| [2021] FWC 4075 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Daniel Douglas Grieve
v
BHP Mitsui Coal Pty Ltd
(U2021/2154)
DEPUTY PRESIDENT LAKE | BRISBANE, 12 JULY 2021 |
Application for an unfair dismissal remedy – interim decision
[1] Mr Daniel Douglas Grieve (the Applicant) has brought an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant is a former employee of BHP Mitsui Coal Pty Ltd (the Respondent) at the Poitrel Mine in the Bowen Basin region of central Queensland.
[2] There are three matters that must be decided prior to the hearing, namely:
(a) whether orders should be made requiring the production of the documents requested by the Applicant;
(b) whether permission should be granted to the Respondent to be legally represented; and
(c) whether confidentiality orders should be made regarding the name of the individual complainant in respect of one of the allegations against the Applicant.
Production of documents
[3] Firstly, I turn to the question of whether I should make orders requiring the production of the documents requested by the Applicant. The Applicant, by way of email on 6 July 2021, requested a number of documents from the Respondent. I will not reproduce them here. They can be summarised as fitting into two broad categories: documents concerning allegations of misconduct by other named employees which the Applicant says did not result in the dismissal of the named employee and the incident management policies and procedures the Poitrel mine under the Coal Mine Safety and Health Act 1999 (Qld) (CMSH Act).
[4] Pursuant to s.590(2)(c) of the FW Act, the Commission has a discretion to order disclosure of documents.1 Factors relevant to the exercise of this discretion include the following:
(a) relevance;
(b) the particularity with which the documents or category of documents that are to be the subject of the order sought are described;
(c) the extent to which the burden placed on a person required to comply with the order is reasonable;
(d) the extent to which particular documents sought amount to no more than fishing; and
(e) 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.
[5] I invited the Respondent to make submissions on whether the orders should be made for the production of the documents and, following the receipt of their written submissions, convened a conference to discuss the matter with both parties.
[6] In short, the Respondent submits that the documents about the treatment of other employees are not relevant to the matters required to be determined by the Commission, contain confidential information concerning other employees, contain categories so broad and vague as to be oppressive to the Respondent and amounts to a fishing exercise by the Applicant to try to uncover any…
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- [2021] FWC 4075
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