Carolyn Summers v Flight Attendants Association of Australia National Division

[2018] FWC 1728

[2018] FWC 1728 [Note: An appeal pursuant to s.604 (C2018/3551) was lodged against this decision - refer to Full Bench decision dated 10 September 2018 [[2018] FWCFB 5698] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carolyn Summers
v
Flight Attendants Association of Australia National Division
(U2017/13784)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 23 MARCH 2018

Application for an unfair dismissal remedy; orders for production.

[1] Carolyn Summers (the applicant) has applied for an unfair dismissal remedy in relation to the termination of her employment by the Flight Attendants’ Association of Australia (FAAA) National Division (the respondent) on 7 December 2017. The respondent has notified that it has a jurisdictional objection, namely that it is a small business employer and the dismissal was consistent with the Small Business Fair Dismissal Code. The respondent’s jurisdictional objection was listed for hearing on 5 April 2018 and directions issued for the exchange of outlines of submissions and evidentiary material.

[2] On 15 March 2018 the Commission made an order for production of documents at the request of the applicant. The order is reproduced at Attachment A.

[3] On 20 March 2018 the International Division of the FAAA indicated that Item 2 of the material sought together with some of the material sought in Item 1 was in its custody and control. It indicated its objection to production of some of the material sought on the ground that it was irrelevant to any issue in the proceedings, namely the specific rates/conditions of full time and part time employees. It also objected that the form of the Notice for Production pre-empted one of the issues in the proceedings that is the employment status, if any, of elected officers.

‘No doubt the question of the status of elected officers will involve consideration of such matters as the individuals being holders of office, the meaning of “employee” in the Act and, even assuming an employment status, the nature of that employment (e.g. regular and systematic casual or other). Similarly, the taxation and superannuation obligations attaching to payments to individuals who are not employees will, presumably, be considered.’

[4] Despite this objection, the International Division did produce some material, but sought an order for confidentiality. Further documents were provided to the Commission by the respondent on 21 and 22 March 2018.

[5] The objections were listed for hearing by telephone on 23 March 2018. At the hearing it became clear that the major issue in determining whether the respondent is a small business employer revolves around whether the elected officials should be counted as employees.

[6] The respondent submitted that the applicant was undertaking a ‘fishing expedition’ in relation to the production of documents concerning officials. The respondent alleged that the applicant was seeking evidence to ascertain whether she had a case at all, rather than seeking evidence to support her case.

[7] I do not agree that it is fair to characterise what the applicant is seeking as a ‘fishing expedition’. It is clearly part of the applicant’s case that the elected officials are employees, which would mean that the respondent is not a small business employer. It is seeking information about salary arrangements etc. in relation to office holders. Such information would, it appears to me, be relevant to the applicant’s case (even if not necessarily determinative). Accordingly, I reject the objection to the order to produce. The material which has been forwarded to the Commission will accordingly be provided to the applicant and her representative. If there is any more material covered by the terms of the order that should be produced forthwith.

[8] The International Division sought that any material produced be covered by a confidentiality order. This was not opposed by the applicant. An appropriate order will be made.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr K Bolwell, solicitor for the applicant.

Mr A Howell of counsel instructed by Haywards Solicitors, for the respondent.

Mr P Gardner, solicitor, for the respondent’s International Division.

Hearing details:

Sydney.

2018.

March 23.

Annexure 1

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