A section 394 (Application for unfair dismissal remedy) sought by D.A. against Baptist Care SA has been granted by Fair Work Deputy President Anderson in Adelaide on 15 November 2019. Summary: “Application for an unfair dismissal remedy – third-party psychological assessment as to suitability – production order sought for psychological assessment report – application granted on conditions.” Currently, a third-party provider (PsychCheck) is the main organisation approved by the Department to make such assessments. PsychCheck is required to operate under the terms of its accreditation with the Department. The current PsychCheck assessment protocol involves a psychometric evaluation, one-on-one interviews with the relevant person and a risk mitigation relevance model which involves, in the case of an ‘unsuitable’ determination, agreement between three psychologists including the primary assessing psychologist. D.A. submits that as PsychCheck’s processes now include the release of a modified psychological report to all employees deemed “Currently Psychologically Unsuitable”, D.A. should be given access to the Report and to the extraneous material despite his assessment having occurred prior to this change in PsychCheck’s process. PsychCheck submit that it would be inappropriate and of no relevant utility to the Applicant to have the psychometric test data released. They argue that the data would not make sense to anyone but a qualified psychologist, and the release of the data risks PsychCheck’s methods becoming public, which may put the integrity of future tests. The Commission’s power to order production of documents is contained within section 590 of the FW Act. Section 387 of the FW Act contemplates that matters beyond the conduct of the employer are of potential relevance in unfair dismissal proceedings. For example, where an employer relies upon, or is compelled to rely upon, an assessment by a third party of an employee’s suitability for their job in making a decision to dismiss, then the conduct of that third party may be a relevant matter within the meaning of section 387(h) of the FW Act. “The Order I make will be in the following terms: That PsychCheck of 117 Wright Street, Adelaide South Australia produce to the Applicant D.A. copies of any and all documents in relation to a psychological assessment it has conducted of the Applicant D.A. relevant to its assessment in July 2019 that he was “Currently Psychologically Unsuitable” (the assessment) including but not limited to:
the Psychological Suitability Assessment (PSA) Report created by PsychCheck concerning the Applicant D.A.;
notes of interview or interviews with the Applicant D.A. made by PsychCheck or persons engaged by PsychCheck during the course of the assessment; and
psychometric data created by PsychCheck during the course of the assessment,” said Deputy President Anderson.
November 18, 2019
Access Community Services Limited has a s.394 (Application for unfair dismissal remedy) readied for an answer before Commissioner Spencer in chambers in Brisbane (Yousefipour).
November 18, 2019
A s.185 (Enterprise agreement) application from Independent Living Centre of Western Australia Inc for the Independent Living Centre of WA Inc Enterprise Agreement 2019 (Health and welfare services) has been ratified by Fair Work Deputy President Colman in Melbourne on 15 Melbourne on 15 November 2019.
November 15, 2019
MWP Care Limited has a s.394 (Application for unfair dismissal remedy) set for hearing before Commissioner Johns in chambers in Sydney (Smyth).
November 15, 2019
A s.437 (Protected action) application from the Australian Nursing and Midwifery Federation citing Hobsons Bay City Council has been granted by Fair Work Deputy President Gostencnik in Melbourne on 14 November 2019.
November 15, 2019
Austin Health is set to deal with a s.372 (Application to deal with other contravention disputes) in front of Deputy President Mansini in chambers in Melbourne (Perovic).
November 15, 2019
Alex Medical Services Pty Ltd will face up to a s.394 (Application for unfair dismissal remedy) at 2pm before Deputy President Saunders at Level 3, 237 Wharf Road, Newcastle.
November 15, 2019
The Australian Nursing and Midwifery Federation and Malvern Private Hospital (Independent Private Hospitals of Australia) have a s.739 (Application to deal with a dispute) listed for review by Deputy President Gostencnik in Court 2 – Level 6 in Melbourne at noon.
