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[2019] FWC 3377
Fair Work Commission
2019-05-24
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Anglican Community Care Incorporated T/A ac.care
Application for an unfair dismissal remedy - production order application.
[1] This interlocutory decision concerns an application made by D.S.,[1] supported by the respondent, Anglican Community Care Incorporated T/A ac.care (AC care) for a production order to be made against a third party; PsychCheck. The production order sought that certain documents, connected with D.S.'s employment and termination, and associated with a psychological assessment undertaken by PsychCheck, be provided to the parties in this matter. I was aware from the application that PsychCheck was likely to seek to be heard on the matter, and as a result, it was given an opportunity to make submissions in relation to the proposed order. In response, as well as providing helpful and constructive background information, PsychCheck expressed the view, in effect, that the order should not be made.
[2] I ultimately made such an Order, with a number of associated arrangements, and this decision explains why I adopted that course of action.
[3] The context for the present matter is that D.S. has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal arising from his employment as a House Supervisor with AC care and his dismissal from that position. AC care is in the non-government sector (NGS) and, amongst other functions, provides residential care facilities for children, including those who are under the guardianship of the Chief Executive Officer of the South Australian Department of Child Protection (the Department or DCP). D.S. was engaged in that work.
[4] The dismissal was based upon the fact that AC care was advised that D.S. had been assessed under a mandatory Psychological Suitability Assessment (PSA) as being "currently unsuitable to be working with children". The PSA is a mandatory test for all employees providing residential care for children under the guardianship of the Department. That test was performed under the relevant regulatory regime[2] by PsychCheck, which is specifically endorsed by the Department to make such assessments.
[5] Under the arrangements adopted for the conduct of the PSAs in the NGS, and for reasons that I will outline shorty, PsychCheck did not provide to either D.S. or AC care a copy of any report, or provide any basis upon which it had assessed the applicant as being unsuitable. The production order sought the provision of documentation summarising the basis for that assessment.
[6] In order to appreciate the present controversy, some further examination of the context in which the PSA was undertaken is necessary. The following does not appear to be in dispute:
- On October 2018, the PSA became a mandatory requirement for all workers in licenced residential care under the Children and Young People (Safety) Act 2017 (SA) (the CYPS Act);
[7] It is important to note that the PSA in the case of a worker who is assessed as unsuitable does not imply or mean that the worker would engage in unacceptable behaviour, including harming a child.[5]
[8] I also note that the introduction of the PSA process in the State Government sector was the subject to proceedings before the (then) Industrial Relations Commission of SA.[6]
[9] In submissions, PsychCheck provided an explanation as why the PSA results were not provided to D.S. and other NGS employees, which included the following:
"Psychological Suitability Assessment Protocol - Non-Government Sector
Having completed over 650 assessments of current employees for DCP, PsychCheck used this knowledge and experience to bring best-practice methods to the current employee review for the non-government sector required by the legislation. We decided to maintain consistency in the assessment protocol, methodology and formulation process. Changes were made however related to reporting processes.
Preserving the confidentiality of a worker being assessed has always been of the utmost importance. PsychCheck had determined to not provide a report to organisations in the event of a "Currently Psychologically Suitable" determination in order to preserve the confidentiality of the worker. The process gathers personal information, much of which is not relevant or appropriate to reveal to the organisation.
In the DCP current employee assessment, a summary report related to workers found "Currently Psychologically Unsuitable" was provided to the DCP Principal Psychologist. After consultation with PsychCheck, DCP would in some cases provide feedback to the worker. DCP had the capacity to direct workers away from the workplace on full-pay or re-deploy them within government. We knew employers in the non-government sector would likely not have this ability. In our experience, this process led to increased possibility of Psychological injury to the worker based on the provision of the feedback regarding their determination." [7]
[10] PsychCheck outlined its concerns about cases where workers would be found psychologically unsuitable related to behavioural, attitudinal or life circumstances, noting that a combination was usually involved. It noted that providing feedback to an individual in these cases may lead to the opportunity for intervention and behavioural change which may bring them back into suitability at a later time. However, it also observed that there were also likely to be presentations where psychological unsuitability associated with long-term personality traits or factors related to increased risk of inappropriate behaviours. These risk factors, derived from literature and experience in risk assessment, relate to increased risk rather than actual behaviours or intent. PsychCheck expressed the view that to provide feedback, even by an experienced Psychologist, with follow-up support from an Employee Assistance Program Psychologist (which would be available in many organisations), was potentially harmful to the psychological wellbeing of the worker.
[11] PsychCheck's submission continued:
"While we were acutely aware of the risk related to Psychological injury through providing feedback to workers, we were also aware that to not provide feedback to an organisation would provide little opportunity to make decisions regarding on-going employment. And that there was a complex decision to be made in regards to the competing demands related to not providing a report/feedback between Psychological injury and lack of ability for the individual to understand why they had been found Unsuitable and allow for the ability to make improvements." [8]
[12] PsychCheck illustrated these concerns by reference to individuals where an individual presented with risk related markers of inappropriate sexualised behaviours and postulated that it was unlikely that such a worker would "come back into scope in future".[9]
[13] PsychCheck also advised that it had taken legal advice about the process and consulted with the Australian Psychological Society and determined that in the NGS it would not provide a report or feedback to the employees assessed, but rather a "Statement of Suitability" related to the determination. Further, it stated "that the assessment and outcome meets the intent of the Legislation; the care and protection of vulnerable individuals. Unlike other areas of workplace industrial relations, this assessment encompasses not only behaviours which have occurred in the workplace, but also behaviours which are assessed as having an increased future risk of occurring."[10]
[14] In relation to this particular matter, PsychCheck raised its concerns in the following terms:
"In the current matter under consideration by the Commission in relation to (D.S.), we would ask the Commission to take into consideration the background material provided in this submission. Particularly that the assessment is undertaken in accordance with best-practice, that the process evaluates potential risk as well as behaviours which have occurred, and that the primary reason for withholding the report/feedback is out of concern for the well-being of the worker. We believe that even with feedback provided by a Psychologist, that the potential for psychological harm is increased given the nature of the feedback which could be provided in some cases.
PsychCheck would prefer to abide by the legal advice received (and without specific reference to (D.S.'s) determination) that even with a Psychologist providing feedback to a worker related to the outcome, there is an increased risk of Psychological harm to the worker. Further, to compel PsychCheck to provide a report to ac.care (which we understand would be shared with D.S.) would set a precedent for other matters where in may be strongly advised against providing feedback to the workplace or worker due to increased risk to the worker of Psychological harm."[11]
[15] AC care, supported by D.S., contended that the production order was relevant to the unfair dismissal matter and should be made, and more generally submitted in effect that:
Concerns about the capacity for NGS employers to accommodate redeployment of "unsuccessful" candidates within their organisation should be dealt with at the organisational level. There are many organisations in this sector where redeployment would be an option. The current non-disclosure means that this is not feasible.
There is no proper basis to differentiate between DCP and NGS employees in terms of the feedback to be provided and this is particularly "perplexing" when staff are performing the same role, in the same context of residential care and have been assessed using the same testing instrument.
The present arrangements do not recognise the need for procedural fairness or of natural justice principles to be applied to the employees concerned.
D.S. should be provided with feedback, through a supported environment, so that he knows how to respond to the assessment that has been made. This includes preparing to re-sit the psychological assessment once the 12 month exclusion period had passed, D.S. realistically reassessing his career options, and if the markers identified a trait that could be responsive to correction, then the applicant would know the work that they had to do before re-sitting a further psychological assessment.
[16] I observe that many of these issues concern the broader implications of the PSA system being applied in the NGS.
[17] I turn now to the basis upon which I determined to issue the specific production order in this particular matter. In so doing, I should make it clear that whilst I have had regard to the context provided by the very significant matters of public policy, child safety, natural justice, employer liability and the mental health of the employees being assessed involved with the PSA system more generally, this decision does not directly deal with whether PSAs should, as a matter of principle, be provided to those NGS employees who receive a negative assessment. This decision is about the provision of the basis of the PSA undertaken for D.S. in the context of his unfair dismissal application which is potentially to be heard and determined by the Commission. However, I will briefly return to the broader issues at the conclusion of this decision.
[18] The making of a production order in a matter of this kind is discretionary,[12] requiring consideration of all of the relevant circumstances including:
- Apparent (not necessarily direct) relevance to the issues in dispute;
- Whether a sound forensic basis for seeking the material has been provided or whether the orders represent a fishing expedition;
- Whether the documents are being sought for a collateral or improper purpose;
- Whether questions of legal professional privilege or confidentiality arise;
- The implications for the party concerned including the cost, inconvenience and delay associated with compliance;
[19] The above are not exhaustive and in this case there are also important public interest matters to consider. In addition, any one of the identified factors are not generally determinative in their own right. Relevance is however an important prerequisite and production orders, including those involving third parties, would rarely be made where such is not evident. Further, to the extent that some of these considerations might militate against an order being made, the Commission might, in appropriate cases, utilise confidentiality orders under s.593 and s.594 of the FW Act, allow documents to be provided in a redacted form, and/or regulate access to the documents produced, subject to natural justice considerations.
[20] In its response to the unfair dismissal application and in preliminary proceedings before the Commission, AC care acknowledged the consequences of the dismissal, and the process that it was forced to adopt, upon D.S. and confirmed that it had unsuccessfully attempted to assist the applicant to gain access to information on his assessment. In the circumstances, and despite any concession that AC care might ultimately make on the basis of procedural fairness, the matters for consideration by the Commission in determining the unfair dismissal application include whether the dismissal was unfair having regard to the considerations set out in s.387 of the FW Act. Further, if the dismissal was unfair, what form of remedy would be appropriate having regard to the considerations set out in s.390 to s.393 of the FW Act.
[21] Beyond the fact, and immediate impact, of the PSA assessment itself - which is not in dispute, the content and basis of the PSA are directly relevant to the unfair dismissal matter that is before the Commission. On that basis, the making of the production order required consideration of the particular circumstances surrounding the PSA and the implications of the provision of some associated information to the parties in this matter.
[22] In determining to issue the production order, I had regard to those matters and the various issues raised by PsychCheck about the implications of such an order. In particular, I took into account that:
Whilst the maintenance of the integrity of the PSA system is a major consideration, given that feedback has been provided to employees in the South Australian public service, the disclosure to D.S. in the present context is unlikely to impact upon that integrity;
Appropriate arrangements (discussed further below) for the confidentiality of the materials provided (including to protect the legitimate intellectual property interests of PsychCheck) and for the mental health of D.S. are to be taken;
The information concerned directly relates to D.S. and his employment, dismissal and the capacity to continue with and/or advance this application and the disclosure of the information to AC care is being undertaken within a particular narrow context and with the express permission of D.S.; and
There is no indication that the provision of the information sought would create any significant cost or practical inconvenience to PsychCheck, contravene the CYPS Act or, of itself, raise compliance issues for AC care's obligations to the Department.
[23] The arrangements accompanying the production order included:
• A confidentiality order[15] - requiring all documents associated with the matter, including any documents provide in response to the production order, to be kept confidential but permitting the provision of the documents to D.S. as set out immediately below; and
[24] In all of the circumstances I considered that it was appropriate to make a production order requiring the provision of all documents summarising the basis for the decision to find D.S. "Currently Psychologically Unsuitable" to work as a House Supervisor in residential care of children.
[25] I have earlier set out the narrow focus of this decision and the particular circumstances in which the production order was made. It is evident to me that there are competing views about the disclosure and natural justice elements of the PSA system more generally that are beyond the scope of this production order application and the related unfair dismissal matter. I observe that the PSA system itself is not being disputed by the parties in this matter and given the importance of protecting children in care, the integrity of the system and process should in my view be a critical consideration. The natural justice questions are also important and the broader questions are primarily matters for the sector to take up with the Department and PsychCheck given its role in the system. At least in terms of the employment ramifications of the PSA system in the NGS beyond the scope of a single unfair dismissal matter, there may be broader proceedings available which could provide a forum to discuss and/or resolve those matters should the relevant parties seek the involvement of the Commission in that regard.[16]
[26] I will relist the unfair dismissal matter for further directions upon consideration by D.S. of the materials produced.
[27] Liberty to apply generally has also been granted.
C Umapathysivam with S Maddock on behalf of Anglican Community Care Incorporated T/A ac.care.
[1] Confidentiality Orders under s.593 and 594 of the FW Act have been made in relation to documents connected to this matter, including those that identify D.S.
[3] The issue of Psychological assessments for workers in the sector was recommended in Chapter 12 of the relevant Royal Commission Report.
[4] Taken from the response (Form F3) provided by AC care, which does not appear to be in dispute, and some of the objective background material provided by PsychCheck.
[5] Confirmed in the consent form required of workers to be assessed.
[6] Public Service Association of SA Inc v Department of The Premier and Cabinet (Department for Child Protection) [2017] SAIRComm 8.
[7] Submissions of PsychCheck, 13 May 2019.
[8] Submissions of PsychCheck, 13 May 2019.
[12] Utilising the powers provided to the Commission under s.590 of the FW Act.
[13] See Clermont Coal Pty Ltd and others v Troy Brown and others [2015] FWCFB 2460 at [23] for the caution to be taken in applying this consideration. This is not relevant in this matter.
[14] See also the authorities summarised in Australian Nursing Federation v Victorian Hospitals' Industrial Association [2011] FWA 8756 including in particular Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 AIRC Print H2892.
[16] See for example section 739 of the FW Act utilising dispute resolution provisions of an appropriate enterprise agreement or modern award.
Printed by authority of the Commonwealth Government Printer
D. S.
Anglican Community Care Incorporated T/A ac.care [2019] FWC 3377