Colin Anderson v Australian Clinical Laboratories T/A Clinical Laboratories Pty Ltd

[2022] FWC 1629

[2022] FWC 1629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Colin Anderson
v

Australian Clinical Laboratories T/A Clinical Laboratories Pty Ltd

(U2022/2615)

COMMISSIONER O’NEILL MELBOURNE, 24 JUNE 2022

Application for an order pursuant to s.590(2)(c) for production of documents

1. On 27 May 2022, the Applicant sought various orders for the production of documents directed to the Respondent and two other parties. The Respondent objected to the orders for production and the matter was dealt with at a hearing on 3 June 2022.

1. The Applicant withdrew the application in circumstances where the Respondent had not yet filed its submissions and evidence in the substantive matter.

1. On 21 June 2022, the Applicant made a new application seeking an order for the production of documents against the Respondent only, in narrower terms than its earlier application. The order seeks the production of certain emails and internal audit reports over several years.

1. The Respondent’s opposition to the application for an order to produce was dealt with at a hearing on 23 June 2022.

1. The substantive application is scheduled to be heard on 11 July 2022. The Applicant contends that he was unfairly dismissed by the Respondent. The Respondent contends that the dismissal was not unfair, and that whist it had concerns about the Applicant’s performance of his duties, he was not dismissed for this reason. Rather he was dismissed for serious misconduct following what it contends are admissions by the Applicant of deliberately and systematically failing to perform work he was required to perform in an attempt to prevent the Respondent from passing the laboratory’s external accreditation assessment.

1. Section 590(2)(c) of the Fair Work Act 2009 (Cth) (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[1] 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.”

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 it 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 unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.”[2]

1. The considerations relevant to the exercise of the discretion, along with public interest matters to consider include: [3]

·   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 these principles into account in deciding to exercise my discretion and issue an amended Order to produce.

1. Briefly, the Applicant contends that the documents sought are relevant, as they:

·   provide essential context to the discussions that culminated in the Applicant’s dismissal (category 1 of documents sought);

·   will rebut the Respondent’s claim that the Applicant engaged in serious misconduct, but rather was constructively trying to deal with the identified issues in the laboratory (category 2);

·   go to a contention that there were systemic issues with the laboratory which the Applicant was unable to fix alone (category 3 and 4);

·   will show that there were longstanding issues with the laboratory, prior to the Applicant’s employment, for which he was not responsible (category 5).

1. The Applicant drew my attention to material in the submissions and witness statements filed by the Respondent that detail the Applicant’s responsibilities and his alleged failure to undertake critical tasks identified in an internal audit, which failure is said to have jeopardised the laboratory’s external accreditation assessment.

1. The Applicant anticipates that the documents will support an inference that the Respondent’s purported reason for termination of the Applicant’s employment was not the real reason, that the Applicant was performing his duties and his employment was terminated because he had raised issues of the Respondent’s performance and potential risks which would cause it to fail the NATA assessment.

1. Counsel for the Respondent opposed the application. It contended that the application was based on a false proposition, and that the power to order production of documents under s.590 of the Act is not a process of discovery, but to empower production of documents that would assist the Commission. It contended that the documents sought were not relevant, because they are not relevant to the case before the Commission, namely that the Applicant was dismissed for serious misconduct and not on performance grounds. Accordingly, documents relating to the adequacy or otherwise the Applicant’s performance of his duties are not relevant.

1. I am satisfied that the documents sought have at least apparent relevance to the matters in dispute. The documents relate to the conduct that the Respondent alleges that the Applicant engaged in, including providing context to the internal and the external assessment process. Whilst the Respondent’s contention is that the Applicant was dismissed for serious misconduct, the role of the Commission is to ascertain whether there was a valid reason for the dismissal and is not confined to an evaluation of the Respondent’s stated reason. I am satisfied that the documents sought are not a fishing exercise, and are relevant to issues in the case, including whether there was a valid reason for the dismissal and the considerations in s.387(h) of the Act.

1. The Respondent also objected on the grounds that the documents sought were oppressive and inappropriate, and unnecessarily broad. I am not persuaded on these grounds. With one exception, the Order sought is sufficiently specific and confined.

1. The first category of documents in Paragraph 1 of the draft Order seeks:

1.All emails as between Colin Anderson and Shiraz Lubke between 13 December 2021 up to and including 9 February 2022 relating to performance of his duties as Bendigo Laboratory Manager in particular those relating to internal audits of the laboratory, preparation for the NATA Audit and staffing issues.

1. This is unnecessarily broad, and Counsel for the Applicant did not object to modifying this category to be:

1. All emails as between Colin Anderson and Shiraz Lubke between 13 December 2021 up to and including 9 February 2022 relating to internal audits of the laboratory, preparation for the NATA Audit and staffing issues.

1. With that change, I have determined to issue an Order to produce documents in the form sought.

COMMISSIONER

Appearances:

L Martin of Counsel for the Applicant.
M Minucci of Counsel for the Respondent.

Hearing details:

2022
Melbourne (by video):
June 24.

[1] [2017] FWCFB 2200 at [6].

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

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

Printed by authority of the Commonwealth Government Printer

<PR743042>