FTA v Fire and Rescue NSW

[2024] NSWCATAD 139

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FTA v Fire and Rescue NSW [2024] NSWCATAD 139

Hearing dates:

13 June 2023, 21 June 2023, 12 September 2023, 27 September 2023.

Date of orders:

22 May 2024

Decision date:

22 May 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant is prohibited.

(2) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 and/or s 54 of the Health Records and Information Privacy Act 2002, no action will be taken in this matter.

Catchwords:

ADMINISTRATIVE LAW – privacy – exemption – suitability for employment as a public sector official

Legislation Cited:

Government Sector Employment Act 2013

Health Records and Information Privacy Act 2002

Privacy and Personal Information Protection Act 1998

Cases Cited:

AF v Healthquest & Another [2011] NSWADT 99

AHC v Fire and Rescue New South Wales [2012] NSWADT 258

AOB v Commissioner of Police [2013] NSWADT 138

CYL v YZA [2016] NSWCATAD 314

Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270

Department of Education and Training v PN [2006] NSWADTAP 66

DPD v Far West Local Health District [2020] NSWCATAD 141

DTN v Commissioner of Police (NSW) [2021] NSWCATAD 240

DTN v Commissioner of Police, NSW Police Force (No 2) [2021] NSWCATAD 294

EY v Department of Corrective Services (GD) [2009] NSWADTAP 25

OD v Department of Education and Training [2006] NSWADT 312

PN v Department of Education & Training [2006] NSWADT 122

Y v Director General, Department of Education & Training [2001] NSWADT 149

Category:

Principal judgment

Parties:

FTA (Applicant)
Fire and Rescue NSW (Respondent)

Representation:

Applicant (self-represented)
Solicitors:
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/00075257

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant is prohibited.

REASONS FOR DECISION

1. The Applicant, known in these proceedings by the pseudonym ‘FTA’, commenced employment as a firefighter with Fire and Rescue NSW (the Respondent) on 29 April 1994. On 21 June 2021 the Applicant was stood down from operational duties and on 22 June 2021 he was referred for an independent medical assessment pursuant to clause 8 of the Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2021 (the Award). That assessment was conducted by Dr Andrew McClure, who provided a psychiatric assessment report on 10 November 2021 (the Report).

2. On 1 May 2022 the Applicant made a number of complaints alleging bullying, intimidation and misconduct by Zone Commander Superintendent Matthew Waldon (ZCS Waldon) towards him (the 1 May 2022 Complaint). ZCS Waldon was the Applicant’s immediate line manager. For the purpose of these proceedings, only Complaint 2 is relevant:

Zone Commander Waldon gained unauthorised access to my medical records, in contravention of the Information and Privacy Act (HRIP Act), Part 3, for the purpose of finding grounds to support denying my return to my substantive position.

3. The Applicant referred to pages 10 to 14 of the 1 May 2022 Complaint as explaining the basis for Complaint 2, alleging that the Respondent accessed and used, without authorisation, the Applicant’s health information, as contained in a medical report prepared by Dr Andrew McClure dated 19 November 2021 (the Conduct). The relevant time period of the Conduct was identified as occurring between 10 November 2021 and 17 February 2022 (the Conduct Period).

4. On 16 May 2022, the Applicant requested the Respondent conduct an internal review of the Conduct pursuant to section 21 of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) and Part 5 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). On 8 August 2022, the Respondent notified the NSW Information and Privacy Commission (IPC) of an extension of time to complete the Internal Review, noting that the Applicant did not object to the extension.

5. The Internal Review was completed by an external provider to the Respondent, Privcore, on 30 November 2022. On 8 February 2023, the Applicant was notified of the outcome of the Internal Review. The Respondent determined, having regard to the Internal Review conducted by Privcore, that no breach of the HRIP Act or the PPIP Act had occurred as a result of the Conduct, on the basis that the information contained in the Report was not ‘personal information’ under section 5(3)(m) of the HRIP Act, and that the Health Privacy Principles (HPPs) therefore did not apply (the Internal Review Decision).

6. The Applicant sought review of the Internal Review Decision in this Tribunal by application filed 7 May 2023. The substantive hearing took place on 21 June 2023, 12 September 2023 and 27 September 2023.

7. The Applicant provided the Tribunal with a Statement dated 4 August 2023 numbering 36 pages plus annexures; a further Statement dated 4 September 2023 numbering 32 pages plus annexures; the Privacy Policy issued 24 September 2019 from the Respondent’s Governance Unit, Governance and Legal Office; the Privacy Management Plan issued 17 November 2021 from the Respondent’s Legal and Regulatory Services; a copy of an internal email from Jessica Rosman at the Respondent dated 29 November 2021 sent to Gregory Rankin, Graeme Holland, Vincent Chan and Andrew McGarity regarding the Report; various medical certificates and incident reports, and written submissions received by the Tribunal on 11 December 2023.

8. The Respondent relied on the section 58 documents, a number of emails regarding the employment and injury management of FTA, a Statement of Andrew McGarity dated 17 August 2023, and written submissions dated 17 August 2023, 8 November 2023 and 21 December 2023.

9. During the course of the proceedings the Applicant, who was self-represented, sought to issue summonses on a number of individuals on the basis of their respective roles in his workplace and injury management, and also sought documents from the Respondent and third parties such as Privcore, which had conducted the internal review. These summonses were the subject of a number of interlocutory hearings. There were a number of documents provided to the Tribunal in the context of the summonses issued by the Applicant which weren’t specifically relied upon in the substantive proceedings, and which I have therefore not referred to in these reasons for decision.

10. Mr McGarity was cross examined by the Applicant, in addition to Mr Michael Baldi and Ms Jessica Rosman, both of whom appeared as a result of summonses sought by the Applicant. I note that both parties had the opportunity to make extensive oral submissions in addition to written submissions, and both parties did so.

Legal Principles

11. The Tribunal's review jurisdiction in these proceedings is the alleged conduct and contravention by the Respondent of IPPs pursuant to sections 52(1)(a) and 55(1)(a) of the PPIP Act, and HPPs pursuant to section 21(1)(a) of the HRIP Act.

12. The PPIP Act regulates the manner in which NSW Government agencies, including the Respondent, deal with and manage personal information. Sections 8 to 19 of the PPIP Act set out the twelve IPPs that govern the way in which an agency (in this case the Respondent) must collect, store, access, use and disclose personal information. Schedule 1 to the HRIP Act sets out the fifteen HPPs that govern the way in which an agency must collect, store, access, use and disclose health information.

13. Section 21 of the HRIP Act states as follows:

21   Complaints against public sector agencies

(1)   The following conduct by a public sector agency is conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies –

(a)   the contravention of a Health Privacy Principle that applies to the agency,

(b)   the contravention of a health privacy code of practice that applies to the agency.

(2)   For that purpose, a reference in that Part –

(a)   to personal information is taken to include health information, and

(b)   to an information protection principle is taken to include a Health Privacy Principle, and

(c)   to a privacy code of practice is taken to include a health privacy code of practice.

(3)   This section applies only to conduct engaged in after the commencement of this section.

14. Section 53(3) of the PPIP Act states as follows:

53   Internal review by public sector agencies

…

(3)   An application for such a review must:

(a)   be in writing, and

(b)   be addressed to the public sector agency concerned, and

(c)   specify an address in Australia to which the notice under subsection (8) may be sent, and

(d)   be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e)   comply with such other requirements as may be prescribed by the regulations.

15. Section 55(1) of the PPIP Act states as follows:

55   Review of conduct by the Tribunal

(1)   If a person who has made an application for internal review under section 53 is not satisfied with:

(a)   the findings of the review, or

(b)   the action taken by the public sector agency in relation to the application,

the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.

16. Section 4 of the PPIP Act and s 5 of the HRIP Act define ''personal information'' as follows:

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

…

17. Section 5(3)(m) of the HRIP Act provides:

(3)   Personal information does not include any of the following –

…

(m)   information or an opinion about an individual’s suitability for appointment or employment as a public sector official

18. An identical provision to section 5(3)(m) of the HRIP Act provides an exclusion to the definition of “personal information” in section 4(3)(j) of the PPIP Act.

19. The Applicant is employed by the Respondent and is a “public sector official” for the purposes of the HRIP Act, pursuant to the s 4 definition of “public sector official”. The Respondent is a Government Department pursuant to the s 4 definition of “public sector agency” and Schedule 1 Part 2 of the Government Sector Employment Act 2013 (NSW).

20. The PPIP Act excludes ''health information'' (as defined in the HRIP Act) from the definition of ''personal information'': s 4A. ''Health information'' is defined in the HRIP Act as “personal information”:

6 Definition of ''health information''

In this Act, health information means.-

(a) personal information that is information or an opinion about-

(i) the physical or mental health or a disability (at any time) of an individual, or

(ii) an individual's express wishes about the future provision of health services to him or her, or

(iii) a health service provided, or to be provided, to an individual, or

(b) other personal information collected to provide, or in providing, a health service, or

(c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or

(d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of a genetic relative of the individual, or

(e) healthcare identifiers,

but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act.

“Information or opinion about an individual’s suitability for appointment or employment as a public sector official”

21. It is accepted that the exemptions at s 5(3)(m) of the HRIP Act and s 4(3)(j) of the PPIP Act (the exemptions) should be interpreted and applied in the same manner: see DTN v Commissioner of Police (NSW) [2021] NSWCATAD 240 at [19] and [24]. The purpose of the exemptions is to enable the assessment of prospective or current employee competencies and their suitability, without being constrained by the IPPs or HPPs. If the relevant information is not ‘personal information’ because the exemptions apply, then the IPPs and HPPs do not apply: DPD v Far West Local Health District [2020] NSWCATAD 141 at [81].

22. In considering s 5(3)(m) of the HRIP Act, as discussed in Y v Director General, Department of Education & Training [2001] NSWADT 149 at [33], the Tribunal is required to be satisfied “whether having regard to the content of the information in issue and the context in which it is found it can reasonably be said to be ‘about an individual’s suitability for appointment or employment’”. A two-limbed test applies in determining whether the exemption under s 5(3)(m) of the HRIP Act is applicable:

1. the information (content) under review, and the context in which it is found, must show that the information is about an individual’s suitability for employment; and

2. the applicant’s fitness or suitability for employment must be a ‘live issue’ at the time of the conduct: see AF v Healthquest & Another [2011] NSWADT 99 at [41]; AOB v Commissioner of Police [2013] NSWADT 138 at [12] – [13].

23. The exemption applies where the information is used for the assessment of the individual’s suitability for employment and not some other purpose: See DPD v Far West Local Health District [2020] NSWCATAD 141 at [75] – [76] citing OD v Department of Education and Training [2006] NSWADT 312.

24. Both the content of the information and the context in which the information was collected, stored, used or disclosed by the relevant agency are relevant: AHC v Fire and Rescue New South Wales [2012] NSWADT 258 at [34].

25. Information that satisfies the content test, but not the context test, will not come within the scope of the exemption: Department of Education and Training v PN [2006] NSWADTAP 66 at [60]. Information which was collected for the purposes of assessing an individual’s suitability for employment, and satisfied the context test at that time, but which is later used for a different purpose is not exempt under s 4(3)(j) of the PPIP Act: See for example CYL v YZA [2016] NSWCATAD 314 where the Tribunal stated at [104] (and see also: OD v Department of Educations and Training [2012] NSWADT 312; DTN v Commissioner of Police, NSW Police Force (No 2) [2021] NSWCATAD 294):

104. However, in my opinion, the categorisation of the information can change with the context in which it was being addressed. In the context in which the Disclosure was made, it was not information about CYL’s suitability for employment. The AHRC was not considering whether to employ CYL. It was investigating a complaint of discrimination and the information was supplied in that connection.

26. The scope of the exemption goes beyond assessing suitability for appointment to a public sector position and extends to an assessment of the ongoing suitability of current public sector officials to perform their roles: EY v Department of Corrective Services (GD) [2009] NSWADTAP 25 at [39].

27. As the HRIP Act and PPIP Act are beneficial legislation, any exclusion from the definition of 'personal information' should be interpreted narrowly: PN v Department of Education & Training [2006] NSWADT 122, at [58]. However, as the Court of Appeal said in Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 at [49], beneficial legislation must be liberally interpreted in order to achieve its beneficial purpose:

The Act is beneficial legislation which must be liberally interpreted in order to achieve its beneficial purpose. That does not mean that it must be interpreted in such a way that whatever may be regarded as improving its enforcement must fall within the intention of the legislature.

Consideration

28. In issue in these proceedings is whether the health information of the Applicant contained in the Report is exempted from the definition of “personal information” because of s 5(3)(m) of the HRIP Act. If s 5(3)(m) of the HRIP Act applies, and the Report is therefore not “personal information”, it follows that there is no requirement on the Respondent to comply with the HPPs or IPPs in relation to that information, and there therefore can be no breach of the HPPs and IPPs by the Respondent’s conduct.

29. It was accepted by both parties that the Report was produced by Dr McClure in response to a referral for assessment of the Applicant’s suitability to return to work, made by the Respondent on 28 September 2021. It was also accepted that the Applicant was referred by the Respondent for a medical assessment by Dr McClure under clause 8 of the Award, although the Applicant contended that clause 8 of the Award should not have been applied because his evidence, including medical certificates, indicated he was fully fit to work.

30. Clause 8 of the Award relevantly states:

8.1.    The procedures set out at subclauses 8.2 to 8.5 inclusive will apply if:

8.1.1    FRNSW has reason to believe that:

8.1.1.1    a firefighter may be unfit for duty, permanently or otherwise, and that firefighter disagrees; or

8.1.1.2    it may be necessary to impose certain medical/physical conditions or restrictions on a firefighter, permanently or otherwise, and that firefighter disagrees with the need for some or all such conditions or restrictions; or

…

8.4    Whether the medical assessment is initiated by FRNSW at paragraph 8.1.1 or a firefighter at paragraph 8.1.2, FRNSW will arrange for a reasonable appointment for the firefighter as soon as possible, if not with FRNSW’s preferred medical practitioner then with some other suitable medical practitioner, and will notify both the firefighter and the assessing medical practitioner in writing setting out:

8.4.1    the time, date and location of the appointment;

8.4.2    the inherent requirements of the firefighter’s ordinary duties and the firefighter’s typical work environment(s);

8.4.3    the health-related issue(s), if any, which FRNSW believes may be affecting work performance;

8.4.4    the manner in which it is believed work performance has been/is being and/or may be affected, including evidence where available;

8.4.5    any specific question(s) from FRNSW. It will not be sufficient to simply request an assessment of a firefighter’s “fitness to continue” or assume such question(s) would be inferred by the assessing medical practitioner from the general background information provided; and

8.4.6    a summary of all relevant documents in checklist format.

…

8.6    The assessing medical practitioner’s report, which will be in writing and provided to both FRNSW and the firefighter, should conclude that the firefighter is, in that medical practitioner’s opinion, either:

8.6.1    fit to perform the firefighter’s ordinary duties without any requirements or restrictions; or

8.6.2    fit to perform the firefighter’s ordinary duties with specified requirements or restrictions; or

8.6.3    temporarily unfit to perform the firefighter’s ordinary duties but fit to perform alternative duties, either with or without specified requirements or restrictions; or

8.6.4    temporarily unfit to perform any FRNSW duties; or

8.6.5    permanently unfit to perform the firefighter’s ordinary duties

31. The referral letter to Dr McClure sought the following advice in relation to the Applicant’s fitness to return to work (at the time of the referral):

Based on your assessment of [FTA] and the provided information please advise whether in your medical opinion, if [FTA] is:

1.    Currently fit to perform his ordinary duties of his role at Katoomba without any requirements or restrictions; or

2.    Fit to perform his ordinary duties with requirements or restrictions, and if so, please specify them; or

3.    If requirements or restrictions are necessary, are they limited to a particular period of time or are they permanent?

4.    If restrictions apply, is ‘FTA’ fit to undertake conflict resolution activities, without an unacceptable level of risk of significant injury or illness?

5.    What other recommendations, if any, do you have for the reintegration of ‘FTA’ into the workplace at Katoomba or anywhere else he may be operationally required to work.

Please provide your reasons for this assessment, addressing any risks his condition may raise in relation to undertaking his ordinary duties.

32. An employer report from the Respondent was provided to Dr McClure with the referral letter. That employer report provided, relevantly, that the basis of the referral was to “seek medical advice on ‘FTA’s fitness for duty and the risks to his health with a return to his substantive role”.

33. The Applicant contended variously that there was no proper basis for sending him for an assessment under clause 8 of the Award; that he was fully fit for duty at the time that he was sent for the assessment; that incomplete and inaccurate information had been provided by the Respondent for the purpose of the medical assessment; that the Respondent was seeking a medical diagnosis against him for an issue which was a workplace or interpersonal conflict; that his absence from his command post was putting firefighter and community safety at risk; and that the Respondent was engaging in negligent and unlawful conduct.

34. As was explained to the Applicant at the hearing, this Tribunal has no jurisdiction in these proceedings to determine whether the Award was appropriately engaged or applied in relation to the Applicant’s employment and any injury or personnel management. Whether or not there was a specific or industrially valid basis for the Respondent to assess the Applicant’s suitability for his employment is irrelevant. The fact remains that the Respondent referred the Applicant for a fitness for duty assessment to Dr McClure, and received the Report from Dr McClure as a consequence. I accept the following submissions of the Applicant as the factual background to his complaint which is relevant to the questions in issue in these proceedings, noting subparagraphs 6, 8, 9 and 10 provide detail of the Conduct the subject of the Applicant’s complaint:

1. On 21 June 2021, the Respondent stood the Applicant down from all operational duties.

2. On 22 June 2021 the Respondent referred the Applicant for an independent medical assessment pursuant to clause 8 of the Award.

3. On 10 November 2021 Dr Andrew McClure completed a psychiatric assessment of the Applicant and documented his findings in the Report.

4. On 2 December 2021 the Applicant’s manager Superintendent Waldon confirmed that the Applicant would return to MW3 in an operational handover.

5. On 10 December 2021 FRNSW Director of People and Culture, Michael Baldi, wrote to the Applicant:

I write in relation to your recent medical review with Dr McClure on 10 November 2021. Dr McClure has concluded you are fit for your ordinary duties with Fire and Rescue NSW (FRNSW), having fully recovered from your medical condition.

FRNSW accepts Dr McClure’s opinion on your capacity to work which is enclosed for your reference.

…

6. On 14 December 2021 FRNSW Fitness to Continue Coordinator Ms Rosman emailed the Report to the following FRNSW management employees;

(a)   Chief Superintendent Michael Morris;

(b)   Chief Superintendent Brendan Cox;

(c)   Acting Chief Superintendent Greg Rankin;

(d)   Superintendent Waldon; and

(e)   Manager Injury Management Health and Safety Andrew McGarity.

(FRNSW managers)

7. This was the first time Superintendent Walden was provided with a copy of the Report.

8. On 10 January 2022 Chief Superintendent Greg Rankin emailed a copy of the Report to Chief Superintendent Brendan Cox and Chief Superintendent Michael Morris.

9. At around 11:30am on 17 February 2022, Superintendent Waldon convened a meeting with the Applicant. During this meeting Superintendent Waldon showed the Applicant a copy of the Report and discussed its contents and findings with him, including specific comments made by Dr McClure:

‘For the first 1-2 months, he should work at his zone commander’s discretion in the role of a supernumerary inspector’; and

‘He should resume normal duties at Katoomba when both he and his immediate supervisor consider that this is appropriate’.

10. At 10:45pm on 17 February 2022, Superintendent Waldon sent the Applicant an email which stated:

‘We discussed the conditions of your return to work as outlined in your medical outcome and that I had concerns with you returning to the duty commander position Metro West-3 at this present time’.

11. On 22 January 2022 the Applicant commenced supernumerary duties at MW3 for one month.

12. The Applicant has not since this time returned to his substantive position or been subject to any further medical re-assessment.

35. The Applicant submitted:

The Medical Report is personal information within the meaning of s 4(1) of the PPIP Act and s 5(1) of the HRIP Act as it contained identifying information about the Applicant including his name, date of birth, children, and parents, and Dr McClure’s opinion about his fitness for work.

The Medical Report is health information within the meaning of s 6 of the HRIP as it contained information and an opinion about the Applicant’s physical and mental health.

36. I agree that the Report contained the information described by the Applicant. However, as discussed above at [22], the exemptions will apply to the effect that such information is not “personal information within the meaning of s 4(1) of the PPIP Act and s 5(1) of the HRIP Act” if the information is about an individual’s suitability for employment, and the applicant’s fitness or suitability for employment is a ‘live issue’ at the time of the conduct complained about.

37. I agree with the Respondent’s submission that it is clear from the context that the Report was obtained by the Respondent, for it to assess the Applicant’s fitness to return to his substantive position as a Duty Commander at Metropolitan West 3 (MW3).

38. The Respondent submitted that the content of the Report was clearly about the Applicant’s suitability for employment because:

1. The Report is addressed to Ms Rosman, a Return to Work Coordinator;

2. The Report is a medical report titled ‘Medical fitness to continue ordinary duties’ authored by Dr McClure, Psychiatrist;

3. Dr McClure gives an opinion about the Applicant’s “Fitness for Work”;

4. Dr McClure thanks the Respondent for “this additional opportunity to advise FRNSW on the continuing condition and management of your employee ‘FTA’;.

5. The Report provides an overview of the Applicant’s psychological history and psychological treatment, as well as his further medical history as applicable to his work. The Report then provides an overview of the Applicant’s attitude to returning to work;

6. Dr McClure provides his professional opinion on the status of the Applicant’s mental health and makes a finding at the conclusion of the Report that the Applicant is fit to return to work, with recommendations as to how that should occur;

7. The findings made in the Report only refer to the Applicant’s mental health as it relates to his employment and his fitness to return to employment.

39. I agree with the Respondent’s submission about the content of the Report. The request for the Report containing the questions posed to Dr McClure, and the opinions by Dr McClure contained in the Report, demonstrate that its content is information and opinions about the Applicant’s mental and physical ability, suitability, fitness and capacity for employment in his substantive role, as a public sector official. So much appears to have been conceded by the Applicant, who submitted:

40.   The phrase “Suitability for appointment or employment” has been interpreted to include the suitability of first-time applicants but also an assessment of the ongoing suitability of current public sector officials to perform their roles.

41.   The information exempted by the provision is not limited to that produced during formal processes like selection of a candidate for a role or disciplinary action. Suitability for employment includes an employee’s health fitness as it is a key consideration in relation to the employability of an individual and their employability for particular duties.

40. Where the parties differed was on the question of whether the Applicant’s suitability for employment was a “live issue” at the time of the Conduct complained about by the Applicant. The Applicant submitted that his suitability for employment ceased being a live issue on 10 December 2021 when FRNSW accepted Dr McClure’s assessment that he was fully fit for ordinary duties.

41. In support of this submission, the Applicant relied on the evidence of Mr McGarity and Mr Baldi. The Applicant submitted that both Mr McGarity and Mr Baldi gave evidence at the hearing that FRNSW’s assessment of fitness for duty pursuant to clause 8 of the Award concluded on 10 December 2021: McGarity at 31:20; 1:01; Baldi at 48:50-50:10,107:20. Further, that Mr Baldi gave evidence that in accordance with clause 8.6.1 of the Award he found that the Applicant was fit to perform his ordinary duties without any requirements or restrictions: Baldi 12 September 4-7 at 49:00. The Applicant submitted that as his fitness for work had already been decided, the issue could not have been under 'active consideration’ at the time the Medical Report was accessed on 14 December 2021, 10 January 2022 and 17 February 2022. He submitted that Mr McGarity was unable to explain why the Report was provided to the FRNSW managers within the scope of the exemptions: McGarity at 19:00, that Mr Baldi accepted that there was no reason for the FRNSW managers to have accessed the full Medical Report: Baldi at 1:50; 2:50.

42. The Respondent submitted that the evidence relied upon by the Applicant was not a faithful characterisation of the evidence given to the Tribunal at hearing. Specifically:

1. It was not clear what part of McGarity’ evidence was being relied on with reference to “McGarity at 19:00” as there was no time stamp of 19:00 for Mr McGarity on Audio 12.09.23 FTA 4 of 5 or Audio 27.09.23 FTA 4 of 7;

2. Mr Baldi’s evidence at 27.09.23 FTA 5 of 7 1:20 to 3:00 was that the Command may need to see the complete medical report when that report makes recommendations about the employee’s report [sic] to work, and that it was not open to the Tribunal to find that his evidence was that there was no reason for the Command to see the complete medical report.

43. The Respondent noted the following evidence in support of its submission that the Applicant’s suitability for employment was a “live issue” at the time of the conduct:

1. an employee is only referred for an assessment under clause 8 of the Award when there is a concern that the employee may not be fit for duties: Audio 27.09.23 FTA 4 of 7 at 00:03:43 (McGarity);

2. in circumstances where an employee has a graduated or staged return to work, the issue of the employee’s fitness for work doesn’t end with the receipt of the medical outcome letter because “quite often there’s review points and other things that we need to do to make sure that people are safely returned to work” (Audio 12.09.23 FTA 4 of 5 at 00:31:37 (McGarity)) and the receipt (and acceptance) of the medical report “doesn’t conclude the process’’: Audio 27.09.23 FTA 4 of 7 at 00:04:07 (McGarity); and

3. the outcome of the medical assessment is just one part of how the organisation manages employees, but it is not the final part of that process: Audio 27.09.23 FTA 4 of 7 at 00:22:12 (McGarity).

44. Having reviewed the audio of the hearing, I agree with the Respondent’s submissions regarding the audio evidence. While Mr Baldi agreed that the Command could have just been shown the medical outcome letter instead of the whole report, there was no suggestion by him that the Command shouldn’t have seen the whole Report. Mr McGarity stated that “once a report is received, it is reviewed by all relevant parties” and that, referring to Ms Rosman’s dissemination of the Report on 10 January 2022, “She is liaising with the appropriate people to make decisions”. Mr McGarity’s evidence was unequivocal that the receipt of the medical report did not conclude the respondent’s assessment of the Applicant’s fitness or suitability for his employment.

45. The Applicant’s submissions were premised on his view that the process described in clause 8 of the Award is the only method or process by which his suitability or fitness could be assessed by his employer, the Respondent. The Applicant submitted that once that process was concluded by the receipt of a medical opinion addressing one of the options under clause 8.6 of the Award, his fitness or suitability was no longer under “active consideration”, and the acknowledgement of the Report and its conclusions expressed by Mr Baldi on 10 December 2021 concluded that process.

46. The Respondent submitted that the test was not whether an individual’s suitability was under “active consideration”, but that the individual’s fitness or suitability was a “live issue”. I agree that the test is whether it is a “live issue” and don’t understand what is to be made of the distinction, if any, that the Applicant is making by using the words “active consideration” instead. “Active consideration” seems to have been referred to because the Tribunal stated in DPD v Far West Local Health District [2020] NSWCATAD 141 at [74] that:

…active consideration could extend to assessing an individual’s return to work from leave, and promotion as these matters concern an assessment of their suitability to be authorised to do the work of the position.

47. In any event, I find that the Applicant’s suitability for employment remained both a “live issue” and “under active consideration” even after the Report was received by the Respondent and Mr Baldi wrote to the Applicant about Dr McClure’s opinions therein contained on 10 December 2021. This is because I accept the Respondent’s submissions outlined above at [43]. As stated by both Ms Rosman and Mr McGarity in their evidence, the outcome of the medical assessment referred pursuant to clause 8 of the Award is just one part of how the Respondent assesses an employee’s suitability for employment and manages an employee’s return to work.

48. When questioned by the Applicant about the medical outcome letter of 10 December 2021 concluding the process, Mr McGarity stated:

“Concluded” is a difficult word. It is always open to ongoing monitoring. It can be misinterpreted. The process was not finalised. It was an ongoing process… that is a fundamental misconception. The medical determination was finalised, but there was ongoing assessment… the process was not completed. It’s erroneous to say it has. We were still managing the worker… best practice is the coordination of support with injured workers.

49. Mr McGarity’s evidence was that the entire Report was provided to the Command by Ms Rosman, in circumstances where:

... there was a lot of information contained within the report in relation to parallel processes that actually needed to feed into the decision making about your accommodation of the report...

…in circumstances where the Applicant has industrial processes as well as other processes it is best practice to coordinate the organisation’s management of the employee’s return to the workplace by sharing this information with those individuals who have a role in making decisions about return to work. This is consistent with new guidelines that SafeWork Australia have recently released…

..clinical history ... is actually really important in relation to what we’re able to do to support you

…that sort of moral injury or perceived injustice type of injury is one where we actually need to all work together to try and support the worker because it’s actually quite complex…

…best practise injury management requires that you share complete information (rather than separate or smaller parts of the information) to rehabilitate to injured worker.

50. Mr McGarity’s evidence was consistent with Ms Rosman’s evidence who stated that the complete Report was shared within the organisation via email by her 14 December 2021 in circumstances where the Applicant’s case:

…[had] quite a complex industrial background to the case, so we look at all of the different possible influences for the return to work generally like and where there’s other processes happening that might not be that might influence the return to work… [it was] pretty complicated... lots of different processes happening and lots of different areas involved…

... this particular email, this is about the medical outcome process, which is has the people involved who will need to make the decision on the medical outcome. So the way that the process works...”

51. I therefore find that at the time of Ms Rosman’s email on 14 December 2021 and the Applicant’s discussion of the Report with Zone Commander Waldon on 17 February 2021, the Applicant’s fitness to return to full duties was a live issue. The exemptions therefore apply.

52. The Applicant further submitted that the exemptions are lost if the information which was held for the purpose of considering the individual’s suitability for employment is subsequently used for a different purpose: DPD v Far West Local Health District [2020] NSWCATAD 141 at [75]. The Applicant submitted that the exemptions do not apply to industrial disputes for which the Report was accessed, distributed and used on 14 December 2021, 10 January 2022 and on or around 17 February 2022. I agree with the submission that the exemptions are lost if the information is used for a different purpose, but disagree with the Applicant’s characterisation of its subsequent use as being for a different purpose. The Applicant submitted that the Report’s use on 14 December 2021 was to inform various managers “of the proposed conflict resolution and the Applicant’s requirement to return to work”, and its use on 10 January 2022 and 17 February 2022 to “inform industrial disputes or processes regarding the Applicant’s complaint that he had been underpaid three weeks ago” and “to inform industrial disputes and or processes including the Applicant’s planned return to his substantive position”. The Applicant relied on extracted copies of email chains on 14 December 2021 and 10 January 2022 to support this submission.

53. The Respondent pointed out in relation to those extracted emails:

The originating email is Ms Rosman’s email to the Applicant dated 10 December 2021 wherein Ms Rosman advised the Applicant that FRNSW had received Dr McClure’s report. The Applicant responded and raised a question about the conflict resolution process. FRNSW did not use Dr McClure’s report as part of facilitating or managing the conflict resolution process. The conflict resolution process is raised by the Applicant, and FRNSW simply responded to the Applicant’s query.

In relation to the use on 10 January 2022, this is a further part of the email chain referred to above, where the Applicant raises a question about payment of his wages. FRNSW did not use Dr McClure’s report as part of facilitating or managing an industrial dispute in respect of the payment of the Applicant’s wages. The payment of wages was raised by the Applicant, and FRNSW simply responded to the Applicant’s query.

54. On the evidence before me I accept the Respondent’s submission, in relation to the emails relied upon by the Applicant to support his submission that the Respondent used the information in the Report for a different purpose. The Respondent did not access, distribute or use the Report to inform any industrial disputes or processes. The only use made of the Report by the Respondent, on the evidence before this Tribunal, was for the purpose of assessing the Applicant’s suitability for his employment as a public sector official, including his fitness to return to his substantive position, and falls within the exemptions previously discussed.

55. Sections 55(2) of the PPIP Act and 54 of the HRIP Act set out the orders the Tribunal can make on reviewing conduct of an agency that is alleged to amount to a contravention of an IPP or HPP. This includes deciding to take no further action. In circumstances where I have found that the Respondent was not required to comply with the IPPs or HPPs in relation to the Report, because the Conduct fell within the exemptions at ss 5(3)(m) of the HRIP Act (and therefore also 4(3)(j) of the PPIP Act), the appropriate order is to decide to take no further action.

Order

1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant is prohibited.

2. Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 and/or s 54 of the Health Records and Information Privacy Act 2002, no action will be taken in this matter.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 May 2024