Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - third-party psychological assessment as to suitability - production order sought for psychological assessment report - application granted on conditions

[1] On 19 August 2019, D.A.[1] made an application under section 394 of the Fair Work Act 2009 (FW Act) seeking a remedy for an alleged unfair dismissal arising from his employment with Baptist Care (SA) Incorporated (Baptist Care).

[2] This decision concerns an interlocutory application made by D.A. on 30 September 2019 for a production order concerning a third party, PsychCheck. The production order seeks:

"Any and all documents in relation to the psychological assessment of the Applicant by Oscar Williams and Luke Broomhall at PsychCheck, 117 Wright Street, ADELAIDE SA, including but not limited to a psychological report of the Applicant currently in the possession or previously in the possession of PsychCheck."

[3] D.A. seeks, in addition to the psychological report (the Report), relevant handwritten notes and psychometric test data.

[4] I conducted directions hearings on the production application on 2, 16 and 24 October 2019. The production application was served on a third party, PsychCheck, which was self-represented in proceedings by a director, Mr Broomhall.

[5] Agreement was not reached between the parties on the interlocutory application. On 24 October 2019 I issued directions listing the application for hearing, by telephone, on 12 November 2019, and for filing materials. Written materials were filed by D.A. and PsychCheck. Each made additional or clarifying oral submissions at the hearing. Baptist Care was represented but elected not to make written or oral submissions.

[6] I reserved my decision on the production application, which I now deliver.

[7] Given the potential complexity of legal issues arising, I granted permission under section 596 of the Fair Work Act 2009 (FW Act), without objection, for the Applicant and the Respondent employer to be legally represented in these interlocutory proceedings.

[8] The relevant facts are generally not in dispute.

[9] Until 30 July 2019 D.A. held two casual contracts of employment with the Respondent employer, one of which was employment as a casual Support Worker within the 'Care Pathways' unit of Baptist Care (the role).

[10] Baptist Care operates in the non-government sector (NGS) and, amongst other functions, provides residential care facilities for children, including those who are under the guardianship of the Chief Executive Officer of the South Australian Department of Child Protection (the Department). D.A. was engaged in that work.

[11] Following a Royal Commission, in July 2017 the South Australian parliament enacted legislation concerning the protection of children, the Children and Young People (Safety) Act 2017 (the CYP Act). This Act commenced from 22 October 2018.[2]

[12] One effect of the CYP Act is that, in South Australia, a Psychological Suitability Assessment (PSA) has become a mandatory test for all employees providing residential care for children under the guardianship of the Department.

[13] Currently, a third-party provider (PsychCheck) is the main organisation approved by the Department to make such assessments. PsychCheck is required to operate under the terms of its accreditation with the Department. The current PsychCheck assessment protocol involves a psychometric evaluation, one-on-one interviews with the relevant person and a risk mitigation relevance model which involves, in the case of an 'unsuitable' determination, agreement between three psychologists including the primary assessing psychologist.[3] Aspects of the data on which a particular assessment is made may vary over a period of time.[4] A PSA in the case of a worker who is assessed as unsuitable does not imply or mean that the worker would engage in unacceptable behaviour, including harming a child.[5]

[14] In June 2019, D.A. was required to undertake a PSA conducted by PsychCheck.

[15] On 8 July 2019 Baptist Care was advised by PsychCheck that D.A. had been assessed by the PSA as being "Currently Psychologically Unsuitable".

[16] On 30 July 2019 Baptist Care informed D.A. that he had ceased being employed in the role.[6] The reason advanced was that, in light of the assessment, D.A. was said to no longer fulfil an inherent requirement of the job.

[17] At least three documents relevant to the PSA concerning D.A. are in the possession of PsychCheck. These are:

1. Handwritten notes made during interviews with D.A.;

2. Psychometric test data concerning D.A.; and

3. The PSA Report concerning D.A.

[18] Under arrangements for the conduct of the PSAs in the NGS existing at the time of D.A.'s assessment,[7] PsychCheck did not provide D.A. or Baptist Care with a copy of the aforementioned documents or inform either party of the basis upon which it assessed D.A. as unsuitable. PsychCheck's practice (varied since 1 September 2019) was to extract the cover page of the PSA Report (which indicated the fact of the unsuitability assessment) and provide that to the employer. PsychCheck did so when advising Baptist Care that an assessment of unsuitability had been made concerning D.A.

[19] Arrangements put in place by PsychCheck since 1 September 2019 (with the Department's approval) are that PsychCheck now applies a practice whereby it provides (at cost to the employer and on certain conditions) a modified report of its assessment.

[20] In this matter, PsychCheck informed the Commission on 16 and 24 October 2019 that in light of fact that the disclosure arrangements applying since 1 September 2019 were not operative at the time of D.A.'s assessment, it was willing to create a modified report concerning D.A. (at its cost) and make that available on certain conditions, but that it opposed production of documents that were in existence at the time of the assessment, including the Report.

[21] This was not acceptable to D.A., who seeks production of documents that were in the possession of PsychCheck at the time of making its assessment including (but not limited to) the Report.

[22] D.A. submits that all documents in the possession of PsychCheck at the relevant time (including but not limited to the aforementioned categories) should be provided to afford him procedural fairness in order to consider, take advice upon or challenge PsychCheck's processes, inputs or finding that he is "Currently Psychologically Unsuitable". D.A. argues that had this material been forthcoming prior to dismissal, the outcome may have been different.

[23] D.A. submits that as PsychCheck's processes now include the release of a modified psychological report to all employees deemed "Currently Psychologically Unsuitable", D.A. should be given access to the Report and to the extraneous material despite his assessment having occurred prior to this change in PsychCheck's process.

[24] D.A. submits that failure to provide the original Report means he is unable to assess the basis on which his employer was advised that he was deemed unsuitable in the role. D.A. further submits that provision of a newly created but modified report without the original Report being produced would not enable him to assess whether the modified report was accurate or whether it excluded relevant material. D.A. also submits that a failure to provide the handwritten notes and psychometric test data would prevent him from considering and taking advice on the accuracy or reasonableness of the conclusion made by the three psychologists or the appropriateness of PsychCheck's testing model or procedures.

[25] D.A. submits that his application is not a fishing exercise and that the documents are highly relevant as they have the potential to directly inform whether the dismissal was unfair, and that their production will not overly burden PsychCheck in a financial, administrative, or any other sense.

[26] D.A. consents to the release of the documents, and is willing to receive them via an independent psychologist or his nominated psychologist.

[27] PsychCheck submit that the release of the Report would contain irrelevant information of an expert nature that was only ever intended for internal use by qualified psychologists and will not help D.A. better understand the finding reached.

[28] PsychCheck submit that provision of this information presents a risk of causing harm to D.A. and is not consistent with meeting its duty of care.

[29] PsychCheck seek to differentiate the Report from the modified reports now routinely provided concerning those employees deemed "Currently Psychologically Unsuitable". It disagrees with the Applicant's argument that the Report should be released because they have changed their process to include the release of modified psychological reports.

[30] PsychCheck say that an order for a modified report, if made, should suffice. It refers to the decision of Commissioner Hampton in D.S. v Anglican Community Care Inc.[8] wherein PsychCheck provided a 'Statement of Psychological Suitability' to the Commission, which was then provided to the then Applicant via a psychologist of their choosing.

[31] PsychCheck submit that notes made by the interviewing psychologist should not be released as they require substantial expert qualification by the psychologist who authored them. There is risk, they say, that the Applicant may misinterpret the notes or their significance.

[32] In the alternative, PsychCheck say that if the interview notes are to be released, the assessing psychologist should be given the opportunity "to fully explain the links between the interview notes, psychometric test data and professional opinion".

[33] PsychCheck submit that it would be inappropriate and of no relevant utility to the Applicant to have the psychometric test data released. They argue that the data would not make sense to anyone but a qualified psychologist, and the release of the data risks PsychCheck's methods becoming public, which may put the integrity of future tests, and the safety of children in care, at risk.

[34] The Commission's power to order production of documents is contained within section 590 of the FW Act which relevantly provides:

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;"

[35] This power extends to third party discovery.

[36] It is a discretionary power which will generally be exercised "in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons."[9]

[37] The Commission has non-exhaustively identified the following considerations as relevant to the exercise of the discretion:[10]

• Apparent (not necessarily direct) relevance to the issues in dispute;

• Whether a sound forensic basis for seeking the material has been provided or whether the orders represent a fishing expedition;

• Whether the documents are being sought for a collateral or improper purpose;

• Whether questions of legal professional privilege or confidentiality arise;

• The implications for the party concerned including the cost, inconvenience and delay associated with compliance;

• Whether compliance would reveal internal deliberations as to industrial strategy or policy; and

• The potential impact of production upon any contentions to be determined in the matter.[11]

[38] As noted in D.S. v Anglican Community Care Inc:[12]

"[19] The above are not exhaustive and in this case there are also important public interest matters to consider. In addition, any one of the identified factors are not generally determinative in their own right. Relevance is however an important prerequisite and production orders, including those involving third parties, would rarely be made where such is not evident. Further, to the extent that some of these considerations might militate against an order being made, the Commission might, in appropriate cases, utilise confidentiality orders under s.593 and s.594 of the FW Act, allow documents to be provided in a redacted form, and/or regulate access to the documents produced, subject to natural justice considerations."

[39] This decision concerns circumstances relevant to the application made by D.A. for production in the context of an active unfair dismissal claim. It does not deal in any generic sense with the broader issues of public policy that flow from competing tensions between the integrity of the PSA system, the importance of protecting children in care, the wellbeing of employees (including those with mental health illnesses and vulnerabilities) and natural justice issues.

[40] For reasons that follow, I am persuaded to make an order for third party production on the conditions outlined.

[41] I will order that the Report, as created by PsychCheck in July 2019, be produced.

[42] Section 387 of the FW Act contemplates that matters beyond the conduct of the employer are of potential relevance in unfair dismissal proceedings. For example, where an employer relies upon, or is compelled to rely upon, an assessment by a third party of an employee's suitability for their job in making a decision to dismiss, then the conduct of that third party may be a relevant matter within the meaning of section 387(h) of the FW Act.

[43] The Report has apparent relevance to these proceedings and, on D.A.'s case, direct relevance. Based on what PsychCheck advised the Commission on 12 November 2019, the front cover of this Report appears to have been provided to Baptist Care in July 2019 and was relevant to (if not the basis of) its decision that D.A. could no longer perform an inherent requirement of the role.

[44] Moreover, the reasons for the conclusion made by the third-party assessor are of apparent relevance, not just the fact of its conclusion. A "valid reason" for dismissal is one of the statutory considerations identified in section 387(a) of the FW Act. Whilst recognising that it was Baptist Care and not PsychCheck who employed D.A. and taking note of the fact that Baptist Care contend that there was no "dismissal" within the meaning of the FW Act, D.A. is entitled to prosecute his case. His case is that the employer made such a decision adverse to his interests on the basis of what the employer had been informed by PsychCheck, and that the decision was unfair either substantively, procedurally or both.

[45] PsychCheck has made an offer to prepare a modified report. This is not a sufficient basis to not make the order sought. A modified report is yet to be created. Self-evidently, it would be a document not in existence at the time of the alleged dismissal. Whilst PsychCheck's offer to create a modified report has been made constructively, in the context of litigation and a production order for source documents being pressed, such a document would not be a substitute for production of primary material. Litigation is not conducted on the basis that a decision-maker or litigant is expected to trust what a party says about their oral or documentary evidence. Integral to litigation and making findings of fact is the testing of evidence. For example, as the Applicant in these proceedings, D.A. would be entitled to test the accuracy of a newly created modified report against the original Report and its inputs. Integral to that testing and any finding by the Commission would be production of the Report. A modified report, whether or not created, would return the parties to the same issue: production of the source documents.

[46] I will also make an order that the source documents, including the handwritten notes made during interviews with D.A and psychometric test data concerning D.A. be produced, on conditions.

[47] Each has apparent relevance, if not direct relevance to these proceedings. Each was created as part of the assessment conducted by PsychCheck concerning D.A. Each has some apparent relationship to the Report that was prepared, direct or indirect. The processes by which PsychCheck prepared or communicated its Report or assessment and whether those processes were fair, accurate or technically sound are all matters of apparent relevance to these proceedings.

[48] I take into account PsychCheck's submission that these documents may not be meaningful or that their value may be compromised by not being accompanied with explanations from those who created them. I form no view on that question as this submission, whilst understandable, misconceives the nature of a production order. A production order is not premised on an interpretation or explanation of documents. A document of apparent relevance speaks for itself. The fact that a relevant document may be confusing, technical or open to misinterpretation is not a ground for refusing its production. It is not uncommon in proceedings before the Commission for documents produced or relied upon to be the subject of subsequent oral evidence concerning their content or the purposes for which they were created or utilised.

[49] Nor do I consider that production should be refused on the ground that these documents appear to have been working inputs into a decision-making process but are not the final product of that process. A relevant matter within the meaning of section 387(h) of the FW Act could include an input to a decision (such as data) not just a final outcome (such as a report).

[50] Were these documents not produced, D.A. would suffer potential prejudice in the conduct of the unfair dismissal claim he has lawfully made to the Commission.

[51] I do not consider the Applicant to be undertaking a 'fishing' exercise in seeking the production of these documents. Their relevance has been established. The relevance is real and apparent, not tangential. Without the documents, D.A. is unable to consider or take advice on matters of central importance to the contentions he is making. Potential prejudice to D.A. in the conduct of this litigation from their non-production would arise.

[52] However, the documents, in particular the Report, deal with a subject matter of great personal and professional sensitivity. PsychCheck is accountable to the Department (as well as other professional bodies) for its protocols and practices, including through accreditation. There is potential prejudice to PsychCheck, including in meeting its duty of care to D.A. and its professional obligations, should there be an order for the unrestrained production of the documents. Moreover, information in the public domain that alerts those yet to be assessed to tools used to detect or control potential misbehaviour may put the safety of children at risk.

[53] No party before me advocated unrestricted production.

[54] The order will be conditioned in two respects to address these legitimate concerns.

[55] Firstly, it will be an order of the Commission, made by force of law, that will compel the production. As an order of the Commission, it is subject to the Commission's supervision.

[56] Secondly, the order will be accompanied by conditions. Those conditions relate to the documents being provided via a psychologist, and by a confidentiality order.

[57] Requiring the documents to be provided via a psychologist will mitigate against two risks: that D.A. may not understand or adequately understand the documents in order to meaningfully consider and take advice upon them; and that D.A. may be distressed by their content and, to protect his wellbeing, require support and assistance from a trusted professional in the field. This course is not opposed, and one that I consider appropriate.

[58] There is no public interest in the documents being more broadly distributed than for the purposes for which they are sought. There are sound public interest reasons, including the safety of children, why such information (particularly psychometric data and assessment methodology) is not in the public domain or shared with those who are yet to be assessed. There are also legitimate intellectual property interests on the part of PsychCheck. Given the sensitive subject matter, a confidentiality order is appropriate. This course is not opposed.

[59] No party advanced a view that production of the documents would create a significant cost or practical inconvenience to PsychCheck, contravene the CYP Act or, of itself, raise compliance issues for PsychCheck's obligations to the Department.

[60] The Order I make will be in the following terms:

That PsychCheck of 117 Wright Street, Adelaide South Australia produce to the Applicant D.A. copies of any and all documents in relation to a psychological assessment it has conducted of the Applicant D.A. relevant to its assessment in July 2019 that he was "Currently Psychologically Unsuitable" (the assessment) including but not limited to:

1. the Psychological Suitability Assessment (PSA) Report created by PsychCheck concerning the Applicant D.A.;

2. notes of interview or interviews with the Applicant D.A. made by PsychCheck or persons engaged by PsychCheck during the course of the assessment; and

3. psychometric data created by PsychCheck during the course of the assessment.

[61] The documents are to be produced to the Applicant only through the agency of a psychologist nominated by the Applicant.

[62] I will require production to the Applicant within seven days of the date of this decision.

[63] The production order will, at this stage, be limited to production of documents by PsychCheck to the Applicant D.A. (via his nominated psychologist). This is sufficient to enable the Applicant to consider the material and provide instructions to his representatives with respect to his application. Should this matter proceed, and should it be appropriate to do so, I will consider expanding the order to include production to the Respondent and to the Commission.

[64] I will separately issue a confidentiality order.

[65] I will relist D.A's unfair dismissal application for directions at 9.30am (ACDT) Tuesday 3 December 2019 at which time I will hear from the Applicant and PsychCheck with respect to implementation of the production order, and hear more generally from the Applicant with respect to his intentions concerning his application.

L. Officer, with permission, together with D. A. and M. H, for the Applicant

[1] A confidentiality Order under section 593 and 594 of the FW Act was made to de-identify D.A. on 24 October 2019

[2] The legislative background to the Children and Young People (Safety) Act 2017 is helpfully summarised by Hampton C in D.S. v Anglican Community Care Incorporated [2019] FWC 3377 at [6]

[3] Written Submission PsychCheck 6 November 2019 pages 2 - 3

[4] Oral Submission, PsychCheck, 12 November 2019 at 3.18pm

[5] D.S. v Anglican Community Care Incorporated [2019] FWC 3377 at [7]

[6] Separately, and not relevant to this decision, the Respondent employer contends that it did not "dismiss" the Applicant from this role within the meaning of the FW Act

[7] Since 1 September 2019 altered disclosure arrangements have been approved by the Department: Written Submission PsychCheck 6 November 2019 page 5

[8] [2019] FWC 3377 at [6]

[9] The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation, [1984] HCA 9; (1984) 159 CLR 163 at [12]

[10] Australian Nursing Federation v Victorian Hospitals' Industrial Association, [2011] FWA 8756 at [13]

[11] See also the authorities summarised in Australian Nursing Federation v Victorian Hospitals' Industrial Association [2011] FWA 8756 including in particular Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 AIRC Print H2892

[12] [2019] FWC 3377 at [19]

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