Workers' Union of Australia, Hospital Service and Miscellaneous (WA) Branch (1985) 17 IR 179; 65 WAIG 385, IAC and Robe River Iron Associates v The Association of Draughting, Supervisory and Technological Employees, WA Branch (1987) 76 WAIG 1104, IAC. In cases where the alleged harsh, oppressive or unfair nature of the dismissal relates to the procedure followed by the employer in effecting the termination of employment it has been held in this State that a failure to adopt a fair procedure by the employee can lead to a finding that the dismissal was harsh, oppressive or unfair - Bogunovich v Bayside Western Australia Pty Ltd (supra), but a lack of procedural fairness may not automatically have this result - Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891 IAC (original emphasis). Mr Chorley’s case Substantive unfairness ¶36 Mr Chorley says that performance issues were not raised with him before 2014. Most of his work was program work and not policy work. Mr Chorley says his performance was not sufficiently substandard to justify termination. Much of Mr Chorley’s argument focused on his perception that his program work was good and that he was not told it was substandard. Mr Chorley gave evidence that his managers agreed with his self-evaluation in his performance appraisal about what went well. In cross-examination Mr Chorley conceded that his managers listed areas for improvement, which included: ‘Ability to identify key issues to respond to’. ‘Ability to judge what information is required for an appropriate response’. ‘Ability to clearly articulate appropriate responses (i.e. need to present a cohesive piece of written work; not provide irrelevant information; avoid repetition, not have [a] significant number of spelling and grammatical errors). Written work submitted is regarded by management as consistently of poor quality’. ‘Ability to develop policy concepts, scope project outlines, structure and develop research reports to an acceptable standard’. ‘Ability to respond to requirements in appropriate timeframes’. ‘Ability to accept and follow management direction’. ¶37 Mr Chorley says that policy work was introduced to his position in late 2013. He was not familiar with it and it involved a different skill set. Mr Chorley argues that policy work increased the scope of competencies required of him and placed demands on his time. Mr Chorley explained several times that the two involve different skills and ways of working. He found it difficult to do policy work and program work. He says ‘it’s not normal to have expertise in both skill sets’. ¶38 In cross-examination, Mr Chorley conceded that his JDF refers to policy work under the key responsibilities and also in the list of duties: KEY RESPONSIBILITIES The Manager Freight & Logistics: manages the day to day operations of the freight and logistics team develops, implements and evaluates transport freight and logistics policy provides strategic advice about transport freight and logistics policy promotes the transport freight and logistics objectives of the Department DUTIES … 6. Role Specific Plans, undertakes and manages research and analysis for examining transport freight and logistics, policies, strategies and programs. Advises and makes recommendation in relation to transport freight and logistics policies, strategies and plans. Consults with internal and external stakeholders at a senior level in the formulation and implementation of transport freight and logistics policies, strategies and plans. Maintains senior networks with key community, industry and Government stakeholders. Represents the Department at a senior level in forums and on working groups and committees. Participates in and contributes to corporate management and development activities for the branch, directorate and division. Leads and/or participates in project teams to implement the Department's work program. Develops briefs, directs and oversees the work of consultants engaged to undertake specific studies. Promotes the Department's objectives. (emphasis added) ¶39 In cross-examination Mr Chorley agreed the advertisement for his position also notes that policy work is a requirement: Department for Planning and Infrastructure Policy Group - Transport Industry Division Manager Freight & Logistics … Job Description The Department for Planning and Infrastructure is seeking a Manager Freight & Logistics to join our Transport Industry Policy Division. In this role, you will: Assist the Director in managing the day to day operations of the freight and logistics team. Develop, implement and evaluate transport freight and logistics policy. Provide strategic advice about transport freight and logistics policy. Promote the transport freight and logistics objectives of the Department. (emphasis added) ¶40 Mr Chorley argues that his performance improved. The Board understands Mr Chorley’s submission to be that he measured his performance empirically by analysing changes to his work made by others and using Microsoft’s word count function to assess the number of changes. In cross-examination, Mr Chorley confirmed the Department provided him with training. He did a writing course, he worked with senior staff and underwent peer review. Mr Chorley gave evidence that after he had done the writing course, he made grammatical recommendations to Ms Brits about her work. In cross-examination, Mr Chorley did not dispute that his letter to the Director General responding to the allegation that his work was substandard was full of grammatical mistakes and contained incorrect information. ¶41 Mr Chorley says that personal issues contributed to his poor performance. He had experienced the stress of building a new home, a marriage breakdown and was on medication for adult ADHD. Mr Chorley gave evidence that he told the Director General about these matters on 20 January 2016. He did not raise it before then because he felt uncomfortable. ¶42 Mr Chorley says that the length and quality of his service should have been taken into account. ¶43 Mr Chorley says that his work was adversely affected by the workplace culture. He did not provide evidence of this other than to say he found Ms Brits’ communication style and involvement in his performance management to be challenging. ¶44 Mr Chorley argues that his job prospects are non-existent within the Public Sector because of the job freeze and there is no immediate prospect of other employment. Procedural unfairness ¶45 After Mr Chorley’s position was displaced in November 2014 he was not given a new JDF. As a result, his PIP lacked clear direction. Mr Chorley says a PIP requires a JDF. In cross-examination Mr Chorley confirmed that he was given a Public Sector Commission capability profile for a Level 7 officer (Level 7 capability profile). Mr Chorley argues that he did not know what objectives he was trying to achieve when his position was displaced. ¶46 In essence, Mr Chorley argues that he was told he was substandard for a Level 7 Policy Officer but he only had a JDF for a Level 7 Manager Freight & Logistics position. He says he did not understand what were the duties of a Level 7 officer because he did not have a JDF. ¶47 Mr Chorley says that his performance improvement document was not updated after June 2014. He says he did training and achieved the standards in the PIP but that was not recorded. ¶48 Mr Chorley says that the PIP lacked positive direction. Instead of meeting fortnightly as outlined in the PIP document, he had four PIP meetings with Mr Hughes and Ms Brits. ¶49 Mr Chorley says he had a poor relationship with Ms Brits. They did not communicate well and Ms Brits tended to communicate with him in writing. As a result of this he and Ms Brits went to counselling. ¶50 Mr Chorley says that it was unhelpful having both Ms Brits and Mr Hughes at PIP meetings. He argues they made no real effort to assess his progress properly. They wanted to follow the PIP policy and complete the PIP process within four months. Mr Chorley says their approach was subjective and the PIP did not help him. ¶51 Mr Chorley argues that he should have been given the opportunity to show his improvement after the PIP process and before his termination. ¶52 Mr Chorley says he has significant skills on the operational side and no one tried to find him an operational position. The Department’s case ¶53 Mr Hughes gave evidence for the Department. ¶54 The Department says that Mr Chorley was employed as a Level 7 officer in a position that involved policy and program work. Level 7 is a reasonably senior level and involves high expectations. ¶55 Mr Hughes gave evidence that by 2014 he was concerned about Mr Chorley’s performance. Along with Ms Brits he concluded that Mr Chorley’s standard was not at a Level 7 based on his JDF, the Public Sector Commissioner’s capability framework and Mr Hughes’ observations of other Level 6 and Level 7 officers. As a result, the Department put Mr Chorley on a PIP to try to improve his performance to that expected of a Level 7 officer. The JDF Mr Chorley was employed under was used during the PIP process. ¶56 The Department says the PIP process clearly revealed the areas where Mr Chorley was not meeting expectations and the Department assisted him to obtain the skills, for example by providing training and peer review. By the end of the PIP process, Mr Chorley’s performance had not improved and he was not performing to the level expected of a Level 7 officer. ¶57 Mr Hughes gave evidence that Mr Chorley’s work was not completed within appropriate timeframes or to the required standard. When Mr Chorley was told his performance was substandard, he appealed the PIP process. Mr Hughes gave evidence that an independent investigator concluded that the PIP process was fair and reasonable and that Mr Chorley had the opportunity to demonstrate his performance. The independent investigator dismissed Mr Chorley’s appeal and found his performance to be substandard. ¶58 Mr Hughes gave evidence about why there were fewer meetings during the PIP process than anticipated. He said the process started later because Mr Chorley broke his collarbone and as a result was away from work for about six weeks. Mr Hughes was a bit concerned about interactions between Ms Brits and Mr Chorley. Their communication styles did not work well together so Mr Hughes thought it would be fair for him to also be involved. Mr Hughes was away on leave from August to September. As well as the four PIP meetings, there were many more general management meetings with Mr Chorley. ¶59 Mr Hughes gave evidence that Mr Chorley never mentioned to him that he suffered from ADHD or depression. Mr Chorley only mentioned in December 2014 or January 2015 ‘something about dyslexia’. ¶60 Mr Hughes gave evidence that he did not think it was necessary to update the PIP document. Mr Hughes said that Mr Chorley’s effort and attitude toward his work improved after the PIP process but his performance was still substandard. Mr Hughes gave the example of Mr Chorley being asked in January 2015 to complete a task which should have taken him about one month. Mr Chorley finished this task in August 2015 and it required significant re-working. Most of Mr Chorley’s work is now being done by a Level 5 officer who works three days per week. ¶61 Mr Hughes gave evidence that Mr Chorley’s position should always have involved significant policy work. Mr Chorley was not given as much policy work as his managers would have liked because Mr Chorley did not respond well to it. Over time some of Mr Chorley’s project work naturally diminished because it involved a temporary package or because the programs operated well and therefore did not need more development. Mr Hughes gave evidence that policy and program work do involve different skill sets but that officers can manage both. ¶62 The Department says its performance management policy does not require a PIP process to be completed before going through the process to dismiss an employee for substandard performance under s 79 of the PSM Act. The Department chose to go through the PIP process to be fair and to assist Mr Chorley. After Mr Chorley disputed that his performance was substandard, the Department arranged for an independent investigation. The independent investigator found that Mr Chorley’s performance was substandard. The Director General of the Department wrote to Mr Chorley, proposing to terminate Mr Chorley’s employment for the reasons set out at [13]. ¶63 Mr Chorley admitted his substandard performance in his response to the Director General and conceded that his performance was not at the standard expected of a Level 7 officer. The Department says that the Director General considered Mr Chorley’s response and decided to terminate his employment. ¶64 The Department says it is regrettable that Mr Chorley did not bring his medical issue to the Department’s attention until the very end of the process, however it was considered by the Director General. The Department did everything it could to turn Mr Chorley’s performance around. Mr Chorley’s performance was substandard and the Department followed a fair process. Consideration ¶65 The onus is on Mr Chorley to persuade the Board to adjust the Department’s decision to dismiss Mr Chorley for substandard performance. ¶66 Mr Chorley appeared at times to have poor comprehension and not to understand or accept what was being asked of him. For example, during the hearing the Board had to remind Mr Chorley six times about a relatively simple instruction the Board had given him. Some of Mr Chorley’s evidence in cross-examination was inconsistent with his earlier evidence. ¶67 Mr Hughes was a credible witness. His evidence was not disturbed in cross-examination and the Board accepts his evidence. Where Mr Chorley’s evidence conflicts with Mr Hughes’ evidence, the Board prefers Mr Hughes’ evidence. ¶68 Mr Chorley’s period of service with the Department is reasonably long. The Board accepts, as the Department seemed to, that Mr Chorley’s program work was not necessarily of a poor standard. But that does not show that Mr Chorley’s performance overall was of a standard expected of a Level 7 officer. Based on the exhibits, Mr Hughes’ evidence and the conclusions reached by the independent investigator, the Board finds that the Department’s expectation about performance was reasonable. A Level 7 officer should be able to produce work to a high written standard and to manage interruptions. Mr Hughes’ evidence that Mr Chorley’s performance was substandard was consistent with the independent investigator’s report. Mr Chorley’s focus throughout the hearing and in his written submissions was on the quality of his program work. Mr Chorley did not give evidence or make submissions about the independent investigator’s conclusion that his performance was substandard. Mr Chorley did not challenge Mr Hughes’ evidence which conflicted with his own evidence, even though the Board told Mr Chorley twice that if he wanted the Board to accept his evidence, Mr Chorley would need to challenge Mr Hughes about the aspects of Mr Hughes’ evidence that conflicted with Mr Chorley’s evidence. ¶69 The Board accepts that Mr Chorley’s policy work was poor and that this led to Mr Chorley being asked to do less policy work. The Board also accepts Mr Hughes’ evidence that the nature of Mr Chorley’s work changed over time. However, policy was always a part of Mr Chorley’s position. That much is clear from the JDF he was employed under (Manager Freight & Logistics) and the advertisement for this position. An employer is entitled to expect its employees to perform the duties of their position at the required standard. Mr Chorley was given the opportunity to take part in a PIP process. Though it may have been better had Mr Hughes and Ms Brits scheduled and attended more regular meetings, the Board finds based on the evidence of Mr Hughes and the exhibits, that the PIP process was fair and reasonable. At the end of that process Mr Chorley’s performance was substandard. As it was entitled to do, the Department initiated the substandard performance process under s 79 of the PSM Act. The Board accepts that an independent investigator found that Mr Chorley’s performance was substandard. Mr Chorley did not challenge the independent investigator’s report or call him as a witness. ¶70 Based on the evidence of Mr Hughes and Mr Chorley and the exhibits, the Board finds Mr Chorley’s performance was substandard. ¶71 The JDF for Mr Chorley’s Level 7 Manager Freight & Logistics position was used during his PIP process and after Mr Chorley’s position was displaced, the Level 7 capability profile was used. Mr Chorley’s PIP set out clear expectations and referred to the Level 7 capability profile. It should have been clear to Mr Chorley what the Department expected of him. ¶72 Mr Chorley complained that having Mr Hughes and Ms Brits involved in his PIP process was unhelpful. However, the Board accepts Mr Hughes’ evidence that the reason Mr Hughes was involved is because of the communication difficulties between Mr Chorley and Ms Brits. It is regrettable that Mr Chorley and Ms Brits had difficulty communicating with one another. At its highest, Mr Chorley’s evidence and submission seemed to be that he and Ms Brits did not get along well and he did not like that she preferred to communicate with him in writing. The Board does not accept that Mr Chorley’s work was adversely affected by the workplace culture. Mr Chorley has not persuaded the Board that Ms Brit’s involvement in his PIP process was unfair. The Board finds that it was reasonable in the circumstances for Mr Hughes and Ms Brits to be involved in Mr Chorley’s PIP process. ¶73 The Department’s practice would have been better if it had not planned for fortnightly meetings that it did not hold and if it had updated Mr Chorley’s PIP document. However, Mr Chorley’s general criticism of the Department for following its policy and completing the PIP process within four months is unwarranted. Too often employers take too long to complete performance management processes. The Board finds Mr Chorley was given a reasonable opportunity, a reasonable timeframe and reasonable support to improve his performance. ¶74 Mr Chorley referred to his poor job prospects within the Public Sector due to a recruitment freeze. He did not provide any evidence about his general prospects of employment. In circumstances where the Board accepts that Mr Chorley’s performance was substandard, it is unreasonable to expect the Department to continue to employ Mr Chorley because his job prospects are poor. ¶75 Mr Chorley has not persuaded the Board that his performance was other than substandard or that the termination process was unfair. The Department complied with the rules of procedural fairness in finding Mr Chorley’s performance was substandard and deciding to dismiss Mr Chorley. The Board finds that the Department has not abused its right to dismiss Mr Chorley. ¶76 Mr Chorley’s appeal should be dismissed.