Antony Robert Course v Wavin Technologies Pty Ltd

[2022] FWC 2299

[2022] FWC 2299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Antony Robert Course
v

Wavin Technologies Pty Ltd

(U2022/3632)

COMMISSIONER O’NEILL MELBOURNE, 31 AUGUST 2022

Permission to be represented. Application for orders for production of documents.

1. Mr Course has made an unfair dismissal application which is to be dealt with on 28 September 2022. A jurisdictional objection that Mr Course was not an employee was dismissed in a separate decision made on 28 July 2022.[1]

1. This decision deals with two further issues: whether to grant the Respondent permission to be legally represented at the hearing, and the Applicant’s request for Orders for the production of documents.

Permission to be represented

1. The Respondent seeks permission to be legally represented pursuant to s.596(2) of the Fair Work Act 2009 (Cth) (the Act) which provides:

“The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between (the parties) the person and other persons in the same matter.”

1. Considering whether to grant permission involves a two-step process. First, the Commission must consider whether one or more of the criteria in s.596(2) is satisfied. This involves an evaluative judgment akin to the exercise of a discretion. If this first step is satisfied, the second step is to consider whether in all the circumstances the discretion should be exercised in favour of the party seeking permission.[2]

1. I am satisfied that granting permission for the Respondent to be legally represented would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. There is some factual complexity and legal complexity in the matter, especially in relation to the rights and obligations of the parties. In concluding that the Applicant was an employee and not an independent contractor, I determined that the contractual arrangements between the parties provided for a remuneration structure that entitled the Applicant to payment only upon achieving specified sales and/or investment targets. The hearing will involve examination of the effect of these contractual terms in assessing any compensation that may be payable if the dismissal is found to be unfair. Further, the hearing will involve up to six witnesses in circumstances where it is likely that significant cross-examination will be involved. I consider that it will likely assist the Commission and the parties to have a representative who is familiar with relevant legal principles, is able to distinguish relevant and irrelevant evidence and who is likely able to conduct the cross-examination more efficiently than if permission were not granted. I am fortified in this conclusion in circumstances where there appears to be a degree of animus between the Applicant and the Respondent’s director, Mr Friedman. At the hearing in relation to this issue, neither party cavilled with this observation and the relevance of it to the granting of permission.

1. The Applicant opposed the granting of permission, and in the alternative sought that any permission be granted for the purposes of cross-examination only. However, I do not consider that this is an efficient or appropriate alternative to the granting of permission generally. The Applicant also contends that the matter is not sufficiently complex to warrant permission being granted. He referred to King v Patrick Projects Pty Ltd[3] and Bawley v Trimatic Management Services Pty Ltd.[4] However, each case must be considered on its own merits and neither decision leads me to arrive at a different assessment in this case. Further, as the Full Bench in Singh v Metro Trains[5] made clear, it is not necessary to make a finding of complexity:

“Ms Singh’s contention that her case was not complex implicitly involved the proposition that a finding of complexity was necessary in order for the criterion in s.596(2)(a) to be satisfied. This is not the case. Certainly, the provision requires the complexity of the matter to be taken into account. That means the consideration of complexity must be treated as a matter of significance in the process of determining whether the criterion is satisfied.

But ultimately the issue under s.596(2)(a) is whether the grant of permission would enable the matter to be dealt with more efficiently. There will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it is not particularly complex; for example, an appeal may be dealt with more efficiently by granting permission to allow the legal representatives who appeared in the matter at first instance to also appear in the appeal. Therefore the characterisation of a matter as not being complex does not itself necessarily mean that the s.596(2)(a) consideration is incapable of satisfaction.”[6]

1. I am also satisfied that it would be unfair not to allow the Respondent to be represented because it is unable to represent itself effectively. I accept the Respondent’s submissions that Wavin Technologies Pty Ltd is a small start-up business without a dedicated Human Resources department or personnel - and that the director, Mr Friedman, has no legal training, experience or skill with Commission proceedings and no staff able to represent or assist him with the legal issues in the matter. The Applicant provided a short extract of a discussion between himself and Mr Friedman, which he submitted evidenced that Mr Friedman was both articulate and was using lawyers for the purpose of intimidating the Applicant. I am not persuaded that the extract provided reveals anything that challenges the grounds upon which s.596(2)(b) is relied on by the Respondent. It is not to the point that Mr Friedman may be articulate and have knowledge of the allegations. Further, whether the Respondent has grounds to take other legal action against the Applicant is also not necessarily relevant to whether the criteria in s.596(2) are satisfied. I am also not satisfied that granting permission would be unfair to the Applicant.

1. Having been satisfied that the criteria in s.596(2)(a) and (b) are met and my discretion enlivened, I am satisfied that it is appropriate to grant permission for the Respondent to be legally represented. On balance I consider that the potential efficiency to be gained from granting permission, especially in the context of a degree of animus between the parties, together with the Respondent’s lack of knowledge and expertise, makes it appropriate to grant permission and I do so.

Application for orders for production of documents

1. On 12 August 2022, the Applicant sought various orders for the production of documents directed to the Respondent and to an external party, KPMG. The Respondent objected to the orders for production.

1. The Respondent has not yet filed its submissions and evidence in the substantive matter. It has foreshadowed an intention to file an amended Form F3 Response, in circumstances where the original F3 raised and dealt almost exclusively with the jurisdictional objection that the Applicant was not an employee.

1. Section 590(2)(c) of the Act provides that:

“(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. The principles applying to the issue of orders for production by the Commission under s.590(2)(c) of the Act are well established. For example, in Esso Australia Pty Ltd v AWU & Ors[7] the Full Bench stated:

“The principles to be applied in determining whether and if so what form of order should be made are not seriously in contention, and as the Unions point out, these principles were summarised in Australian Nursing Federation v Victorian Hospitals’ Industrial Association, which we adopt without repeating them. It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.” [8]

1. The Commission may, therefore, order any person (including third parties) to provide copies of documents or records or other information to it, to enable the Commission to make determinations relating to matters before it.

1. The decision to make, or not make, an order is discretionary. It will generally be exercised in favour of the Applicant for an order unless “it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”[9]

1. The considerations relevant to the exercise of the discretion, along with public interest matters to consider include:[10]

·   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.

1. I have taken account of these principles in reaching my decision.

1. The documents sought from KPMG are various presentations, agreements and emails for the period between 20 March and 11 August 2022. The documents sought from the Respondent are banking and financial statements between 1 July 2021 and 11 August 2022, emails between Mr Friedman and various persons and organisations between 22 March and 11 August 2022, and emails between Mr Friedman and Swanson Reed (whom the Applicant claims are the Respondent’s accountants) between 1 January 2022 and 31 May 2022.

1. Briefly, the Applicant contends that the documents sought will evidence that the Respondent continued to deal with clients introduced by him and show that he was not dismissed for poor performance.  Secondly, that they will allow the Commission to determine the amount of compensation payable to the Applicant.

1. The Respondent objects to the making of the Orders sought. Broadly speaking, it contends that the Applicant is not entitled to any documents after his employment ended (on or about 22 March 2022), that the Applicant has commenced operating a business in direct competition with the Respondent and alleges that he has misused the company’s confidential information and intellectual property and threatened to cause problems for the Respondent’s business. Further that the documents sought are not relevant, are not drafted with reasonable particularity, constitute a fishing exercise, are sought for an ulterior purpose and contain confidential and highly sensitive commercial information. Further, that Swanson Reed are not the Respondent’s accountants, and that compliance would be oppressive and unfairly burdensome.

1. I am not prepared to exercise my discretion and make the Orders sought. The Respondent has yet to file its submissions and evidence as to the reason for the Applicant’s dismissal. It is not clear at this stage that it contends the Applicant was dismissed for poor performance. I have taken into account the unreasonably broad scope of documents sought (and the associated burden in producing them). I do not accept the Applicant’s submission that there is minimal burden associated with complying as all that is involved is a simple search of emails which would only take a few minutes. Firstly, the Applicant seeks not only emails be produced but a range of other documents. Secondly, whilst emails that potentially fall within the scope of an Order may be identified quickly, this highlights the unnecessarily broad scope of the documents sought, which are not confined by any subject matter and may include emails that have no relevance to any issue in dispute. Further, the Orders are sought in the context of other allegations and counter-allegations made by the parties including issues of intellectual property rights and the misuse of company information. In circumstances where the Applicant appears to have established a business in direct competition with the Respondent, there are legitimate issues of confidentiality that weigh against the Orders requiring production of commercially sensitive information, notwithstanding the limited purposes for which any produced documents can be used.

1. It may be that if the Commission finds that Mr Course was unfairly dismissed, he may wish to seek an Order at that time seeking documents that may be relevant to the assessment of any compensation. At this time, I decline to make the Orders sought.

COMMISSIONER

Appearances:

A Course, Applicant.
H Hill-Smith of counsel for the Respondent.

Hearing details:

2022.
Melbourne (by video):
August 29.

[1] [2022] FWC 1977

[2] Wellparks Holdings P/L t/as ERGT v Govender[2021] FWCFB 268 at [48]; Rupinderjit v Hartley Lifecare Incorporated[2020] FWCFB 6434 at [21].

[3] [2015] FWCFB 2679.

[4] [2013] FWC 1320.

[5] [2015] FWCFB 3502.

[6] Ibid at [16].

[7] [2017] FWCFB 2200.

[8] Ibid at [6].

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

[10] D.A. v Baptist Care SA[2019] FWC 7358 at [36]-[38].

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