Kate Saidi v Healthscope Operations Pty Ltd

[2022] FWC 3233

[2022] FWC 3233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kate Saidi
v

Healthscope Operations Pty Ltd

(U2022/8984)

DEPUTY PRESIDENT EASTON SYDNEY, 8 DECEMBER 2022

Application for an unfair dismissal remedy – application for Order for Production – apparent relevance – Order granted with amendments.

1. On 6 September 2022 Ms Kate Saidi made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that she had been unfairly dismissed from her employment with Healthscope Operations Pty Ltd.

1. The following background information does not appear contentious:

(a)Ms Saidi was employed with Healthscope Operations as a mid-wife;

(b)from 30 September 2021 a Public Health Order required Ms Saidi to be vaccinated against COVID-19;

(c)Ms Saidi was not vaccinated and stopped attending work on 25 September 2021;

(d)on 10 March 2022 Ms Saidi received one dose of the Novavax vaccine;

(e)on 23 March 2022 Ms Saidi contracted COVID-19;

(f)Ms Saidi was given an Australian Immunisation Register Medical Exemption Certificate which Ms Saidi says constitutes an exemption from the Public Health Order;

(g)Healthscope Operations has a policy that requires employees to be double vaccinated against COVID-19, subject to exemptions;

(h)Healthscope Operations insisted that Ms Saidi apply for an exemption under its policy, and Ms Saidi applied for an exemption;

1. Ms Saidi’s exemption application was refused; and

(j)ultimately Ms Saidi was dismissed from her employment. 

1. On 30 November 2022 Ms Saidi made an application for an order requiring production of documents using the requisite Form F52. The Order is sought in the following terms:

1. Copies of any and all documents evidencing communications (internally or externally) concerning:

   (a)   the Applicant's return to the Respondent's workplace;

   (b)   the Applicant's request to return to the Respondent's workplace;

   (c)   the Respondent's request that the Applicant apply for a medical exemption;

   (d)   the Applicant's request for a medical exemption;

   (e)   consideration by the Respondent of the Applicant's request for a medical exemption.

1. Copies of documents concerning the processing and approval or rejection of any medical exemptions made to the Respondent by employees of the Respondent (other than the Applicant) during the period 1 September 2021 to the date of this Notice to Produce, including the following employees: Belinda Martin.

1. The Healthscope Operations opposes the orders on the basis of relevance, the categories are too broad and the application constitutes a fishing expedition.

1. Healthscope Operations filed and tendered evidence about the difficulties for Healthscope Operations if it had to strictly comply with the terms of the Order, evidence about previous correspondence with Ms Saidi’s representatives and an informal provision of documents, and other matters.

1. Consistent with the requirement under the Act to exercise the Commission’s powers in a manner that is quick, informal and avoids unnecessary technicalities (per s.577), an interlocutory hearing was held by telephone on 6 December 2022.

1. Upon receiving and testing the submissions of the parties I decided to confine the breadth of some categories. The parties helpfully co-operated to provide draft orders in amended form and the Order for Production was made on 7 December 2022.

1. The Applicant asked me to provide written reasons for my decision. In doing so I have been as brief as permitted (see Tenterfield Care Centre Ltd v Wait[2018] FWCFB 3844 at [26]).

Documents regarding Ms Saidi’s return to work

1. Ms Saidi stopped attending work in September 2021 and was not dismissed until August 2022. There does not appear to be any contest in the case that Ms Saidi did not return to work after 25 September 2021, and did not ask to return to work before early April 2022.

1. Ms Saidi sought documents relating to her return to work. I decided to narrow the scope of documents to be produced in this category to only documents made or generated after 1 April 2022.

1. Healthscope Operations will be required to produce documents in other related categories, including:

(a)documents relating to the deliberations of Healthscope Operations’ decision-makers’ regarding Ms Saidi’s return to work;

(b)documents relating to Ms Saidi’s application for an exemption from Healthscope Operations’ policy, which is intrinsically linked with Ms Saidi’s return to work.

1. I was not satisfied that any documents made or generated prior to April 2022 that relate to Ms Saidi’s return to work, that are not otherwise captured in the categories described above, have any apparent relevance.

1. If the order had been made without alteration Healthscope Operations would have to cast a wide net to search for operational documents, such as documents relating to rosters, staffing and so on, for no forensic gain.  

Documents relating to exemption applications made by other employees

1. The second category of documents sought by Ms Saidi relate to applications made by other employees for exemptions from Healthscope Operations’ vaccination policy, and Healthscope Operations’ processing of those applications.

1. I was concerned that most if not all of the documents in this category would personal information of other employees. Whilst this is not an obstacle to the making of orders to production, I was concerned that at least some of these confidential records may well be wholly irrelevant to Ms Saidi’s case.

1. In unfair dismissal claims comparisons between the treatment of an applicant and the treatment of other employees is notoriously problematic. As the Full Bench in Pavlovic v Alcoa of Australia Limited T/A Alcoa World Alumina Australia[2021] FWCFB 576 said recently:

   “[41] It is well established that the Commission should approach with caution claims of differential treatment of employees in considering whether termination of an employee was harsh, unjust or unreasonable. Relevantly, the Commission must be satisfied that the cases upon  which a  comparison  is  drawn are  properly comparable, and  that  there  is sufficient evidence to enable a proper comparison to be made.”

   [Footnotes omitted]

1. That said, I was prepared to accept that there may be some apparent relevance to some documents relating to exemption applications by other employees.

1. I decided to amend the order so that the order allows Ms Saidi to have a fair opportunity to obtain documents that could assist her case, but so that the order does not allow Ms Saidi to rummage through the personal records of other employees to see if there are any relevant documents.

1. Healthscope Operations indicated that each employee who applied for an exemption did so on a particular form that stated the ground of the exemption sought. Healthscope Operations also indicated that each application was considered by a committee and that each committee kept brief minutes of its decision.

1. I decided to require Healthscope Operations to produce each application form and each committee minutes so that Ms Saidi has access to sufficient information for the purposes of her application. I have reserved for Ms Saidi the opportunity to seek further documents relating to specific exemption applications if legitimate comparisons can be made to her own circumstances.

1. Orders were issued in the following form:

1.   All documents evidencing communications (whether internal or external), between 1 April 2022 and 18 August 2022, concerning:

a.   The Applicant’s return to the Respondent’s workplace;

b.   The Applicant’s request to return to the Respondent’s workplace;

2.   All documents evidencing communications (whether internal or external), concerning:

a.   the Respondent's request that the Applicant apply for a medical exemption;

b.   the Applicant's request for a medical exemption;

c.   consideration by the Respondent of the Applicant's request for a medical exemption.

3.   Copies of all:

a.   applications for medical exemptions made to the Respondent by employees, between 1 September 2021 and 30 November 2022.

b.   corresponding meeting minutes in consideration of applications encompassed above at 3(a).

4.   Documents produced in accordance with (3) are subject to an undertaking by the Applicant that access will be restricted to the representatives, and the documents are to be edited as follows:

a.   Personal identifying details (such as names) are to be redacted by the Respondent.

b.   The names and contact details of doctors issuing evidence in support of the applications are to be redacted by the Respondent.

5.   The Applicant is granted liberty to seek further particulars from the Respondent in respect of documents served in accordance with (3) that it regards as having greater relevance in these proceedings.

DEPUTY PRESIDENT

Appearances:

Mr C Shamsabad for the Applicant
Mr D Proietto for the Respondent

Hearing details:

2022.
Sydney (By Video using Microsoft Teams)
December 6.

Printed by authority of the Commonwealth Government Printer

<PR748699>