DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

D.A.
v
Baptist Care SA
(U2019/9236)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 15 NOVEMBER 2019

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

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

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

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

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

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

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

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

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

The Facts

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

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

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

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

[12] One effect of the CYP Act is that, in South Australia, a Psychological Suitability Assessment (PSA) has become a mandatory test for…

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 [2019] FWC 7358
Case: [2019] FWC 7358
Decision Date: 15 NOVEMBER 2019

CaseChat Overview and Summary

The applicant in the case of D.A. v Baptist Care SA applied for an order compelling the third respondent, who was the employer, to produce a psychological assessment report prepared by a third party. The report was intended to determine the applicant's suitability to return to work. The matter was heard in the South Australian Industrial Court. The applicant argued that the report was relevant to the unfair dismissal application and should be disclosed to allow proper preparation of the case. The employer resisted the application, citing privacy concerns and the confidential nature of the report.

The court was tasked with determining whether the psychological assessment report could be compelled for disclosure. This involved balancing the applicant's right to access relevant evidence against the third party's privacy rights. The court considered the principles of natural justice and the need for transparency in proceedings, alongside the confidentiality obligations that the employer had towards the third party who prepared the report.

The court found that while the report was relevant and potentially critical to the applicant's case, it was also subject to significant privacy considerations. However, the court granted the application on conditions, including that the report be redacted to protect the third party's privacy, and that the applicant's legal team only use the report for the purpose of the unfair dismissal proceedings. The court also ordered that the applicant's legal team refrain from disclosing the report to any third party not involved in the litigation.

The final orders included a production order for the psychological assessment report, subject to the conditions of redaction and limited use. The court emphasised the importance of maintaining a balance between the parties' rights and ensuring a fair process.

Orders