Daniel Douglas Grieve v BHP Mitsui Coal Pty Ltd

[2021] FWC 4075

[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 evidence, regardless of how tenuous, which might possibly justify why his misconduct was not a valid reason for his dismissal. The Respondent also noted that these documents were only requested after already being provided to file material in the proceedings and asserting that the circumstances of his dismissal were procedurally unfair. Accordingly, the Respondent submits that the Commission should not exercise its discretion in such circumstances.

[7] The Applicant says these documents are relevant because they go to demonstrating the Respondent’s differential treatment of the Applicant. However, he also seemed to accept during the conference between myself and the parties that the points he was trying to make with recourse to these documents could be made in submissions.

[8] In respect of the documents about incident management policies and procedures at the Poitrel site, the Respondent contends that these documents relate to incident reporting and investigation procedures that the mine must maintain under the CMSH Act, which are not relevant to whether the Applicant was unfairly dismissed. The Respondent quite rightly points out that the Commission does not have jurisdiction to make determinations as to the Respondent’s compliance with the CMSH Act. Accordingly, in those circumstances, the Respondent avers that the reporting and investigation procedures under the CMSH Act will shed no further light on the process followed by the Respondent or be relevant to the questions presently before the Commission.

[9] The Applicant asserted that these documents are relevant to the issue whether the matters which gave rise to his dismissal were the subject of a fair investigation process and which complied with the policies and procedures maintained by the Respondent pursuant to the CMSH Act. While I can see where the Applicant is coming from, I tend to agree with the Respondent that I am not empowered to decide whether compliance with the CMSH Act occurred and therefore agree that it is not relevant to the question before me.

[10] Insofar as the Applicant wishes to draw my attention to the flaws in the disciplinary process to which he was subject, he can do so in submissions at the hearing.

[11] Therefore, having proper regard to the factors set out above, I decline to exercise my discretion to order the production of the documents.

Legal representation

[12] The second issue I must determine is whether to allow the Respondent to be legal represented. Granting permission to be represented under s 596 requires the satisfaction of two elements.  1The first pre-requisite: the presence of one of the criteria under s 596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3 In this matter, I am satisfied that the complexity of the matters to be dealt with and the volume of material present in this case would assist in the efficient hearing of this matter.

[13] While I am conscious that to allow the Respondent representative might seem to prejudice the Applicant, I note that the Applicant was offered the opportunity to obtain legal representation on a number of occasions but stated that he was not minded to do so at this time.

[14] Accordingly, I grant permission to the Respondent to be represented.

Confidentiality

[15] The Respondent sought that orders be made making only the parties and their legal representatives may access any documents filed by the parties in the Proceedings and received in evidence by the Commission, as well as the transcript of the hearing to be held in the Proceedings confidential. That was not opposed by the Applicant. Given the potentially personal nature of some of the matters that may arise, I am satisfied that, pursuant to s.593 of the Act, those orders should be made on an interim basis. A final determination on whether those orders remain in place and a pseudonym allocated will be made in the final decision.

[16] Accordingly, I order that only the parties and their legal representatives may access any documents filed by the parties in the Proceedings and received in evidence by the Commission, as well as the transcript of the hearing be kept confidential until the making of any further order.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.

 2   Asciano Services Pty Ltd v Zak Hadfield[2015] FWCFB 2618.

 3   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].