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.

Background

[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

Production Orders

[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 ordered5 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

Confidentiality Orders

[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.

Representation

[13]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D. A v Baptist Care SA

Details

AGLC: D. A v Baptist Care SA [2020] FWC 2773
Case: [2020] FWC 2773
Decision Date: 29 MAY 2020

CaseChat Overview and Summary

The matter before the court involved an employee, D. A., who sought a remedy for unfair dismissal against their employer, Baptist Care SA. The dispute centred around the employee's termination following a third-party psychometric assessment which deemed them unsuitable for their role as a Child and Youth Worker. The employee argued that the dismissal was unjust and unreasonable, while the employer maintained that the psychometric assessment was a valid reason for termination.

The primary legal issue for the court to decide was whether the employer had valid grounds to terminate the employee based on the psychometric assessment, and whether the process leading to the dismissal was fair. The court needed to determine if the employer's conduct was deficient to the extent that it rendered the dismissal harsh, unjust, or unreasonable. Additionally, the court had to consider the implications of the employer's omissions and the third party's denial of access to the reasons for the assessment.

The court found that while the employer's conduct was deficient, it did not reach the level of unfairness required to deem the dismissal unjust. The psychometric assessment was considered a valid reason for termination, as the employee's role required specific competencies that were not met according to the assessment. The court emphasised that the employer had not fully explored the possibility of redeployment, which could have been a mitigating factor. However, the overall process and consequences did not render the dismissal harsh, unjust, or unreasonable. Consequently, the application for an unfair dismissal remedy was dismissed.

Orders