Alex Avramides v Sonoma Baking Company Pty Ltd

[2023] FWC 995

[2023] FWC 995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Alex Avramides
v

Sonoma Baking Company Pty Ltd; and
Andrew Connole

(C2022/8568)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 27 APRIL 2023

General protections application involving dismissal – interlocutory application for production

1. On 17 April 2023 Alex Avramides (Mr Avramides or the applicant) applied for an order for production under s 590 of the Fair Work Act 2009 (FW Act) relating to his substantive application, being a general protections application involving dismissal under s 365 of the FW Act.

1. The respondents to both the production application and the substantive application are Sonoma Baking Company Pty Ltd (Sonoma) and its owner Mr Andrew Connole.

1. Permission has been granted for both parties to be represented generally on the matter.

1. I issued directions on the substantive application on 24 February 2023. It is listed for jurisdictional hearing on 29 and 30 May 2023. The jurisdictional issue concerns a contention by the respondents that the applicant was not dismissed. They assert that Mr Avramides resigned. For his part, Mr Avramides contends that he was forced to resign and thus dismissed within the meaning of s 386 of the FW Act because of what he alleges was repudiatory conduct by the respondents.

1. The production application seeks production of fifteen documents. I directed that the applicant and respondents, via their solicitors, discuss the production application with a view to agreeing or refining its terms.

1. Dialogue has been productive in that production of five documents is not objected to, two are not pressed, and one is agreed on varied terms.

1. This has left a dispute over seven documents.

1. I heard submissions from the parties on the disputed issues on 26 April.

1. The seven disputed documents fall into three categories: the ‘good faith’ category; the ‘swearing’ category; and the ‘CEO terms’ category. For convenience sake, I deal with the production application according to these descriptors.

Consideration

Legal Principles

1. The Commission’s power to order production is sourced from s 590 of the FW Act. It relevantly provides:

“590 Powers of the FWC to inform itself

(1)   The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2)    Without limiting subsection (1), the FWC may inform itself in the following ways:

…

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;”

1. This power extends to third party discovery.

1. It is a discretionary power which will generally be exercised “in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”[1]

1. The Commission has non-exhaustively identified the following considerations as relevant to the exercise of the discretion:[2]

·   Apparent (not necessarily direct) relevance to the issues in dispute;

·   Whether a sound forensic basis for seeking the material has been provided or whether the orders represent a fishing expedition;

·   Whether the documents are being sought for a collateral or improper purpose;

·   Whether questions of legal professional privilege or confidentiality arise;

·   The implications for the party concerned including the cost, inconvenience and delay associated with compliance;

·   Whether compliance would reveal internal deliberations as to industrial strategy or policy; and

·   The potential impact of production upon any contentions to be determined in the matter.[3] 

1. I now turn to consider each of the categories sought.

Category 1: good faith

1. The documents sought by the applicant are: 

·   All documents recording or referring to any reason for making either of the allegations at paragraphs 4(a) and 4(b) of the letter (Allegations) from Australian Business Lawyers & Advisers to Harmers Workplace Lawyers dated 25 November 2022 (Letter).

·   All documents recording or referring to the decision to take the action referred to at paragraph 6 of the Letter.

·   All documents recording or referring to any reason for taking the action referred to at paragraph 6 of the Letter.

1. The applicant submits that these documents are relevant in that they relate to a matter in issue, being whether the conduct of the respondents (or one of them) was repudiatory.

1. Sonoma submit that the documents are not relevant because the issue of repudiation turns on whether allegations of misconduct against the applicant were or were not made baselessly (that is, whether the allegations by the respondents in a solicitor’s letter of 25 November 2022 were made in good or bad faith), not whether the alleged misconduct in fact occurred.

1. I consider it appropriate that the respondents produce the documents sought in this category. I am satisfied that the documents have ostensible relevance to a matter in issue, being whether the conduct of the respondents or one of them was repudiatory.

1. For the purposes of this production decision, I do not need to decide whether the jurisdictional matter is ultimately to be determined on the narrow basis that the respondents submit as I am satisfied that evidence as to whether misconduct in fact occurred is at least relevant to a finding as to whether the making of the allegations was or was not baseless. Documents relevant to the decision by the respondents to make the allegations and the reason(s) for doing so relevantly bear on both the question as to whether the allegations were made baselessly and also whether in fact misconduct occurred. The applicant frames his case on the basis that the allegations were baseless because there were no reasonable grounds on which they could have been made by the respondent when they were made. Whether it is ultimately necessary to make a finding as to whether the alleged misconduct in fact occurred is a different question to whether evidence on that issue is relevant. Drawing at this stage the fine distinction sought by the respondents has the potential to unduly restrict the evidence that may be advanced or relied upon to sustain a claim of repudiation.

1. Thus, I am satisfied that each of the documents in this category have ostensible relevance.

1. There is no other basis on which it is suggested they should not be produced.

Category 2: swearing

1. The documents sought by the applicant are:

·   All documents sent by Mr Andrew Connole to any employee of Sonoma containing “abusive language” (as that expression is used at paragraph 4(b) of the Letter) in the two years ending 15 December 2022.

·   All documents sent by Mr Andrew Connole to any employee of Sonoma containing any swear word including (without limitation) the words “fuck”, “fucking”, “fucked”, “bullshit” or “shit” in the two years ending 15 December 2022.

1. The applicant submits that these documents are relevant in that they relate to the same matter in issue, being whether the conduct of the respondents (or one of them) was repudiatory. It is said that the allegation that Mr Avramides swore at the owner allegedly in breach of his contractual obligation not to use “foul language” (or more particularly that the use of foul language was “serious misconduct” within cl 13.3 of the employment contract) was a baseless allegation because it is asserted that swearing by the owner was not uncommon.

1. Sonoma submit that alleged swearing in the workplace or by the owner is not a matter requiring determination because the issue of repudiation turns on whether the allegations of misconduct against the applicant were or were not baseless, not whether swearing in fact occurred.

1. This issue is a sub-set of allegations dealt with in category 1. For the same reasons, I consider it appropriate that the respondents produce the documents sought. I am satisfied that the documents have ostensible relevance to a matter in issue, being whether the conduct of the respondents or one of them was repudiatory.

1. Subject to narrowing the breadth of the production sought (below), whether swearing in fact occurred between Mr Avramides and Mr Connole is at least relevant to a finding as to whether the making of the allegations about the alleged use of foul language towards Mr Connole was or was not baseless and thus whether or not making the allegations was repudiatory.

1. The time frame of two years proposed by the applicant to identify any relevant document in this category across that period appears reasonable having regard to the potential probative value of such material.

1. However, the production sought is too broad. I am not satisfied that any document evidencing abusive language or swearing “to any employee” is ostensibly relevant. The matters in issue as to alleged swearing concern alleged conduct by Mr Avramides towards the respondents, and the respondents towards Mr Avramides.

1. The potential relevance of any other documented swearing by Mr Connole towards others is too remote to be relevant, at least on the material currently before me.

1. Thus, I am satisfied that each of the documents in this category have ostensible relevance once what is produced relates only to documents “sent by Mr Andrew Connole to Mr Alex Avramides”.

1. There is no other basis on which it is suggested they should not be produced.

Category 3: CEO terms

1. The documents sought by the applicant are:

·   All documents being, recording or referring to any contract between the Sonoma and any person who was at any time Chief Executive Officer of Sonoma during the period 15 December 2017 and 15 December 2022.

·   Any document, or documents, recording the remuneration paid, or agreed to be paid, to any person who was at any time Chief Executive Officer of Sonoma during the period 15 December 2017 and 15 December 2022.

1. The applicant submits that these documents are relevant in that they relate to the same matter in issue, being whether the conduct of the respondents (or one of them) was repudiatory. It is said that, in addition to repudiatory conduct by making baseless allegations, the conduct was repudiatory because the respondents failed to appoint Mr Avramides as “CEO” in breach of cl 1 of the employment contract. 

1. Sonoma submit that the contract between it and any former CEOs or matters relating to the remuneration of former CEOs is not relevant because the alleged repudiatory breach concerns only what is contractually provided for between it and Mr Avramides.

1. I am satisfied that the documents sought have ostensible relevance. Whilst it is correct that the alleged repudiatory breach only concerns the contract with Mr Avramides, it is a matter in issue as to what is meant by “CEO” in that contract. It appears to be an undefined expression in the contract. To that extent, the contractual terms (including duties and remuneration) of other or former CEOs is relevant to a matter in issue as it may provide relevant evidence as to custom and practice in this business concerning the usage of that term and assist the objective interpretation of what is provided for in the contract with Mr Avramides.

1. In arriving at this conclusion I am not to be taken as concluding that contracted terms or remuneration in documents between Sonoma and any other CEOs it has engaged in the preceding five years will in fact constitute evidence that is determinative of the meaning of the contract between it and Mr Avramides. That I am satisfied any such documents have ostensible relevance to the issue does not mean they have particular weight let alone be determinative.

1. I take into account that the five year period sought by the applicant has no exact science to it and to that extent is speculative. However, it is not a period of unreasonable length for the evidentiary purposes that I consider relevant.

1. There is no other basis on which it is suggested that the documents in this category should not be produced. However, documents in this category, if they exist, clearly concern private contracts between Sonoma and third parties. Should it be necessary to make an order, my order would include a confidentiality order of material in this category so as to restrict production solely to the applicant and his legal advisers and be used solely for the purposes of these proceedings, and not copied or communicated to other parties.

1. The documents in this category should be produced on that basis.

Conclusion

1. In view of the listed hearing, the parties have agreed that the immediate priority is the delivery of this decision.

1. As the parties have agreed to the other elements of the production application, it is not necessary at this juncture to make the orders that flow from this decision as it is appropriate to give the respondents, in light of this decision, the opportunity to produce without further Commission intervention or order. With respect to category three, the applicant should provide an undertaking as to confidentiality in the terms I propose.

1. Further, in light of the time frames for the filing of materials (including the imminent filing of materials by the applicant), production ought to occur without undue delay.

1. Should it be necessary to issue orders for production giving effect to this decision or to vary directions to provide for time extensions for the filing of supplementary material, both parties have continuing liberty to apply.

DEPUTY PRESIDENT

Appearances:

Mr N Furlan, of counsel and with permission, with Ms A Dowey, Ms S O’Toole and Ms E Pritchard, on behalf of Mr Alex Avramides

Mr J Darams, of counsel and with permission, with Mr A Ash, on behalf of Sonoma Baking Company Pty Ltd and Andrew Connole

Hearing details:

2023
Adelaide (by video)
26 April

[1] The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1984) 159 CLR 163 at [12]

[2] Australian Nursing Federation v Victorian Hospitals' Industrial Association[2011] FWA 8756 at [13]; see also Esso Australia Pty Ltd v Australian Workers Union, Australian Manufacturing Workers Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2017] FWCFB 2200

[3] See also the authorities summarised in Australian Nursing Federation v Victorian Hospitals’ Industrial Association[2011] FWA 8756 including in particular Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 AIRC Print H2892

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