AB v Workers' Compensation Regulator - [2025] QIRC 113

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	AB v Workers' Compensation Regulator [2025] QIRC 113
PARTIES:	AB (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2024/106
PROCEEDING:	Objections to notices of non-party production
DELIVERED ON:	8 May 2025
MEMBER:	Pidgeon IC
ORDERS:	The Orders contained at paragraph [189] of these reasons for decision.
CATCHWORDS:	PROCEDURE – NOTICE OF NON-PARTY DISCLOSURE – where Kmart object to production on grounds of relevance – where Kmart object to production on grounds of confidentiality – where Kmart object to production on grounds of relevance – where Kmart object to production on grounds of expense and inconvenience – where Kmart object to production on grounds that the documents sought have not been identified with sufficient particularity – whether the Commission should set aside part or all of the documents contained in the Appellant's notice of non-party disclosure – consideration of the Industrial Relations (Tribunals) Rules 2011
LEGISLATION:	Industrial Relations (Tribunals) Rules rr 64B, 64E, 64G
CASES:	DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10 Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025 Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 075

Reasons for Decision

Introduction

AB ('the Appellant') was employed by Kmart Australia Limited. On 3 November 2023, Wesfarmers ('the Nominated and Affected Parties'), which owns the Kmart Group, rejected AB's application for workers' compensation.
The following day, AB made an application in accordance with the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act') to the Workers' Compensation Regulator ('the Respondent'). The Respondent confirmed the original decision of Wesfarmers in a letter to the Appellant dated 1 May 2024.
Pursuant to ch 13, pt 3, div 1 of the WCR Act, AB appeals to the Queensland Industrial Relations Commission ('the Commission') against the review decision of the Respondent.
On 30 September 2024, the Appellant, pursuant to r 64B of the Industrial Relations (Tribunals) Rules ('the Rules'), requested two notices of non-party production ('NNPD') for specified documents which, for all practical purposes, were directed to the Nominated and Affected Parties. AB's two NNPDs were issued on 1 October 2024.

By objections filed on 6 November 2024 pursuant to r 64E of the Rules, the Nominated and Affected Parties objected to the production of the specified documents. In a letter dated 7 November 2024, the Nominated and Affected Parties stated:
…
Having regard to the sheer volume of documentation sought by the Applicant in the Form 29-Notice of Non-party disclosure (the Notice), we asked the Applicant to provide a copy of his Statement of Facts and Contentions and the Regulator's Statement of Facts and Contentions to clarify the relevant issues in dispute. Save for the Notice, the Applicant has not provided Kmart with any documentation about the matter which is the subject of this proceeding. Notwithstanding the absence of this documentation, and in accordance with the extension granted by Commissioner Pidgeon on 15 October 2024, please find attached Kmart's Objections to the Production of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v Workers' Compensation Regulator

Details

AGLC: Content removed [2025] QIRC 113
Case: [2025] QIRC 113
Decision Date: 8 May 2025

CaseChat Overview and Summary

AB, the appellant, sought documents from Kmart as part of his workers' compensation appeal. The dispute was heard by the Commission, which was required to decide whether certain documents sought by the appellant should be disclosed to him. The appellant sought documents that related to his performance reviews and the processes and guidelines for performance conversations. Kmart objected to the production of these documents on several grounds, including relevance, confidentiality, expense and inconvenience, and lack of particularity. The Commission needed to consider these objections in light of the Industrial Relations (Tribunals) Rules 2011.

The Commission carefully considered each category of documents and the objections raised by Kmart. The appellant argued that the documents were relevant to his appeal as they showed his ongoing high performance, while Kmart argued that the documents were not relevant and would be difficult to locate. The Commission found that the documents were relevant to the appellant's appeal, as they demonstrated his performance and the processes for performance reviews. The Commission also found that the appellant had identified the database in which the documents were held, which made it easier to locate them. The Commission ordered that the documents be disclosed to the appellant, with the caveat that if they could not be located, Kmart must file an affidavit outlining the search that was undertaken and the outcome of that search.

The final orders of the Commission were set out in paragraph [189] of the reasons for decision. The appellant was granted access to the relevant performance review documents and the processes and guidelines for performance conversations. The Commission found that the relevance of the documents to the appellant's appeal outweighed the objections raised by Kmart. The Commission also found that the appellant had identified the database in which the documents were held, which made it easier to locate them. The final orders ensured that the appellant had access to the documents that were relevant to his appeal, while also taking into account Kmart's objections and the need to balance the rights of both parties.

Orders

Orders of the court

The Orders contained at paragraph [189] of these reasons for decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Kmart says that there is no relevance to the request for documents created after the cessation of the Appellant's employment. Consideration of documents sought and objections with a ruling on eachDocument Category 1 The first set of documents AB seeks to be disclosed relate to dates from 1/01/2014 to 30/06/2022. The Appellant describes this category of documents as:Copies of finalised full year individual performance review documents relating to the applicant. These documents demonstrate the ongoing and consistent high performance of the applicant, whilst a narrative of underperformance was being manufactured. They are saved in Success Factors database and previous years (sic) documents were integrated into this system upon change and can be accessed by an employee at any time. These documents relate only to the applicant and can't be disputed on the basis of confidentiality. Kmart objects to the production of this category of documents on the following grounds:a) It is unclear as to the relevance of the documents sought to the matters in dispute in this proceeding;b) assuming the documents sought exist and are relevant (which is disputed), there would be considerable expense and inconvenience on the part of the nominated and affected parties in trying to locate and identify the documents to comply because, for among other reasons, there was no centralised database /repository to capture these kind (sic) of documents prior to the introduction of the performance module in Success Factors in the financial year ending 2021; AB initially filed NNPD forms which stated that in his appeal he would be seeking to demonstrate that management action taken by his employer was not reasonable. In his Amended NNPD, the Appellant makes clear that he is seeking to demonstrate that he was performing well in his role while a 'narrative of underperformance was being manufactured'. On that basis, I am satisfied that is sufficiently clear that individual performance review documents relating to AB are relevant to his appeal. Order for production – Document Category 1 The Appellant has identified the database in which he says the documents are held. They relate directly to him and his performance. I order that any of AB's full year individual performance review documents which are in the Success Factors database pertaining to the period of 01/01/2014 to 30/06/2022 be disclosed to him. I understand that Kmart says the 'calibration process' had not been completed when AB ceased employment on 27 July 2022. Therefore, the final full year performance review document should be disclosed in whatever state of completion it is in. If any or all the documents do not exist or are unable to be located, the relevant officer of Kmart must file an affidavit outlining the search which was undertaken and the outcome of that search.Document Category 2 The Appellant describes the second category of documents sought as: Documents which outline the processes; company expectations; and guidelines for the achievement and growth conversations to deliver to all leaders to Kmart standards and were provided every 6 months to accompany performance review preparations. These documents show the required process for which these conversations should be handled and how evaluation must be performed. There would be an identical or slightly modified version of this process still in use by Kmart today. There is no commencement date because the current document as at 27 July 2022 is being sought.