Mr Brian Smith v Ramsay Health Care Australia Pty Ltd T/A Joondalup Health Campus

[2014] FWC 6005

[2014] FWC 6005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Brian Smith
v
Ramsay Health Care Australia Pty Ltd T/A Joondalup Health Campus
(U2014/6694)

COMMISSIONER CLOGHAN PERTH, 1 SEPTEMBER 2014

Unfair dismissal - production of patient medical records.

[1] On 17 April 2014, Mr Brian Roha Smith (Mr Smith or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Ramsay Health Care Australia Pty Ltd T/A Joondalup Health Campus (JHC or Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] Directions were issued on 17 June 2014 for a hearing commencing on 2 September 2014.

[4] On 21 August 2014, the Applicant made application for the production of the medical records for mental health patient, who shall be referred to as AB. The application is made pursuant to paragraph 590(2)(c) of the FW Act.

[5] The application for the production of AB’s medical records was the subject of a telephone conference on 22 August 2014. The JHC opposed the production of AB’s medical records.

[6] On 22 August 2014, I issued directions to enable each party to make submissions on the application for the production of medical records.

[7] Submissions were provided on 26, 28 and 29 August 2014.

[8] This is my decision and reasons for decision on Mr Smith’s application for the production of AB’s medical records. In view of the limited period of time to provide the decision, it may contain infelicities which possibly could have been overcome with greater time.

RELEVANT BACKGROUND

[9] Mr Smith is a Registered Psychiatric Nurse. Mr Smith has worked as a Psychiatric Nurse in New Zealand, New South Wales and Western Australian hospitals since 1988.

[10] On 26 March 2010, the Applicant commenced employed at JHC.

[11] On 2 April 2014, an involuntary mental health patient, AB, was prescribed an intra-muscular injection. The patient was in the locked ward of the Mental Health Unit at JHC.

[12] An incident occurred between Mr Smith and the patient AB.

[13] On 3 April 2014, the Applicant was informed that he would be stood down on full pay pending an investigation.

[14] Following the investigation, Mr Smith was required to respond to “Allegations of Assault” in writing and verbally.

[15] On 10 April 2014, Mr Smith provided a written response to the allegations. The Employer asked Mr Smith questions regarding his written response. Present at the meeting was Ms Poplawski, the Australian Nursing Federation’s Industrial Officer as Mr Smith’s support person.

[16] Following the meeting between Mr Smith, Ms Poplawski and the Employer’s representatives to discuss the Applicant’s response to the allegations, the Applicant was summarily dismissed on the grounds of serious misconduct.

APPLICANT’S SUBMISSION FOR PRODUCTION OF AB’S MEDICAL RECORDS

[17] Mr Smith asserts that he was acting in self defence during the incident on 2 April 2014. Accordingly, the Applicant submits that the production of AB’s medical records is relevant, admissible and discretionary factors weigh heavily in his favour of their production.

Relevance

[18] The Applicant expects that the patient’s medical records to be relevant to the Employer’s witness evidence of Mr Smith’s actions on 2 April 2014.

[19] The Applicant submits that the Commission must take into account all the circumstances surrounding the incident and not just establishing who was the aggressor.

[20] Mr Smith submits that the “medical records are sought for the purpose of assessing the evidence of the witnesses against what is recorded in the medical records, especially as witness accounts are the only evidence presented by the Respondent that the alleged assault occurred such that issues of credibility assume significance of this matter”.

Admissibility

[21] In response to the Employer’s submission that the medical records have little probative value, without the evidence of the authors, the Applicant submits that the Commission is not bound by the rules of evidence.

[22] The Applicant submits that evidence that is relevant is prima facie admissible. As the medical records are relevant, therefore they are admissible.

[23] The Commission has, on previous occasions, admitted records without expert evidence being adduced.

Discretionary factors

[24] In responding the Employer’s contention that the application for AB’s medical records is oppressive, the Applicant submits that the “value” of the medical records are high due to the seriousness of the allegations; witness evidence; the question of whether there was a valid reason for dismissal and to enable Mr Smith to have a “fair and just” hearing.

[25] In addition, the Applicant submits that:

• the burden for the production of the medical records on JHC is low;



• patient confidentiality alone is not grounds for protection against discovery; and



• public interest in securing justice outweighs the private and public interest in the maintenance of the patient’s confidentiality.

EMPLOYER’S SUBMISSION OPPOSING PRODUCTION OF AB’S MEDICAL RECORDS

[26] The Employer submits that the Commission should not exercise its discretion to order the production of AB’s medical records as the medical records are irrelevant to the matters in issue. Further, the Applicant’s request is far broader than necessary for the fair and just hearing of the application.

[27] In the alternative, the Employer submits that: it can be inferred that the Applicant has not sought the consent of the patient for the production of the medical records; the medical records without the evidence of the authors is hearsay; there has been delay without justification in making the application; the records sought to be produced are not limited and includes records created before the incident on 2 April 2014, and finally, there is no confidentiality protocols or undertakings proposed to ensure that the medical records will not be used for extraneous issues.

[28] The Employer does not contest that the Commission can order the production of documents to inform itself. However, the matter before the Commission is simply whether the Applicant was unfairly dismissed.

[29] JHC submits that the medical records are irrelevant to the issue of who attacked who first.

[30] The patient has not given his consent and the production of such documents in public would amount to a significant invasion of AB’s privacy.

[31] The Employer contends that if the medical records are sought to be relied upon by the Applicant, it would be necessary for the Employer to cross examine the authors of those records. As the Applicant does not intend to call the makers of the records, the probative value of the records themselves would be greatly diminished. JHC contends that with such limited probative value, it is not appropriate for the medical records to be produced. Accordingly, JHC contend that it is not unfair or unjust for the medical records not to be produced.

[32] The Applicant had previously sought the production of the medical records and it was refused. The Applicant made no further efforts to obtain the patient’s medical records until 21 August 2014. Consequently, it would be necessary, if the medical records are to be incorporated into proceedings, for the Employer to consider expert medical evidence to the extent that the patient’s records are to be taken into account. The consequences would be an adjournment of proceedings scheduled for two days since 17 June 2014.

RELEVANT LEGISLATIVE FRAMEWORK

[33] The jurisdiction of the Commission to make an order for the production of documents is contained in s.590 of the FW Act, and in particular, paragraph 590(2)(c) as follows:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) ...

(b) ...

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) ...”

[34] Munro J provided the following guidance in Clerks (Alcoa) Consolidated Award as follows:

“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate.

...

The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute.
...

A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.” 1

CONSIDERATION

[35] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[36] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[37] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.

[38] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 2. Further,

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 3

[39] The Fair Work Regulations relevantly defines at 1.07, the meaning of serious misconduct as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) ...; or
(ii) ...; or
(iii) assault;

(b) ...

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) ...”

[40] Notwithstanding the misconduct may have resulted in summary dismissal, the test remains the same, that is, the decision to terminate the employee’s employment must be “sound, defensible and well founded”.

[41] Mr Smith’s termination of employment letter relevantly reads:

“...that you committed an assault against a patient of the Mental Health Unit on Wednesday 2 April 2014. The hospital considers your actions and behaviours to constitute serious misconduct, warranting summary dismissal effective immediately”.

[42] Accordingly, it is necessary for the Commission to determine, on the balance of probabilities, whether, as the Employer contends, Mr Smith assaulted patient AB on 2 April 2014. Further, if the Commission determines that an assault occurred, whether the dismissal was “harsh, unjust or unreasonable” taking into account the provisions in s.387 of the FW Act.

[43] The essential elements of Mr Smith’s case are:

• there was no valid reason for the dismissal;



• he was not given a genuine opportunity to respond to the allegations; and



• the adverse impact of the dismissal on his personal and economic circumstances.

[44] The production of the medical records is only pertinent to whether, or not, there was a valid reason for Mr Smith’s dismissal.

[45] Mr Smith submits that there was no valid reason for his dismissal because he “was acting in self defence [and he] was the victim of an assault.”

[46] The Employer’s evidence in support of Mr Smith’s dismissal is primarily from three persons who were present during the incident on 2 April 2014.

[47] The reasons set out by Mr Smith for access to AB’s medical records appear to be twofold. In the first instance, to test the Employer’s statement of facts in relation to the alleged actions of the Applicant during the incident.

[48] The Employer’s statement of facts are similar, in context, to the Applicant’s statement of facts. The statements are representations made by both parties but only have varying degrees of probative value, if supported by evidence, are agreed and admissible, or not tested.

[49] For the Employer’s asserted facts to have any probative value (assuming them to be true) it needs to be supported by evidence. Presumably, the Employer’s witnesses are intended to support the asserted facts and that evidence can be tested in cross examination. In my view, witness evidence is best evidence of the Employer’s version of Mr Smith’s actions and there appears to be no difficulty to the Applicant in challenging that evidence. On the documentation so far, the Applicant has given notice that he intends to challenge the Employer’s evidence and the circumstances in which it was made.

[50] I am not satisfied that the medical records of AB, in the overall context of the application, will provide determinative value to the evidence of those present at the incident on 2 April 2014.

[51] The medical records of patient AB play a part in the overall incident on 2 April 2014. However, their assistance to the Commission is not germane to the issue of whether the alleged conduct complained of by the Employer took place, and was sufficiently serious, to warrant summary dismissal, and finally, whether the dismissal was harsh, unfair or unreasonable. Further, I am satisfied that, for the purposes of a fair and just disposition of the matter, the witnesses available and intending to give evidence, is sufficient for the Commission to make such a determination of the matter.

[52] The second reason set out by Mr Smith to access to AB’s medical records is as follows:

“the Patient’s medical records would therefore be expected to reflect the nature and extent of the injuries sustained by the Patient and the medical treatment received by the Patient for those injuries. This will assist the Commission to determine whether the conduct allegedly engaged in by the Applicant actually occurred.”

[53] The Applicant does not say how it will assist the Commission to determine whether the conduct allegedly occurred. Presumably, the Applicant is expecting the Commission to make an inference or assumption from the medical records and the alleged conduct.

[54] Assuming for one moment that I can understand and appreciate the significance of the medical records (without additional medical opinion) can I be certain that there is a causal connection between what I read and whether the alleged actions took place or not.

[55] The injuries to AB (if any) may, or may not, have occurred as part of the incident but not due to the actions of Mr Smith. The injuries (if any) may have been part of the overall tussle on the bed, falling to the floor or while on the floor. Could I reliably conclude (if I can) from the medical records that there is a causal connection between what is recorded and the Applicant’s actions - I do not think so. Less so, without expert opinion.

[56] Potentially, if I adopted the Applicant’s course of action and admitted the medical records and found, on the balance of probabilities, that the injuries suffered (if any) were as a result of the Applicant’s conduct, that may be sufficient, of itself, as a valid reason for dismissal. However, in that case the Applicant would complain that I reached a conclusion based on speculation or an unreliable inference. Faced with this dilemma, I am further satisfied that it is appropriate in the circumstances, not to order the production of AB’s medical records.

[57] It is notable in Culpepper v Intercontinental Ship Management Pty Ltd (Culpepper) which related to a fight between two employees, there were no witnesses. It was accepted that the other employee had to have medical treatment, however, it was not accepted that this was necessarily as a result of being struck by the other party. “The blow to the head may have been caused when Mr Evans was pushed off the respondent and fell back onto something and the broken finger bone with Mr Evans punching someone...there are quite plausible explanations...and even if the respondent did not cause the injuries...he was acting in self defence”. 4

[58] The Applicant submits that Adewumi v Helping Hand Aged Care[2012] FWC 9080 (Adewumi) support its proposition that “it is not unusual for the Commission to have regard to the medical history and circumstances of the patient”.

[59] In Adewumi, it is true that a resident’s medical history and her attempts to leave her bed of a night time were admitted into proceedings. However, in Adewumi, the resident was not medically examined after a particular incident occurred, but photographs taken sometime later. Adewumi is distinguishable because the resident’s night time activities were directly related to whether or not the injuries suffered were attributable to her normal activities which included self harm in attempting to leave the bed, or the incident itself; that is not the case in this application.

[60] Further, and importantly, the Commissioner came to the conclusion that all the injuries suffered by the resident “cannot be proven to have resulted directly from any physical act of the applicant...” 5 Only one injury was identified as attributable to the altercation between the resident and the employee. In that respect, the Tribunal ultimately relied upon the “eye witness” account and the “contemporaneous reference evidence of two other witnesses”.6

[61] The Applicant does not state that an incident did not occur but that his actions were one of self defence. That explanation will be tested in evidence by way of cross examination; medical records are not material to his claim of self defence.

[62] Finally, the medical records are a statement by the author of those records. I am of the view that they are admissible. However, the contents of the records, the way the information was recorded and the circumstances in which the information was recorded, are matters only within the person who provides that information. The Applicant does not intend to call those persons. Consequently, I agree with the Employer that this situation undermines their value to such an extent it invites speculation by both parties.

“Aggressor”

[63] I agree with the Applicant’s submission that the Commission’s role is not to merely establish who the aggressor was in the incident but to consider all the circumstances leading up to and including the incident which led to his dismissal. However, to determine that medical records should be produced, or otherwise, is not inconsistent with that role.

Lateness of application

[64] While not determinative of my decision, I am inclined to agree with the Employer that it would not be fair and just to the Employer to delay the proceedings scheduled for 2 and 3 September 2014 on the basis of the late application, without justification, for the production of medical records. In making this statement, I am cognizant of the fact that the Applicant raised this issue previously and the production of AB’s medical records was denied on 30 July 2014. To re-raise this issue some seven working days before the hearing is unreasonable. Such action has not assisted in the efficient administration of this application and such steps could have been taken at a much earlier time.

CONCLUSION

[65] In the circumstances, I have not addressed all of the issues submitted by the parties. However, I am satisfied that Mr Smith’s application can be dealt with in a manner that is fair, just and takes into account the objects of Part 3-2 of the FW Act Act.

[66] Having considered the statements of Munro J in the Clerks (Alcoa) Consolidated Award case, I am satisfied that the particular facts of this case do not require the patient’s medical records and the Applicant is able to advance his case adequately and competently without AB’s medical records. For these reasons the application is dismissed.

COMMISSIONER

Final written submissions:

Applicant: 26 and 29 August 2014.

Respondent: 28 August 2014.

<Price code C, PR554914>

 1   Clerks’ (Alcoa of Australia - Other Than Mining & Refining) Consolidated Award 1985 [1988] AIRC 391 Print H2892 at p2

 2   Brink v TWU PR922612 at paragraph [7]

 3   King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

 4   Paragraph 40

 5   Paragraph 102

 6   Paragraph 105

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