//
[72]
[2020] FWCFB 6046
General information, not legal advice.
Fair Work Commission (Full Bench)
2020-11-20
Original judgment source is linked above.
s.604 - Appeal of decisions
Appeal against decision [2020] FWC 2773 of Deputy President Anderson at Adelaide on 29 May 2020 in matter number U2019/9236
[1] The appellant in this matter, who has been anonymised for the purposes of this decision as "DA", appeals against a decision of Deputy President Anderson issued on 29 May 2020[1] (decision) in which DA's application for an unfair dismissal remedy against Baptist Care SA (Baptist Care) was dismissed. Permission is required for the appeal under s 604 of the Fair Work Act 2009 (FW Act) and, under s 400(1) of the FW Act, we may only grant permission to appeal if we consider that it is in the public interest to do so. DA contends on various grounds which we identify below that the decision was the subject of appealable error and that permission to appeal should be granted in the public interest and his appeal upheld.
[2] The factual and legislative background to this appeal involves some degree of complexity and may be explained by reference to matters which we do not understand to be in dispute. For relevant purposes, Baptist Care provides emergency and ongoing residential care and support services for vulnerable persons in South Australia. This includes care for children who are under the guardianship of the Chief Executive Officer of the South Australian Department of Child Protection (Department).
[3] At the time of his dismissal, DA worked as a casual employee for Baptist Care under two separate contracts of employment. The first involved him working as a Child and Youth Support Worker in Care Pathways. This employment required him to work with children in residential facilities. The second involved him working as a Support Worker in Baptist Care's Family Mental Health Program, and did not require him to work with children. The first was DA's primary employment, and afforded him 30 to 40 hours of work per week and the majority of his remuneration.
[4] In 2018, the provisions of the Children and Young People (Safety) Act 2017 (SA) (CYP Act) came into effect. Section 107(1) of the CYP Act requires that a person must not be employed in a licensed children's residential facility unless the person has undergone a psychological or psychometric assessment of a kind determined by the Chief Executive of the Department for the purposes of this section. Section 107(3) provides that a contravention of s 107(1) is an offence which may be subject to financial penalties and imprisonment. Section 110A of the CYP Act likewise requires persons employed in a residential facility established by the Minister under s 36 of the Family and Community Services Act 1972 (SA) to undergo psychological or psychometric assessment in the same way.
[5] On 21 August 2018, the Chief Executive of the Department issued a determination pursuant to ss 107 and 110A of the CYP Act (determination). The determination relevantly prescribes the kind of psychological or psychometric assessment required for the purposes of ss 107 and 110A. Such an assessment is required to be one approved in writing by the Chief Executive or their delegate, and must include (italics added):
a psychometric assessment of the person including assessment of:
- personality; and
working styles; and
[6] At all times relevant to DA's case, the only provider with approval to conduct psychological assessment pursuant to the determination was PsychCheck Pty Ltd (PsychCheck). The agreed protocol by which PsychCheck conducted assessments pursuant to this approval (protocol) included the following provisions:
an assessment of unsuitability had to be signed off by three internal psychologists (including the assessing psychologist);
an assessment of unsuitability did not necessarily mean that the employee would engage in unacceptable behaviour;
an employee assessed as unsuitable could, with the support of their employer, apply for a fresh assessment after a 12-month period had passed; and
PsychCheck would not provide any reasons for its assessments, only a Statement of Suitability.
[7] The protocol did not provide for reasons to be provided on request or for any process for re-evaluation or review.
[8] Baptist Care, as a provider of services to the Department, was required to obtain the Department's approval to the terms under which its employees would undergo assessment pursuant to the requirements of s 107 of the CYP Act and the determination. It obtained the requisite approval on 9 November 2018. Pursuant to that approval, it was required to notify the Department within two days if any of its employees were assessed to be unsuitable. Baptist Care subsequently entered into a contract for the provision of care services to children in residential facilities that relevantly required its care workers to be assessed as suitable for employment in all care settings following completion of a psychological assessment of a kind determined by the Chief Executive of the Department.
[9] On 12 November 2018, Baptist Care received a draft agreement for the provision of psychometric/psychological assessment services from PsychCheck. The terms of the draft agreement obliged Baptist Care to require its employees to complete a Consent Form for their assessment in prescribed terms. PsychCheck advised Baptist Care that the Consent Form in the agreement was in different terms to the example Consent Form published by the Department, since the latter specifically allowed for feedback to be given but the former provided that it would not be given. Baptist Care entered into the agreement with PsychCheck in December 2018. Consistent with the protocol, the agreement relevantly provided that PsychCheck would provide a Statement of Suitability but would not give feedback on the reasons for the outcome, that an employee assessed as unsuitable could not be re-assessed within 12 months, and that the assessment report and the psychometric data remained the property of PsychCheck.
[10] Baptist Care required all of its Child and Youth Support Workers to enter into new contracts of employment which incorporated the relevant requirements of the CYP Act. For relevant purposes, the new contracts required employees to participate in and adequately pass approved psychometric testing with a provider nominated by Baptist Care at any time as requested, made it a condition of employment that the employee have an approved Child Related Employment Screening, and provided that an employee who did not have valid relevant clearances would not be entitled to any work for the period of time during which a valid clearance was not provided to Baptist Care. DA agreed to the terms of the new contract on 13 December 2018. He did so after a period of two weeks in which he considered his position with respect to the new contract, having undergone and failed psychometric testing when applying for a youth worker role with the Department some years previously.
[11] From January 2019, Baptist Care commenced programming its employees to undertake testing by PsychCheck. In May 2019, DA was informed that he was required to undergo psychometric testing. He was required to, and did, sign the Consent Form prescribed by the terms of the agreement between Baptist Care and PsychCheck. The psychometric testing was carried out on 21 June 2019, and the one-on-one interview with the assessing psychologist took place on 25 June 2019. On 8 July 2019, PsychCheck sent Baptist Care a Statement of Suitability for DA which assessed him as "currently psychologically unsuitable". Baptist Care was not provided with, nor did it seek, any reasons for the conclusion or other feedback. Baptist Care advised DA of the outcome the same day.
[12] On 9 July 2019, DA was required to attend a meeting with Baptist Care and, at that meeting, he was given a letter requiring him to show cause why his employment as a Child and Youth Support Worker should not be terminated as a result of his assessment as unsuitable. On 30 July 2019, his employment in Care Pathways was terminated by Baptist Care. He continued to be employed by Baptist Care as a Support Worker in the Family Mental Health program. DA filed his unfair dismissal application on 19 August 2019.
[13] In his decision the Deputy President, after setting out the factual and legal background to the matter and having satisfied himself that he had jurisdiction to determine DA's application, gave consideration to the matters which, under s 387 of the FW Act, must be taken into account. In relation to s 387(a), the Deputy President found that there was a valid reason for DA's dismissal as a Child and Youth Support Worker because he was unable to fulfil an inherent requirement of his job, namely an assessment of psychological suitability that allowed him to undertake the care of children under the guardianship of the State.[2] In relation to DA's contention that there was no valid reason for the dismissal because the psychometric assessment reached the wrong conclusion, the Deputy President concluded:
"[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 (as well as DA's evidence about the assessment report) 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.
[14] In relation to s 387(b) and (c), the Deputy President found that DA was notified of the reasons for his dismissal,[3] and was afforded opportunities to respond to those reasons.[4] It is not necessary to make reference to the Deputy President's findings in respect of s 387(d), (e), (f) or (g). In relation to s 387(h), the Deputy President dealt with a number of matters which he considered to be of relevance. The first was DA's submission that Baptist Care had agreed to an unfair assessment process. The Deputy President rejected this submission insofar as it related to matters which were wholly internal to PsychCheck's conduct of the assessment, but accepted that the submission had some force in respect of concerns which Baptist Care knew about, ought to have known about or had the capacity to influence.[5] The Deputy President identified two matters which he considered were negotiable in the draft agreement presented by PsychCheck, namely the provision that PsychCheck would provide no reasons or feedback for the outcomes which it determined (which was reflected in the prescribed Consent Form) and the lack of mechanism for review or re-evaluation of the outcome.[6] In this respect, the Deputy President said:
"[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. 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."
[15] The Deputy President found that this weighed "somewhat" in favour of a finding of unfair dismissal.[7]
[16] The second matter was DA's submission that Baptist Care had misled him because it had failed to inform him that the terms of the prescribed Consent Form were different to those in the example Consent Form published by the Department. The Deputy President rejected this submission, since the Consent Form provided to DA was that provided for in its existing agreement with PsychCheck.[8] However, the Deputy President accepted that Baptist Care should have disclosed in November and December 2018 that the Consent Form did not simply reproduce the requirements of the CYP Act and that it was PsychCheck and Baptist Care, not the CYP Act or the Department, which required the assessment to be undertaken "stripped of any rights to feedback or review".[9] The Deputy President found that this weighed somewhat in favour of a finding of an unfair dismissal.[10]
[17] The third matter was DA's submission that Baptist Care did not advocate on his behalf 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. The Deputy President rejected this on the basis that the evidence showed that Baptist Care had contacted PsychCheck in relation to these issues and had been informed that DA should take up these issues directly with PsychCheck.[11] The Deputy President also found that Baptist Care had done all it could reasonably do having regard to the terms of the agreement it had earlier entered into with PsychCheck.[12] The Deputy President treated this as a neutral consideration.[13]
[18] The fourth matter was DA's submission that Baptist Care had failed to make reasonable efforts to re-deploy DA to comparable and equally remunerative work. The Deputy President accepted this submission to the extent that he found that Baptist Care had failed to give full consideration to employing DA in its Disability Service program and that this weighed in favour of a finding of an unfair dismissal.[14] The fifth matter was the effect of the dismissal on DA's reputation, employability and sense of self-worth. The Deputy President found that these effects, while real and distressing, were not materially more profound than for those of other persons who had worked competently with children in the community sector yet faced the same finding against them.[15] These effects were described by the Deputy President as an unavoidable consequence of the legislative scheme for mandatory psychological assessment.[16] The Deputy President therefore treated this as a neutral consideration.[17]
[19] The Deputy President, in his overall assessment of the merits of DA's case, noted that it was unusual in the sense that neither the employee nor the employer sought the dismissal but rather 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.[18] However, the Deputy President identified other examples of where the dismissal of an employee following third party intervention could happen, including where a tradesperson who is required to be licenced has the license cancelled, where a professional fails to maintain their mandatory certification to practise, where a court imposes a custodial sentence on an employee, and when a host employer refuses to accept labour from an employee of a labour hire agency.[19] The Deputy President accepted that in such circumstances, the employer cannot abrogate its responsibility for treating employees fairly.[20] The Deputy President then identified the competing relevant considerations as follows:
"[214] There are substantial factors weighing against a finding of unfair dismissal. These include that Baptist Care:
• 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 countervailing 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."
[20] The Deputy President found, however, that the weight to be assessed to the matters weighing in DA's favour was mitigated by DA's consent to the terms of the assessment, while accepting that refusal of consent would likely have also led to his dismissal.[21] The Deputy President then identified the following matter as weighing in DA's favour:
"[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."
[21] The Deputy President's overall conclusions were as follows:
"[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."
[22] DA's notice of appeal and appeal submissions contend that the decision was the subject of appealable error of fact or law in nine substantive respects as follows:
(1) The Deputy President erred in fact in finding that Baptist Care had no control over the Department's approval of PsychCheck as the (then) sole provider and PsychCheck's choice of who its assessing psychologist would be. The application form for approval of the psychological assessment process demonstrates that Baptist Care was not limited to using PsychCheck as their provider and were able to select another provider. The fact that PsychCheck was the only approved provider at the time did not limit Baptist Care in choosing to get approval to use another provider.
(2) The Deputy President erred in fact in finding that Baptist Care complied with its legislative and contractual obligations to DA, PsychCheck and the Department. The application form for approval of the psychological assessment process demonstrates that Baptist Care was required to notify the Department of any variation to their proposed assessment process. Baptist Care did not notify the Department when it changed the Consent Form and thus failed to comply with this obligation to the Department.
(3) The Deputy President erred in fact in finding that Baptist Care followed through on its undertaking to DA to raise his concerns about the non-provision of the report or feedback and the lack of a right of review with PsychCheck. Baptist Care did not provide evidence that it had done this, but merely advised DA that he should follow up directly with PsychCheck. The evidence demonstrated that DA could never have obtained the report or any feedback without the consent of Baptist Care.
(4) The Deputy President erred in fact in finding that Baptist Care, like DA, was denied the reasons for the assessment which led to DA's dismissal. In fact, Baptist Care agreed to the terms of a contract under which they would not receive this information, and therefore cannot be said to have been "denied" the information. Baptist Care knowingly established a procedure which it knew could lead to any of their employees in the future no longer meeting a legislative requirement and thereby no longer meeting the inherent requirements of the job. Baptist Care was therefore directly responsible for leaving DA unable to meet the inherent requirements of the job.
(5) The Deputy President did not give consideration to the fact that the hours offered by Baptist Care in the alternate Mental Health role were trivial compared to the remuneration lost by DA in the Child and Youth Support Worker contract.
(6) The Deputy President erred in fact in finding that reassessment could only occur after 12 months. The "Psychological Assessments: Reassessment Guideline" provides that where a person has been deemed psychologically unsuitable as a result of an assessment under s 110A of the CYP Act, the person may not be re-assessed under s 110A for a period of one year "unless the Chief Executive (or delegate) determines otherwise".
(7) The Deputy President erred in law in deciding that there was a valid reason for dismissal by comparing the psychometric assessment, under the responsibility of Baptist Care, with examples of interventions by a third party where the employer is not responsible for the process. Baptist Care facilitated an unfair process and were responsible for preventing DA from having the opportunity to subsequently meet the inherent requirements of the job. The position is not comparable to where, for example, an employee loses their driver's licence, since the driver licensing process is equivalent and fair for everyone.
(8) Baptist Care could not have known whether DA was permanently unable to meet the inherent requirements of the job because, despite the "deemed unsuitable" determination, Baptist Care did not have available to them the information as to whether DA was indeed unsuitable. The Consent Form made evident that an assessment of "not suitable" does not mean or imply that the worker would engage in unacceptable behaviour, including harming a child.
(9) The Deputy President erred in law by allowing the contractual relationship between Baptist Care and PsychCheck to abrogate Baptist Care's responsibility to treat employees fairly, in accordance with the principle stated in Kool v Adecco Industrial Pty Ltd.[22] Baptist Care was responsible for and facilitated the psychometric testing process, and not only had the ability to develop a fair process, but also had the ability to facilitate an exemption for further testing via approval of the Chief Executive of the Department. Although Baptist Care complied with the legislation, it did so in a procedurally unfair manner. Although the Deputy President accepted that the process was inherently unfair, the matters he weighed against this were based on the earlier-identified errors of fact. The correction of these errors of fact should therefore lead to the decision that Baptist Care was responsible for the unfair process.
[23] DA contended that the errors of fact he had identified were significant in nature for the purpose of s 400(2) of the FW Act.
[24] DA submitted that the grant of permission to appeal would be in the public interest because it relates to a new law which has not previously been tested, the decision manifests an injustice, and the appeal raises issues of wider application concerning the capacity of an employee to appeal or review determinations of unsuitability which affect their capacity to retain employment.
[25] Baptist Care submitted that:
the alleged errors of fact were not "significant" for the purpose of s 400(2) because they did not vitiate the Deputy President's exercise of the discretion;
no matter of public interest arose in the appeal to justify the grant of permission to appeal;
the potential effect of the CYP Act is not novel, in that the potential for a regime to render an employee unable to lawfully perform the inherent requirements of the role has been considered by the Commission in a number of cases;
no issue of importance or general application was raised by the appeal, noting that the psychometric testing process had changed since DA's dismissal in that there were now three providers approved to provide psychometric testing for the purposes of the CYP Act and each of these providers are required to provide a report to all workers assessed as unsuitable setting out the reasons for that determination;
in those circumstances, the issues raised in DA's appeal are only of relevance to him;
Baptist Care had no capacity under the statutory regime to obtain approval for other providers, nor did it have the in-house expertise to conduct psychological testing so as to permit it to obtain approval for itself to become a provider;
there was no basis for the assertion that Baptist Care had control over PsychCheck's choice of assessing psychologist;
Baptist Care complied with its legislative and contractual obligations to DA, PsychCheck and the Department, there was no evidence to the contrary and, in any event, whether Baptist Care complied with its obligations to a third party is not relevant to whether the dismissal was unfair;
the evidence before the Commission established that, following the meeting with DA on 15 July 2019, Baptist Care contacted PsychCheck and the Department regarding DA's ability to obtain feedback and a review of his assessment;
while DA was told that feedback would not be provided, the Department informed DA that a review would be undertaken by a second psychologist, and was subsequently advised that a review had been undertaken and the same conclusion had been reached that DA was currently psychologically unsuitable;
it was reasonable for the Deputy President to conclude that DA could not be re-assessed for at least one year, since this was a requirement under Baptist Care's contract with PsychCheck;
there is no merit in DA's assertion that Baptist Care could not have formed a view as to DA's ability to perform the inherent requirements of his role without seeing the reason for his assessment as unsuitable, since the CYP Act required that Baptist Care cease employing DA as a Child and Youth Support Worker once he was assessed as unsuitable;
DA's contention that Baptist Care established a process knowing that it could cause some employees to no longer meet the inherent requirements of their jobs, such that it bore responsibility for leaving DA unable to meet the inherent requirements of his job, is specious, since Baptist Care was legislatively and contractually obliged to establish this process;
Baptist Care was "denied" access to the reasons for his assessment as unsuitable because, under the terms of its agreement with PsychCheck, it was not allowed to have access to them;
the Deputy President did take into account the difference between the remuneration earned by DA working in Care Pathways as compared to the Family Mental Health program, and further noted that DA rejected some shifts in the latter because he was looking for work elsewhere which would provide remuneration comparable to Care Pathways;
the Deputy President, contrary to DA's submissions, did not proceed on the basis that the contractual relationship between Baptist Care and PsychCheck abrogated Baptist Care's responsibility to treat its employees fairly, and indeed identified aspects of unfairness in the assessment process which he considered weighed in DA's favour;
the Deputy President did not rely on a comparison with other situations where an employee is dismissed following an intervention by a third party as a basis for determining that there was a valid reason for DA's dismissal, but instead relied upon such comparisons for the proposition that an employer cannot abrogate responsibility for treating employees fairly; and
no significant error in the Deputy President's approach or conclusion had been demonstrated, and the position remained that DA's assessment as being unsuitable meant that, by law, Baptist Care could not continue to employ him as a carer of young people.
[26] Because we consider that DA's appeal raises issues of principle which are of importance and wider application, we consider that the grant of permission to appeal would be in the public interest. Accordingly, we grant permission to appeal.
[27] Before we deal specifically with DA's grounds of appeal, two general conclusions may be stated about DA's case, the decision and DA's appeal.
[28] The first is that we agree with the Deputy President that the situation that led to DA's dismissal is not novel, and reflects circumstances sometimes found in other unfair dismissal cases. The concept of "capacity" in s 387(a) as a basis for a valid reason for dismissal goes beyond the physical or skill capacity of the employee, and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job.[23] Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee's capacity.[24]
[29] In this case, Baptist Care was subject in the operation of the Care Pathways aspect of its business to s 107 of the CYP Act, which required it, at pain of criminal penalties, not to employ a person in a licensed children's residential facility unless the person had undergone a psychological or psychometric assessment of a kind determined by the Chief Executive of the Department. The determination made pursuant to that provision required a psychologist to assess the employee as "suitable to be employed in a residential facility" upon a review of psychometric testing and an interview process conducted by a psychologist. Thus, once an employee is assessed as unsuitable by the selected psychologist, that employee can no longer be lawfully employed in a children's residential facility.
[30] The capacity for this statutory regime to visit unfairness upon employees is obvious. The process does not take into account the employee's history of working with children and, as in DA's case, an unblemished history of working with children appropriately will be of no account. As is recognised in the protocol agreed between the Department and PsychCheck, an assessment of unsuitability does not necessarily mean that the employee would engage in unacceptable behaviour or harm children. The employee has no control over or say in who conducts the assessment and, at the time of DA's dismissal, there was only one approved provider of assessments for the purpose of the legislative regime. There was at the time no requirement to give reasons for an assessment of unsuitability, and there is no capacity to obtain independent review of the assessment. Thus, as in DA's case, a process which to the employee may appear to be arbitrary and lacking in transparency may lead to an employee with a good record of working with children losing their career.
[31] However, the capacity of the legislative scheme to cause unfair outcomes for employees is not something which can render a dismissal caused by the scheme to be unfair. The legislative scheme reflects a policy choice by the South Australian legislature to prioritise a precautionary and preventative approach to the care and safety of children over the interests of employees working with children. Unfair dismissal proceedings under Pt 3-2 of the FW Act do not provide an avenue to revisit that policy choice or to assign responsibility for the inevitable consequences of the legislative scheme to employers who are bound by it.
[32] Second, in a situation where an employee's capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly. The principle in this respect was stated by Deputy President Asbury in Stevens v ISS Property Services Pty Ltd,[25] in the context of a situation where the work capacity of an employee of a labour hire business is affected by the actions of the host employer, as follows:
"[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 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."
[33] The above is founded upon a similar formulation of the principle stated in Deputy President Asbury's decision in Kool v Adecco Industrial Pty Ltd,[26] which was expressly approved by Full Benches in Pettifer v MODEC Management Services Pty Ltd[27] and Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee.[28] Considerations which may arise in an assessment of whether the employer has acted fairly towards the employee in the type of situation described may include the extent to which the employer has the power to alter, modify or challenge the outcome determined by the third party, the extent to which the employer has exercised that power, and the capacity of the employer to redeploy the employee to a position where the employee's capacity is not affected by the third party's conduct. In Pettifer, the dismissal was found not to be unfair in circumstances where it was demonstrated that the labour hire employer was bound by its contract with the host employer to remove an employee from the worksite where instructed to do so by the host employer, and where the employer actively explored opportunities for redeployment but was unable to identify any suitable alternative position.[29] By contrast, in Tasports, the dismissal was found to be unfair in circumstances where the employer did not place its contract with the host employer into evidence and thus did not demonstrate that it had no recourse to preserve the employee's employment at the host employer's worksite, nor did it adequately investigate options for the employee's redeployment.[30]
[34] In the decision being appealed, the Deputy President made express reference to the principle stated in Stevens v ISS Property Services Pty Ltd which we have set out above and engaged in a detailed analysis of the relevant considerations, to which we have referred, in his discretionary assessment of whether the dismissal was unfair. Contrary to the submissions of DA, there was plainly no error of law or principle in this respect. DA seeks to stretch the principle to encompass matters anterior to the third party action which caused his dismissal - in particular, the terms of the agreement which Baptist Care entered into with PsychCheck for the provision of the psychological assessments required under s 107 of the CYP Act. In essence, DA seeks to construct a counterfactual scenario whereby, if Baptist Care had entered into an agreement with PsychCheck which conferred upon Baptist Care some degree of control over the identity of the psychologist conducting a particular assessment, required PsychCheck to give reasons for a determination of unsuitability, prescribed the example Consent Form published by the Department and provided for a right of review, then DA would never have been dismissed. This appears to us to go well beyond the scope of the stated principle. DA's submissions in this connection also suffer from the following obvious difficulties:
(1) The evidence demonstrated that the determination of DA's unsuitability was signed off by three psychologists - the psychologists who conducted the interview and interpreted the results of the psychometric testing and the interview, and two other psychologists who reviewed this. There is no reason to think therefore that the selection of a particular psychologist to conduct the assessment was relevant to the finding as to DA's suitability.
(2) The provision of reasons for PsychCheck's unsuitability assessment in respect of DA would undoubtedly have given greater transparency to the process. However, it would have made no difference to the position which applied by virtue of s 107 of the CYP Act. DA would still have been rendered incapable of lawfully performing the inherent duties of his position.
(3) It may be accepted that, if the agreement between Baptist Care and PsychCheck had provided for an independent review of a finding of unsuitability, it is theoretically possible that this might have led to a different outcome. However, it appears to us that the determination requires an assessment of suitability by the psychologist who interprets the psychometric testing and interview results, and does not contemplate any capacity for a review which could overturn an unsuitability finding. If so, it may not have been permissible under the CYP Act for Baptist Care and PsychCheck to include a right of review in their agreement.
(4) There is no reason to think that a Consent Form in different terms would have had any effect on the assessment of DA's suitability.
(5) While it is theoretically possible that Baptist Care might have bargained with PsychCheck for contractual terms which afforded greater protections for employees undergoing assessment, there were in fact major constraints on its capacity to do so. First, PsychCheck was, at the time, the only approved provider of assessment services pursuant to the determination, which necessarily placed limitations on Baptist Care's bargaining power. Second, Baptist Care was necessarily focused upon putting in place arrangements which allowed it to comply with the CYP Act and did not have unlimited time to negotiate terms which were significantly different to those proposed by PsychCheck.
[35] These matters make DA's counterfactual scenario untenable, and we reject the proposition that the arrangements Baptist Care entered into for the conduct of the assessments required by s 107 of the CYP Act were causally connected to the finding that DA was unsuitable and his subsequent dismissal. We note in any event that the Deputy President considered the matters raised by DA in this connection in the context of his consideration as to whether the dismissal was harsh and found, perhaps contrary to the view we would have taken, that some of these matters weighed in favour of a finding of unfair dismissal. Accordingly, any contention of error in the exercise of the discretion in this respect must fail.
[36] We turn now to consider each of the specific grounds for DA's appeal (using the numbering set out in paragraph [22] above, which does not necessarily match the numbering in DA's notice of appeal).
[37] The first appeal ground has no merit, for two reasons. Firstly, the evidence made clear that PsychCheck was the only approved provider pursuant to the determination at the relevant time. We accept Baptist Care's submission that it had no capacity to seek approval of another provider on that provider's behalf. Secondly, DA identifies no practical reason why Baptist Care should at the time have considered that PsychCheck was not an appropriate provider of assessment services, or why the selection of a different provider (even if possible) would have made any difference. In effect, DA seeks to assign retrospective blame for his unsuitability assessment upon Baptist Care's selection of its assessment provider. The first appeal ground is rejected.
[38] We do not accept that Baptist Care was required to notify the Department that it had entered into an agreement with PsychCheck that provided for a Consent Form different to that published by the Department. The evidence was that the version published by the Department was merely an example. In any event, even if Baptist Care failed in this respect to comply with an obligation imposed upon it under the CYP Act, and the Deputy President thereby erred in finding that Baptist Care complied with all its legislative and contractual obligations, this would not be an error of sufficient significance to vitiate the Deputy President's exercise of the discretion. Whether or not Baptist Care notified the Department of the altered terms of the Consent Form used could not have affected the assessment that DA was unsuitable and his consequent dismissal. The appeal ground is rejected.
[39] This appeal ground is rejected. The email sent by Ms Furtado, Baptist Care's Manager People and Culture, to DA on 19 July 2019 records that she had sent an email to PsychCheck concerning DA's request for a one-on-one meeting with them (presumably for the purpose of obtaining feedback) and was awaiting a response. Whether DA could or could not have obtained a copy of PsychCheck's report concerning his assessment of unsuitability with or without the consent of Baptist Care had no causal significance for his dismissal.
[40] Appeal ground 4 involves no more than semantics. Baptist Care had no right, under its agreement with PsychCheck, to access the report concerning DA's suitability assessment. It was open in those circumstances for the Deputy President to find that Baptist Care was "denied" the report in the same way that DA was. In any event, as earlier stated, this had no causal significance to the dismissal. If Baptist Care had entered into a contract with PsychCheck giving it a right to access the report, that would have made no difference to the fact that DA had been assessed as unsuitable and thus could not lawfully be employed in Care Pathways in child residential facilities. The appeal ground is rejected.
[41] The proposition advanced in this appeal ground is incorrect. The Deputy President found that DA's Child and Youth Support Worker role was his primary role in terms of working hours and income in paragraph [40] of the decision, and took this into account in his consideration of whether Baptist Care made sufficient efforts to redeploy DA into work of "comparable value" (see paragraphs [192] and [205] of the decision). The appeal ground is rejected.
[42] Appeal ground 6 is rejected. The hypothetical suggestion that DA might have been able to be re-assessed within a shorter period than 12 months with the approval of the Chief Executive of the Department has no relevance to the fairness of his dismissal, so that any error in this respect on the part of the Deputy President could not have vitiated his exercise of the discretion. In any event, it is clear that Baptist Care's agreement with PsychCheck provided that there could be no further re-assessment within 12 months.
[43] This appeal ground is rejected for the reasons earlier outlined. We consider the Deputy President's comparison of DA's case to other situations where an employee loses the legal authorisation to perform the inherent requirement of their job to be entirely valid. Even if we accepted the premise that "Baptist Care facilitated an unfair process" when it entered into its agreement with PsychCheck, it simply does not follow that Baptist Care was thereby "responsible for preventing DA from having the opportunity to subsequently meet the inherent requirements of the job". DA's submissions simply do not explain how the fair process he contends ought to have been put in place by Baptist Care could have made any difference to the outcome of the assessment process conducted pursuant to the CYP Act and the determination.
[44] This appeal ground, with respect, misses the point. DA was not dismissed because he was considered by Baptist Care to be psychologically unsuitable to perform the inherent requirements of his job. He was dismissed because the fact that PsychCheck had assessed him as being currently psychologically unsuitable meant that it was not lawful under the CYP Act for Baptist Care to continue to employ him in a children's residential facility. It was for this reason that he could not perform the inherent requirements of his role as a Child and Youth Support Worker. Baptist Care's opinion as to DA's suitability was not a matter relevant to his dismissal.
[45] This appeal ground must also be rejected for reasons earlier explained. The Deputy President applied the principle in Kool v Adecco Industrial Pty Ltd, as restated in Stevens v ISS Property Services Pty Ltd, and gave consideration to the matters raised by DA in relation to the process established by Baptist Care in its agreement with PsychCheck (although we doubt that these are matters relevant under the stated principle), and made findings in DA's favour in this respect. His weighing of these matters in reaching his overall conclusion as to the fairness of the dismissal was not affected by any significant errors of fact, noting our earlier rejection of DA's contentions in this respect. In any event, we repeat that it has not been explained by DA how a fairer process would have avoided the circumstances which caused his dismissal.
[46] Because we have rejected all of DA's appeal grounds, the appeal must be dismissed. We order as follows:
[23] See Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42]
[24] Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243, 261 IR 439 at [37]
[27] [2016] FWCFB 5243, 261 IR 439 at [18], [38]-[41]
[28] [2017] FWCFB 1714, 266 IR 253 at [33]- [34]
[29] [2016] FWCFB 5243, 261 IR 439 at [37], [40]-[41]
[30] [2017] FWCFB 1714, 266 IR 253 at [41]
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DA
Baptist Care SA [2020] FWCFB 6046