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  4. Parmar v State of Queensland (Queensland Health) - [2024] QIRC 117

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Parmar v State of Queensland (Queensland Health)[2024] QIRC 117

Parmar v State of Queensland (Queensland Health)[2024] QIRC 117

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Parmar v State of Queensland (Queensland Health) [2024] QIRC 117

PARTIES:

Parmar, Yajuvendrasinh

(Complainant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

AD/2023/113

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

16 May 2024

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDERS:

  1. The Notice of Non-Party Disclosure notice regarding document 11, ‘Diversity of HP3 staff for continue (sic) shift at SCUH at the time of recruitment’ is set aside.
  1. The production of Documents 8 and 9 including the particulars of those documents set out in [25] of the Application in existing proceedings filed on 16 February, noting that these will be redacted as necessary.
  1. Documents 8 and 9 be suppressed from search and copy.

CATCHWORDS:

ANTI-DISCRIMINATION – DISCRIMINATION IN THE WORKPLACE – application in existing proceedings – where complainant served notices of non-party disclosure to produce on the respondent – where the respondent objects to production on grounds of relevance – where the respondent objects to production on grounds of sensitivity and confidentiality – whether Commission should set aside part or all of the documents contained in the complainant's notice of non-party  disclosure – consideration of the Industrial Relations (Tribunals) Rules 2011 (Qld) – where documents to be disclosed are ordered to be suppressed

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 451

Industrial Relations (Tribunals) Rules 2011 (Qld), r 64(E)

CASES:

DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010

Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276

Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025

Mullins v Workers’ Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 003

Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323

Reasons for Decision

Introduction

  1. [1]
    Mr Parmar ('the Complainant') made a complaint of discrimination in the Queensland Human Rights Commission ('QHRC') against the State of Queensland (Queensland Health) ('the Respondent') on 17 March 2023. In that complaint, Mr Parmar, among other things, alleges that he was not selected for promotion on the basis of his race. The parties attended a conciliation conference at the QHRC on 7 August 2023 and the matter did not resolve. On 18 September 2023, Mr Parmar requested that the QHRC refer the complaint to the Queensland Industrial Relations Commission ('the QIRC'). The QHRC Form 85 Referral of Matter was filed in the Industrial Registry on 18 October 2023.
  1. [2]
    I issued directions for the parties to undertake certain steps prior to a conciliation conference being scheduled in the QIRC. This included the filing of the Complainant's statement of facts and contentions and the Respondent's response to the Complainant's statement of facts and contentions. On 30 October 2023, Mr Parmar filed a document called 'Complainant's written submissions in response to the directions order'. This document did not comply with the detailed directions order issued on 20 October 2023. After reading Mr Parmar’s document, I vacated the directions and mentioned the matter on 27 November 2023. At that mention, I informed Mr Parmar that his document did not comply with the directions I had issued and brought to his attention the guide for anti-discrimination matters on the QIRC website. I explained the format of the directions order and the necessity of complying with it.
  1. [3]
    Mr Parmar's statement of facts and contentions was filed on 11 December 2023. The Respondent's response to the complainant’s statement of facts and contentions was filed on 9 January 2024.
  1. [4]
    On 24 January 2024, Mr Parmar filed a Form 29 Notice of Non-Party Disclosure listing Samantha Robinson of Crown Law as the nominated party.  That form stated that in response to certain paragraphs of the Respondent's response to the Complainant's statement of facts and contentions, Mr Parmar required certain documents to ensure that certain parts of the response 'have validity'. Page three of the form sets out the following schedule of documents Mr Parmar was seeking to have produced:
  1. 21/06/2022 Referee report – Yajuvendrasinh Parmar
  2. /06/2022 Feedback report on applications recruitment process QLD/421223
  3. 11/07/2022 Selection report for recruitment process QLD/421223
  4. 24/02/2023 File note of Michael Hill re: call from Yajuvendrasinh Parmar
  5. 10/03/2023 ESU Complaint assessment form
  6. 13/03/2023 Email from ESU to Jodie O'Dea and Michael Aust re: referral of PQ recruitment matter, attaching
  7. Offer letters for two successful employees from recruitment process QLD/421223
  8. Successful employee's application for recruitment process QLD/421223
  9. Successful employee's training record QLD/421223
  10. Panel member report for recruitment process QLD/421223
  11. Diversity of HP3 staff for continue (sic) shift at SCUH at time of recruitment (11/07/2022)
  1. [5]
    On 8 February 2024, the Respondent filed an Objection to Notice of Non-Party Disclosure ('The Objection') pursuant to r 64E of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('The Rules'). 
  1. [6]
    The Objection notes that Ms Samantha Robinson is not the appropriate person to be nominated in the Notice of Non-Party Disclosure as the Respondent is the correct affected party to the Notice. The objection also noted that 'it does not appear that the Complainant complied with rule 64D and served a copy of the Notice on the listed affected parties.' The Objection goes on to state that documents 1 to 7 had since been disclosed to Mr Parmar. The Respondent states that documents 8 to 11 from the schedule above were the subject of the objection.
  1. [7]
    The Respondent then goes on to provide detailed reasons for the objection to produce each of documents 8 to 11. In summary, the Respondent says:
  • Document 10 is not in the Respondent's possession or control and does not exist.
  • Documents 8, 9 and 10 are not directly relevant to a matter in dispute.
  • Documents 8 and 9 are sensitive and confidential.
  • Document 11 is a request for information not documentation/document does not exist.
  1. [8]
    On 8 February 2024, Mr Parmar, despite not being asked for submissions on the matter, filed a Form 4 Application in existing proceedings in which he sets out the reasons he is seeking particular documents. At paragraph 7 of the document attached to the Form 4, Mr Parmar lists the following documents he says he requested in his Notice of Non-Party Disclosure.
  1. a
    A Resume and cover letter for the selected candidate
  2. b
    Referee report for selected candidate
  3. c
    Notes were taken by panel members during the interview and submitted a report by panel members to the chair of the panel at the end of the interview.
  4. d
    Training records for the selected candidate to prove that they had experience of worked in a multi-disciplinary role (As per paragraph 15 of the respondent's written statement).
  1. [9]
    Mr Parmar says 'if information is not provided to the complainant this trial will not be fair and as per the right of equal justice, I have the right to know everything about the selection and recruitment process to present my arguments'. Mr Parmar requested that if the Respondent did not provide the documents he was seeking, the conciliation conference scheduled for 14 February 2024 be postponed.
  1. [10]
    On 16 February 2024, Mr Parmar, despite not being directed to file any submissions, filed a further Form 4 – Application in existing proceedings which contained 'Additional submission related to the document requested and Objection submitted by the respondent'. Mr Parmar also went on to seek that the documents he had requested be produced along with 'any other documents directly related to the recruitment and selection of QLD/421223 which are not yet disclosed by the respondent'. Specifically, Mr Parmar said he was seeking the following documents:
  1. Interview guide/note/report/minutes of minutes for panel meeting post-interview or pre-interview/any other material available directly related to the selection and recruitment procedure of QLD/421223.
  2. Resume, cover letter and referee reports for both selected candidates.
  3. Diversity report/provide details of the diversity of the SCUH laboratory staff working under Mr Hill or hired by him at the time of the interview.
  4. If fail to provide documents then an affidavit with reason from the responsible person.
  1. [11]
    On 20 March 2024, an affidavit of Ms Susan Vesperman, Senior Director, Human Resources Business Intelligence Unit, was filed in the Industrial Registry. With regard to Document 11 (Mr Parmar's request for Diversity of HP3 staff for continue (sic) shift at SCUH at time of recruitment (11/07/2022)), Ms Vesperman said:
  1. I have caused for enquiries to be made in relation to diversity data and verily believe the following information to be true:
  1. Diversity data is voluntarily collected when every employee commences employment with the Department of Health as they are asked to share whether they feel they belong to one or more of the following diversity groups:
  1. i.
    Aboriginal and/or Torres Strait Islander person;
  2. ii.
    Australian South Sea Islander people;
  3. iii.
    Culturally and linguistically diverse person;
  4. iv.
    A person with a disability;
  5. v.
    LGBTIQ+ people
  1. The purpose of the Department collecting the above information at a 'whole of Department' level is to allow it to better understand the existing workforce profile and allow programs to be designed to suit the needs of employees, including those from diverse backgrounds. The collection of the above data also allows the Department to report on the diversity group targets set by the Public Sector Commission.
  2. No data is collected in relation to an employee's skin colour.
  3. As stated, the provision of the above data is voluntary and the data is published at a 'whole of Department of Health' level in the annual report titled Queensland Health Annual Report.
  4. Some diversity data is also published at the 'whole Hospital and Health Service' level.
  1. Annexed to this affidavit and marked 'SV-01' is a true and correct copy of an extract from the Department's Intranet Human Resources pages relating to Diversity and Inclusion and Diversity Data. It is available to all employees on the Department's Intranet.
  2. Regarding whether any document exists that contains diversity data at the local level at the SCUH Laboratory, I caused for enquiries to be made with Ms Jennifer Bull, Sunshine Coast Group Laboratory Manager, Pathology Queensland and verily believe the following information to be true:
  1. The SCUH Laboratory do not have any documentation or record in its possession or control containing the local level diversity data of its staff within the unit; and
  2. The SCUH Laboratory do not have any documentation or record its possession or control recording the skin colour of its staff.
  1. [12]
    At a mention of the matter on 25 March 2024, I asked Mr Parmar if he was satisfied that the information provided in the affidavit addressed the reason why the Respondent was not able to provide him with the document he was seeking. Mr Parmar said that he was not satisfied and indicated that he was seeking the Respondent to create a document to tell him the information he was seeking. I told Mr Parmar that he appeared to be making a request for information rather than a request that a document in the Respondent's possession be produced. At this point, Mr Parmar appeared to say that he wanted the Respondent to have someone produce an affidavit giving him the information he was seeking. I told Mr Parmar that this was not a valid request for the production of a document and that Notice of Non-Party Disclosure was not to be used for the purpose of ordering the Respondent to create documents which do not currently exist.  Mr Parmar indicated that he understood this.[1]
  1. [13]
    I took Mr Parmar's agreement that he understood that his request for the creation of a document to mean that he accepted that the document did not exist and was not seeking to press production of Document 11. However, if I have misunderstood, I will make it clear here that I accept on the basis of Ms Vesperman's affidavit that the document does not exist. On that basis I will not order its production. I am further satisfied that Mr Parmar's further request that in the absence of such a document that one be created is not a proper request to be made in a request for production and I therefore set aside the part of the Notice to Produce relating to Document 11.
  1. [14]
    This then leaves what are variously referred to as Documents 8, 9 and 10 and/or the documents referred to in paragraphs 24 and 25 of the Form 4 filed on 16 February 2024.

Document 10 Panel member report for recruitment process/items listed in [24] of Application in proceedings filed 16 February 2024

  1. [15]
    The Respondent's objection filed on 8 February 2024 stated that the document sought was not in the Respondent's possession or did not exist.
  1. [16]
    At the mention on 25 March 2024, the Respondent reported that since the last mention of the matter, inquiries were made which resulted in the location of documents called 'interview assessments'. The Respondent says these 'completed by each of the panel members with respect to the candidates at the interview, and by way of a summary, those documents outline the questions that were posed to the candidates during the interviews, and they contain notes of the respective panel members in terms of what was said'.[2] The Respondent reported that these had been redacted to remove personal information and disclosed to the Complainant. The Complainant ranked third in the order of merit and so the documents disclosed were for candidates A and B and for Mr Parmar. The Respondent said that there were no further documents to disclose relating to this request.
  1. [17]
    Mr Parmar said that he believed that there would have been other documents relevant to the selection report, however he conceded that if these documents did not exist, he would accept an affidavit from a relevant person to state that a search had been undertaken and that no documents exist. The Respondent agreed to this request.[3]
  1. [18]
    On 9 April 2024, an affidavit of Mr Michael Hill, Acting Group Laboratory Manager, Sunshine Coast University Hospital, Pathology Queensland was filed in the Registry. In that affidavit, Mr Hill confirms that he was the Panel Chair for the recruitment process QLD/421223. Mr Hill states that he has personally conducted a search for additional notes or minutes of panel meetings pre and post interview and any other documents relevant to the Recruitment Process.[4]
  1. [19]
    Mr Hill states that in his search, he located a document titled 'Selection report notes' that includes the typed text contained in the Selection Report that has already been disclosed. Mr Hill says that he prepared that document following a discussion with the other panel members after the interviews had been completed. Mr Hill annexed that document to his affidavit. Mr Hill also says that no further documents containing notes/reports/minutes of panel meetings exist that have not already been disclosed.[5]
  1. [20]
    Mr Hill then discusses 'SpringBoard', which is a platform which allows panel members to see and share applications and add any feedback or other comments with respect to individual applications for an advertised position. The platform also allows panel members to see, share and confirm their approval of the Selection Report, once drafted by the Chair.
  1. [21]
    Mr Hill says that he requested Mr Tony Winchcombe, Team Leader, Recruitment, Human Resource Advisory Services, to conduct a search of the SpringBoard platform as Mr Hill no longer had access to it. Mr Winchcombe was asked to search for additional notes, minutes or any other documents relevant to the recruitment process. Mr Winchcombe located additional comments on SpringBoard made by Mr Hill in relation to each applicant's application. Mr Hill states that these comments would normally appear in the Feedback Report and he is unsure why this did not occur on this occasion. Mr Hill annexes those documents to his affidavit. Mr Hill says that Mr Winchcombe informed him that no further documents exist on SpringBoard that have not previously been disclosed.
  1. [22]
    I am satisfied that the request for Document 10 and the documents set out in [24] of the Application in Existing Proceedings has been fulfilled. Mr Parmar had indicated that he would be satisfied with an affidavit to the effect of the one produced by Mr Hill. To be clear, I consider that this request has been complied with and I make no order with regard to Document 10.

Documents 8 and 9 Successful employee's application and training record/Items set out in [25] of Application in proceedings: Resume, cover letter and referee reports for both selected candidates.

  1. [23]
    The Respondent's objection filed on 8 February 2024 stated that Documents 8 and 9 are not directly relevant to a matter in dispute. Further, the Respondent says that Documents 8 and 9 are sensitive and confidential.
  1. [24]
    As it is the request for documents 8 and 9 that remains in dispute, I requested the parties file submissions to assist me in determining whether the Respondent's objection to producing those documents should be upheld.

Respondent's submissions regarding documents 8 and 9

  1. [25]
    The Respondent says it maintains its objection to the disclosure of the documents on the following bases:
  1. i.
    The documents are not directly relevant to a matter in issue in the proceeding;
  2. ii.
    The documents are sensitive and confidential;
  3. iii.
    The release of the documents would have an adverse effect on the selected candidates as those documents would, if disclosed, become public documents.

Relevance

  1. [26]
    The Respondent refers to the Complainant's assertion that the documents are relevant as each document was considered (in addition to each candidate's performance at interview) to rank each candidate in order of merit for the role. The Respondent notes that the Complainant also asserts that the disclosure of the listed documents is required to enable him to 'justify' the selection report.
  1. [27]
    The Respondent says that this submission should be rejected on the basis that they are not relevant documents.
  1. [28]
    The Respondent submits that the test of relevance is clear, in that a document is directly relevant to a matter in issue in the proceeding only if it tends to prove or disprove an allegation in issue in the proceedings.[6] The Respondent says that the requested documents do not prove or disprove, or go towards proving or disproving, an allegation in issue in the proceedings.
  1. [29]
    The Respondent says that the central issue in dispute in this matter is whether Mr Parmar was discriminated against when he was unsuccessful in the recruitment process QLD/421223 on the basis of his race.[7] The Respondent says that this requires an examination of the state of mind of the decision-makers, in this case, the recruitment panel. Relevantly, the Respondent says that Mr Parmar has possession of the Selection Report, Feedback Report and Interview Assessment Sheets. The Respondent points to the affidavit filed by Mr Hill, the Panel Chair stating that no further documents exist.
  1. [30]
    The Respondent submits that this proceeding is not a merits review of the recruitment process. The application does not require Mr Parmar to conduct an exercise of scrutinising the experience, skills or training records of the two candidates who ranked higher than him in the order of merit to satisfy the Commission that a different decision should have been made in the recruitment process.
  1. [31]
    The Respondent says that the disclosure of the selected candidates' resumes, cover letters, referee reports and training records do not advance Mr Parmar's case. The Respondent says that, instead, the request should be viewed by the Commission as fuelling an apparent ongoing need on the part of Mr Parmar to discover whether he, in fact, has a case.

Sensitive and confidential documents

  1. [32]
    The Respondent says that the documents contain highly personal and confidential information that would allow the Complainant to identify the people involved. The Respondent says that even if the documents were directly relevant (which it denies), it would object to production on the basis that each of the documents are of a confidential nature within the meaning of the term pursuant to r 64E(4)(e) of The Rules.
  1. [33]
    The Respondent says that there is no utility in redacting the highly personal and confidential information and then providing the documents. This is because the documents, by their nature, are personal documents which contain, by and large, personal information about the candidates, including their work and life history and personal contact information, among other personal information. Redactions to the documents would be extensive and ultimately render the documents useless in terms of their forensic value in the matter.
  1. [34]
    Further, the Respondent says that the confidential and sensitive information provided by applicants (and collected throughout recruitment processes) for positions with the Respondent must be handled in accordance with the Information Privacy Act 2009. The Respondent says that it is obliged to deal with these documents in a sensitive and confidential manner to maintain the integrity and lawfulness of its information collection processes.

Adverse effect of production of documents on the successful employees

  1. [35]
    The Respondent says that it otherwise maintains its objection to the production of the documents as the release of the successful employee's confidential and sensitive documentation in the litigation would likely have an adverse effect on the successful employees as the documents would become public documents. The Respondent says that the ongoing effect of this is that the documents would become vulnerable to further disclosure via Right to Information processes.

Mr Parmar's submissions

  1. [36]
    In his Application in existing proceedings filed on 16 February 2024, Mr Parmar says that while the Respondent relies on the Selection Report, the Selection Report itself suggests that selection strategies used are Curriculum Vitae (CV, Resume), Cover letter, Referee report and interview. Mr Parmar says that the resume and cover letter of the selected two candidates are directly related to the matter to justify the selection report. Mr Parmar says that if there are privacy and confidentiality issues, the Respondent can hide the detail that they do not want to disclose.
  1. [37]
    Mr Parmar makes a number of submissions to the effect that the recruitment process did not comply with the Directive and that it was not appropriate for referee reports to be considered in the selection process. This submission does not demonstrate why the successful candidate's resume, cover letter and referee reports are relevant to Mr Parmar's application.
  1. [38]
    The thrust of Mr Parmar's submissions appears to be that he was the most qualified and meritorious candidate for the position and that a review of the successful candidate's training record is necessary to demonstrate that Mr Parmar was treated less favourably than the selected candidate due to race.[8]
  1. [39]
    Mr Parmar says that he needs the documents sought to confirm that the merit principle was applied by the Panel and that he was treated less favourably than the selected candidate due to race because 'they refused to hire diverse people'.
  1. [40]
    Mr Parmar says that he is a dark skinned person who was not hired after having more than three years of experience and that the white people who were hired do not have the experience to work as multi-disciplinary scientists.[9] Mr Parmar says that the panel manipulated the merit principle and that this can only be revealed from the documents used to decide merit as per the selection report.
  1. [41]
    Mr Parmar makes other submissions about his allegation of discrimination, however those submissions are relevant to the substantive application and not this matter of production nor this decision.

Additional submissions in support of Mr Parmar’s request for diversity information

  1. [42]
    For completeness, although it is not relevant to the matters Mr Parmar was directed to address in his submissions, I note that Mr Parmar again calls for the Respondent to produce a document or information for him regarding the 'diversity' of scientists in the lab at the time of the recruitment process.
  1. [43]
    Mr Parmar says that he has been working at the SCUH Laboratory as a HP3.3 Medical Scientist since October 2023 and that he is the first diverse person hired by the SCUH Laboratory.
  1. [44]
    A request for production relates to documents which are already in existence. Mr Parmar misunderstands the purpose of a notice to produce if he continues to press for the Respondent to create documents for him. If Mr Parmar disputes matters that are asserted in the Respondent's statement of facts and contentions, he will be able to test these matters when he cross-examines the Respondent's witnesses at hearing. For the reasons given above at [11]-[13], the request for document 11 is set aside.

Consideration

  1. [45]
    For the reasons set out above from [14]–[21] and [11]–[13], Mr Parmar's notice to produce and additional requests for documents made in his later application in existing proceedings are set aside as they relate to documents 10 and 11.
  1. [46]
    With regard to documents 8 and 9, I will address each of the grounds of objection raised by the Respondent. However, I must make it clear that any order I make regarding documents 8 and 9 relates only to material contained in the applications and which was before the panel when it was undertaking the recruitment process. For example, any training record which was not before the panel, cannot have been a part of its deliberations and is therefore not directly relevant to matters in dispute.

Relevance

  1. [47]
    Mr Parmar says that he requires the requested documents because they formed part of the basis for the information contained in the selection report. I have reviewed Mr Parmar's Statement of Facts and Contentions and Mr Parmar has formed a view that the selected candidate did not have the level of experience required to meet the key competencies for the role against which each candidate was assessed. Mr Parmar appears to believe that the successful candidate, who he identifies as the comparator, was not selected on the basis of merit but based on skin colour or race.
  1. [48]
    It does appear to me that a part of Mr Parmar's argument is that he had more skill and experience than the successful candidates and that the reason he did not get the job was the colour of his skin. I am not commenting on whether this argument has merit, simply to consider whether the documents he seeks are relevant. It seems to me, that as the documents Mr Parmar seeks are part of the decision-making that is recorded in the Selection Report, they do tend to prove or disprove an allegation in issue in the proceedings.
  1. [49]
    In Mohr-Edgar v Legal Aid Queensland[10] in considering the matter of whether a document is relevant, Davis J said:
  1. [42]
    To be relevant, a document does not have to in itself prove the case of the party seeking production of it. It is sufficient if the document tends to prove or disprove an allegation in issue in the proceedings.[11]
  1. [43]
    Here, a fact in issue between the parties is the content of the conversation of 9 May 2018. Ms Mohr-Edgar asserts that the subject of the conversation was her being moved. Legal Aid says the subject of the conversation was client files. Evidence which tends to disprove the position of one party does, in fact, assist the proof by the other party of its contrary position. That is because, logically, in proving a particular position, a party disproves a contrary position. Put another way, if there are two competing positions and one is disproved, the likelihood of the other being found to be correct is enhanced.
  1. [50]
    I am of the view that the documents Mr Parmar seeks are sufficiently connected to the Selection Report and therefore may tend to prove or disprove an allegation in issue in the proceedings. I reiterate that this relates only to documents the panel had available to it  when undertaking the recruitment process.

Sensitivity and confidentiality of the material

  1. [51]
    I have considered the submissions made by the Respondent regarding the confidentiality and sensitivity of the documents Mr Parmar seeks.
  1. [52]
    In DP World Brisbane Pty Ltd v Rogers & Anor ('DP World')[12] (citations omitted), President Martin J delineated the relevant principles to consider when assessing the validity of a claim of confidentiality over documents to be produced:

The mere claim that a document to be produced is confidential is not a valid objection to its production. Much of what is disclosed to another party in court or tribunal proceedings of one kind or another may well be confidential. It has been held that where this is the case, "the risk to the confidentiality of the information must be tolerated in the interest of the administration of justice". Where specific issues of privacy or a heightened concern for commercial confidentiality, for example, arise, arrangements may be made to ensure that the disclosure of material and information that is made does not go beyond what is strictly necessary in the circumstances. What has been said with regard to confidential information might equally be said to apply in the case of personal information that might in other circumstances be protected by privacy legislation. Accordingly, the mere fact that information to be produced might include "private" information, however defined, is an insufficient ground in law to justify the setting aside of a Notice or to issue a Notice.[13]

  1. [53]
    I understand the need for the Respondent to deal with the documents provided by the applicants for the recruitment process in a sensitive and confidential manner. I also understand the Respondent’s submission that the documents are, by their nature, personal documents and that any redactions to the documents will be extensive, therefore rendering the documents useless. Applying the above authority, I find that while the documents may include private information that might in other circumstances be protected by privacy legislation, this is an insufficient ground for setting aside the notice to produce. Mr Parmar’s submissions accept that the documents, if produced, may be redacted. I am ordering production of the documents noting that there will necessary redactions made to those documents. Should, as the Respondent suggests, those redactions mean that the documents have little or no forensic value to the proceedings, it will be a matter for Mr Parmar to determine whether he will seek to rely on those documents in arguing his case.

Adverse impact on the successful employees should the documents become public documents

  1. [54]
    I accept that there may be an adverse impact on the successful employees should the documents become public documents subject to any request to search and copy the file. While I am sure the Respondent will ensure that identifying information will be redacted from the relevant documents, out of an abundance of caution, I will, pursuant to s 451 of the Industrial Relations Act 2016 (Qld) ('The IR Act'), order that those documents be suppressed and unavailable for search and copy while the order remains in place.
  1. [55]
    If the matter proceeds to hearing, the Respondent may seek to make an application for non-publication of information contained in those documents or any information in the decision which identifies the successful candidates.

Conclusion

  1. [56]
    The approach Mr Parmar has taken to his requests for documents is not ideal. The Notice of Non-Party Disclosure nominated the wrong party and was not served on the affected parties. Further to this, the documents Mr Parmar seeks are or would be (if they existed) in the possession on the Respondent and therefore the Notice of Non-Party Disclosure was not the correct way to seek the documents. Further to this, Mr Parmar filed two Applications in existing proceedings to expand the list or category of documents he was seeking and provided submissions in support of his application without being directed to do so. While Mr Parmar is a self-represented person, it is necessary that he complies with the directions of the Commission and refrains from filing material unless directed.
  1. [57]
    In my view, the Respondent has been a model litigant and has at all points been cooperative and flexible in their approach. I have appreciated the level of assistance and cooperation the Respondent have provided Mr Parmar and the Commission in dealing with his requests. It is in the interests of all parties that this complaint, which was initiated by Mr Parmar over a year ago, progresses to conciliation at the QIRC. This is especially so where Mr Parmar, despite being unsuccessful in the recruitment process he complains about, says that he has now been working at the SCUH Laboratory as a HP3.3 Medical Scientist since October 2023.[14]
  1. [58]
    For completeness, the initial Form 29 Notice of Non-Party Disclosure sought 11 documents. By the time the matter was before the Commission for mention, documents 1 to 7 had been produced.
  1. [59]
    Document 11 does not exist. Despite this, Mr Parmar pressed that a document containing the information he sought when asking for Document 11 be created. This is not the purpose of a notice to produce or the disclosure of documents. That request, to the extent that Mr Parmar presses it, is set aside.
  1. [60]
    Document 10 was the panel member report for recruitment process QLD/421223. This document has been produced. In his later Application in proceedings, Mr Parmar expanded this request to seek any other documents related to the panel member report, including an interview guide, minutes or notes. An affidavit has been produced to state that a search took place. That search resulted in some documents being located and disclosed to Mr Parmar. That affidavit also confirms that no further documents in the category exist. I make no order regarding Document 10 as I am satisfied that this addresses the request made.
  1. [61]
    Documents 8 and 9 are the successful employees' applications for the recruitment process and the successful employee's training record. The later Applications in existing proceedings expanded this request or provided further particulars to specifically seek: 'resume, cover letter and referee reports for both selected candidates'.[15] The training record of the successful employee should only be produced if it was material that was before the panel when it was conducting the recruitment process. I direct that the successful employees' applications, including resume, cover letter and referee reports be produced, noting that these will be redacted as necessary and suppressed from search and copy.

Order

  1. [62]
    I make the following orders:
  1. The Notice of Non-Party Disclosure notice regarding document 11, ‘Diversity of HP3 staff for continue (sic) shift at SCUH at the time of recruitment’ is set aside.
  1. I order the production of Documents 8 and 9 including the particulars of those documents set out in [25] of the Application in existing proceedings filed on 16 February, noting that these will be redacted as necessary.
  1. I order that Documents 8 and 9 be suppressed from search and copy.

Footnotes

[1]This exchange occurs on T1-2 and T1-3 of the transcript for 25 March 2024.

[2]This occurs on T1-5, at L15 to L20 of the transcript for 25 March 2024.

[3]This exchange occurs from T1-5 to T1-7 of the transcript for 25 March 2024.

[4]Affidavit of Michael Hill filed 9 April 2024, [6].

[5]Affidavit of Michael Hill filed 9 April 2024, [6].

[6]Mullins v Workers’ Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 003, [28].

[7]Which the Respondent denies.

[8]Mr Parmar also refers to age as a basis for discrimination but I note that this complaint was not accepted by the QHRC.

[9]Mr Parmar's submissions filed 10 April 2024, [13].

[10][2023] ICQ 025.

[11]Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276, 282-3 and Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323, [45].

[12][2014] ICQ 010.

[13]Ibid, [18].

[14]Submissions of the Complainant filed 10 April 2024, [17].

[15]Application in existing proceedings filed 16 February 2024, [25].

Close

Editorial Notes

  • Published Case Name:

    Parmar v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Parmar v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 117

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    16 May 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10
2 citations
Jump To
Cite 1 - [2014] ICQ 10
Cite 2 - [2014] ICQ 10
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25
2 citations
Jump To
Cite 1 - [2023] ICQ 25
Cite 2 - [2023] ICQ 25
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 3
2 citations
Jump To
Cite 1 - [2020] QIRC 3
Cite 2 - [2020] QIRC 3
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd[2001] 1 Qd R 276; [1999] QCA 276
1 citation
Jump To
Cite 1 - [2001] 1 Qd R 276
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
2 citations
Jump To
Cite 1 - [2005] QSC 323
Cite 2 - [2005] QSC 323

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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