The attached document replaces the document previously issued with the above code on 29 May 2020.

Typographic errors amended at [122], [133], [139], [162], [169], [195] and Hearing Details.

[2020] FWC 2773 [Note: An appeal pursuant to s.604 (C2020/4794) was lodged against this decision.]

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Child and Youth Worker - employee deemed 'unsuitable' after third party psychometric assessment - inherent requirement - valid reason - omissions by employer - denial by third party of access to reasons - harsh consequences - redeployment not fully explored - employer conduct deficient but not overall unfair - dismissal not harsh, unjust or unreasonable - application dismissed

[NOTE: Confidentiality Orders apply to this matter. The orders restrict access to and publication of prescribed documents. This decision is published consistent with those orders. The Confidentiality Orders remain in place.]

[1] On 19 August 2019 DA[1] (the Applicant) made an application to the Commission 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, the employer or the Respondent). DA seeks reinstatement to the same or similar position (with lost wages), or compensation.

[2] The application is opposed by Baptist Care.

[3] The application has a lengthy litigation history before the Commission, in part due to the unique issues it raises, and in part due to earlier interlocutory proceedings resulting in an order for third party production (the Production Decision).[2]

[4] This decision concerns merit and remedy.

[5] Baptist Care's response opposing DA's application was filed on 2 September 2019.

[6] Multiple pre-hearing proceedings arose and directions were issued.[3]

[7] On 30 September 2019 DA applied for an order that a psychological report together with handwritten notes and psychometric test data in the possession of a third party (PsychCheck Pty Ltd) be produced. Baptist Care took no position on the production application. The third party did not consent.

[8] By decision dated 15 November 2019[4] I ordered[5] that PsychCheck produce the report and related documents to DA through the agency of a psychologist nominated by DA. The PsychCheck report (and related documents) are in evidence before me.[6]

[9] At the outset of the merits hearing on 10 March 2020 I made a further Production Order[7] at DA's request requiring Baptist Care to produce a Master Services Agreement between it and PsychCheck. That document is also in evidence.[8]

[10] The Production Order was accompanied by a Confidentiality Order[9] restricting access to documents that were the subject of the Production Order. The Confidentiality Order extended to materials on the Commission file or before the Commission in this matter, including evidence (oral or documentary) and transcripts of proceedings (hard copy or electronic).

[11] On 10 March 2020, I made a further Confidentiality Order at DA's request de-identifying his support person, MH.[10] By consent, I also ordered the hearing be closed to the public.

[12] The Confidentiality Orders remain in place.

[13] Both DA and Baptist Care filed the F2 application and F3 responses under their own hand. Soon thereafter, DA and Baptist Care came to be represented by lawyers. By decision dated 2 October 2019[11] and by consent I granted requests for parties to be represented in the production order proceedings.

[14] Both parties subsequently requested permission to be represented at the merits hearing. Before determining those requests, on 4 March 2020 and for financial reasons, DA's lawyer came off the file. DA then opposed permission being granted on the ground of fairness. On 6 March 2020[12] I granted Baptist Care permission to be represented at the merits hearing, on conditions.

[15] At the merits hearing DA was self-represented but assisted by MH.[13] Baptist Care were represented by counsel and an instructing solicitor.

[16] Although PsychCheck appeared (self-represented) at the production order proceedings, it did not seek to appear and was not called to give evidence at the merits hearing.

[17] In its F3 response and in materials filed pursuant to my directions, Baptist Care raised a jurisdictional issue, contending that DA was not dismissed.

[18] The basis on which Baptist Care advanced this proposition was that DA held two casual contracts of employment with Baptist Care, and whilst one was terminated he continued to maintain an employment relationship by working beyond the alleged date of dismissal under the second contract.

[19] At the hearing, Baptist Care did not press the jurisdictional objection.[14]

[20] For reasons that follow, I have concluded that DA was dismissed by Baptist Care from his contract of employment as a casual Child and Youth Support Worker in Care Pathways (the subject of this application) irrespective of whether or on what terms he continued to work for Baptist Care under a second and separate contract (as a casual Support Worker in Family Mental Health).

[21] I heard the matter on 10 and 11 March and 16 and 17 April 2020.

[22] The COVID-19 pandemic and social distancing requirements arose whilst the matter was part-heard. This added extra complication to proceedings. DA's evidence (on 10 and 11 March 2020) was given in person whereas the (brief) evidence of his treating psychologist and the whole of the Respondent's case was presented remotely, by phone (16 April 2020). Final submissions were made remotely (17 April 2020).

[23] Whilst this was less than ideal, and concerned DA somewhat, this course was ultimately not opposed. I considered it necessary to conclude this matter without either undue haste or undue delay and did not consider it prejudicial to either party or likely to inhibit decision-making to complete proceedings remotely. I expressed my intention in writing[15] and repeated my reasons at the hearing on 16 April 2020.

[24] In determining this matter I make allowance for the fact that I heard DA's evidence (in chief and in cross examination) in person whilst other witnesses gave evidence remotely. The evidence I heard remotely did not raise significant credit issues.

[25] I reserved my decision on 17 April 2020.

[26] I heard evidence from DA, from DA's treating psychologist Elissa Corlett and from Baptist Care's Executive Leader - Organisational Development, Amber Smith.

[27] DA's evidence was given orally (in person) and through a witness statement[16] which included substantial documentary attachments. DA was a witness of credit. He was conscientious, non-combative in cross examination, willing to make appropriate concessions but also able to hold firm to his ground. Although where his evidence strayed into opinion there was some understandable gloss, his narrative of facts was plausible, broadly consistent with the documentary evidence and can be relied upon. DA's evidence included an audio recording of an interview conducted between he and managers at the time of dismissal.[17]

[28] Ms Corlett gave brief evidence (by phone) on a report[18] she prepared post-dismissal (indeed at an advanced stage of proceedings, 27 March 2020). She was not cross examined. There was no challenge to her professional credentials as DA's long-term treating psychologist. The relevance of her report, and aspects of it, were disputed. I deal with this issue below.

[29] Ms Smith's evidence was given orally (by phone) and via two witness statements[19] which also attached substantial documentation. Her evidence was largely a mechanism by which business records concerning Baptist Care's arrangements with PsychCheck, Baptist Care's communication to DA and its employees about psychometric testing and Baptist Care's decision-making leading to DA's dismissal could be put before the Commission. Her evidence was relevant and generally not in dispute. However, Ms Smith had only limited direct association with the dismissal or events leading to it. Aside from the documentary material, in this respect her oral evidence is of less value than DA's. To the limited extent disputed facts need determination, it is DA's evidence, together with the documentary material submitted by both sides, which better establishes the overall narrative.

[30] Baptist Care did not call other persons who had more direct involvement in the dismissal than Ms Smith (Ms Furtado, Mr Thomson, Mr Salerno, Ms Pace). In the absence of contrary evidence about what was said or done leading up to and at the time of dismissal, the evidence of DA concerning his interactions with these persons is preferred particularly where plausible and consistent with the documentary and audio record.

[31] As noted, neither DA nor Baptist Care called evidence from PsychCheck including the assessing psychologist who conducted DA's psychometric test.

[32] Ms Corlett's report necessarily contained professionally formed opinion, together with hearsay. To the extent relevant, her evidence represented a professionally formed opinion.

[33] However, Baptist Care challenged Ms Corlett's report on DA on two grounds; firstly, that it was not relevant to matters in issue; and secondly, that it contained hearsay.

[34] On 8 April 2020[20] I decided that Ms Corlett's report would be admitted as I was satisfied that it was ostensibly relevant to one contention in DA's case: that the substantive "deemed unsuitable" conclusion in the PsychCheck report was incorrect and unfair. I made this ruling noting that Baptist Care contended that whether the "deemed unsuitable" conclusion was correct or incorrect was an irrelevant consideration. In my decision I indicated that the Commission's position on these competing contentions would be determined in this decision, not by way of interlocutory decision that would have had the effect of excluding evidence relevant to a substantive contention advanced by DA.

[35] I deal with that issue later in this decision.

[36] On 16 April 2020[21] I admitted into evidence the whole of Ms Corlett's report, including the contested hearsay components, on the basis that I would attach the appropriate weight, if any, to her evidence. The weight I attach to the hearsay component of Ms Corlett's report is low except where that evidence is supported by credible direct evidence (such as from DA himself) or was uncontested (which it largely was not). This is particularly the case as it relates to Ms Corlett's narrative of an alleged conversation between DA and PsychCheck's assessing psychologist. Ms Corlett was not a party to those conversations.

[37] Baptist Care operates in the non-government sector and, amongst other functions, provides emergency and ongoing residential care for vulnerable persons, including children who are under the guardianship of the Chief Executive Officer of the South Australian Department of Child Protection (the Department).

[38] At the time of dismissal, DA was employed by Baptist Care under two contracts of employment:

• as a casual Child and Youth Support Worker in Care Pathways, the subject of this application (working with children); and

• as a casual Support Worker in the Family Mental Health programme (working with adults, not children).

[39] DA's work was governed by two industrial instruments: the Baptist Care (SA) Inc Enterprise Agreement 2013 - 2015 and the Social, Community, Home Care and Disability Services Award 2010.

[40] DA's Child and Youth Support Worker role was his primary work. At the time of dismissal he had worked in this role for longer (since 8 February 2017), worked more hours in this role (between 30 and 40 hours per week), and it was more remunerative (due to more hours and roster types). The Child and Youth Care Worker role[22] involved DA caring for vulnerable children including those who were under the guardianship of the State of South Australia.

[41] DA came to work with Baptist Care from a near decade of related work in the community sector including as a financial counsellor. He had a past interest in human psychology. Amongst other certificates and diplomas (in leadership and training) he held a Certificate IV in Mental Health[23] and casually lectured in that subject.

[42] At the time of dismissal DA was married with a young family. He is a person of strong conviction and principle whilst showing respect and care for others.

[43] There is a fragmented contractual history associated with DA's Child and Youth Care Worker role at Baptist Care. He and his employer agreed multiple continuous contracts for this work. He started (on a part time contract) on 8 February 2017 working with children in long term residential care. Due to difficulties DA had with regular nightshift, a contract adjustment in mid-2017 saw DA move to work (as a casual) with children in short term (residential) care. This work continued until December 2018.

[44] In December 2018, in light of the new Children and Young People (Safety) Act 2017 (SA) (CYP Act) and in particular a requirement for psychometric testing of employees working with children under the guardianship of the State, Baptist Care required all Child and Youth Support Workers (including DA) to enter into new contracts of employment. DA's new contract as a casual Child and Youth Support Worker providing short term care was dated 4 December 2018 and signed by DA on 13 December 2018.[24]

[45] Work under the new casual contract was continuous with DA's former Child and Youth Support work. There was no material change to DA's duties and hours which remained regular and systematic.

[46] The December 2018 contract contained terms specific to a Child Related Employment Screening clearance and psychometric testing.[25] It provided:[26]

"You will be required to participate in and adequately pass approved psychometric testing with a provider nominated by Baptist Care SA at any time as directed. Test results will be treated as confidential property of Baptist Care SA."

It is a condition of employment with Baptist Care SA that you have the following clearances...(b) An approved Child Related Employment Screening.

In the event you do not have valid relevant clearances you will not be eligible for or entitled to (a) any work...(e) for the period of time that you do not provide Baptist Care SA with a valid clearance." (my emphasis)

[47] The gap of two weeks (4 December to 13 December 2018) from when Baptist Care provided this new contract to DA and before he signed it was not inadvertent. This was a period used by DA to consider whether to accept its terms, and in particular the psychometric testing. DA took this period to reflect on his options particularly in light of the fact that, some years earlier (as part of pre-employment screening for a youth worker role with the Department) he had undertaken psychometric testing and had not passed.[27] On 13 December 2018 DA chose to continue working in Child and Youth Support under the new contract and its terms.[28] He opted for this remunerative work, given the shift loadings and penalties earned. However, in his mind he wanted to keep options open to avoid the assessment and possibly switch at the last minute to the Disability Services programme when his turn to be assessed came up, as working with adults in the Disability Services programme did not require a psychometric assessment. He was also wanting clarity about whether he would be obliged to complete a further Certificate IV (in Community Services) or whether his prior learning would be recognised.[29]

[48] The second casual role DA held with Baptist Care at the time of dismissal was a contract as a casual Support Worker in Family Mental Health. This work commenced from 1 April 2019 under a contract of that date which DA signed on 29 March 2019.[30] Although that contract also required a relevant Child Related Employment Screening, it did not require a psychometric assessment. The Family Mental Health programme saw DA rostered to work with adults, not children under the guardianship of the State.

[49] One further element of DA's history of employment with Baptist Care is relevant. For a short period (February to April 2019) DA worked in a further secondary role, as a casual Support Worker in Baptist Care's Disability Services programme.[31] DA's evidence was that, at the end of April 2019, he was required to make a choice whether to continue working in Disability Services or continue working in Care Pathways. He chose the latter. DA's evidence was that he was told by Baptist Care that he could not 'chop and change' between Disability Services and Care Pathways. Whilst told he could make a choice, if he chose not to continue working in Disability Services there would be no guarantee that he could return to Disability Services at a later date.[32]

[50] On 23 April 2019 and for the second time (the first being in December 2018) DA chose to continue as a Child and Youth Support Worker[33]. In so doing, he continued to be aware that the role would require a psychometric assessment, in contrast to the Disability Services role which did not include that obligation.[34]

[51] DA ceased performing the Disability Services work from 23 April 2019.[35]

[52] Thereafter and until the events of July 2019, he worked under parallel contracts of employment as a Child and Youth Support Worker in Care Pathways (30 to 40 hours per week) and as a Support Worker in Family Mental Health (about 6 hours per week).

[53] Following a Royal Commission, in July 2017 the South Australian parliament enacted the CYP Act. It commenced on 22 October 2018.[36]

[54] The CYP Act required all employees working in a children's residential facility operated or licensed by the Department to undertake and pass a Psychological Suitability Assessment (PSA).[37]

[55] The Department appointed a private provider, PsychCheck Pty Ltd, to undertake PSAs. Until September 2019 (that is, at all relevant times for the purposes of this matter), PsychCheck was the Department's sole contracted provider.

[56] The Department required employers supplying it with these services (including Baptist Care) to gain the Department's approval to the terms under which its employees would be assessed, including a requirement to separately contract with PsychCheck for that purpose. Employers, described as referring organisations, agreed to make relevant employees available for assessment, subject to an employee's consent. Prior to conducting an assessment, each employee would be required to provide written consent to the assessment and its terms.

[57] Baptist Care applied to the Department for an 'Approval of Psychological Assessment Process' using a prescribed departmental form.[38] Under its terms, Baptist Care agreed to provide the Department notice within two days of any employee assessed as unsuitable. On 9 November 2018 Baptist Care's application was approved by the Department.[39] By contract dated 10 April 2019 for the provision of care services to children in residential facilities, the Minister for Child Protection (SA) and Baptist Care agreed:[40]

5.1 All care workers are assessed as suitable for employment in all care settings following completion of a psychological assessment of a kind determined by the Chief Executive, Department for Child Protection."

[58] On 21 August 2018 the Chief Executive of the Department issued a Determination setting conditions for psychological or psychometric testing under the CYP Act.[41] The conditions made no reference to disclosure or non-disclosure of results. It was also silent on the issue of rights to re-evaluation or review.

[59] PsychCheck conducted testing according to an assessment protocol between it and the Department. The assessment protocol involved a psychometric evaluation (using established test data) and a one-on-one interview by an assessing psychologist with the relevant employee. In the case of an 'unsuitable' determination, PsychCheck applied a risk mitigation model requiring sign-off between three internal psychologists (including the assessing psychologist) to that conclusion. In the event an employee was assessed as 'unsuitable', the protocol provided that:

• the assessment did not imply or mean that the employee would engage in unacceptable behaviour, including harming a child (or conversely that an employee assessed as suitable assessment would not harm a child);

• the assessment operated for a 12 month period and thereafter the employee could, with their employer's support, undertake a fresh assessment;

• neither the employer nor the employee would be advised of the reasons for the assessment. The employee would receive no notification of outcome from the assessing body. The employer would be provided a Statement of Suitability. That Statement would simply advise that a particular employee (by name) had been assessed as unsuitable, but no more.[42] PsychCheck told Baptist Care that this was to "protect the confidentiality of the worker"[43]; and

• there was no mechanism for the employer or the assessed employee to secure reasons for the assessment, or its re-evaluation or review.

[60] Implementation of the PSA obligation in South Australian workplaces was rolled out progressively in the months that followed the CYP Act coming into operation.

[61] On 12 November 2018 PsychCheck provided Baptist Care with a draft Master Services Agreement for psychometric testing[44] prepared by PsychCheck's lawyers. PsychCheck's covering email advised:[45]

"If your organisation is prepared to proceed with the contract on the terms outlined, please send through your organisations...contact details."

[62] With respect to the employee Consent Form, PsychCheck's email advised Baptist Care:

"The consent document takes the form and content suggested by DCP and adds aspects of the assessment and process required by PsychCheck. It is intended that the consent form...is branded with your organisational logo only." (my emphasis)

[63] Changes made by PsychCheck to the Department's employee Consent Form included clauses concerning the assessment outcome.[46] I deal with this issue later in this decision.

[64] In December 2018 Baptist Care entered into an agreement with PsychCheck for the provision of psychometric testing services to its employees.[47] The Agreement included the following:

• agreement by Baptist Care that it had obtained independent legal advice in relation to the Agreement;[48]

• agreement that Baptist Care would require its employees to complete a specified Consent Form "substantially in the form set out in Schedule 2";[49]

• agreement that PsychCheck will provide a Statement of Suitability to Baptist Care but that "does not include feedback on any reasoning for the outcome set out in the statement of suitability";[50]

• agreement that an employee assessed as not suitable will not be reassessed within 12 months;[51]

• agreement that PsychCheck has no role "in any decision making process about the future of existing workers who have been assessed...as not suitable" and that Baptist Care is "solely responsible for any decision in respect of a worker following notification...of the outcome of an assessment";[52]

• agreement that the assessment report and psychometric data remain the property of PsychCheck;[53] and

• agreement to indemnify PsychCheck with respect to its services or liability arising out of Baptist Care's decisions once advised of the outcome.[54]

[65] Baptist Care took legal advice on the draft agreement.[55] The agreement it entered into was substantially in the form proposed by PsychCheck with three (unrelated) changes proposed by Baptist Care on 17 December 2018.[56] No changes were made or proposed by Baptist Care to PsychCheck's proposed employee Consent Form.

[66] Baptist Care informed its employees, including DA, of the CYP Act and the new PSA requirement via staff bulletins in November and December 2018, and by offering affected staff new contracts of employment containing revised terms.

[67] The November 2018 Bulletin provided:[57]

"Psychometric testing will start soon and you will be contacted directly to make the necessary arrangement. Baptist Care SA recognises that this process could be difficult for some of you and as an organisation we want to support you. More details will be available soon."

[68] The December 2018 Bulletin provided[58]:

"Q: What happens if I've already sat the Psychometric Test and not passed?

A: If you have already sat the Psychometric Test, and this was longer than 12 months ago, then Baptist Care SA will support you to re-sit this test during the first round of Psychometric Testing. If you sat the Psychometric Test within the past 12 months and were assessed as "unsuitable", Baptist Care SA will make reasonable efforts to suitably redeploy you in any other existing vacancy within the organisation if you fulfil all requirements of the role and are assessed through an interview process as suitable. If this option is not viable, then we will have a discussion regarding your ongoing employment with us.

Q: What support will I have when I sit my Psychometric Test?

A: Baptist Care SA's Chaplain, Ian Warner, will be making individual contact with all staff scheduled to sit a Psychometric Test, to offer support. All staff also have free and confidential support through the EAP service - ACCESS, and we encourage you all to utilise these supports available to you." (emphasis in original)

[69] DA received these bulletins.

[70] As noted, on 6 December 2018 Baptist Care sent DA a revised employment contract for work as a Child and Youth Support Worker in Care Pathways[59] which DA signed on 13 December 2018.

[71] On 18 December 2018 Baptist Care wrote[60] to all employees by letter concerning arrangements for psychometric testing. It advised dates for collective and individual staff consultation sessions in the last week of December 2018 and in the first week of January 2019. It repeated its invitation for employees needing support to contact the staff chaplain, a line manager or its People and Culture Team.

[72] From January 2019 Baptist Care commenced rolling out psychometric testing (by PsychCheck) amongst its employees.

[73] In May 2019 DA was required by Baptist Care to undergo psychometric testing.

[74] Although DA remained anxious at undergoing a psychometric assessment (having been deemed unsuitable at an earlier time whilst seeking work with the Department) he had reconciled doing so when signing his revised contracts with Baptist Care in December 2018 and April 2019. Yet, given his lingering reservations, in May 2019 DA took the Consent Form away for consideration. The Consent Form he was provided with was the one agreed between Baptist Care and PsychCheck in December 2018. DA was not advised that the Consent Form included different terms to a pro-forma that had been issued by the Department. After further reflection he signed the Consent Form on 28 May 2019.[61] He did not seek variations to it.

[75] DA undertook psychometric testing by PsychCheck on 21 June 2019 (input by DA into test questions) and then on 25 June 2019 (one-on-one interview with assessing psychologist). The interview took one hour forty minutes (longer than the allocated ninety minutes). From DA's perspective, some tension arose with the assessing psychologist during the interview. At its conclusion, DA felt that the assessing psychologist was marking him down for unfair reasons or reasons on which they held a difference of opinion.[62]

[76] DA formed these views about the assessing psychologist based on his own exposure to the discipline of psychology[63], and to his personal experience of having consulted his treating psychologist Ms Corlett on a regular basis since October 2016. He subsequently speculated that the assessing psychologist might have been biased against him when learning from his father (post-assessment but pre-outcome) that his father and the assessing psychologist had a prior work association.

[77] Consistent with terms of the Consent Form, DA was provided no feedback by PsychCheck following his assessment; neither on outcome, nor reasons nor other feedback. He was not provided the report.

[78] On 8 July 2019 PsychCheck sent Baptist Care a Statement of Suitability which simply advised that DA had been assessed as "currently psychologically unsuitable". Consistent with the terms of the Master Services Agreement, Baptist Care was provided no reasons, feedback nor the report. Baptist Care did not seek such information.

[79] That day, 8 July 2019, an officer of Baptist Care (Mr Salerno, Manager Alternative Care) telephoned DA and advised that DA had been deemed unsuitable. He asked DA to attend a meeting the next day.

[80] DA attended this meeting with his support person MH.

[81] Baptist Care was represented by Mr Salerno and Ms Futardo (Manager People and Culture). The employer provided DA with a show cause letter. The letter dated 9 July 2019 read in part:

"Information recently made available to us by the Department...indicates that you have been assessed as "unsuitable"...As a result of us becoming aware of the above information, you will no longer be able to fulfil the inherent requirements of your role as a Support Worker as having psychological suitability for the role is a requirement of DCP...The above determination is inconsistent with the CYP Act, your contract of employment and the requirements of your Position Description. Baptist Care takes very seriously any matter that may impact an employee's ability to perform the inherent requirements of their role...

Given the seriousness of these findings, you will be suspended and are required to ensure you remain available in the event we need to contact you. In the interim period you are prohibited from attending work, performing work or attempting to enter any Baptist Care SA premises without the express permission from People and Culture.

The matters set out above are extremely serious as they may result in the termination of your employment. We are now writing to you to give you the opportunity to meet with us and explain why, in all of the circumstances, your employment should not be terminated. You are required to attend that meeting...on Monday 15 July 2019. As the potential outcome of this matter is serious, you are reminded of your right to bring a support person to the meeting."

[82] The show cause letter and the suspension made no reference to DA's separate work with adults in the Family Mental Health programme.

[83] Following the meeting, DA telephoned Mr Salerno and asked whether he was allowed to continue to perform his work in Family Mental Health. DA had been rostered for a shift two days later, 11 July, with an established client. Mr Salerno appeared unaware that DA held this second job. He undertook to get back with an answer.

[84] On 10 July 2019 Mr Salerno telephoned DA. DA was advised that he was not permitted to work in any roles due to his suspension. DA considered this wrong. He took the issue up immediately with Ms Futardo and other managers. Late on 10 July 2019 Baptist Care reversed this position. DA was advised that he could continue to work with adults in the Family Mental Health programme. DA proceeded to do so.

[85] Baptist Care convened the show cause meeting on 15 July 2019. DA attended, again with MH, as did Mr Salerno and Ms Futardo.

[86] Ms Futardo said that due to legislation, Baptist Care saw no alternative but to terminate DA from his work in the Care Pathways programme. DA said that he wanted to know "what the psychologist took issue with" and whether he could get the report. MH said that DA wanted to know if DA could have the results reviewed or sit the test again and if not, why not. MH said that the assessing psychologist might have had a conflict of interest because he had worked previously with DA's father. DA pressed this issue further. He said that he was concerned at possible bias, and wanted to have an independent third party review the assessment. He also wanted the report. Ms Futardo said that she had spoken to PsychCheck who had advised that for legal reasons they could not provide the report to DA or Baptist Care. Pressed further, Baptist Care told DA that they would write to PsychCheck seeking a copy of the report.

[87] The discussion turned to whether there was alternative work which Baptist Care could provide DA to make up for the loss of his Care Pathways job (and income). Ms Futardo agreed to examine redeployment options. DA advised that he had been required some months earlier to elect between Disability Support work and Child and Youth work, but would be willing to again consider disability work though working with children remained his preference.

[88] Following the meeting, on 17, 18 and 19 July 2019 DA exchanged emails with Ms Futardo.[64] DA put in writing his concern at the assessment process and his fear it was biased against him. He sought confirmation that he would be paid during suspension. He said he felt misled by Baptist Care in asserting that psychometric testing was a legislative requirement for short term care of children when he believed the legislative requirement applied only to children in longer term residential care. He expressed concern at impacts on his employability and reputation, and delay in being informed about redeployment options. He said extra hours in the Family Mental Health programme would not (due to the rosters) be remunerative in the same way as fresh work in Disability Services.

[89] Ms Futardo responded, advising (1) that DA's suspension would be paid; (2) a specific proposal for extra hours would be provided to DA; and (3) she had emailed PsychCheck requesting they meet with DA and had been informed that DA should directly take up any conflict of interest issues with PsychCheck (she provided DA their contact number).

[90] DA called the Department. He was told that, as per his Consent Form, he could not be provided the report but, upon his insistence, he believed the Department undertook to get back to him on whether a review was possible.[65] He did not hear back from the Department.

[91] DA was offered additional hours by Baptist Care in the Family Mental Health programme. He took some additional hours, but declined others. He was not rostered in the Care Pathways programme (short term or long term care of children) nor offered a role in his next preference of resuming work in Disability Services.

[92] Baptist Care convened a meeting with DA on 30 July 2019, attended by DA and MH and by Mr Thomson (People and Culture partner) and Ms Pace (Senior Manager Care Pathways). The meeting was audio recorded. That audio is in evidence.[66]

[93] At the meeting, which occasionally became testy between DA and Mr Thomson:

• DA and MH repeated concern at the assessment process and outcome;

• DA and MH asserted that there had been no obligation to assess DA given he had been working in short term care;

• DA acknowledged extra shifts in the Family Mental Health programme but, for financial reasons, sought work in the Disability Services programme;

• DA said that his employment should not be terminated as he was a good worker with a long history and had never been performance managed;

• Baptist Care said that work in Disability Services could not be offered because persons with disability were vulnerable. Baptist Care advised they were, as a matter of internal policy, taking a "risk-averse" approach given the deemed unsuitable assessment;

• DA and MH claimed this risk-averse approach was unreasonable and inconsistently applied, and sought the internal policy on which it was based. None was produced;

• Baptist Care said that it could not look behind the assessment and had legal obligations where an employee is found not suitable to work with children; and

• Baptist Care said there were no jobs available in Disability Services in any event.

[94] At the mid-point of the meeting[67], Baptist Care told DA that his employment as a Child and Youth Support Worker in Care Pathways was terminated. Baptist Care agreed to provide written confirmation of the termination, and of why work in Disability Services was not being offered.

[95] Two days later (2 August 2019) DA wrote to Baptist Care seeking written confirmation of the termination and its reasons.[68]

[96] On 6 August 2019 Baptist Care wrote to DA[69] confirming termination of his employment as Child and Youth Support Worker:

"...after careful consideration of your responses your casual contract of employment as a Support Worker in Care Pathways will cease. This is a result of your "deemed unsuitable" outcome from your recent psychological assessment which is an inherent requirement of your role as a Support Worker in Care Pathways as per your position description; your signed Employment Contract for Support Worker Care Services; Section 107(1) & Section 110A of the Children and Young People (Safety) Act 2017; and Section 5.1 of the Service Deed with Baptist Care SA and the Department of Child Protection."

[97] In this letter, Baptist Care advised that DA's contract as a Support Worker in Family Mental Health continued. On redeployment to Disability Services, Baptist Care advised that "as you do not have a current casual Support Worker role...therefore there is no requirement on the organisation to provide you with shifts in Disability Services". Baptist Care referred to the choice DA had made in April 2019 to leave his Disability Services contract. I deal with this later in this decision.

[98] On 19 August 2019 DA commenced these proceedings.

[99] DA received the PsychCheck report (and associated material) only by virtue of an order made by the Commission in the course of these proceedings.

[100] Since dismissal, DA:

• has remained employed with Baptist Care in the Family Mental Health programme[70] (hours initially increased to 21 hours per week for the first three months (part-time); currently (casual) 9 to 12 hours per week);

• secured employment with a different employer in Disability Services (currently 35 hours per fortnight);
• secured very limited employment with another employer as a Disability Support Worker (one shift); and
• believes that he last lost around $25,000 in wages in the seven months following his dismissal, compared to what he would have earned had he not been dismissed.

[101] Although Baptist Care did not press its jurisdictional objection, I am required to be independently satisfied that DA's application is within jurisdiction.[71]

[102] DA's application was filed within the statutory time limit. For DA's application to fall within jurisdiction it is necessary that DA was "dismissed" within the meaning of section 386 of the FW Act and that he was a person protected from unfair dismissal (section 382).

[103] DA was a person protected from unfair dismissal. He was employed under a modern award. He served at least the minimum statutory employment period. I am well satisfied that his casual employment in the Care Pathways programme was regular and systematic within the meaning of sections 383 and 384 of the FW Act.

[104] I am also satisfied that DA was "dismissed" within the meaning of section 385(a) of the FW Act.

[105] DA's contract of employment with Baptist Care as a Child and Youth Support Worker in Care Pathways (the subject of this application) was separate and distinct from his contract of employment with Baptist Care as a Support Worker in Family Mental Health. The two contracts were made at separate times and involved different working hours, different duties and distinct locations. During the four months April to July 2019 the contracts operated in parallel. Whilst, after dismissal, DA continued to work for Baptist Care in the (less remunerative) Family Mental Health programme, his contract in the Care Pathways programme was ended by decision of Baptist Care.

[106] Absent dual contracts being a contrivance, there is no impediment to concluding that an employee working under separate contracts for the same employer can be dismissed from one contract yet remain employed under the other, and that dismissal from the former is actionable under the FW Act.[72] What is required for the purposes of section 385(a) is termination of the employment relationship on the employer's initiative. Whether a different employment relationship on separate terms existed, operated in parallel, continued to exist or was contemporaneously created does not mean that "the person's employment with his or her employer" had not been terminated. Nor is this a case of a sequence of time limited or outer limit contracts of employment where different considerations may apply.[73]

[107] As there was action on the part of Baptist Care which intended to bring DA's Care Pathways employment to an end and did so[74] I conclude that DA's application is within jurisdiction.

[108] In considering whether DA's dismissal was "harsh, unjust or unreasonable" the Commission is required to consider each of the matters in section 387 of the FW Act to the extent they are relevant.[75] Those matters must be considered to make an overall assessment of whether the dismissal was harsh, unjust or unreasonable. That assessment is based upon the ordinary meaning of these words, in their statutory context. That context includes the object stated in section 381(2) of the FW Act that:

"...the manner of deciding on and working out such remedies are intended to ensure that a "fair go all round" is accorded to both the employer and the employee concerned."

[109] Section 387 of the FW Act provides:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

[110] I now consider these matters. In so doing, I take account all of the evidence and submissions before me. Given the volume of evidence and the breadth of issues raised, I specifically deal with evidence that is most material to arriving at a decision. Some evidence is not referenced, not because I have not considered it, but because I do not need to make specific reference to it. Similarly, I have dealt with each primary submission but not every angle of each submission, not because they have not been considered but because doing so would add excessive length to these reasons.

[111] Valid in this context is generally considered to be whether there is a sound, defensible or well-founded reason for the dismissal.[76] Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them.

[112] The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer (other than cases of summary dismissal by a small business employer[77]) to rely upon its reasonable belief that the termination was for a valid reason.[78] Equally, facts justifying dismissal, which existed at the time of the termination, can be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.[79]

[113] The existence of a valid reason to dismiss is not assessed simply by reference to a legal right to terminate a contract of employment.[80]

[114] Baptist Care contend that there was a valid reason for dismissal related to DA's ability to perform an inherent requirement of his job. The inherent requirement is said to be an obligation DA had to be independently assessed as suitable to care for children who were under the guardianship of the State.

[115] DA's contract of employment as a Child and Youth Support Worker in Care Pathways required that he care for such children. It also required DA to obey all lawful and reasonable directions of his employer.[81]

[116] However, it was not until DA's revised contract in December 2018 (following passage of the CYP Act) that an obligation to be deemed suitable by psychometric testing existed.[82] From the commencement of his employment (in February 2017) until then, DA did not hold such accreditation, was not required by Baptist Care to do so yet no concern had been raised as to the well-being of children in his care.

[117] The obligation arose from a legislative change and departmental requirement incorporated into DA's revised contract of employment and progressively implemented by Baptist Care (via an assessment agent, PsychCheck) under the terms of (1) an agreement reached between the employer and the Minister for Child Protection and (2) an agreement reached between the employer and PsychCheck.

[118] The assessment obligation was a mandated requirement on all persons in the State of South Australia who provided care for children under the guardianship of the Chief Executive of the Department in operated or licensed facilities. That obligation, enacted by a sovereign parliament and administered by the Department, was a lawful obligation. Both as a corporate citizen and under the terms of its agreement with the Department, Baptist Care was compelled to comply with the law. Although implementation of the requirement was rolled-out progressively once the amending legislation commenced, that roll-out made it no less of an obligation.

[119] The obligation required Baptist Care to make its employees engaged in the care of the relevant children available for psychometric assessment. Relevantly, it included the obligation to only allow those assessed as suitable to continue to care for such children.

[120] Baptist Care gave notice of the requirement to its workforce by staff bulletins in November and December 2018[83] and by subsequent letter.

[121] By January 2019, when Baptist Care started rolling-out testing, the requirement had become an express term of DA's contract. As PsychCheck was, at that time, the sole approved provider of such testing, it was a lawful direction that DA be tested by PsychCheck.

[122] Having regard to the fact that DA worked with the relevant children, I am well satisfied that it was, at the time of dismissal, an inherent requirement of DA's job that he hold such accreditation. As has been said by the High Court (Gaudron J), an inherent requirement is something that is essential to the position held by an employee:[84]

"it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship."

[123] Had Baptist Care not obligated DA to do so it would have breached its contract with the Minister. By law, DA's employment as a Child and Youth Support Worker could not continue to be performed if and when a 'deemed unsuitable' assessment was made known to Baptist Care.

[124] This is not a matter where a material distinction arises between inherent requirements of a position and inherent requirements of a job,[85] or distinction between core and peripheral duties.[86] Whilst DA had capacity to competently care for children before and after the assessment, the inherent requirement was a deemed suitable accreditation, which after 8 July 2019 he did not hold.

[125] An employee's inability to lawfully perform work or fulfil an inherent requirement of the job will generally provide a valid reason for dismissal.[87] As recently noted by a full bench of the Commission:[88]

"A capacity related reason for dismissal might be concerned with an employee's performance, the employee's physical capacity to perform the work, the loss of a qualification or licence necessary to perform the work, or an inability to perform the inherent requirements of the job because of some injury, illness or other disability." (emphasis added)

[126] DA contended, in the dismissal meeting and at the hearing that, in retrospect, he was not obligated to submit himself to an assessment as he was only working with children in short term care at the time of dismissal. I do not accept this submission. Irrespective of whether the residential premises where DA did his work was registered or licensed within the meaning of the CYP Act, it was a requirement of the Department that a publicly funded contract for the care of children under the guardianship of the Chief Executive compelled the supplier of those services (Baptist Care) to submit its employees working with such children for a mandatory assessment. That was Baptist Care's obligation under its contract with the Minister of 10 April 2019[89]. No exception existed for short term care.

[127] Other than on this point, DA did not materially contest that he was not permitted to continue to work with children under the guardianship of the State once he had been assessed as unsuitable. He could only do so if re-assessed as suitable, and this could not occur inside 12 months. However, for a multitude of reasons DA contends that the psychometric assessment reached the wrong conclusion and for that reason there was no valid reason for dismissal.

[128] I recognise the genuine basis on which DA advances this submission. However, in the context of determining this matter, I do not accept it.

[129] The submission erroneously conflates the reasons for the assessment with the reason for dismissal. DA was not dismissed because, in the opinion of his employer, he was unsuitable to work with children. He was dismissed because his employer formed the view that once assessed by the third party as unsuitable, DA could no longer perform an inherent requirement of the job.

[130] The reasons for the assessment and the reason for dismissal were related but distinct. They were made by separate entities. Even though Baptist Care's decision was a direct consequence of PsychCheck's conclusion it was made by reference to DA's employment obligation, not the merit of the psychological assessment. It was DA's assessment as unsuitable which compromised his employment as a Child and Youth Support Worker with Baptist Care. That compromise existed irrespective of the reasons reached by the third party or whether those reasons were well-founded.

[131] In circumstances where Baptist Care neither influenced the outcome of the assessment nor formed any view on its legitimacy (indeed it, like DA, it was not privy to the reasons) the merit of the assessment is not relevant to the question of valid reason.

[132] For these reasons I do not consider the professional opinion and evidence of DA's treating psychologist Ms Corlett[90] (as well as DA's evidence about the assessment report[91]) and alternate professional conclusions that could have been drawn from the psychometric test data and DA's interview with the assessing psychologist as relevant to whether a valid reason existed. Whilst I admitted that evidence (as it was relevant to the manner in which DA framed his case) these were not conclusions reached by Baptist Care or matters over which Baptist Care did or could influence.

[133] However, whilst the conclusion reached by the assessing psychologist (and professional challenges to it) is not relevant to these proceedings, this does not mean that all aspects of the assessment process are irrelevant. Baptist Care's conduct (either by commission or omission) in agreeing to terms under which its employees were tested and conduct post-assessment is relevant to issues of fairness. I consider these aspects later in this decision.

[134] For these reasons, I conclude there was a sound, defensible and well-founded reason for DA's dismissal. From 8 July 2019 DA had not, following assessment, been assessed as deemed suitable to perform an inherent requirement of his job: the care of children under the guardianship of the State.

[135] This was a valid reason for dismissal.

[136] This consideration weighs against a finding of unfair dismissal.

[137] Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[92] and in plain and clear terms.[93]

[138] Baptist Care provided notice to DA of the reason for dismissal (inherent requirements of the job) by letter 9 July 2019 (and meeting that date), at the 15 July (show cause) meeting, at the 30 July 2019 dismissal meeting and in a confirming letter of dismissal 6 August 2019.

[139] Whilst DA, understandably, did not consider this reason adequate (as he was seeking the reasons for the substantive assessment and its review) it was not those reasons for which he was dismissed. The reason for which he was dismissed was the reason he was notified.

[140] This consideration weighs somewhat against a finding of unfair dismissal.

[141] An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate the employee's employment.[94]

[142] The opportunity to respond does not require formality and this consideration is to be applied in a common sense way to ensure the employee is treated fairly.[95] Where an employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy this consideration.[96]

[143] DA had multiple opportunities to respond to the stated reason for dismissal at the show cause meeting on 15 July 2019. However, the opportunity at the dismissal meeting on 30 July 2019 was more qualified. Halfway through that meeting[97] DA was told he was dismissed (from the Care Pathways contract) and Baptist Care confirmed during that meeting that it had decided on that outcome prior to the meeting commencing[98]. Nonetheless, the meeting was a substantial engagement on the issues although, in my view, unlikely to have altered the pre-determined outcome.

[144] However, DA had no opportunity to respond to the reasons for the assessment either before or at the time of dismissal or at any time in advance of the Commission ordering that the assessment report be produced to him. I deal with this issue later in this decision.

[145] Overall, this consideration weighs somewhat against a finding of unfair dismissal.

[146] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.

[147] Baptist Care did not refuse, let alone unreasonably refuse, DA a support person. In fact, Baptist Care encouraged DA to participate in the 9 July, 15 July and 30 July meetings with a support person. He did so (via MH). In the circumstances, and quite reasonably, Baptist Care permitted DA's support person to take an active role in discussion given the unusual context in which dismissal and other alternatives were being discussed.

[148] This is a neutral consideration.

[149] As DA's dismissal did not relate to unsatisfactory performance, this factor is not relevant.

[150] Although operating in the not-for-profit sector, Baptist Care is a sizeable organisation with dedicated human resource specialists and expertise. Neither party submitted that the size of Baptist Care was likely to inhibit the procedures followed in effecting dismissal.

[151] I find that neither the size of Baptist Care nor its human resource capability was likely to constrain Baptist Care's ability to provide substantive and procedural fairness to its employees on termination matters. The initial lack of awareness amongst some managers about DA's second job with Baptist Care was the product of human error, not size or human resource capability.

[152] This is a neutral consideration.

Harsh - Employer agreed to unfair assessment process

[153] DA submits that his dismissal was harsh because the assessment process was unfair.

[154] I do not accept this submission to the extent that it reflects concerns held by DA about matters which were wholly internal to PsychCheck's conduct of the assessment (such as whether the assessor was biased, or whether test data was adequate or adequately interpreted or whether the assessment interview was unduly prolonged). These were matters unknown to Baptist Care and over which Baptist Care had no control or capacity to influence.

[155] However, to the extent that DA's submission deals with concerns which Baptist Care knew, ought to have known or had capacity to influence, there is some force in this submission.

[156] The evidence establishes that Baptist Care had no control over:

• The statutory obligation that DA be assessed;

• The determination of the Chief Executive of the Department setting conditions for psychometric testing;

• The Department's approval of PsychCheck as the (then) sole provider;

• PsychCheck's choice of who its assessing psychologist would be;

• The test data adopted by PsychCheck;

• The manner in which one-on-one interviews were conducted by PsychCheck;

• The answers given by DA to test data and to questions at the assessment interview; and

• The conclusion reached by the assessing psychologist as confirmed by two other officers of PsychCheck.

[157] However, the evidence establishes that Baptist Care had input into, and in that sense the capacity to influence, the terms of the Master Services Agreement it reached with PsychCheck in December 2018 for testing its workforce, including DA. Yet, on the evidence before me,[99] Baptist Care took no steps to seek to negotiate into that agreement a capacity for any of its staff deemed unsuitable to receive the report, or in the absence of the report, to receive reasons or feedback on reasons, or to request a review.

[158] Whilst Baptist Care was asked to consider a master deed prepared by PsychCheck's lawyers, PsychCheck disclosed to Baptist Care (in its covering email of 12 November 2018[100]) that:

• the deed was a "draft;

• Baptist Care was entitled to provide input on "queries, comments or concerns" and should take legal advice on it;

• PsychCheck did not "intend" to provide detail, feedback or advice to an employee or Baptist Care relating to the reasoning or detail of the outcome of an individual assessment;

• the Consent Form PsychCheck proposed went beyond that suggested by the Department: "it adds aspects of the assessment and process required by PsychCheck; and

• PsychCheck intended the Consent Form to be branded with Baptist Care's logo, not its. (my emphasis)

[159] I recognise that Baptist Care was in a weaker bargaining position than PsychCheck when negotiating the deed. Baptist Care had a testing obligation to the Department and the employer had no choice but to engage the sole approved provider. Notwithstanding this, the deed was not non-negotiable. As it turned out, Baptist Care obtained legal advice on it, and on 17 December 2018 negotiated three changes to unrelated clauses.[101]

[160] Before signing the deed, it should have been readily apparent to Baptist Care that in at least the following two respects the draft deed represented terms sought by PsychCheck and were thereby negotiable:

• the proposed clause that PsychCheck would provide no reasons or feedback to Baptist Care or its staff. In the covering email, this was expressed as PsychCheck's "intention" and one it had formed "following advice received"; and

• the proposed Consent Form altered the example Consent Form which had been published by the Department. Baptist Care was aware of the Department's published form because it comprised 'Appendix A - Example'[102] to the application which had been made by Baptist Care to the Department weeks earlier.

[161] Neither of these issues were peripheral to the interests of Baptist Care's employees. They went directly to issues of fairness in the assessment process. Critically, the change to the Consent Form concerning the non-provision of reasons or feedback was not a mere addition. It was both a deletion of a clause (in the example form) that allowed feedback and then the insertion of a different clause with opposite effect.

[162] Both forms indicated that employees were not entitled to receive the assessment report. However, whereas the Department's example form provided:

"I acknowledge that I may be able to seek feedback on my assessment outcome directly from the approved assessment provider, and at my own expense."

"I acknowledge that I cannot obtain feedback on my assessment outcome from PsychCheck."

[164] Further, PsychCheck included a clause in its proposal which prohibited a right of review (whereas the example form was silent on that question):

"I acknowledge that I do not have a right of review, nor will a re-evaluation be undertaken, should I be found 'not suitable' to safeguard young people and children."

[165] Relevantly, Baptist Care made no attempt to raise either issue with PsychCheck. It negotiated other matters but on these fundamental issues of fairness to employees it neither asked PsychCheck to justify the proposed terms let alone express preference for the procedurally fairer terms in the Department's example form.

[166] For an affected employee and especially in the context of that employee's suitability for their job being assessed, being advised of why a decision with adverse consequence has been made is a fundamental issue of fairness, at least where decisions impact job security. That such decisions involve sensitive or personal matters is not generally a reason to dispense with norms of fairness. It was unfair for DA to be simply left to speculate on why the assessor had reached the conclusion he did.[103] Speculation in the absence of knowledge simply added to DA's stress, and prevented him from trying to put in place substantive or professional dialogue between the assessor and his treating psychologist.

[167] Whilst Baptist Care was not the assessor, its failure to advocate this fairness principle and seek its inclusion in the Master Services Agreement negotiated with the assessor was an unreasonable oversight on its part. In so doing, Baptist Care, by omission, exposed its employees to an assessment process which, in these critical respects, denied fairness; a denial that was neither required by law nor by Baptist Care's contractual arrangement with the Department.

[168] This conclusion is not disturbed by the rebuttal advanced by Baptist Care that DA retained the right to take administrative action in the courts to secure production of reasons. Leaving aside the cost, delay and impracticality of such a course where an employee faces dismissal within days of an adverse assessment, whatever rights an employee has to judicial review against a third party does not transform an unreasonable omission by their employer into a reasonable course of action.

[169] Although all considerations must be taken into account (including DA's subsequent consent) this omission on the part of Baptist Care weighs somewhat in favour of a finding of an unfair dismissal.

[170] A related submission by DA is that his dismissal was harsh because, when Baptist Care supplied him the Consent Form (on its logo) for signature, the employer failed to inform that the required terms of consent differed materially from that which had been published as an example by the Department; and in particular that Baptist Care had agreed to remove a clause contemplating an employee being provided feedback, and that it had agreed to insert in lieu a clause prohibiting feedback and denying review rights.

[171] DA says this was misleading conduct.

[172] I do not accept that Baptist Care misled DA. The form supplied to DA was the form it had, by then, agreed with PsychCheck. Its terms were plain and not misleading. The employer did not represent that the form was the same as the example consent form.

[173] However, DA was, for understandable reasons given the references in the November and December 2018 staff bulletins (and subsequent staff letter) to the CYP Act, operating on the premise that the consent form reflected legislative terms:[104]

"I did assume that everything on that consent form was basically produced from the legislative requirements."

[174] There is force in DA's submission to the extent it bears on overall fairness. Given that fundamental employee rights were compromised by the agreed deviations from the example consent form, it would have been reasonable for Baptist Care to disclose these facts to staff and allow employees to exercise informed consent - informed by the fact that it was PsychCheck and the employer, not the CYP Act or the Department, which required Baptist Care's employees to undertake an assessment stripped of any rights to feedback or review.

[175] Although all considerations must be taken into account (including DA's subsequent consent) this omission on the part of Baptist Care also weighs somewhat in favour of a finding of an unfair dismissal.

[176] DA submits that his dismissal was harsh because Baptist Care did not advocate for the provision of the report or feedback on the assessment, or for a right of review, once Baptist Care was informed of the outcome and made aware of DA's concerns about it.

[177] I do not accept this submission. The evidence before me is that Baptist Care followed through with its undertaking to DA (before and after the show cause meeting) to contact PsychCheck on these issues. It subsequently reported to DA that it had emailed PsychCheck requesting the assessing agency meet with DA and that, in response, the employer had been informed that DA should take up any conflict of interest issues directly with them. Baptist Care provided DA with PsychCheck's contact details for that purpose.

[178] Baptist Care did what it reasonably could in this respect, taking into account that it had, via the Master Services Agreement signed seven months earlier, limited its capacity to secure the post-assessment information DA was seeking.

[179] This is a neutral consideration.

[180] DA submits that Baptist Care failed to make reasonable efforts to re-deploy him to comparable and equally remunerative work.

[181] The starting point for this consideration is the commitment made in the December 2018 bulletin by Baptist Care to staff who may be assessed as unsuitable:[105]

"Baptist Care SA will make reasonable efforts to suitably redeploy you in any other existing vacancy within the organisation if you fulfil all requirements of the role and are assessed through an interview process as suitable."

[182] Post-assessment, Baptist Care actively considered redeploying DA, and offered DA additional rosters in the Family Mental Health programme. Were its efforts reasonable?

[183] I do not consider Mr Salerno's initial lack of awareness on 9 July 2019 that DA worked a second (Family Mental Health) contract with Baptist Care as having caused fundamental prejudice to DA, though it did insensitively and unnecessarily add to the stress and upset he experienced at the time. That mistake was one of human error, and once taken further by DA, was corrected the following day with DA then being authorised to perform the work he had been rostered.

[184] Although DA's preference was to be redeployed elsewhere in the Care Pathways programme, this was a programme which inherently required DA, as a Child and Youth Support Worker, to care for children. Not having been assessed as suitable to work with children under the guardianship of the State, it was reasonable for Baptist Care to not offer such work to DA.

[185] However, Baptist Care's refusal to offer DA work with adults in the Disability Services programme involves different considerations. DA was told during the dismissal interview that Baptist Care would not offer such work because it was, as a matter of internal policy, taking a "risk-averse" approach in light of the assessment that he was unsuitable to work with such children.[106]. Mr Thomson, in the dismissal interview on 30 July 2019 put it this way to DA[107]:

"what Baptist Care have done is they have taken a risk-averse approach where someone who doesn't fit that requirement or measures unsuitable, they are using that as the instrument to deem whether they will take the risk to have that person interacting with young people and vulnerable people.

Baptist Care have applied an internal policy around that..." (my emphasis)

[186] No internal policy to this effect was provided to DA at the meeting (despite MH's request), nor produced at the hearing.

[187] The Disability Services programme included working with adult persons. Excluding DA from being considered for work with disabled adults (work which he had previously performed to the employer's satisfaction) on the basis that he had been deemed unsuitable to work with children was neither logical nor reasonable. At the dismissal interview, at least Ms Pace appeared completely unaware that DA had worked with adults in Disability Services, not children; only to be corrected by DA[108]. Nor was the rationale consistently applied. If a 'risk-averse' approach meant DA could not be offered work with disabled adults, why then did Baptist Care allow DA to continue to work with adults in the Family Mental Health programme? As discussed below, the fact that he had an existing contract in one but not the other is not a logical point of difference in the context of considering redeployment.

[188] In making a decision to adopt a 'risk-averse' approach against which DA would be assessed for future work in Disability Services, Baptist Care was unduly influenced by the fact that DA had agreed, in April 2019 to end his contact in Disability Services. As I have found, at that time, DA chose to continue working in the Care Pathways programme on the basis that he would have no guaranteed right to return to Disability Services. I accept DA's evidence[109] that he was advised in April 2019 that there was no guaranteed right to return to Disability Services, not that it was ruled out in its entirety. That agreement was made a time when DA faced no impairment to working in Care Pathways. By July 2019 that was no longer the case. The changed circumstances warranted a more considered approach by Baptist Care to prospective employment of DA in Disability Services.

[189] Further, the 'risk-averse' approach adopted by relevant managers towards DA was at best an internal Baptist Care construct and not a contractual or legislative requirement. Quite unfairly, it inferred that DA was a risk to vulnerable persons generally. There was no foundation for this view particularly given that DA had not long prior performed Disability Services work with vulnerable adults (and continued to perform mental health work) without complaint or performance management.

[190] In the termination letter, Baptist Care informed DA that a reason it was not offering work in Disability Services was that "there is no requirement on the organisation" to do so because he did not "have a current casual Support Worker role in Disability Services". This was an inadequate and insufficient response. The "reasonable" redeployment efforts Baptist Care promised its staff (in the December 2018 bulletin) ought not have been dependent on whether an employee had a current parallel contract in another area of the business at the time of their unsuitable assessment. Reasonable redeployment required an open-minded examination of possible work within the skill and capability of the employee in areas of business need, irrespective of whether the employee was currently employed to work in such areas. In DA's case he was not currently working in Disability Services. The fact that he had done so only months prior ought to have weighed in his favour, not against him.

[191] Whether work was available for DA to perform with adults in Disability Services is a separate question. Although DA was told by Ms Price at the end of the dismissal meeting that there was no such work, Baptist Care led no evidence in this regard. I am unable to make a positive finding to this effect.

[192] It is however relevant to an overall assessment of whether redeployment efforts were reasonable to also take into account:

• that DA accepted some additional shifts in the Family Mental Health programme but rejected others because he was seeking alternative work which would provide remunerative rosters (weekend and evening shifts) comparable to that which he had performed in the Care Pathways programme; and

• Baptist Care offered DA outplacement services.

[193] Although all considerations must be taken into account (including DA's rejection of some of the rostered shifts in mental health offered by Baptist Care) the failure by Baptist Care to give full consideration to a contract of employment in the Disability Services programme weighs in favour of a finding of an unfair dismissal.

[194] DA submits that the dismissal was harsh because of its impact on his reputation, employability and sense of self-worth.

[195] There is no doubt that an employee assessed as unsuitable following a psychometric assessment by a third party in circumstances where they had worked with children for a near decade without concern or complaint from their employers or regulators would be deeply concerned at reputational impact. For a person such as DA, who held himself to high standards and took pride in his work, this was particularly galling.

[196] Yet, whilst the assessment hit DA hard, it was not a complete shock. DA had failed a similar assessment years earlier, had twice wrestled (whilst employed as a Child and Youth Support Worker with Baptist Care) with the prospect of putting himself though a mandatory assessment once the CYP Act came into operation, and had left the PsychCheck interview fearing that the assessing psychologist wasn't 'on-side'.

[197] Although impacting his ability to work with children under the guardianship of the State, the assessment did not prevent DA securing work with adults in the community sector. It limited his employability but did not crush it.

[198] Further, the privacy protocols surrounding the communication of the assessment outcome minimised, to a certain degree, external impacts on his reputation.

[199] The adverse effects on DA's reputation, employability and self-worth, whilst very real, are not materially more profound in his circumstances than those of other persons with experience who may also have been working competently with children in the community sector yet faced with the same finding against them.

[200] Those impacts, whilst distressing to the employee concerned, are an unavoidable consequence of the legislative scheme of mandatory psychological assessment playing out. They do not transform a dismissal for a valid reason into a harsh dismissal.

[201] This is a neutral consideration.

[202] Each assessment of whether a dismissal is unfair must be considered on its own merits. In arriving at an overall assessment, the statutory considerations must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.[110] The Commission will not stand in the shoes of an employer and determine what the Commission would do had it been in the position of the employer.[111]

[203] DA's application raises an unusual circumstance: where neither the employee nor the employer sought his dismissal but where the employer dismissed the employee as a consequence of a mandatory assessment by a third party which removed the capacity of the employee to perform an inherent requirement of the job.

[204] In this sense, the employer says that it had no effective choice but to dismiss the employee.

[205] In response, DA says that:

• the assessment reached an unfair conclusion;

• his employer agreed to an assessment process which denied him due process; and

• irrespective of the assessment outcome or process, his employer acted harshly in dismissing rather than redeploying him into work of comparable value.

[206] I have made findings and drawn conclusions on each of these issues.

[207] Although DA's dismissal after being declared "currently unsuitable" is specific to its facts and circumstances, dismissal of an employee following intervention by a third party is not entirely unique. A non-exhaustive list of illustrative examples is:

• where a tradesperson is required to be licenced but where the relevant licensing authority cancels that employee's license (e.g. a truck driver having their long haul drivers licence removed by a government agency; or an electrician having their trade licence revoked by a trade authority);

• where a professional fails to maintain mandatory certification to lawfully provide services (e.g. a lawyer having their practising certificate revoked by a court; or a doctor having their right to practice cancelled by a medical board);

• where a court imposes a custodial sentence on an employee; and

• where a labour hire agency places its employee in a host business and then, pursuant to contractual arrangements between the agency and the host business, the host business refuses to accept labour by that employee.

[208] A common feature of the Commission's consideration of such cases is that an employer cannot abrogate responsibility for treating employees fairly. Even where a dismissal is said to be constrained by the conduct or decision of third parties, the dismissal remains to be assessed by reference to the factors set out in section 387 of the FW Act. As recently noted by Asbury DP in the context a labour hire agency employee: [112]

"[12] A number of cases have considered the manner in which the matters in s. 387 of the Act are considered in circumstances where an employer provides labour to a client and the client directs the employer to remove the employee from a site. As a Full Bench of the Commission observed in observed in Donald Pettifer v MODEC Management Services Pty Ltd (Pettifer) labour hire arrangements in which a host employer has the right to exclude a labour hire employee from its workplace, are becoming a common part of the employment landscape in Australia. The reality for companies in the business of supplying labour is that they frequently have little if any control over the workplaces at which their employees are placed and the rights of such companies in circumstances where a client seeks the removal of an employee are limited. However, this is not a basis upon which companies in the business of supplying labour to clients can abrogate responsibility for treating employees fairly when dismissal is the result of removal from a particular site and the fairness of the dismissal is considered with reference to the matters in s. 387 of the Act." (references omitted)

[209] Although an employee's dismissal following a "currently unsuitable" determination under the South Australian CYP Act has distinguishable features from the dismissal of a labour hire agency worker dismissed at the insistence of a host client, the principle of fairness expressed by Asbury DP is apposite. DA's dismissal is to be assessed by reference to those same statutory factors within the framework of the "fair go all round" principle. An evaluative assessment of fairness is required no matter what (if any) constraints were placed on Baptist Care by decisions of third parties. That evaluative assessment requires determination of whether, in an objective sense, DA's dismissal was "harsh, unjust or unreasonable" having regard to objectively found facts and conclusions drawn from an overall assessment.

[210] I have found a valid reason for DA's dismissal based on the inherent requirements of the job. I have found that Baptist Care adopted, with some qualifications, a generally fair process of decision-making which provided DA an opportunity to put his case to Baptist Care before it made the decision to dismiss. However, I have also found elements of fundamental unfairness in the then operating protocols for third party psychometric testing to which Baptist Care knowingly exposed its employees, and failure on its part to fully consider redeployment or comparable employment.

[211] Whilst the existence of a valid reason is an important factor (and the absence of a valid reason a strong indicator of unfairness) a valid reason alone is not conclusive. Unfair dismissal proceedings are multifactorial.[113]

[212] In weighing these factors, I take into account the observations of a Full Bench of the Commission in Parmalat Food Products Pty Ltd v Wililo:[114]

"The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open."

[213] In this passage both the importance of a valid reason and procedural fairness are emphasised, together with the possibility that significant mitigating factors may, in some cases, trump such considerations.[115]

[214] There are substantial factors weighing against a finding of unfair dismissal. These include that Baptist Care:

• had a valid reason;

• did not seek out DA's dismissal;

• allowed the psychometric assessment to be independently conducted on its merits;

• complied with its legislative and contractual obligations to DA, to PsychCheck and to the Department;

• provided opportunity for DA to put his position before deciding to dismiss; and

• in the context of considering redeployment, offered additional rostered work to DA in his parallel operating employment contract.

[215] Two important counterveiling considerations exist. Even though Baptist Care had only limited bargaining capacity to shape the protocols for psychometric testing of its staff, those protocols were not non-negotiable. In registering its agreement to the terms, Baptist Care acted unreasonably in two respects:

• it failed to ask PsychCheck to justify a term that excluded feedback to staff (including DA) of reasons for a 'deemed unsuitable' assessment and a term which denied staff a right to request a review (let alone expressing a preference for a contrasting and procedurally fairer clause allowing feedback in the Department's example consent form); and

• it compromised the right of staff to register informed consent by failing to inform staff (including DA) that the terms of employee consent required included these changes thereby differing materially from the example consent form which had been published by the Department.

[216] As a result, Baptist Care exposed its employees to an assessment process by a third party which, in these critical respects, denied fairness; a denial that was neither required by law nor by Baptist Care's contractual arrangements with the Department.

[217] However, the weight to be attached to these failures is mitigated somewhat by the following:

• the absence of a right to secure feedback or review, or to provide informed consent, did not cloud or affect the 'deemed unsuitable' assessment. Whether merited or not, it was made irrespective of DA's post-assessment rights; and

• DA consented to the terms of assessment after wrestling with the risks of being independently assessed.

[218] I take into account that DA's consent was not a choice of neutral consequence. Had he failed to consent it would have automatically followed that he would have been unable to perform an inherent requirement of his job (and in all likelihood still been dismissed for a valid reason). Yet, even with this caveat, his consent is material. He made a conscious decision to submit himself to an assessment process which he knew would provide no reasons, no feedback, no review and which he knew would, if it did not go his way, preclude him (for twelve months at least) from continuing to be employed as a Child and Youth Support Worker.[116] Twice (in December 2018 and again in April 2019), in his words, he knowingly but with some apprehension "decided to take my chances":[117]

"I knew that previously I hadn't gotten through and was unaware why I hadn't gotten through and therefore I didn't want to assume that I would get through."[118]

[219] Weighing in favour of a finding of unfair dismissal is the post-assessment position adopted by Baptist Care's managers whereby redeployment of DA was assessed on a risk-averse basis. This approach inferred, without foundation, that DA was a risk to vulnerable persons generally. It led Baptist Care to not fully consider DA for redeployment in the Disability Services programme. However, this deficit has to be weighed against the fact that DA was offered additional work in the Family Mental Health programme and refused some of that work in order to try and secure better elsewhere. Baptist Care's error in not fully considering the Disability Services option was a shortcoming inside an overall process of decision-making which in general provided an opportunity for DA to have a say on dismissal and redeployment, and where some extra working hours were provided for.

[220] As said by the High Court in Byrne v Australian Airlines Ltd:[119]

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap."

[221] DA's dismissal was not unreasonable because there was a valid reason. Nor do I conclude that the dismissal was unjust given the valid reason, the fact that I have not adjudicated on the substantive merits of the assessment and because, Baptist Care did discuss next steps with DA and his support person after the assessment but before making its decision to dismiss.

[222] Whilst there are not insignificant factors weighing in favour of a finding of harshness, each has relevant mitigating aspects. When seen in context, and assessed with factors weighing against a finding of unfair dismissal, I conclude that, on balance, DA's dismissal was not harsh.

[223] DA was not denied reasons for dismissal but he was denied the reasons for the assessment that gave rise to his dismissal. That was unfair. Yet his employer was denied the same information.

[224] Critically, even had reasons been provided to either DA or Baptist Care (or both) at that time, the fact of the unsuitable assessment (merited or not) would still have put Baptist Care in a position where it had no choice but to dismiss DA. Such dismissal would still have been for a valid reason (inherent requirements).

[225] Criticism of Baptist Care (which I have found were largely acts of omission) needs to be viewed in context. The 'fair go all round' principle in section 381 of the FW Act requires fairness to both employer and employee, not just a dismissed employee. It should be applied in a practical, common sense way. In the post-assessment environment after 8 July 2019 the position was, in practice, unwelcome and difficult for both DA and for Baptist Care. Baptist Care made mistakes, but mostly omissions made months earlier. Those shortcomings did not go to the merits of the third party assessment which triggered a valid reason for dismissal. The redeployment shortcomings are important considerations but are not sufficient to be determinative.

[226] Having conducted an overall assessment of DA's dismissal against the statutory criteria, I do not conclude that the dismissal was harsh, unjust or unreasonable. That being so, an order dismissing the application will be issued in conjunction with the publication of this decision.[120]

[227] It is difficult not to have considerable empathy for DA and in particular the search for answers that led DA to commence these proceedings. As a diligent employee he was exposed to an assessment process in the first year of operation of the CYP Act which was deficient. DA was not unfairly dismissed, but even leaving aside his natural desire to debate the merit of the psychological assessment, he was wrongly denied reasons for it.

[228] A material finding in this matter is that protocols in place as at June 2019 for psychometric testing under the CYP Act adopted by the then sole accredited assessment agency denied DA due process because the assessor provided no reasons for a "deemed unsuitable" assessment. A further material finding is that the assessor provided no mechanism for DA to request an internal review. The Commission has concluded that the then operating protocols placed both a "deemed unsuitable" employee and their employer in an invidious position.

[229] I am aware from the production order proceedings that PsychCheck revised its protocols in the period that followed the filing of these proceedings.

[230] I am also aware from the evidence that more than one provider of psychometric assessment services is now accredited in South Australia for the purposes of the CYP Act.

[231] Whether currently operating protocols by those providing psychometric testing services under the CYP Act address or address in an adequate way the unfairness that I have found is not a matter on which I have adjudicated. However, in order to avoid circumstances where employees working with children and their employer are placed in the position highlighted by this case, I recommend that current testing protocols in South Australia be re-examined in light of the findings in this and related matters.[121] Such examination should take into account the significant policy considerations associated with the protection of children and the duties of care owed by approved assessors to both children and persons assessed.

[232] It is appropriate to make a final observation. These proceedings were lengthy and, at times, involved intensely personal matters. Despite this, DA, with the assistance of MH and some guidance from the Commission, was co-operative and diligent to the task of presenting his case and responding to that put by Baptist Care. Likewise, Baptist Care's representatives and in particular its counsel not only discharged their responsibilities professionally but also displayed a high degree of sensitivity to DA and his evidence (including evidence that has been unnecessary to reference in this decision). Baptist Care promptly sourced documents that came into issue as proceedings unfolded. The conduct of both parties contributed materially to the efficiency of proceedings. Whilst the toll on DA was self-evident, that impact was minimised by the respectful tone adopted. I thank the parties and their representatives for dealing with the application in such a manner.

Ms K Eaton, with permission, for Baptist Care SA.

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

[2] [2019] FWC 7358

[3] Directions hearings: 2, 16 and 24 October 2019, 3 and 12 December 2019; 5 March 2020; 7 April 2020; Directions 24 October 2019; Directions 18 December 2019

[4] Decision [2020] FWC 7358

[5] Production Order PR 712911, 15 November 2019

[9] Confidentiality Order PR 714286, 15 November 2019

[12] [2020] FWC 1249

[13] A confidentiality Order under section 593 and 594 of the FW Act was made to de-identify MH on 10 March 2020

[14] Transcript 10 March 2020 PN81; PN89

[15] Email Chambers - Anderson DP to parties 8 April 2020 4.24pm

[20] Transcript Directions hearing 8 April 2020

[21] Transcript Merits hearing 16 April 2020

[23] Transcript 10 March 2020 PN320 - 324

[25] A Child Related Employment Screening clearance is a different process from obtaining a Psychological Suitability Assessment: Transcript 10 March 2020 PN397

[26] A2 Clause 4 'Responsibilities' and Clause 9 'Clearance'

[28] Transcript 10 March 2020 PN294; PN313

[29] Transcript 10 March 2020 PN314; PN 376; PN 777

[31] A5 Letter 18 February 2019 signed by DA 27 February 2019

[32] Transcript 10 March 2020 PN404; PN413 - 414

[34] Transcript 10 March 2020 PN414 - 429

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

[37] Sections 107 and 110A CYP Act

[40] AS1 Contract 10 April 2019 Schedule 2 Clause 5

[42] PsychCheck varied certain protocols from 1 September 2019: A19 and Production Decision [2020] FWC 7358 at [19] to [20]

[46] Aide-memoire comparison Email Minter Ellison to Chambers Anderson DP 16 April 2020 and Email MH to Chambers Anderson DP 16 April 2020

[50] A22 clause 3.1(a) and clause 18.1 definition of "Deliverable"

[55] Audio (2h 2m) Ms Smith 16 April 2020

[59] AS21 Email 6 December 2018 enclosing contract dated 4 December 2018

[62] Transcript 11 March 2020 PN1045-46' PN1384

[70] Aspects of this work subsequently moved into Disability Services, which DA continued to perform: Transcript 10 March 2020 PN490 - 492

[71] Priestly v Department of Parliamentary Services [ 2010] FWA 2684 at [38]

[72] Lacson v Australian Postal Corporation [2019] FCA 51 at [106] to [108] and [131]

[73] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162

[74] ABB Engineering Construction Pty Ltd v Doumit cited in O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [23]

[75] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)

[76] Sydney Trains v Hilder [2020] FWCFB 1373 at [26]

[77] Small Business Fair Dismissal Code: section 388(2) FW Act

[78] See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999

[79] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468

[80] Sydney Trains v Hilder [2020] FWCFB 1373 at [26] principle (6)

[84] Qantas Airways Limited v Christie (1998) 193 CLR 280 per Gaudron J at 34

[85] Qantas Airways Limited v Christie (1998) 193 CLR 280 per McHugh J at 73

[86] J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [22]; X v Commonwealth [1999] HCA 63 at [102]

[87] J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [29]

[88] Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42]

[91] Transcript 11 March 2020 PN1269 - 1377

[92] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[93] Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)

[94] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[95] RMIT v Asher (2010) 194 IR 1, 14-15.

[96] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[99] Transcript audio (1h 19m) Ms Smith 16 April 2020

[103] "I had ideas as to what had gone on but I had no evidence." DA Transcript 10 March 2020 PN577; see also 11 March 2020 PN1045 - 1046; PN1384

[104] Transcript 10 March 2020 PN533; PN588

[106] Transcript 10 March 2020 PN456; 11 March 2020 PN888; PN 897

[109] Transcript 10 March 2020 PN404; PN413 - 414

[110] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36]

[111] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685

[112] Stevens v ISS Property Services Pty Ltd [2020] FWC 1340 at [12]

[113] Jones v Brite Services [2013] FWC 4280 at [24]

[114] [2011] FWAFB 7498 at 20

[115] See, for example, Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155

[116] Transcript 10 March 2020 PN410-411

[117] Transcript 10 March 2020 PN427; 11 March 2020 PN1036 - 1037

[118] Transcript 10 March 2020 PN407; PN417

[119] [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

[121] D.S. v Anglican Community Care Incorporated [2019] FWC 3377

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