The Full Bench of the Fair Work Commission recently handed down a significant decision which is of particular relevance for employers who have statutory child safety obligations because their staff work with children.
Handed down on 20 November 2020, the decision dismissed the appeal of an employee against a decision of Deputy President Anderson which itself dismissed the employee’s unfair dismissal claim (DA v. Baptist Care SA  FWCFB 6046).
Baptist Care provides emergency and ongoing residential care and support services for vulnerable individuals in South Australia, including care for children who are under the guardianship of the CEO of the SA Department of Child Protection (Department).
DA worked as a casual employee for Baptist Care with children in residential facilities. Relevant details are:
- in 2018, new child safety provisions came into effect in the Children and Young People (Safety) Act 2017 (SA) (CYP Act);
- section 107(1) of the CYP Act requires that a person must not be employed in a licensed children’s residential facility unless the person has undergone a psychological or psychometric assessment of a kind determined by the CEO of the Department. Contravention of this requirement is an offence which may be subject to financial penalties and imprisonment;
- in August 2018, the CEO of the Department issued a determination prescribing the kind of psychological or psychometric assessment required. This included an interpretation of the results of the psychometric assessment and one-on-one interview by a registered psychologist who is approved in writing by the CEO of the Department;
- at the time, the only provider with approval to conduct the assessment under the determination was PsychCheck Pty Ltd (PsychCheck). The agreed protocol by which PsychCheck was required to conduct these assessments included a requirement that any assessment of unsuitability had to be signed off by 3 internal psychologists (including the assessing psychologist). Significantly, PsychCheck would not provide any reasons for its assessments, only a Statement of Suitability;
- Baptist Care also entered into an agreement provided by PsychCheck for the provision of psychometric/psychological assessment services. The terms obliged Baptist Care to require its employees to complete a Consent Form for their assessment in prescribed terms. It also stated that PsychCheck would not give feedback on the reasons for the outcome;
- Baptist Care required all of its relevant employees to enter into new employment contracts which incorporated the relevant requirements of the CYP Act. It became a condition of employment that the employee have an approved Child Related Employment Screening;
- DA was informed that he was required to undergo psychometric testing. He was required to, and did, sign the Consent Form from PsychCheck;
- PsychCheck sent Baptist Care a Statement of Suitability for DA which assessed him as “currently psychologically unsuitable“. Baptist Care was not provided with, nor did it seek, any reasons for the conclusion or other feedback;
- DA was invited to a meeting with Baptist Care and given a letter requiring him to show cause why his employment should not be terminated as a result of his “unsuitable” assessment. Three weeks later his employment was terminated.
Initial decision of DP Anderson
DP Anderson found there was a valid reason for DA’s dismissal because he was unable to fulfil an inherent requirement of his job, namely an assessment of psychological suitability that allowed him to undertake the care of children under the guardianship of the State.
His Honour commented that DA’s submissions erroneously conflate the reasons for the psychometric assessment with the reason for dismissal. DA was not dismissed because Baptist Care considered he was unsuitable to work with children. He was dismissed because Baptist Care believed that, once assessed as unsuitable, DA could no longer perform an inherent requirement of the job. Therefore, Baptist Care neither influenced the outcome of the assessment nor formed any view on its legitimacy (indeed, like DA, it was not privy to the reasons). The merit of the assessment was therefore not relevant to the question of whether a valid reason existed for termination.
Consequently, the professional opinions of DA’s treating psychologist and alternate professional conclusions were not relevant.
DP Anderson did find that there were two elements of unfairness caused by Baptist Care. This related to the following two matters in the draft agreement presented by PsychCheck which were negotiable but not negotiated by Baptist Care:
- the provision that PsychCheck would provide no reasons or feedback for the outcomes which it determined; and
- the lack of a mechanism for review or re-evaluation of the outcome.
However, the Deputy President found that, although these factors weighed in favour of a finding of harshness, there were substantial factors weighing against a finding of unfair dismissal. These included that Baptist Care:
- had a valid reason for termination;
- 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 him; and
- even if reasons for DA’s unsuitable assessment had been provided to either DA or Baptist Care at the time, the fact of the unsuitable outcome would still have put Baptist Care in a position where it had no choice but to dismiss DA, based on the inherent requirements of his role.
Full Bench decision
The Full Bench of the FWC upheld DP Anderson’s dismissal of the unfair dismissal claim. It stated that Baptist Care was subject to the operation of the CYP Act, which required it, at pain of criminal penalties, not to employ a person in a licensed children’s residential facility unless they had undergone the required assessment determined by the CEO of the Department.
The Full Bench added that the capacity for this statutory regime to result in unfairness upon employees is obvious. The process does not take into account the employee’s history of working with children. Further, an assessment of unsuitability does not necessarily mean that the employee would engage in unacceptable behaviour or harm children. However, the Full Bench explained that the capacity of the CYP Act to cause unfair outcomes for employees is not something which can render a dismissal caused by it to be unfair.
“The legislative scheme reflects a policy choice by the South Australian legislature to prioritise a precautionary and preventative approach to the care and safety of children over the interests of employees working with children“.
The Full Bench also rejected the scenario put by DA that, if Baptist Care had entered into a more flexible agreement with PsychCheck allowing Baptist Care control over the identity of the psychologist conducting the assessment, allowing it to be given reasons for a determination of unsuitability and provided for a right of review, then DA would never have been dismissed. Whilst the provision of reasons for the unsuitability assessment would undoubtedly have given greater transparency to the process, it would have made no difference to the position under the CYP Act that DA could not lawfully perform the inherent requirements of his role.
The Full Bench also found that there were major constraints on Baptist Care’s ability to bargain with PsychCheck for contractual terms which gave employees greater protections because:
- PsychCheck was, at the time, the only approved provider of assessment services under the Department’s determination; and
- Baptist Care was required to focus on putting in place arrangements which allowed it to comply with the CYP Act and did not have unlimited time to negotiate terms.
Lessons for employers
Most employers who have staff working with children are not subject to the same prescriptive requirements as under the CYP Act in South Australia to put their staff through successful psychometric testing before they can work with children. However, the decision highlights many of the relevant factors that employers should take into account when assessing the suitability of job applicants and existing employees to safely work with children.
Furthermore, for employers to successfully discharge their statutory and common law duties of care in relation to child safety in the future, employers may want to consider whether they introduce their own psychological/psychometric testing requirements.
If your business is impacted on by these issues or you would like any advice on this area, please contact the Employment Team at Hunt & Hunt.