In a decision handed down on 7 March 2018 concerning a notice to produce, the Industrial Relations Commission ordered an employer to hand over a copy of the complaint made by a patient against the dismissed employee. This was despite claims by the Blue Mountains Local Health District that the documents were confidential and not necessary for the applicant’s ability to respond to the allegations against her.
Ms Sarah Chapple was an employee of the Nepean Blue Mountains Local Health District (the LHD) and had been dismissed following the receipt of a complaint from a patient received by her employer in March 2017.
The matter had then been referred to the Industrial Relations Commission for relief from unfair dismissal with Ms Chapple contending her termination was harsh, unreasonable or unjust. Within these proceedings, while the parties were initially unable to reach agreement on a number of documents to be produced under Notices to Produce, this disagreement was eventually reduced to a single document, the Privacy Complaint Internal Review Application Form received by the LHD from Patient Z. The patient complaint involved allegation their medical records had been improperly accessed by Ms Chapple.
Consideration and finding
Commissioner Seymour considered the matter and determined the LHD should provide the applicant with a copy of the patient complaint. In doing so the Commissioner rejected the employer’s submission that Ms Chapple had no legitimate forensic purpose in having full access to the complaint when all that mattered was whether or not the applicant was being truthful when asserting she had not accessed the records, despite records showing her user-id was associated with access on the dates in question.
Instead, Commissioner Seymour decided the actual patient complaint had sufficient relevance to the unfair dismissal proceedings in that the document:
referred to specific conduct Patient Z complained about which was the catalyst for the misconduct investigation against Ms Chapple;
may assist in determining a motive for the complaint;
could possibly assist in identifying another potential perpetrator of the unauthorised access to Patient Z’s medical records;
may contain evidence of Ms Chapple’s conduct with Patient Z which would assist in determining if the penalty of dismissal was a disproportionate response to the alleged misconduct.
Comments about the decision
While Commissioner Seymour granted access to the patient complaint, she did take into account its confidential nature and the suppression orders already in place by restricting access to Ms Chapple’s legal representative.
Tips for public sector and local government
While it is realised that applicants in the public and local government sectors normally have a wider range of information made available to them in proceedings within the Industrial Relations Commission (compared with their private sector colleagues appearing before the Fair Work Commission), it remains unusual for actual complaint documents to be made available, particularly if these are seen to involve a person under care or concerned with their confidentiality.
There remains a number of ways of ensuring procedural fairness to applicants and providing them with necessary details of complaint required to make a response to allegations without the need to provide a copy of the actual complaint.
Chapple v Nepean Blue Mountains Local Health District  NSWIRComm 1013 (7 March 2018)
Aimee Saaib is the Practice Manager of O'Connell Workplace Relations and has considerable experience in conducting impartial, third-party investigations with clients in the public sector, local government and private sector. She is currently completing a further course of study at UTS Law School.