Application by Sarah Hughes
[2023] FWC 2812
•3 NOVEMBER 2023
| [2023] FWC 2812 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Sarah Hughes
(AB2023/266)
| COMMISSIONER HUNT | BRISBANE, 3 NOVEMBER 2023 |
Application for an FWC order to stop bullying – application for Order for production of documents, information, records, etc – Order made
On 28 June 2023, Ms Sarah Hughes made an application to the Fair Work Commission (the Commission) under s.789FC of the Fair Work Act 2009 (the Act), seeking an order to stop bullying. Ms Hughes is employed by Central Queensland Services Pty Ltd (CQS). The application alleges various elements of bullying conduct by the following persons:
· Mr Troy Briggs, Supervisor;
· Ms Tamara Kinter, Train Driver (D Crew);
· Ms Roslyn Stephens, Train Driver (D Crew);
· Ms Serina Jones, Production Rail Superintendent; and
· Ms Shirley Bella, General Manager.
On 6 October 2023, Ms Hughes sought an order under section 590(2)(c) of the Act for the production of a number of documents which CQS had refused to voluntarily provide. CQS objected to the application and requested an opportunity to be heard in respect of the application for an order to produce.
The matter was listed for Hearing by video using Microsoft Teams on 25 October 2023. Ms Hughes was represented by Mr Jack Patrick of the Mining Energy Union (MEU). CQS was granted leave to be represented by Mr James McLean, of Counsel, instructed by Ms Sarah Smith of MinterEllison.
It is noted that CQS has commissioned an independent investigation into Ms Hughes’ allegations of bullying (the Independent Investigation). The parties have agreed on the terms of the Independent Investigation. It is being conducted outside of the substantive application before the Commission which will be heard before me in February 2024.
Relevant Legislation
Section 590 of the Act is stipulated as follows:
“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:
(a)by requiring a person to attend before the FWC;
(b)by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c)by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d)by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e)by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f)by conducting inquiries;
(g)by undertaking or commissioning research;
(h)by conducting a conference (see section 592);
(i)by holding a hearing (see section 593).”
Ms Hughes sought the following documents be produced:
“1.A copy of any EthicsPoint reports submitted in the Relevant Period which relates to:
a. Mr Briggs’ and Ms Kinter’s relationship;
b. Ms Bella’s and Ms Kinter’s relationship; or
c. Ms Bella, Ms Jones or Mr Briggs treating Train Drivers inequitably.
2. A copy of any documents created or obtained by the Respondent while determining to investigate and investigating or otherwise determining not to investigate any EthicsPoint report referred to in Category 1, including but not limited to emails, file notes, memorandums, handmade notes, diary notes, and reports.
3. A copy of any documents created or obtained by the Respondent while determining to investigate and investigating or otherwise determining not to investigate any EthicsPoint, made during the Relevant Period which refers to Ms Hughes calling Ms Stephens a bully, including but not limited to emails, file notes, memorandums, handmade notes, diary notes, and reports.
4. A copy of any documents created or obtained by the Respondent while investigating any incident which involved Train Drivers on 10 May 2023, including but not limited to emails, file notes, memorandums, handmade notes, diary notes, and reports.
5. A copy of any documents that refer to the reasons Ms Kinter was seconded into the Rail Coordinator role, including but not limited to emails, file notes, memorandums, handmade notes, diary notes, and reports.
6. A copy of any documents in the Respondent’s possession that relate to the audit of the Applicant’s leave which took place in May 2023, or refer to the reason the Applicant’s leave was audited in May 2023, including but not limited to emails, file notes, memorandums, handmade notes, diary notes, and reports.
7. A copy of a document that displays the hours worked by employees in D Crew as recorded by supervisors in the Relevant Period.
8. A copy of any documents that record the times employees in D Crew checked in and out of the Respondent’s sites during the Relevant Period.”
During the Hearing, CQS agreed to voluntarily produce the documents in Category 3 and Category 6 within 7 days. Ms Hughes was requested to further define the documents sought in Category 4 due to vagueness. Following the Hearing, an amended draft order of documents was requested as follows:
“1.A copy of any EthicsPoint reports submitted in the Relevant Period which relates to:
a. Mr Briggs’ and Ms Kinter’s relationship;
b. Ms Bella’s and Ms Kinter’s relationship; or
c. Ms Bella, Ms Jones or Mr Briggs treating Train Drivers inequitably.
2.A copy of any documents created or obtained by the Respondent while determining to investigate and investigating or otherwise determining not to investigate any EthicsPoint report referred to in Category 1, including but not limited to emails, file notes, memorandums, handmade notes, diary notes, and reports.
3.A copy of any documents created or obtained by the Respondent while investigating the incident(s) described at [42] – [53] of Annexure 1 to the Form F72 filed in this matter, including but not limited to emails, file notes, memorandums, handmade notes, diary notes, and reports.
4.A copy of any documents that refer to the reasons Ms Kinter was seconded into the Rail Coordinator role, including but not limited to emails, file notes, memorandums, handmade notes, diary notes, and reports.
5.A copy of a document that displays the hours worked by employees in D Crew as recorded by supervisors in the Relevant Period.
6.A copy of any documents that record the times employees in D Crew checked in and out of the Respondent’s sites during the Relevant Period.”
CQS’s Objections
CQS objected to the documents being ordered to be produced, noting that there must be reasonable particularity and apparent relevance to the issues in dispute.[1]
CQS noted that the Commission is not bound by the rules of evidence, but the rules of evidence provide general guidance as to the manner in which the Commission chooses to inform itself.[2]
Where Ms Hughes relies on the production of documents as she suggests it will result in the disclosure of tendency evidence, CQS noted that tendency evidence is not admissible unless the evidence will have significant probative value.[3]
Category 1(a) and (b)
CQS noted that Ms Hughes has confirmed that she was not the anonymous reporter of the EthicsPoint reports described in category 1(a) and (b). It considers that the reports are not relevant to Ms Hughes’ allegations.
CQS submitted that Ms Hughes’ allegations of bullying have expanded since she made her initial application to the Commission. While CQS has agreed to investigate the more fulsome complaints per the Independent Investigation, it does not agree that Ms Hughes’ substantive application to the Commission should be permitted to be broadened.
It was submitted that the relationships between Mr Briggs and Ms Kinter, and between Ms Bella and Ms Kinter are not relevant to determining the quality of the investigation undertaken by Ms Bella or Ms Jones into matters raised by Ms Hughes. It was submitted that the documents give rise to a speculative line of inquiry that does not meaningfully assist the Commission, or Ms Hughes to understand the necessary aspects of the substantive application.
Category 1(c)
CQS submitted that there is no probative value in the documents being produced. It submitted that the tendency or otherwise of the relevant employees to treat other train drivers at large in a particular way is not relevant to Ms Hughes’ case about how she personally was treated.
Category 2
CQS submitted this category is too broad.
Category 3
CQS submitted this category of documents would not assist the Commission or Ms Hughes to understand the necessary aspects of the substantive application.
Category 4
CQS submitted that to the extent Ms Hughes seeks to rely on the documents in this category as tendency evidence of Ms Bella’s or Ms Jones’ alleged tendency to not act impartially, that evidence would be inadmissible on the basis that:
(a) there is no rational relationship between the decision to place Ms Kinter into her secondment, and the conduct of the investigations in relation to Ms Hughes;
(b) processes and decision-making in relation to secondments are not in any way similar to processes or decision-making in relation to workplace investigations;
(c) an alleged 'tendency to not act impartially' is so broad as to be irrelevant;
(d) this class of documents gives rise to a speculative line of inquiry only; and
(e) therefore, there is no probative value (let alone significant probative value) in this class of documents.
Category 5
CQS submitted that because Ms Hughes did not make a direct allegation within her Form F72 regarding Mr Briggs requiring her to work additional and excessive hours, the Commission should not allow Ms Hughes to now ‘prospect’ for new matters.
Category 6
For the same reasons in Item 5, CQS objected to the production of these items.
EthicsPoint anonymity
CQS noted that it provides the opportunity for employees to make an EthicsPoint complaint and affords anonymity if the employee so wishes. For those employees who made an anonymous complaint, there might be identifying information within.
Ms Hughes’ Submissions
Ms Hughes submitted that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. This encompasses circumstantial and tendency evidence.
Ms Hughes noted that an order must:
(a) Specify with reasonable particularity documents that are to be produced;
(b) Not include categories of documents that are so wide as to be oppressive; and
(c) Not be a mere fishing exercise.[4]
When determining whether to issue a notice to produce the Commission is required to
weigh up competing considerations. There is a need to balance the reasonableness of the burden imposed upon the recipient with the public interest that all relevant material be available to the parties to enable them to advance their respective cases. When conducting this exercise, it is the latter considerations that is given primacy.[5]
Relevance of the documents to be produced
Category 1 & 2
Ms Hughes has alleged that Ms Bella and/or Ms Jones’ investigation of her complaints was grossly unfair. The existence of other similar complaints and information that casts a light on the quality of the investigation undertaken by Ms Bella and/or Ms Jones is, in Ms Hughes’ view, evidence of their tendency to unfairly investigate complaints concerning Mr Briggs and Ms Kinter.
Ms Hughes submitted that the documents in Categories 1(a) to (c) and 2 are of apparent relevance to allegations 4, 5 and 7 in the material before the Commission. Notably, the documents meeting the descriptions in Category 1(a) to (c) were referred to in CQS’s Form F73.
Category 3
On 10 May 2023, Ms Hughes alleged that Ms Bella and/or Ms Jones failed to act impartially when dealing with Ms Hughes’ complaint that Ms Stephens disclosed Ms Hughes’ personal information during a training day on 10 May 2023. It was submitted that documents that elucidate the investigation process are directly relevant to this issue and therefore the documents are of apparent relevance to the Commission in determining the veracity of allegation 6.
Category 4
Ms Hughes has alleged that Ms Bella and/or Ms Jones failed to act impartially when dealing with a number of Ms Hughes’ workplace complaints. It was submitted that documents that explain why Ms Kinter was seconded into the Rail Coordinator position are evidence of Ms Bella’s and/or Ms Jones’s tendency to not act impartially and therefore the documents are of apparent relevance to the Commission determining the veracity of allegations 4, 5 and 6.
Category 5 & 6
Ms Hughes has recently alleged that Mr Briggs regularly required Ms Hughes to work longer hours than her coworkers. Ms Hughes submitted that documents that display the hours worked by employees in D crew as recorded by supervisors in the Relevant Period and documents that outline times employees checked in and out of CQS’s site during the Relevant Period are relevant to these allegations.
Further matters
Ms Hughes asserted that each category of documents is specified with reasonable particularity and is not so wide as to be oppressive. When assessing whether to grant the order, Ms Hughes submitted that the Commission would place more significant weight on the public interest of all relevant materials being available to parties than a concern for the invasion of CQS or its employees’ private rights.
Accordingly, Ms Hughes submitted that the Commission should grant the order as sought.
Ms Hughes’ Submissions in Reply
In response to CQS’s submissions that the documents ought not be ordered to be produced, Ms Hughes submitted that CQS conflates the test for production of a document with the test for admissibility and assumes that the Commission is a court of strict pleadings.
Ms Hughes submitted that the production application is a legitimate forensic inquiry, and the documents requested have apparent relevance to issues in dispute. If they are accepted into evidence, they could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. It was submitted that they will assist the Commission in determining whether it is able to engage in tendency reasoning and in making assessments of witness credibility.
Ms Hughes noted that CQS asserted that some of the allegations in recent material filed with this application for an order to produce was not raised in Ms Hughes’ Form F72.
Ms Hughes submitted that the Commission is not a court of strict pleadings. The witness evidence filed in the substantive hearing, due shortly to be filed, will go to each of the allegations. To the extent that CQS submitted that Ms Hughes ought to be held strictly to her initial application, Ms Hughes suggests that CQS invites the Commission to introduce unnecessary formality and technicality into the proceeding.
In Michelle Rawson v Mudgee Golf Club Ltd,[6] the Full Bench explained that the Commission’s procedure aims to ensure that parties are afforded procedural fairness at every stage of a proceeding. Commission applications and responses to those applications provide enough information to facilitate conciliation. If the matter proceeds to arbitration, the parties can expand on the content of an application or response to an application as long as the opposing party is afforded procedural fairness.
In this matter, Ms Hughes argued that there is no question that CQS has been provided procedural fairness. CQS is well aware of the allegations outlined in Annexure 1. The allegations outlined in Annexure 1 are the subject of an investigation that CQS is conducting simultaneously with this proceeding.
If the Commission is against Ms Hughes on this, she then seeks leave to amend the Form F72 to refer to the allegations in Annexure 1.
Consideration
The principles applying to the issue of orders for the production of documents under section 590(2)(c) are set out in Re Penelope Vickers[7] as cited in Findley v MSS Security Pty Ltd [2018] FWCFB 1065 at [28]:
“The principles applying to the issue of orders for production by the Commission under s.590(2) are well established. The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings. Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced. The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.”
The substantive application before the Commission is whether Ms Hughes has been bullied in the past by some or all of the persons named in paragraph [1], and whether she is at risk of being bullied in the future by some or all of the persons named in [1]. Only if both of these criteria are satisfied can the Commission exercise discretion to make an order to stop bullying.
Ms Hughes seeks the production of various documents to determine, in the preparation of her witness material, if she can demonstrate certain behaviours of the persons named in [1] which she may submit would support the Commission making a tendency finding in respect of some of the persons named in [1]. Ms Hughes asserted that she is treated unfavourably in the workplace, and some employees have relationships within the workplace that amount to favouritism or nepotism. She seeks documents to demonstrate this assertion, not only to establish past conduct, but to seek to argue that this might flavour future unfavourable conduct towards her.
For example, if it is demonstrated that Ms Kinter, who it is asserted is in an intimate relationship with Mr Briggs, is afforded preferential treatment by Ms Bella on account of a personal relationship, Ms Hughes is entitled to put before the Commission that this may affect her future employment rights. Ms Hughes will benefit from the production of any relevant documents pertaining to Ms Kinters’ promotion in the formation of her own witness material and in cross-examination of the relevant persons named.
I do not accept that the documents sought by Ms Hughes amount to a fishing exercise. I am satisfied that the production of the documents sought is appropriate. Some of the documents may eventually be admitted into evidence. That will be a matter for my consideration at a later time, having regard to the submissions of the parties at that time. I accept Ms Hughes’ submissions that the test of whether the Commission should order the production of certain documents is not the same in respect of whether the documents are later admitted into evidence.
Further, I do not accept CQS’s submissions that Ms Hughes is or should be held strictly to the matters raised by her in her initial Form F72 application. An application to the Commission is simply that; it commences the proceeding. The filing of witness material and submissions informs the Commission and the other parties of the evidence the Commission is requested to take into consideration.
In my experience, it is not unusual for an applicant in this type of application to include greater and expanded detail in their witness statement, sometimes with the assistance of experienced representatives with drafting skills. New allegations may arise, which will be dealt with by an employer and any persons named in their own witness statement when it is required to be filed. Likewise, persons named in this jurisdiction may include in their witness statement all relevant evidence, and they are not held only to their material within their Form F74, if so filed.
In this matter, CQS’s assertion that Ms Hughes is ‘prospecting’ new matters is completely untenable when those supposed new matters are included within the Independent Investigation and known to CQS for some months.
In respect of Categories 1 and 2, I will invite CQS to provide any views to Chambers as to whether any material within those documents ought to be redacted before the documents are provided to Ms Hughes on account of potentially identifying information within.
Conclusion
I Order that CQS produce the documents as identified in Ms Hughes’ draft order to produce dated 25 October 2023 by 10:00am (AEST) on 10 November 2023. An Order to this effect will issue separately to this Decision.
COMMISSIONER
Appearances:
J Patrick for Ms Hughes.
J McLean of Counsel, instructed by S Smith of MinterEllison, with permission, with T Sabdia and K Langdon of Central Queensland Services Pty Ltd.
Hearing details:
Brisbane.
Video by Microsoft Teams.
2023.
25 October.
[1] Clermont Coal Pty Ltd v Brown [2015] FWCFB 2640 at [19].
[2] Fair Work Act 2009 (Cth) s 591.
[3] Evidence Act 1995 (Cth) s 97(1)(b).
[4] Clerks (Alcoa) Case [1988] AIRC 391 Print H2892 at 2.
[5] Clerks (Alcoa) Case [1988] AIRC 391 Print H2892 , at 2.
[6] [2011] FWCFB 2703.
[7] [2017] FWCFB 3131 at [18].
Printed by authority of the Commonwealth Government Printer
<PR767635>
0