[2020] FWC 2773
The attached document replaces the document previously issued with the above code on
29 May 2020.
Typographic errors amended at [122], [133], [139], [162], [169], [195] and Hearing Details.
Associate to Deputy President Anderson
Dated 3 June 2020
1
Fair Work Act
2009
Section 394 - Application for unfair dismissal remedy
D. A.
v
Baptist Care SA
(U2019/9236)
DEPUTY PRESIDENT ANDERSON ADELAIDE, 29 MAY 2020
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 DA1 (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
1 A Confidentiality Order under section 593 and 594 of the FW Act was made to de-identify DA on 24 October 2019
2 [2019] FWC 7358
[2020] FWC 2773 [Note: An appeal pursuant to s.604 (C2020/4794) was
lodged against this decision - refer to Full Bench decision dated
20 November 2020 [[2020] FWCFB 6046] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6046.htm
[2020] FWC 2773
2
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 20194 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
Order7 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 Order9 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] Both DA and Baptist Care filed the F2 application and F3 responses under their own
hand. Soon thereafter, DA and Baptist Care came to be represented by lawyers. By decision
dated 2 October 201911 and by consent I granted requests for parties to be represented in the
production order proceedings.
[14] Both parties subsequently requested permission to be represented at the merits hearing.
Before determining those requests, on 4 March 2020 and for financial reasons, DA’s lawyer
came off the file. DA then opposed permission being granted on the ground of fairness. On 6
3 Directions hearings: 2, 16 and 24 October 2019, 3 and 12 December 2019; 5 March 2020; 7 April 2020; Directions 24
October 2019; Directions 18 December 2019
4 Decision [2020] FWC 7358
5 Production Order PR 712911, 15 November 2019
6 A18
7 PR 717351, 10 March 2020
8 A22
9 Confidentiality Order PR 714286, 15 November 2019
10 PR 717351, 10 March 2020
11 Directions hearing 2 October 2019
[2020] FWC 2773
3
March 202012 I granted Baptist Care permission to be represented at the merits hearing, on
conditions.
[15] At the merits hearing DA was self-represented but assisted by MH.13 Baptist Care
were represented by counsel and an instructing solicitor.
[16] Although PsychCheck appeared (self-represented) at the production order
proceedings, it did not seek to appear and was not called to give evidence at the merits
hearing.
Jurisdiction
[17] In its F3 response and in materials filed pursuant to my directions, Baptist Care raised
a jurisdictional issue, contending that DA was not dismissed.
[18] The basis on which Baptist Care advanced this proposition was that DA held two
casual contracts of employment with Baptist Care, and whilst one was terminated he
continued to maintain an employment relationship by working beyond the alleged date of
dismissal under the second contract.
[19] At the hearing, Baptist Care did not press the jurisdictional objection.14
[20] For reasons that follow, I have concluded that DA was dismissed by Baptist Care from
his contract of employment as a casual Child and Youth Support Worker in Care Pathways
(the subject of this application) irrespective of whether or on what terms he continued to work
for Baptist Care under a second and separate contract (as a casual Support Worker in Family
Mental Health).
Merits hearing
[21] I heard the matter on 10 and 11 March and 16 and 17 April 2020.
[22] The COVID-19 pandemic and social distancing requirements arose whilst the matter
was part-heard. This added extra complication to proceedings. DA’s evidence (on 10 and 11
March 2020) was given in person whereas the (brief) evidence of his treating psychologist
and the whole of the Respondent’s case was presented remotely, by phone (16 April 2020).
Final submissions were made remotely (17 April 2020).
[23] Whilst this was less than ideal, and concerned DA somewhat, this course was
ultimately not opposed. I considered it necessary to conclude this matter without either undue
haste or undue delay and did not consider it prejudicial to either party or likely to inhibit
decision-making to complete proceedings remotely. I expressed my intention in writing15 and
repeated my reasons at the hearing on 16 April 2020.
12 [2020] FWC 1249
13 A confidentiality Order under section 593 and 594 of the FW Act was made to de-identify MH on 10 March 2020
14 Transcript 10 March 2020 PN81; PN89
15 Email Chambers - Anderson DP to parties 8 April 2020 4.24pm
[2020] FWC 2773
4
[24] In determining this matter I make allowance for the fact that I heard DA’s evidence (in
chief and in cross examination) in person whilst other witnesses gave evidence remotely. The
evidence I heard remotely did not raise significant credit issues.
[25] I reserved my decision on 17 April 2020.
The Facts
Evidence
[26] I heard evidence from DA, from DA’s treating psychologist Elissa Corlett and from
Baptist Care’s Executive Leader – Organisational Development, Amber Smith.
[27] DA’s evidence was given orally (in person) and through a witness statement16 which
included substantial documentary attachments. DA was a witness of credit. He was
conscientious, non-combative in cross examination, willing to make appropriate concessions
but also able to hold firm to his ground. Although where his evidence strayed into opinion
there was some understandable gloss, his narrative of facts was plausible, broadly consistent
with the documentary evidence and can be relied upon. DA’s evidence included an audio
recording of an interview conducted between he and managers at the time of dismissal.17
[28] Ms Corlett gave brief evidence (by phone) on a report18 she prepared post-dismissal
(indeed at an advanced stage of proceedings, 27 March 2020). She was not cross examined.
There was no challenge to her professional credentials as DA’s long-term treating
psychologist. The relevance of her report, and aspects of it, were disputed. I deal with this
issue below.
[29] Ms Smith’s evidence was given orally (by phone) and via two witness statements19
which also attached substantial documentation. Her evidence was largely a mechanism by
which business records concerning Baptist Care’s arrangements with PsychCheck, Baptist
Care’s communication to DA and its employees about psychometric testing and Baptist
Care’s decision-making leading to DA’s dismissal could be put before the Commission. Her
evidence was relevant and generally not in dispute. However, Ms Smith had only limited
direct association with the dismissal or events leading to it. Aside from the documentary
material, in this respect her oral evidence is of less value than DA’s. To the limited extent
disputed facts need determination, it is DA’s evidence, together with the documentary
material submitted by both sides, which better establishes the overall narrative.
[30] Baptist Care did not call other persons who had more direct involvement in the
dismissal than Ms Smith (Ms Furtado, Mr Thomson, Mr Salerno, Ms Pace). In the absence of
contrary evidence about what was said or done leading up to and at the time of dismissal, the
evidence of DA concerning his interactions with these persons is preferred particularly where
plausible and consistent with the documentary and audio record.
[31] As noted, neither DA nor Baptist Care called evidence from PsychCheck including the
assessing psychologist who conducted DA’s psychometric test.
16 A1
17 A15
18 A23
19 R5 and R6
[2020] FWC 2773
5
Disputed evidence
[32] Ms Corlett’s report necessarily contained professionally formed opinion, together with
hearsay. To the extent relevant, her evidence represented a professionally formed opinion.
[33] However, Baptist Care challenged Ms Corlett’s report on DA on two grounds; firstly,
that it was not relevant to matters in issue; and secondly, that it contained hearsay.
[34] On 8 April 202020 I decided that Ms Corlett’s report would be admitted as I was
satisfied that it was ostensibly relevant to one contention in DA’s case: that the substantive
“deemed unsuitable” conclusion in the PsychCheck report was incorrect and unfair. I made
this ruling noting that Baptist Care contended that whether the “deemed unsuitable”
conclusion was correct or incorrect was an irrelevant consideration. In my decision I indicated
that the Commission’s position on these competing contentions would be determined in this
decision, not by way of interlocutory decision that would have had the effect of excluding
evidence relevant to a substantive contention advanced by DA.
[35] I deal with that issue later in this decision.
[36] On 16 April 202021 I admitted into evidence the whole of Ms Corlett’s report,
including the contested hearsay components, on the basis that I would attach the appropriate
weight, if any, to her evidence. The weight I attach to the hearsay component of Ms Corlett’s
report is low except where that evidence is supported by credible direct evidence (such as
from DA himself) or was uncontested (which it largely was not). This is particularly the case
as it relates to Ms Corlett’s narrative of an alleged conversation between DA and
PsychCheck’s assessing psychologist. Ms Corlett was not a party to those conversations.
DA’s employment
[37] Baptist Care operates in the non-government sector and, amongst other functions,
provides emergency and ongoing residential care for vulnerable persons, including children
who are under the guardianship of the Chief Executive Officer of the South Australian
Department of Child Protection (the Department).
[38] At the time of dismissal, DA was employed by Baptist Care under two contracts of
employment:
as a casual Child and Youth Support Worker in Care Pathways, the subject of this
application (working with children); and
as a casual Support Worker in the Family Mental Health programme (working with
adults, not children).
[39] DA’s work was governed by two industrial instruments: the Baptist Care (SA) Inc
Enterprise Agreement 2013 – 2015 and the Social, Community, Home Care and Disability
Services Award 2010.
20 Transcript Directions hearing 8 April 2020
21 Transcript Merits hearing 16 April 2020
[2020] FWC 2773
6
[40] DA’s Child and Youth Support Worker role was his primary work. At the time of
dismissal he had worked in this role for longer (since 8 February 2017), worked more hours in
this role (between 30 and 40 hours per week), and it was more remunerative (due to more
hours and roster types). The Child and Youth Care Worker role22 involved DA caring for
vulnerable children including those who were under the guardianship of the State of South
Australia.
[41] DA came to work with Baptist Care from a near decade of related work in the
community sector including as a financial counsellor. He had a past interest in human
psychology. Amongst other certificates and diplomas (in leadership and training) he held a
Certificate IV in Mental Health23 and casually lectured in that subject.
[42] At the time of dismissal DA was married with a young family. He is a person of strong
conviction and principle whilst showing respect and care for others.
[43] There is a fragmented contractual history associated with DA’s Child and Youth Care
Worker role at Baptist Care. He and his employer agreed multiple continuous contracts for
this work. He started (on a part time contract) on 8 February 2017 working with children in
long term residential care. Due to difficulties DA had with regular nightshift, a contract
adjustment in mid-2017 saw DA move to work (as a casual) with children in short term
(residential) care. This work continued until December 2018.
[44] In December 2018, in light of the new Children and Young People (Safety) Act 2017
(SA) (CYP Act) and in particular a requirement for psychometric testing of employees
working with children under the guardianship of the State, Baptist Care required all Child and
Youth Support Workers (including DA) to enter into new contracts of employment. DA’s new
contract as a casual Child and Youth Support Worker providing short term care was dated 4
December 2018 and signed by DA on 13 December 2018.24
[45] Work under the new casual contract was continuous with DA’s former Child and
Youth Support work. There was no material change to DA’s duties and hours which remained
regular and systematic.
[46] The December 2018 contract contained terms specific to a Child Related Employment
Screening clearance and psychometric testing.25 It provided:26
“You will be required to participate in and adequately pass approved psychometric
testing with a provider nominated by Baptist Care SA at any time as directed. Test
results will be treated as confidential property of Baptist Care SA.”
……
It is a condition of employment with Baptist Care SA that you have the following
clearances…(b) An approved Child Related Employment Screening.
22 A3 Position Description
23 Transcript 10 March 2020 PN320 - 324
24 A2
25 A Child Related Employment Screening clearance is a different process from obtaining a Psychological Suitability
Assessment: Transcript 10 March 2020 PN397
26 A2 Clause 4 ‘Responsibilities’ and Clause 9 ‘Clearance’
[2020] FWC 2773
7
In the event you do not have valid relevant clearances you will not be eligible for or
entitled to (a) any work…(e) for the period of time that you do not provide Baptist
Care SA with a valid clearance.” (my emphasis)
[47] The gap of two weeks (4 December to 13 December 2018) from when Baptist Care
provided this new contract to DA and before he signed it was not inadvertent. This was a
period used by DA to consider whether to accept its terms, and in particular the psychometric
testing. DA took this period to reflect on his options particularly in light of the fact that, some
years earlier (as part of pre-employment screening for a youth worker role with the
Department) he had undertaken psychometric testing and had not passed.27 On 13 December
2018 DA chose to continue working in Child and Youth Support under the new contract and
its terms.28 He opted for this remunerative work, given the shift loadings and penalties earned.
However, in his mind he wanted to keep options open to avoid the assessment and possibly
switch at the last minute to the Disability Services programme when his turn to be assessed
came up, as working with adults in the Disability Services programme did not require a
psychometric assessment. He was also wanting clarity about whether he would be obliged to
complete a further Certificate IV (in Community Services) or whether his prior learning
would be recognised.29
[48] The second casual role DA held with Baptist Care at the time of dismissal was a
contract as a casual Support Worker in Family Mental Health. This work commenced from 1
April 2019 under a contract of that date which DA signed on 29 March 2019.30 Although that
contract also required a relevant Child Related Employment Screening, it did not require a
psychometric assessment. The Family Mental Health programme saw DA rostered to work
with adults, not children under the guardianship of the State.
[49] One further element of DA’s history of employment with Baptist Care is relevant. For
a short period (February to April 2019) DA worked in a further secondary role, as a casual
Support Worker in Baptist Care’s Disability Services programme.31 DA’s evidence was that,
at the end of April 2019, he was required to make a choice whether to continue working in
Disability Services or continue working in Care Pathways. He chose the latter. DA’s evidence
was that he was told by Baptist Care that he could not ‘chop and change’ between Disability
Services and Care Pathways. Whilst told he could make a choice, if he chose not to continue
working in Disability Services there would be no guarantee that he could return to Disability
Services at a later date.32
[50] On 23 April 2019 and for the second time (the first being in December 2018) DA
chose to continue as a Child and Youth Support Worker33. In so doing, he continued to be
aware that the role would require a psychometric assessment, in contrast to the Disability
Services role which did not include that obligation.34
27 Transcript 10 March 2020 PN406
28 Transcript 10 March 2020 PN294; PN313
29 Transcript 10 March 2020 PN314; PN 376; PN 777
30 A6
31 A5 Letter 18 February 2019 signed by DA 27 February 2019
32 Transcript 10 March 2020 PN404; PN413 - 414
33 A9
34 Transcript 10 March 2020 PN414 - 429
[2020] FWC 2773
8
[51] DA ceased performing the Disability Services work from 23 April 2019.35
[52] Thereafter and until the events of July 2019, he worked under parallel contracts of
employment as a Child and Youth Support Worker in Care Pathways (30 to 40 hours per
week) and as a Support Worker in Family Mental Health (about 6 hours per week).
Psychometric testing
[53] Following a Royal Commission, in July 2017 the South Australian parliament enacted
the CYP Act. It commenced on 22 October 2018.36
[54] The CYP Act required all employees working in a children’s residential facility
operated or licensed by the Department to undertake and pass a Psychological Suitability
Assessment (PSA).37
[55] The Department appointed a private provider, PsychCheck Pty Ltd, to undertake
PSAs. Until September 2019 (that is, at all relevant times for the purposes of this matter),
PsychCheck was the Department’s sole contracted provider.
[56] The Department required employers supplying it with these services (including Baptist
Care) to gain the Department’s approval to the terms under which its employees would be
assessed, including a requirement to separately contract with PsychCheck for that purpose.
Employers, described as referring organisations, agreed to make relevant employees available
for assessment, subject to an employee’s consent. Prior to conducting an assessment, each
employee would be required to provide written consent to the assessment and its terms.
[57] Baptist Care applied to the Department for an ‘Approval of Psychological Assessment
Process’ using a prescribed departmental form.38 Under its terms, Baptist Care agreed to
provide the Department notice within two days of any employee assessed as unsuitable. On 9
November 2018 Baptist Care’s application was approved by the Department.39 By contract
dated 10 April 2019 for the provision of care services to children in residential facilities, the
Minister for Child Protection (SA) and Baptist Care agreed:40
“5. PSYCHOLOGICAL ASSESSMENT
The Contractor must ensure that:
5.1 All care workers are assessed as suitable for employment in all care settings
following completion of a psychological assessment of a kind determined by the Chief
Executive, Department for Child Protection.”
[58] On 21 August 2018 the Chief Executive of the Department issued a Determination
setting conditions for psychological or psychometric testing under the CYP Act.41 The
35 A9
36 The legislative background to the Children and Young People (Safety) Act 2017 is summarised by Hampton C in D.S. v
Anglican Community Care Incorporated [2019] FWC 3377 at [6]
37 Sections 107 and 110A CYP Act
38 R3 and AS17
39 AS19 Letter 9 November 2018
40 AS1 Contract 10 April 2019 Schedule 2 Clause 5
41 AS2
http://www.fwc.gov.au/decisionssigned/html/2019fwc3377.htm
[2020] FWC 2773
9
conditions made no reference to disclosure or non-disclosure of results. It was also silent on
the issue of rights to re-evaluation or review.
[59] PsychCheck conducted testing according to an assessment protocol between it and the
Department. The assessment protocol involved a psychometric evaluation (using established
test data) and a one-on-one interview by an assessing psychologist with the relevant
employee. In the case of an ‘unsuitable’ determination, PsychCheck applied a risk mitigation
model requiring sign-off between three internal psychologists (including the assessing
psychologist) to that conclusion. In the event an employee was assessed as ‘unsuitable’, the
protocol provided that:
the assessment did not imply or mean that the employee would engage in unacceptable
behaviour, including harming a child (or conversely that an employee assessed as
suitable assessment would not harm a child);
the assessment operated for a 12 month period and thereafter the employee could, with
their employer’s support, undertake a fresh assessment;
neither the employer nor the employee would be advised of the reasons for the
assessment. The employee would receive no notification of outcome from the
assessing body. The employer would be provided a Statement of Suitability. That
Statement would simply advise that a particular employee (by name) had been
assessed as unsuitable, but no more.42 PsychCheck told Baptist Care that this was to
“protect the confidentiality of the worker”43; and
there was no mechanism for the employer or the assessed employee to secure reasons
for the assessment, or its re-evaluation or review.
[60] Implementation of the PSA obligation in South Australian workplaces was rolled out
progressively in the months that followed the CYP Act coming into operation.
[61] On 12 November 2018 PsychCheck provided Baptist Care with a draft Master
Services Agreement for psychometric testing44 prepared by PsychCheck’s lawyers.
PsychCheck’s covering email advised:45
“If your organisation is prepared to proceed with the contract on the terms outlined,
please send through your organisations…contact details.”
[62] With respect to the employee Consent Form, PsychCheck’s email advised Baptist
Care:
“The consent document takes the form and content suggested by DCP and adds aspects
of the assessment and process required by PsychCheck. It is intended that the consent
form…is branded with your organisational logo only.” (my emphasis)
42 PsychCheck varied certain protocols from 1 September 2019: A19 and Production Decision [2020] FWC 7358 at [19] to
[20]
43 AS19 Email 12 November 2018
44 AS19
45 AS 19 Email 12 November 2018
[2020] FWC 2773
10
[63] Changes made by PsychCheck to the Department’s employee Consent Form included
clauses concerning the assessment outcome.46 I deal with this issue later in this decision.
[64] In December 2018 Baptist Care entered into an agreement with PsychCheck for the
provision of psychometric testing services to its employees.47 The Agreement included the
following:
agreement by Baptist Care that it had obtained independent legal advice in relation to
the Agreement;48
agreement that Baptist Care would require its employees to complete a specified
Consent Form “substantially in the form set out in Schedule 2”;49
agreement that PsychCheck will provide a Statement of Suitability to Baptist Care but
that “does not include feedback on any reasoning for the outcome set out in the
statement of suitability”;50
agreement that an employee assessed as not suitable will not be reassessed within 12
months;51
agreement that PsychCheck has no role “in any decision making process about the
future of existing workers who have been assessed…as not suitable” and that Baptist
Care is “solely responsible for any decision in respect of a worker following
notification…of the outcome of an assessment”;52
agreement that the assessment report and psychometric data remain the property of
PsychCheck;53 and
agreement to indemnify PsychCheck with respect to its services or liability arising out
of Baptist Care’s decisions once advised of the outcome.54
[65] Baptist Care took legal advice on the draft agreement.55 The agreement it entered into
was substantially in the form proposed by PsychCheck with three (unrelated) changes
proposed by Baptist Care on 17 December 2018.56 No changes were made or proposed by
Baptist Care to PsychCheck’s proposed employee Consent Form.
[66] Baptist Care informed its employees, including DA, of the CYP Act and the new PSA
requirement via staff bulletins in November and December 2018, and by offering affected
staff new contracts of employment containing revised terms.
46 Aide-memoire comparison Email Minter Ellison to Chambers Anderson DP 16 April 2020 and Email MH to Chambers
Anderson DP 16 April 2020
47 A22 Master Services Agreement
48 A22 clause 3.4(a)(i)
49 A22 clause 3.4(a)(ii)
50 A22 clause 3.1(a) and clause 18.1 definition of “Deliverable”
51 A22 clause 3.3
52 A22 clause 3.2 (a) and (b)
53 A22 clause 4
54 A22 clause 11.3(d)
55 Audio (2h 2m) Ms Smith 16 April 2020
56 AS23 Email 17 December 2018
[2020] FWC 2773
11
[67] The November 2018 Bulletin provided:57
“Psychometric testing will start soon and you will be contacted directly to make the
necessary arrangement. Baptist Care SA recognises that this process could be difficult
for some of you and as an organisation we want to support you. More details will be
available soon.”
[68] The December 2018 Bulletin provided58:
“Q: What happens if I’ve already sat the Psychometric Test and not passed?
A: If you have already sat the Psychometric Test, and this was longer than 12 months
ago, then Baptist Care SA will support you to re-sit this test during the first round of
Psychometric Testing. If you sat the Psychometric Test within the past 12 months and
were assessed as "unsuitable", Baptist Care SA will make reasonable efforts to
suitably redeploy you in any other existing vacancy within the organisation if you
fulfil all requirements of the role and are assessed through an interview process as
suitable. If this option is not viable, then we will have a discussion regarding your
ongoing employment with us.
Q: What support will I have when I sit my Psychometric Test?
A: Baptist Care SA's Chaplain, Ian Warner, will be making individual contact with all
staff scheduled to sit a Psychometric Test, to offer support. All staff also have free and
confidential support through the EAP service - ACCESS, and we encourage you all to
utilise these supports available to you.” (emphasis in original)
[69] DA received these bulletins.
[70] As noted, on 6 December 2018 Baptist Care sent DA a revised employment contract
for work as a Child and Youth Support Worker in Care Pathways59 which DA signed on 13
December 2018.
[71] On 18 December 2018 Baptist Care wrote60 to all employees by letter concerning
arrangements for psychometric testing. It advised dates for collective and individual staff
consultation sessions in the last week of December 2018 and in the first week of January
2019. It repeated its invitation for employees needing support to contact the staff chaplain, a
line manager or its People and Culture Team.
[72] From January 2019 Baptist Care commenced rolling out psychometric testing (by
PsychCheck) amongst its employees.
Psychometric testing and DA
[73] In May 2019 DA was required by Baptist Care to undergo psychometric testing.
57 R1
58 A4 page 2
59 AS21 Email 6 December 2018 enclosing contract dated 4 December 2018
60 R2 and AS25
[2020] FWC 2773
12
[74] Although DA remained anxious at undergoing a psychometric assessment (having
been deemed unsuitable at an earlier time whilst seeking work with the Department) he had
reconciled doing so when signing his revised contracts with Baptist Care in December 2018
and April 2019. Yet, given his lingering reservations, in May 2019 DA took the Consent
Form away for consideration. The Consent Form he was provided with was the one agreed
between Baptist Care and PsychCheck in December 2018. DA was not advised that the
Consent Form included different terms to a pro-forma that had been issued by the
Department. After further reflection he signed the Consent Form on 28 May 2019.61 He did
not seek variations to it.
[75] DA undertook psychometric testing by PsychCheck on 21 June 2019 (input by DA
into test questions) and then on 25 June 2019 (one-on-one interview with assessing
psychologist). The interview took one hour forty minutes (longer than the allocated ninety
minutes). From DA’s perspective, some tension arose with the assessing psychologist during
the interview. At its conclusion, DA felt that the assessing psychologist was marking him
down for unfair reasons or reasons on which they held a difference of opinion.62
[76] DA formed these views about the assessing psychologist based on his own exposure to
the discipline of psychology63, and to his personal experience of having consulted his treating
psychologist Ms Corlett on a regular basis since October 2016. He subsequently speculated
that the assessing psychologist might have been biased against him when learning from his
father (post-assessment but pre-outcome) that his father and the assessing psychologist had a
prior work association.
[77] Consistent with terms of the Consent Form, DA was provided no feedback by
PsychCheck following his assessment; neither on outcome, nor reasons nor other feedback.
He was not provided the report.
[78] On 8 July 2019 PsychCheck sent Baptist Care a Statement of Suitability which simply
advised that DA had been assessed as “currently psychologically unsuitable”. Consistent with
the terms of the Master Services Agreement, Baptist Care was provided no reasons, feedback
nor the report. Baptist Care did not seek such information.
[79] That day, 8 July 2019, an officer of Baptist Care (Mr Salerno, Manager Alternative
Care) telephoned DA and advised that DA had been deemed unsuitable. He asked DA to
attend a meeting the next day.
Meeting 9 July 2019
[80] DA attended this meeting with his support person MH.
[81] Baptist Care was represented by Mr Salerno and Ms Futardo (Manager People and
Culture). The employer provided DA with a show cause letter. The letter dated 9 July 2019
read in part:
“Information recently made available to us by the Department…indicates that you have
been assessed as “unsuitable”…As a result of us becoming aware of the above
61 R6
62 Transcript 11 March 2020 PN1045-46’ PN1384
63 Transcript 11 March 2020 PN994
[2020] FWC 2773
13
information, you will no longer be able to fulfil the inherent requirements of your role
as a Support Worker as having psychological suitability for the role is a requirement of
DCP…The above determination is inconsistent with the CYP Act, your contract of
employment and the requirements of your Position Description. Baptist Care takes
very seriously any matter that may impact an employee’s ability to perform the
inherent requirements of their role…
Suspension
Given the seriousness of these findings, you will be suspended and are required to
ensure you remain available in the event we need to contact you. In the interim period
you are prohibited from attending work, performing work or attempting to enter any
Baptist Care SA premises without the express permission from People and Culture.
Show Cause
The matters set out above are extremely serious as they may result in the termination
of your employment. We are now writing to you to give you the opportunity to meet
with us and explain why, in all of the circumstances, your employment should not be
terminated. You are required to attend that meeting…on Monday 15 July 2019. As the
potential outcome of this matter is serious, you are reminded of your right to bring a
support person to the meeting.”
[82] The show cause letter and the suspension made no reference to DA’s separate work
with adults in the Family Mental Health programme.
[83] Following the meeting, DA telephoned Mr Salerno and asked whether he was allowed
to continue to perform his work in Family Mental Health. DA had been rostered for a shift
two days later, 11 July, with an established client. Mr Salerno appeared unaware that DA held
this second job. He undertook to get back with an answer.
[84] On 10 July 2019 Mr Salerno telephoned DA. DA was advised that he was not
permitted to work in any roles due to his suspension. DA considered this wrong. He took the
issue up immediately with Ms Futardo and other managers. Late on 10 July 2019 Baptist Care
reversed this position. DA was advised that he could continue to work with adults in the
Family Mental Health programme. DA proceeded to do so.
Meeting 15 July 2019
[85] Baptist Care convened the show cause meeting on 15 July 2019. DA attended, again
with MH, as did Mr Salerno and Ms Futardo.
[86] Ms Futardo said that due to legislation, Baptist Care saw no alternative but to
terminate DA from his work in the Care Pathways programme. DA said that he wanted to
know “what the psychologist took issue with” and whether he could get the report. MH said
that DA wanted to know if DA could have the results reviewed or sit the test again and if not,
why not. MH said that the assessing psychologist might have had a conflict of interest
because he had worked previously with DA’s father. DA pressed this issue further. He said
that he was concerned at possible bias, and wanted to have an independent third party review
the assessment. He also wanted the report. Ms Futardo said that she had spoken to
[2020] FWC 2773
14
PsychCheck who had advised that for legal reasons they could not provide the report to DA or
Baptist Care. Pressed further, Baptist Care told DA that they would write to PsychCheck
seeking a copy of the report.
[87] The discussion turned to whether there was alternative work which Baptist Care could
provide DA to make up for the loss of his Care Pathways job (and income). Ms Futardo
agreed to examine redeployment options. DA advised that he had been required some months
earlier to elect between Disability Support work and Child and Youth work, but would be
willing to again consider disability work though working with children remained his
preference.
[88] Following the meeting, on 17, 18 and 19 July 2019 DA exchanged emails with Ms
Futardo.64 DA put in writing his concern at the assessment process and his fear it was biased
against him. He sought confirmation that he would be paid during suspension. He said he felt
misled by Baptist Care in asserting that psychometric testing was a legislative requirement for
short term care of children when he believed the legislative requirement applied only to
children in longer term residential care. He expressed concern at impacts on his employability
and reputation, and delay in being informed about redeployment options. He said extra hours
in the Family Mental Health programme would not (due to the rosters) be remunerative in the
same way as fresh work in Disability Services.
[89] Ms Futardo responded, advising (1) that DA’s suspension would be paid; (2) a specific
proposal for extra hours would be provided to DA; and (3) she had emailed PsychCheck
requesting they meet with DA and had been informed that DA should directly take up any
conflict of interest issues with PsychCheck (she provided DA their contact number).
[90] DA called the Department. He was told that, as per his Consent Form, he could not be
provided the report but, upon his insistence, he believed the Department undertook to get back
to him on whether a review was possible.65 He did not hear back from the Department.
[91] DA was offered additional hours by Baptist Care in the Family Mental Health
programme. He took some additional hours, but declined others. He was not rostered in the
Care Pathways programme (short term or long term care of children) nor offered a role in his
next preference of resuming work in Disability Services.
Termination Meeting 30 July 2019
[92] Baptist Care convened a meeting with DA on 30 July 2019, attended by DA and MH
and by Mr Thomson (People and Culture partner) and Ms Pace (Senior Manager Care
Pathways). The meeting was audio recorded. That audio is in evidence.66
[93] At the meeting, which occasionally became testy between DA and Mr Thomson:
DA and MH repeated concern at the assessment process and outcome;
DA and MH asserted that there had been no obligation to assess DA given he had been
working in short term care;
64 A12, A13, A14
65 Transcript 11 March 2020 PN1033
66 A15
[2020] FWC 2773
15
DA acknowledged extra shifts in the Family Mental Health programme but, for
financial reasons, sought work in the Disability Services programme;
DA said that his employment should not be terminated as he was a good worker with a
long history and had never been performance managed;
Baptist Care said that work in Disability Services could not be offered because
persons with disability were vulnerable. Baptist Care advised they were, as a matter of
internal policy, taking a “risk-averse” approach given the deemed unsuitable
assessment;
DA and MH claimed this risk-averse approach was unreasonable and inconsistently
applied, and sought the internal policy on which it was based. None was produced;
Baptist Care said that it could not look behind the assessment and had legal
obligations where an employee is found not suitable to work with children; and
Baptist Care said there were no jobs available in Disability Services in any event.
[94] At the mid-point of the meeting67, Baptist Care told DA that his employment as a
Child and Youth Support Worker in Care Pathways was terminated. Baptist Care agreed to
provide written confirmation of the termination, and of why work in Disability Services was
not being offered.
[95] Two days later (2 August 2019) DA wrote to Baptist Care seeking written
confirmation of the termination and its reasons.68
[96] On 6 August 2019 Baptist Care wrote to DA69 confirming termination of his
employment as Child and Youth Support Worker:
“…after careful consideration of your responses your casual contract of employment as
a Support Worker in Care Pathways will cease. This is a result of your “deemed
unsuitable” outcome from your recent psychological assessment which is an inherent
requirement of your role as a Support Worker in Care Pathways as per your position
description; your signed Employment Contract for Support Worker Care Services;
Section 107(1) & Section 110A of the Children and Young People (Safety) Act 2017;
and Section 5.1 of the Service Deed with Baptist Care SA and the Department of Child
Protection.”
[97] In this letter, Baptist Care advised that DA’s contract as a Support Worker in Family
Mental Health continued. On redeployment to Disability Services, Baptist Care advised that
“as you do not have a current casual Support Worker role…therefore there is no requirement
on the organisation to provide you with shifts in Disability Services”. Baptist Care referred to
the choice DA had made in April 2019 to leave his Disability Services contract. I deal with
this later in this decision.
Post-dismissal
[98] On 19 August 2019 DA commenced these proceedings.
67 A15 audio 17m 25s
68 A16
69 A17
[2020] FWC 2773
16
[99] DA received the PsychCheck report (and associated material) only by virtue of an
order made by the Commission in the course of these proceedings.
[100] Since dismissal, DA:
has remained employed with Baptist Care in the Family Mental Health programme70
(hours initially increased to 21 hours per week for the first three months (part-time);
currently (casual) 9 to 12 hours per week);
secured employment with a different employer in Disability Services (currently 35
hours per fortnight);
secured very limited employment with another employer as a Disability Support
Worker (one shift); and
believes that he last lost around $25,000 in wages in the seven months following his
dismissal, compared to what he would have earned had he not been dismissed.
Consideration
Jurisdiction
[101] Although Baptist Care did not press its jurisdictional objection, I am required to be
independently satisfied that DA’s application is within jurisdiction.71
[102] DA’s application was filed within the statutory time limit. For DA’s application to fall
within jurisdiction it is necessary that DA was “dismissed” within the meaning of section 386
of the FW Act and that he was a person protected from unfair dismissal (section 382).
[103] DA was a person protected from unfair dismissal. He was employed under a modern
award. He served at least the minimum statutory employment period. I am well satisfied that
his casual employment in the Care Pathways programme was regular and systematic within
the meaning of sections 383 and 384 of the FW Act.
[104] I am also satisfied that DA was “dismissed” within the meaning of section 385(a) of
the FW Act.
[105] DA’s contract of employment with Baptist Care as a Child and Youth Support Worker
in Care Pathways (the subject of this application) was separate and distinct from his contract
of employment with Baptist Care as a Support Worker in Family Mental Health. The two
contracts were made at separate times and involved different working hours, different duties
and distinct locations. During the four months April to July 2019 the contracts operated in
parallel. Whilst, after dismissal, DA continued to work for Baptist Care in the (less
remunerative) Family Mental Health programme, his contract in the Care Pathways
programme was ended by decision of Baptist Care.
[106] Absent dual contracts being a contrivance, there is no impediment to concluding that
an employee working under separate contracts for the same employer can be dismissed from
one contract yet remain employed under the other, and that dismissal from the former is
70 Aspects of this work subsequently moved into Disability Services, which DA continued to perform: Transcript 10 March
2020 PN490 - 492
71 Priestly v Department of Parliamentary Services [ 2010] FWA 2684 at [38]
[2020] FWC 2773
17
actionable under the FW Act.72 What is required for the purposes of section 385(a) is
termination of the employment relationship on the employer’s initiative. Whether a different
employment relationship on separate terms existed, operated in parallel, continued to exist or
was contemporaneously created does not mean that “the person’s employment with his or her
employer” had not been terminated. Nor is this a case of a sequence of time limited or outer
limit contracts of employment where different considerations may apply.73
[107] As there was action on the part of Baptist Care which intended to bring DA’s Care
Pathways employment to an end and did so74 I conclude that DA’s application is within
jurisdiction.
Merits
[108] In considering whether DA’s dismissal was “harsh, unjust or unreasonable” the
Commission is required to consider each of the matters in section 387 of the FW Act to the
extent they are relevant.75 Those matters must be considered to make an overall assessment of
whether the dismissal was harsh, unjust or unreasonable. That assessment is based upon the
ordinary meaning of these words, in their statutory context. That context includes the object
stated in section 381(2) of the FW Act that:
“…the manner of deciding on and working out such remedies are intended to ensure
that a “fair go all round” is accorded to both the employer and the employee
concerned.”
[109] Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related
to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
72 Lacson v Australian Postal Corporation [2019] FCA 51 at [106] to [108] and [131]
73 Khayam v Navitas English Pty Ltd [2017] FWCFB 5162
74 ABB Engineering Construction Pty Ltd v Doumit cited in O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [23]
75 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21
March 2002)
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
[2020] FWC 2773
18
(e) if the dismissal related to unsatisfactory performance by the person - whether
the person had been warned about that unsatisfactory performance before the
dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[110] I now consider these matters. In so doing, I take account all of the evidence and
submissions before me. Given the volume of evidence and the breadth of issues raised, I
specifically deal with evidence that is most material to arriving at a decision. Some evidence
is not referenced, not because I have not considered it, but because I do not need to make
specific reference to it. Similarly, I have dealt with each primary submission but not every
angle of each submission, not because they have not been considered but because doing so
would add excessive length to these reasons.
Valid reason
[111] Valid in this context is generally considered to be whether there is a sound, defensible
or well-founded reason for the dismissal.76 Further, in considering whether a reason is valid,
the requirement should be applied in the practical sphere of the relationship between an
employer and an employee where each has rights, privileges, duties and obligations conferred
and imposed on them.
[112] The reason for termination must be defensible or justifiable on an objective analysis of
the relevant facts before the Commission. That is, it is not enough for an employer (other than
cases of summary dismissal by a small business employer77) to rely upon its reasonable belief
that the termination was for a valid reason.78 Equally, facts justifying dismissal, which existed
at the time of the termination, can be considered, even if the employer was unaware of those
facts and did not rely on them at the time of dismissal.79
[113] The existence of a valid reason to dismiss is not assessed simply by reference to a
legal right to terminate a contract of employment.80
[114] Baptist Care contend that there was a valid reason for dismissal related to DA’s ability
to perform an inherent requirement of his job. The inherent requirement is said to be an
76 Sydney Trains v Hilder [2020] FWCFB 1373 at [26]
77 Small Business Fair Dismissal Code: section 388(2) FW Act
78 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213
per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo
Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C,
11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999
79 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v
McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP,
Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v
Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468
80 Sydney Trains v Hilder [2020] FWCFB 1373 at [26] principle (6)
[2020] FWC 2773
19
obligation DA had to be independently assessed as suitable to care for children who were
under the guardianship of the State.
[115] DA’s contract of employment as a Child and Youth Support Worker in Care Pathways
required that he care for such children. It also required DA to obey all lawful and reasonable
directions of his employer.81
[116] However, it was not until DA’s revised contract in December 2018 (following passage
of the CYP Act) that an obligation to be deemed suitable by psychometric testing existed.82
From the commencement of his employment (in February 2017) until then, DA did not hold
such accreditation, was not required by Baptist Care to do so yet no concern had been raised
as to the well-being of children in his care.
[117] The obligation arose from a legislative change and departmental requirement
incorporated into DA’s revised contract of employment and progressively implemented by
Baptist Care (via an assessment agent, PsychCheck) under the terms of (1) an agreement
reached between the employer and the Minister for Child Protection and (2) an agreement
reached between the employer and PsychCheck.
[118] The assessment obligation was a mandated requirement on all persons in the State of
South Australia who provided care for children under the guardianship of the Chief Executive
of the Department in operated or licensed facilities. That obligation, enacted by a sovereign
parliament and administered by the Department, was a lawful obligation. Both as a corporate
citizen and under the terms of its agreement with the Department, Baptist Care was compelled
to comply with the law. Although implementation of the requirement was rolled-out
progressively once the amending legislation commenced, that roll-out made it no less of an
obligation.
[119] The obligation required Baptist Care to make its employees engaged in the care of the
relevant children available for psychometric assessment. Relevantly, it included the obligation
to only allow those assessed as suitable to continue to care for such children.
[120] Baptist Care gave notice of the requirement to its workforce by staff bulletins in
November and December 201883 and by subsequent letter.
[121] By January 2019, when Baptist Care started rolling-out testing, the requirement had
become an express term of DA’s contract. As PsychCheck was, at that time, the sole approved
provider of such testing, it was a lawful direction that DA be tested by PsychCheck.
[122] Having regard to the fact that DA worked with the relevant children, I am well
satisfied that it was, at the time of dismissal, an inherent requirement of DA’s job that he hold
such accreditation. As has been said by the High Court (Gaudron J), an inherent requirement
is something that is essential to the position held by an employee:84
“it is irrelevant that it derives from the terms of the employment contract or from the
conditions governing the employment relationship.”
81 A2 clause 10(a)
82 A2 clause 4
83 AS20; AS22
84 Qantas Airways Limited v Christie (1998) 193 CLR 280 per Gaudron J at 34
[2020] FWC 2773
20
[123] Had Baptist Care not obligated DA to do so it would have breached its contract with
the Minister. By law, DA’s employment as a Child and Youth Support Worker could not
continue to be performed if and when a ‘deemed unsuitable’ assessment was made known to
Baptist Care.
[124] This is not a matter where a material distinction arises between inherent requirements
of a position and inherent requirements of a job,85 or distinction between core and peripheral
duties.86 Whilst DA had capacity to competently care for children before and after the
assessment, the inherent requirement was a deemed suitable accreditation, which after 8 July
2019 he did not hold.
[125] An employee’s inability to lawfully perform work or fulfil an inherent requirement of
the job will generally provide a valid reason for dismissal.87 As recently noted by a full bench
of the Commission:88
“A capacity related reason for dismissal might be concerned with an employee’s
performance, the employee’s physical capacity to perform the work, the loss of a
qualification or licence necessary to perform the work, or an inability to perform the
inherent requirements of the job because of some injury, illness or other disability.”
(emphasis added)
[126] DA contended, in the dismissal meeting and at the hearing that, in retrospect, he was
not obligated to submit himself to an assessment as he was only working with children in
short term care at the time of dismissal. I do not accept this submission. Irrespective of
whether the residential premises where DA did his work was registered or licensed within the
meaning of the CYP Act, it was a requirement of the Department that a publicly funded
contract for the care of children under the guardianship of the Chief Executive compelled the
supplier of those services (Baptist Care) to submit its employees working with such children
for a mandatory assessment. That was Baptist Care’s obligation under its contract with the
Minister of 10 April 201989. No exception existed for short term care.
[127] Other than on this point, DA did not materially contest that he was not permitted to
continue to work with children under the guardianship of the State once he had been assessed
as unsuitable. He could only do so if re-assessed as suitable, and this could not occur inside
12 months. However, for a multitude of reasons DA contends that the psychometric
assessment reached the wrong conclusion and for that reason there was no valid reason for
dismissal.
[128] I recognise the genuine basis on which DA advances this submission. However, in the
context of determining this matter, I do not accept it.
[129] The submission erroneously conflates the reasons for the assessment with the reason
for dismissal. DA was not dismissed because, in the opinion of his employer, he was
unsuitable to work with children. He was dismissed because his employer formed the view
85 Qantas Airways Limited v Christie (1998) 193 CLR 280 per McHugh J at 73
86 J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [22]; X v Commonwealth [1999] HCA 63 at [102]
87 J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [29]
88 Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42]
89 AS1 Schedule 2 Clause 5
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
[2020] FWC 2773
21
that once assessed by the third party as unsuitable, DA could no longer perform an inherent
requirement of the job.
[130] The reasons for the assessment and the reason for dismissal were related but distinct.
They were made by separate entities. Even though Baptist Care’s decision was a direct
consequence of PsychCheck’s conclusion it was made by reference to DA’s employment
obligation, not the merit of the psychological assessment. It was DA’s assessment as
unsuitable which compromised his employment as a Child and Youth Support Worker with
Baptist Care. That compromise existed irrespective of the reasons reached by the third party
or whether those reasons were well-founded.
[131] In circumstances where Baptist Care neither influenced the outcome of the assessment
nor formed any view on its legitimacy (indeed it, like DA, it was not privy to the reasons) the
merit of the assessment is not relevant to the question of valid reason.
[132] For these reasons I do not consider the professional opinion and evidence of DA’s
treating psychologist Ms Corlett90 (as well as DA’s evidence about the assessment report91)
and alternate professional conclusions that could have been drawn from the psychometric test
data and DA’s interview with the assessing psychologist as relevant to whether a valid reason
existed. Whilst I admitted that evidence (as it was relevant to the manner in which DA framed
his case) these were not conclusions reached by Baptist Care or matters over which Baptist
Care did or could influence.
[133] However, whilst the conclusion reached by the assessing psychologist (and
professional challenges to it) is not relevant to these proceedings, this does not mean that all
aspects of the assessment process are irrelevant. Baptist Care’s conduct (either by commission
or omission) in agreeing to terms under which its employees were tested and conduct post-
assessment is relevant to issues of fairness. I consider these aspects later in this decision.
[134] For these reasons, I conclude there was a sound, defensible and well-founded reason
for DA’s dismissal. From 8 July 2019 DA had not, following assessment, been assessed as
deemed suitable to perform an inherent requirement of his job: the care of children under the
guardianship of the State.
[135] This was a valid reason for dismissal.
[136] This consideration weighs against a finding of unfair dismissal.
Notification of reason for dismissal
[137] Notification of a valid reason for dismissal should be given to an employee protected
from unfair dismissal before the decision is made to terminate their employment,92 and in
plain and clear terms.93
90 A23
91 Transcript 11 March 2020 PN1269 - 1377
92 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
93 Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)
[2020] FWC 2773
22
[138] Baptist Care provided notice to DA of the reason for dismissal (inherent requirements
of the job) by letter 9 July 2019 (and meeting that date), at the 15 July (show cause) meeting,
at the 30 July 2019 dismissal meeting and in a confirming letter of dismissal 6 August 2019.
[139] Whilst DA, understandably, did not consider this reason adequate (as he was seeking
the reasons for the substantive assessment and its review) it was not those reasons for which
he was dismissed. The reason for which he was dismissed was the reason he was notified.
[140] This consideration weighs somewhat against a finding of unfair dismissal.
Opportunity to respond
[141] An employee protected from unfair dismissal should be provided an opportunity to
respond to a reason for dismissal relating to their conduct or capacity. An opportunity to
respond should be provided before a decision is taken to terminate the employee’s
employment.94
[142] The opportunity to respond does not require formality and this consideration is to be
applied in a common sense way to ensure the employee is treated fairly.95 Where an employee
is aware of the precise nature of the employer’s concern about his or her conduct or
performance and has a full opportunity to respond to this concern, this is enough to satisfy
this consideration.96
[143] DA had multiple opportunities to respond to the stated reason for dismissal at the show
cause meeting on 15 July 2019. However, the opportunity at the dismissal meeting on 30 July
2019 was more qualified. Halfway through that meeting97 DA was told he was dismissed
(from the Care Pathways contract) and Baptist Care confirmed during that meeting that it had
decided on that outcome prior to the meeting commencing98. Nonetheless, the meeting was a
substantial engagement on the issues although, in my view, unlikely to have altered the pre-
determined outcome.
[144] However, DA had no opportunity to respond to the reasons for the assessment either
before or at the time of dismissal or at any time in advance of the Commission ordering that
the assessment report be produced to him. I deal with this issue later in this decision.
[145] Overall, this consideration weighs somewhat against a finding of unfair dismissal.
Opportunity for support person
[146] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to dismissal, an employer should not unreasonably
refuse that person being present.
94 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton
SDP, Cribb C, 11 May 2000), [75].
95 RMIT v Asher (2010) 194 IR 1, 14-15.
96 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
97 A15 audio 17m 25s and 24m
98 A15 audio 25m 30s
[2020] FWC 2773
23
[147] Baptist Care did not refuse, let alone unreasonably refuse, DA a support person. In
fact, Baptist Care encouraged DA to participate in the 9 July, 15 July and 30 July meetings
with a support person. He did so (via MH). In the circumstances, and quite reasonably,
Baptist Care permitted DA’s support person to take an active role in discussion given the
unusual context in which dismissal and other alternatives were being discussed.
[148] This is a neutral consideration.
Warnings concerning performance
[149] As DA’s dismissal did not relate to unsatisfactory performance, this factor is not
relevant.
Size of enterprise and human resource capability
[150] Although operating in the not-for-profit sector, Baptist Care is a sizeable organisation
with dedicated human resource specialists and expertise. Neither party submitted that the size
of Baptist Care was likely to inhibit the procedures followed in effecting dismissal.
[151] I find that neither the size of Baptist Care nor its human resource capability was likely
to constrain Baptist Care’s ability to provide substantive and procedural fairness to its
employees on termination matters. The initial lack of awareness amongst some managers
about DA’s second job with Baptist Care was the product of human error, not size or human
resource capability.
[152] This is a neutral consideration.
Other matters
Harsh – Employer agreed to unfair assessment process
[153] DA submits that his dismissal was harsh because the assessment process was unfair.
[154] I do not accept this submission to the extent that it reflects concerns held by DA about
matters which were wholly internal to PsychCheck’s conduct of the assessment (such as
whether the assessor was biased, or whether test data was adequate or adequately interpreted
or whether the assessment interview was unduly prolonged). These were matters unknown to
Baptist Care and over which Baptist Care had no control or capacity to influence.
[155] However, to the extent that DA’s submission deals with concerns which Baptist Care
knew, ought to have known or had capacity to influence, there is some force in this
submission.
[156] The evidence establishes that Baptist Care had no control over:
The statutory obligation that DA be assessed;
The determination of the Chief Executive of the Department setting conditions for
psychometric testing;
The Department’s approval of PsychCheck as the (then) sole provider;
PsychCheck’s choice of who its assessing psychologist would be;
[2020] FWC 2773
24
The test data adopted by PsychCheck;
The manner in which one-on-one interviews were conducted by PsychCheck;
The answers given by DA to test data and to questions at the assessment interview;
and
The conclusion reached by the assessing psychologist as confirmed by two other
officers of PsychCheck.
[157] However, the evidence establishes that Baptist Care had input into, and in that sense
the capacity to influence, the terms of the Master Services Agreement it reached with
PsychCheck in December 2018 for testing its workforce, including DA. Yet, on the evidence
before me,99 Baptist Care took no steps to seek to negotiate into that agreement a capacity for
any of its staff deemed unsuitable to receive the report, or in the absence of the report, to
receive reasons or feedback on reasons, or to request a review.
[158] Whilst Baptist Care was asked to consider a master deed prepared by PsychCheck’s
lawyers, PsychCheck disclosed to Baptist Care (in its covering email of 12 November
2018100) that:
the deed was a “draft;
Baptist Care was entitled to provide input on “queries, comments or concerns” and
should take legal advice on it;
PsychCheck did not “intend” to provide detail, feedback or advice to an employee or
Baptist Care relating to the reasoning or detail of the outcome of an individual
assessment;
the Consent Form PsychCheck proposed went beyond that suggested by the
Department: “it adds aspects of the assessment and process required by PsychCheck;
and
PsychCheck intended the Consent Form to be branded with Baptist Care’s logo, not
its. (my emphasis)
[159] I recognise that Baptist Care was in a weaker bargaining position than PsychCheck
when negotiating the deed. Baptist Care had a testing obligation to the Department and the
employer had no choice but to engage the sole approved provider. Notwithstanding this, the
deed was not non-negotiable. As it turned out, Baptist Care obtained legal advice on it, and on
17 December 2018 negotiated three changes to unrelated clauses.101
[160] Before signing the deed, it should have been readily apparent to Baptist Care that in at
least the following two respects the draft deed represented terms sought by PsychCheck and
were thereby negotiable:
the proposed clause that PsychCheck would provide no reasons or feedback to Baptist
Care or its staff. In the covering email, this was expressed as PsychCheck’s
“intention” and one it had formed “following advice received”; and
the proposed Consent Form altered the example Consent Form which had been
published by the Department. Baptist Care was aware of the Department’s published
99 Transcript audio (1h 19m) Ms Smith 16 April 2020
100 AS19
101 AS23 Email 17 December 2018
[2020] FWC 2773
25
form because it comprised ‘Appendix A – Example’102 to the application which had
been made by Baptist Care to the Department weeks earlier.
[161] Neither of these issues were peripheral to the interests of Baptist Care’s employees.
They went directly to issues of fairness in the assessment process. Critically, the change to the
Consent Form concerning the non-provision of reasons or feedback was not a mere addition.
It was both a deletion of a clause (in the example form) that allowed feedback and then the
insertion of a different clause with opposite effect.
[162] Both forms indicated that employees were not entitled to receive the assessment
report. However, whereas the Department’s example form provided:
“I acknowledge that I may be able to seek feedback on my assessment outcome directly
from the approved assessment provider, and at my own expense.”
[163] the PsychCheck proposal read:
“I acknowledge that I cannot obtain feedback on my assessment outcome from
PsychCheck.”
[164] Further, PsychCheck included a clause in its proposal which prohibited a right of
review (whereas the example form was silent on that question):
“I acknowledge that I do not have a right of review, nor will a re-evaluation be
undertaken, should I be found ‘not suitable’ to safeguard young people and children.”
[165] Relevantly, Baptist Care made no attempt to raise either issue with PsychCheck. It
negotiated other matters but on these fundamental issues of fairness to employees it neither
asked PsychCheck to justify the proposed terms let alone express preference for the
procedurally fairer terms in the Department’s example form.
[166] For an affected employee and especially in the context of that employee’s suitability
for their job being assessed, being advised of why a decision with adverse consequence has
been made is a fundamental issue of fairness, at least where decisions impact job security.
That such decisions involve sensitive or personal matters is not generally a reason to dispense
with norms of fairness. It was unfair for DA to be simply left to speculate on why the assessor
had reached the conclusion he did.103 Speculation in the absence of knowledge simply added
to DA’s stress, and prevented him from trying to put in place substantive or professional
dialogue between the assessor and his treating psychologist.
[167] Whilst Baptist Care was not the assessor, its failure to advocate this fairness principle
and seek its inclusion in the Master Services Agreement negotiated with the assessor was an
unreasonable oversight on its part. In so doing, Baptist Care, by omission, exposed its
employees to an assessment process which, in these critical respects, denied fairness; a denial
that was neither required by law nor by Baptist Care’s contractual arrangement with the
Department.
102 AS17
103 “I had ideas as to what had gone on but I had no evidence.” DA Transcript 10 March 2020 PN577; see also 11 March
2020 PN1045 – 1046; PN1384
[2020] FWC 2773
26
[168] This conclusion is not disturbed by the rebuttal advanced by Baptist Care that DA
retained the right to take administrative action in the courts to secure production of reasons.
Leaving aside the cost, delay and impracticality of such a course where an employee faces
dismissal within days of an adverse assessment, whatever rights an employee has to judicial
review against a third party does not transform an unreasonable omission by their employer
into a reasonable course of action.
[169] Although all considerations must be taken into account (including DA’s subsequent
consent) this omission on the part of Baptist Care weighs somewhat in favour of a finding of
an unfair dismissal.
Harsh - Misled about Consent Form terms
[170] A related submission by DA is that his dismissal was harsh because, when Baptist
Care supplied him the Consent Form (on its logo) for signature, the employer failed to inform
that the required terms of consent differed materially from that which had been published as
an example by the Department; and in particular that Baptist Care had agreed to remove a
clause contemplating an employee being provided feedback, and that it had agreed to insert in
lieu a clause prohibiting feedback and denying review rights.
[171] DA says this was misleading conduct.
[172] I do not accept that Baptist Care misled DA. The form supplied to DA was the form it
had, by then, agreed with PsychCheck. Its terms were plain and not misleading. The employer
did not represent that the form was the same as the example consent form.
[173] However, DA was, for understandable reasons given the references in the November
and December 2018 staff bulletins (and subsequent staff letter) to the CYP Act, operating on
the premise that the consent form reflected legislative terms:104
“I did assume that everything on that consent form was basically produced from the
legislative requirements.”
[174] There is force in DA’s submission to the extent it bears on overall fairness. Given that
fundamental employee rights were compromised by the agreed deviations from the example
consent form, it would have been reasonable for Baptist Care to disclose these facts to staff
and allow employees to exercise informed consent – informed by the fact that it was
PsychCheck and the employer, not the CYP Act or the Department, which required Baptist
Care’s employees to undertake an assessment stripped of any rights to feedback or review.
[175] Although all considerations must be taken into account (including DA’s subsequent
consent) this omission on the part of Baptist Care also weighs somewhat in favour of a
finding of an unfair dismissal.
Harsh – employer did not advocate on DA’s behalf
104 Transcript 10 March 2020 PN533; PN588
[2020] FWC 2773
27
[176] DA submits that his dismissal was harsh because Baptist Care did not advocate for the
provision of the report or feedback on the assessment, or for a right of review, once Baptist
Care was informed of the outcome and made aware of DA’s concerns about it.
[177] I do not accept this submission. The evidence before me is that Baptist Care followed
through with its undertaking to DA (before and after the show cause meeting) to contact
PsychCheck on these issues. It subsequently reported to DA that it had emailed PsychCheck
requesting the assessing agency meet with DA and that, in response, the employer had been
informed that DA should take up any conflict of interest issues directly with them. Baptist
Care provided DA with PsychCheck’s contact details for that purpose.
[178] Baptist Care did what it reasonably could in this respect, taking into account that it
had, via the Master Services Agreement signed seven months earlier, limited its capacity to
secure the post-assessment information DA was seeking.
[179] This is a neutral consideration.
Harsh – Redeployment efforts not reasonable
[180] DA submits that Baptist Care failed to make reasonable efforts to re-deploy him to
comparable and equally remunerative work.
[181] The starting point for this consideration is the commitment made in the December
2018 bulletin by Baptist Care to staff who may be assessed as unsuitable:105
“Baptist Care SA will make reasonable efforts to suitably redeploy you in any other
existing vacancy within the organisation if you fulfil all requirements of the role and
are assessed through an interview process as suitable.”
[182] Post-assessment, Baptist Care actively considered redeploying DA, and offered DA
additional rosters in the Family Mental Health programme. Were its efforts reasonable?
[183] I do not consider Mr Salerno’s initial lack of awareness on 9 July 2019 that DA
worked a second (Family Mental Health) contract with Baptist Care as having caused
fundamental prejudice to DA, though it did insensitively and unnecessarily add to the stress
and upset he experienced at the time. That mistake was one of human error, and once taken
further by DA, was corrected the following day with DA then being authorised to perform the
work he had been rostered.
[184] Although DA’s preference was to be redeployed elsewhere in the Care Pathways
programme, this was a programme which inherently required DA, as a Child and Youth
Support Worker, to care for children. Not having been assessed as suitable to work with
children under the guardianship of the State, it was reasonable for Baptist Care to not offer
such work to DA.
[185] However, Baptist Care’s refusal to offer DA work with adults in the Disability
Services programme involves different considerations. DA was told during the dismissal
interview that Baptist Care would not offer such work because it was, as a matter of internal
105 A4 page 2
[2020] FWC 2773
28
policy, taking a “risk-averse” approach in light of the assessment that he was unsuitable to
work with such children.106. Mr Thomson, in the dismissal interview on 30 July 2019 put it
this way to DA107:
“what Baptist Care have done is they have taken a risk-averse approach where someone
who doesn’t fit that requirement or measures unsuitable, they are using that as the
instrument to deem whether they will take the risk to have that person interacting with
young people and vulnerable people.
Baptist Care have applied an internal policy around that…” (my emphasis)
[186] No internal policy to this effect was provided to DA at the meeting (despite MH’s
request), nor produced at the hearing.
[187] The Disability Services programme included working with adult persons. Excluding
DA from being considered for work with disabled adults (work which he had previously
performed to the employer’s satisfaction) on the basis that he had been deemed unsuitable to
work with children was neither logical nor reasonable. At the dismissal interview, at least Ms
Pace appeared completely unaware that DA had worked with adults in Disability Services, not
children; only to be corrected by DA108. Nor was the rationale consistently applied. If a ‘risk-
averse’ approach meant DA could not be offered work with disabled adults, why then did
Baptist Care allow DA to continue to work with adults in the Family Mental Health
programme? As discussed below, the fact that he had an existing contract in one but not the
other is not a logical point of difference in the context of considering redeployment.
[188] In making a decision to adopt a ‘risk-averse’ approach against which DA would be
assessed for future work in Disability Services, Baptist Care was unduly influenced by the
fact that DA had agreed, in April 2019 to end his contact in Disability Services. As I have
found, at that time, DA chose to continue working in the Care Pathways programme on the
basis that he would have no guaranteed right to return to Disability Services. I accept DA’s
evidence109 that he was advised in April 2019 that there was no guaranteed right to return to
Disability Services, not that it was ruled out in its entirety. That agreement was made a time
when DA faced no impairment to working in Care Pathways. By July 2019 that was no longer
the case. The changed circumstances warranted a more considered approach by Baptist Care
to prospective employment of DA in Disability Services.
[189] Further, the ‘risk-averse’ approach adopted by relevant managers towards DA was at
best an internal Baptist Care construct and not a contractual or legislative requirement. Quite
unfairly, it inferred that DA was a risk to vulnerable persons generally. There was no
foundation for this view particularly given that DA had not long prior performed Disability
Services work with vulnerable adults (and continued to perform mental health work) without
complaint or performance management.
[190] In the termination letter, Baptist Care informed DA that a reason it was not offering
work in Disability Services was that “there is no requirement on the organisation” to do so
because he did not “have a current casual Support Worker role in Disability Services”. This
106 Transcript 10 March 2020 PN456; 11 March 2020 PN888; PN 897
107 A15 audio 23m to 26m
108 A15 audio 20m 30s
109 Transcript 10 March 2020 PN404; PN413 - 414
[2020] FWC 2773
29
was an inadequate and insufficient response. The “reasonable” redeployment efforts Baptist
Care promised its staff (in the December 2018 bulletin) ought not have been dependent on
whether an employee had a current parallel contract in another area of the business at the time
of their unsuitable assessment. Reasonable redeployment required an open-minded
examination of possible work within the skill and capability of the employee in areas of
business need, irrespective of whether the employee was currently employed to work in such
areas. In DA’s case he was not currently working in Disability Services. The fact that he had
done so only months prior ought to have weighed in his favour, not against him.
[191] Whether work was available for DA to perform with adults in Disability Services is a
separate question. Although DA was told by Ms Price at the end of the dismissal meeting that
there was no such work, Baptist Care led no evidence in this regard. I am unable to make a
positive finding to this effect.
[192] It is however relevant to an overall assessment of whether redeployment efforts were
reasonable to also take into account:
that DA accepted some additional shifts in the Family Mental Health programme but
rejected others because he was seeking alternative work which would provide
remunerative rosters (weekend and evening shifts) comparable to that which he had
performed in the Care Pathways programme; and
Baptist Care offered DA outplacement services.
[193] Although all considerations must be taken into account (including DA’s rejection of
some of the rostered shifts in mental health offered by Baptist Care) the failure by Baptist
Care to give full consideration to a contract of employment in the Disability Services
programme weighs in favour of a finding of an unfair dismissal.
Harsh – Impact on reputation and employability
[194] DA submits that the dismissal was harsh because of its impact on his reputation,
employability and sense of self-worth.
[195] There is no doubt that an employee assessed as unsuitable following a psychometric
assessment by a third party in circumstances where they had worked with children for a near
decade without concern or complaint from their employers or regulators would be deeply
concerned at reputational impact. For a person such as DA, who held himself to high
standards and took pride in his work, this was particularly galling.
[196] Yet, whilst the assessment hit DA hard, it was not a complete shock. DA had failed a
similar assessment years earlier, had twice wrestled (whilst employed as a Child and Youth
Support Worker with Baptist Care) with the prospect of putting himself though a mandatory
assessment once the CYP Act came into operation, and had left the PsychCheck interview
fearing that the assessing psychologist wasn’t ‘on-side’.
[197] Although impacting his ability to work with children under the guardianship of the
State, the assessment did not prevent DA securing work with adults in the community sector.
It limited his employability but did not crush it.
[2020] FWC 2773
30
[198] Further, the privacy protocols surrounding the communication of the assessment
outcome minimised, to a certain degree, external impacts on his reputation.
[199] The adverse effects on DA’s reputation, employability and self-worth, whilst very real,
are not materially more profound in his circumstances than those of other persons with
experience who may also have been working competently with children in the community
sector yet faced with the same finding against them.
[200] Those impacts, whilst distressing to the employee concerned, are an unavoidable
consequence of the legislative scheme of mandatory psychological assessment playing out.
They do not transform a dismissal for a valid reason into a harsh dismissal.
[201] This is a neutral consideration.
Conclusion on merits
[202] Each assessment of whether a dismissal is unfair must be considered on its own
merits. In arriving at an overall assessment, the statutory considerations must be applied in a
practical, common sense way to ensure that the employer and employee are each treated
fairly.110 The Commission will not stand in the shoes of an employer and determine what the
Commission would do had it been in the position of the employer.111
[203] DA’s application raises an unusual circumstance: where neither the employee nor the
employer sought his dismissal but where the employer dismissed the employee as a
consequence of a mandatory assessment by a third party which removed the capacity of the
employee to perform an inherent requirement of the job.
[204] In this sense, the employer says that it had no effective choice but to dismiss the
employee.
[205] In response, DA says that:
the assessment reached an unfair conclusion;
his employer agreed to an assessment process which denied him due process; and
irrespective of the assessment outcome or process, his employer acted harshly in
dismissing rather than redeploying him into work of comparable value.
[206] I have made findings and drawn conclusions on each of these issues.
[207] Although DA’s dismissal after being declared “currently unsuitable” is specific to its
facts and circumstances, dismissal of an employee following intervention by a third party is
not entirely unique. A non-exhaustive list of illustrative examples is:
where a tradesperson is required to be licenced but where the relevant licensing
authority cancels that employee’s license (e.g. a truck driver having their long haul
110
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR
458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A
Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36]
111 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
http://www.fwc.gov.au/decisionssigned/html/2010fwafb8868.htm
[2020] FWC 2773
31
drivers licence removed by a government agency; or an electrician having their trade
licence revoked by a trade authority);
where a professional fails to maintain mandatory certification to lawfully provide
services (e.g. a lawyer having their practising certificate revoked by a court; or a
doctor having their right to practice cancelled by a medical board);
where a court imposes a custodial sentence on an employee; and
where a labour hire agency places its employee in a host business and then, pursuant
to contractual arrangements between the agency and the host business, the host
business refuses to accept labour by that employee.
[208] A common feature of the Commission’s consideration of such cases is that an
employer cannot abrogate responsibility for treating employees fairly. Even where a dismissal
is said to be constrained by the conduct or decision of third parties, the dismissal remains to
be assessed by reference to the factors set out in section 387 of the FW Act. As recently noted
by Asbury DP in the context a labour hire agency employee: 112
“[12] A number of cases have considered the manner in which the matters in s. 387
of the Act are considered in circumstances where an employer provides labour to a
client and the client directs the employer to remove the employee from a site. As a Full
Bench of the Commission observed in observed in Donald Pettifer v MODEC
Management Services Pty Ltd (Pettifer) labour hire arrangements in which a host
employer has the right to exclude a labour hire employee from its workplace, are
becoming a common part of the employment landscape in Australia. The reality for
companies in the business of supplying labour is that they frequently have little if any
control over the workplaces at which their employees are placed and the rights of such
companies in circumstances where a client seeks the removal of an employee are
limited. However, this is not a basis upon which companies in the business of
supplying labour to clients can abrogate responsibility for treating employees fairly
when dismissal is the result of removal from a particular site and the fairness of the
dismissal is considered with reference to the matters in s. 387 of the Act.” (references
omitted)
[209] Although an employee’s dismissal following a “currently unsuitable” determination
under the South Australian CYP Act has distinguishable features from the dismissal of a
labour hire agency worker dismissed at the insistence of a host client, the principle of fairness
expressed by Asbury DP is apposite. DA’s dismissal is to be assessed by reference to those
same statutory factors within the framework of the “fair go all round” principle. An evaluative
assessment of fairness is required no matter what (if any) constraints were placed on Baptist
Care by decisions of third parties. That evaluative assessment requires determination of
whether, in an objective sense, DA’s dismissal was “harsh, unjust or unreasonable” having
regard to objectively found facts and conclusions drawn from an overall assessment.
[210] I have found a valid reason for DA’s dismissal based on the inherent requirements of
the job. I have found that Baptist Care adopted, with some qualifications, a generally fair
process of decision-making which provided DA an opportunity to put his case to Baptist Care
before it made the decision to dismiss. However, I have also found elements of fundamental
unfairness in the then operating protocols for third party psychometric testing to which
112 Stevens v ISS Property Services Pty Ltd [2020] FWC 1340 at [12]
[2020] FWC 2773
32
Baptist Care knowingly exposed its employees, and failure on its part to fully consider
redeployment or comparable employment.
[211] Whilst the existence of a valid reason is an important factor (and the absence of a valid
reason a strong indicator of unfairness) a valid reason alone is not conclusive. Unfair
dismissal proceedings are multifactorial.113
[212] In weighing these factors, I take into account the observations of a Full Bench of the
Commission in Parmalat Food Products Pty Ltd v Wililo:114
“The existence of a valid reason is a very important consideration in any unfair
dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open.”
[213] In this passage both the importance of a valid reason and procedural fairness are
emphasised, together with the possibility that significant mitigating factors may, in some
cases, trump such considerations.115
[214] There are substantial factors weighing against a finding of unfair dismissal. These
include that Baptist Care:
had a valid reason;
did not seek out DA’s dismissal;
allowed the psychometric assessment to be independently conducted on its merits;
complied with its legislative and contractual obligations to DA, to PsychCheck and to
the Department;
provided opportunity for DA to put his position before deciding to dismiss; and
in the context of considering redeployment, offered additional rostered work to DA in
his parallel operating employment contract.
[215] Two important counterveiling considerations exist. Even though Baptist Care had only
limited bargaining capacity to shape the protocols for psychometric testing of its staff, those
protocols were not non-negotiable. In registering its agreement to the terms, Baptist Care
acted unreasonably in two respects:
it failed to ask PsychCheck to justify a term that excluded feedback to staff (including
DA) of reasons for a ‘deemed unsuitable’ assessment and a term which denied staff a
right to request a review (let alone expressing a preference for a contrasting and
procedurally fairer clause allowing feedback in the Department’s example consent
form); and
113 Jones v Brite Services [2013] FWC 4280 at [24]
114 [2011] FWAFB 7498 at 20
115 See, for example, Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print
S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155
http://www.fwc.gov.au/decisionssigned/html/2011fwafb7498.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwc4280.htm
[2020] FWC 2773
33
it compromised the right of staff to register informed consent by failing to inform staff
(including DA) that the terms of employee consent required included these changes
thereby differing materially from the example consent form which had been published
by the Department.
[216] As a result, Baptist Care exposed its employees to an assessment process by a third
party which, in these critical respects, denied fairness; a denial that was neither required by
law nor by Baptist Care’s contractual arrangements with the Department.
[217] However, the weight to be attached to these failures is mitigated somewhat by the
following:
the absence of a right to secure feedback or review, or to provide informed consent,
did not cloud or affect the ‘deemed unsuitable’ assessment. Whether merited or not, it
was made irrespective of DA’s post-assessment rights; and
DA consented to the terms of assessment after wrestling with the risks of being
independently assessed.
[218] I take into account that DA’s consent was not a choice of neutral consequence. Had he
failed to consent it would have automatically followed that he would have been unable to
perform an inherent requirement of his job (and in all likelihood still been dismissed for a
valid reason). Yet, even with this caveat, his consent is material. He made a conscious
decision to submit himself to an assessment process which he knew would provide no
reasons, no feedback, no review and which he knew would, if it did not go his way, preclude
him (for twelve months at least) from continuing to be employed as a Child and Youth
Support Worker.116 Twice (in December 2018 and again in April 2019), in his words, he
knowingly but with some apprehension “decided to take my chances”:117
“I knew that previously I hadn't gotten through and was unaware why I hadn't gotten
through and therefore I didn't want to assume that I would get through.”118
[219] Weighing in favour of a finding of unfair dismissal is the post-assessment position
adopted by Baptist Care’s managers whereby redeployment of DA was assessed on a risk-
averse basis. This approach inferred, without foundation, that DA was a risk to vulnerable
persons generally. It led Baptist Care to not fully consider DA for redeployment in the
Disability Services programme. However, this deficit has to be weighed against the fact that
DA was offered additional work in the Family Mental Health programme and refused some of
that work in order to try and secure better elsewhere. Baptist Care’s error in not fully
considering the Disability Services option was a shortcoming inside an overall process of
decision-making which in general provided an opportunity for DA to have a say on dismissal
and redeployment, and where some extra working hours were provided for.
[220] As said by the High Court in Byrne v Australian Airlines Ltd:119
116 Transcript 10 March 2020 PN410-411
117 Transcript 10 March 2020 PN427; 11 March 2020 PN1036 - 1037
118 Transcript 10 March 2020 PN407; PN417
119 [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
[2020] FWC 2773
34
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap.”
[221] DA’s dismissal was not unreasonable because there was a valid reason. Nor do I
conclude that the dismissal was unjust given the valid reason, the fact that I have not
adjudicated on the substantive merits of the assessment and because, Baptist Care did discuss
next steps with DA and his support person after the assessment but before making its decision
to dismiss.
[222] Whilst there are not insignificant factors weighing in favour of a finding of harshness,
each has relevant mitigating aspects. When seen in context, and assessed with factors
weighing against a finding of unfair dismissal, I conclude that, on balance, DA’s dismissal
was not harsh.
[223] DA was not denied reasons for dismissal but he was denied the reasons for the
assessment that gave rise to his dismissal. That was unfair. Yet his employer was denied the
same information.
[224] Critically, even had reasons been provided to either DA or Baptist Care (or both) at
that time, the fact of the unsuitable assessment (merited or not) would still have put Baptist
Care in a position where it had no choice but to dismiss DA. Such dismissal would still have
been for a valid reason (inherent requirements).
[225] Criticism of Baptist Care (which I have found were largely acts of omission) needs to
be viewed in context. The ‘fair go all round’ principle in section 381 of the FW Act requires
fairness to both employer and employee, not just a dismissed employee. It should be applied
in a practical, common sense way. In the post-assessment environment after 8 July 2019 the
position was, in practice, unwelcome and difficult for both DA and for Baptist Care. Baptist
Care made mistakes, but mostly omissions made months earlier. Those shortcomings did not
go to the merits of the third party assessment which triggered a valid reason for dismissal. The
redeployment shortcomings are important considerations but are not sufficient to be
determinative.
[226] Having conducted an overall assessment of DA’s dismissal against the statutory
criteria, I do not conclude that the dismissal was harsh, unjust or unreasonable. That being so,
an order dismissing the application will be issued in conjunction with the publication of this
decision.120
Observation
[227] It is difficult not to have considerable empathy for DA and in particular the search for
answers that led DA to commence these proceedings. As a diligent employee he was exposed
to an assessment process in the first year of operation of the CYP Act which was deficient.
DA was not unfairly dismissed, but even leaving aside his natural desire to debate the merit of
the psychological assessment, he was wrongly denied reasons for it.
120 PR719703
[2020] FWC 2773
35
[228] A material finding in this matter is that protocols in place as at June 2019 for
psychometric testing under the CYP Act adopted by the then sole accredited assessment
agency denied DA due process because the assessor provided no reasons for a “deemed
unsuitable” assessment. A further material finding is that the assessor provided no mechanism
for DA to request an internal review. The Commission has concluded that the then operating
protocols placed both a “deemed unsuitable” employee and their employer in an invidious
position.
[229] I am aware from the production order proceedings that PsychCheck revised its
protocols in the period that followed the filing of these proceedings.
[230] I am also aware from the evidence that more than one provider of psychometric
assessment services is now accredited in South Australia for the purposes of the CYP Act.
[231] Whether currently operating protocols by those providing psychometric testing
services under the CYP Act address or address in an adequate way the unfairness that I have
found is not a matter on which I have adjudicated. However, in order to avoid circumstances
where employees working with children and their employer are placed in the position
highlighted by this case, I recommend that current testing protocols in South Australia be re-
examined in light of the findings in this and related matters.121 Such examination should take
into account the significant policy considerations associated with the protection of children
and the duties of care owed by approved assessors to both children and persons assessed.
Acknowledgement
[232] It is appropriate to make a final observation. These proceedings were lengthy and, at
times, involved intensely personal matters. Despite this, DA, with the assistance of MH and
some guidance from the Commission, was co-operative and diligent to the task of presenting
his case and responding to that put by Baptist Care. Likewise, Baptist Care’s representatives
and in particular its counsel not only discharged their responsibilities professionally but also
displayed a high degree of sensitivity to DA and his evidence (including evidence that has
been unnecessary to reference in this decision). Baptist Care promptly sourced documents that
came into issue as proceedings unfolded. The conduct of both parties contributed materially to
the efficiency of proceedings. Whilst the toll on DA was self-evident, that impact was
minimised by the respectful tone adopted. I thank the parties and their representatives for
dealing with the application in such a manner.
DEPUTY PRESIDENT
121 D.S. v Anglican Community Care Incorporated [2019] FWC 3377
WORK COMMISSION THE SEA
http://www.fwc.gov.au/decisionssigned/html/2019fwc3377.htm
[2020] FWC 2773
36
Appearances:
DA, the Applicant on his own behalf with MH
Ms K Eaton, with permission, for Baptist Care SA.
Hearing details:
2020.
Adelaide.
10 and 11 March, 16 and 17 April.
Printed by authority of the Commonwealth Government Printer
PR719694
