David Gardiner v Esri Australia Pty Ltd T/A Esri Australia

[2014] FWC 4753

[2014] FWC 4753

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Gardiner
v
ESRI Australia Pty Ltd T/A ESRI Australia
(U2014/7399)

DEPUTY PRESIDENT MCCARTHY PERTH, 11 AUGUST 2014

Application for relief from unfair dismissal - production of documents

[1] This decision concerns a request by Mr David Gardiner (the Applicant) that I issue an Order for the Production of Documents (the Order sought). The Applicant has lodge an Unfair Dismissal Application (the Application) asserting that he has been unfairly dismissed from his employment with ESRI Australia Pty Ltd trading as Esri Australia (the Respondent).

[2] The Fair Work Commission (the FWC) is not a court and its powers are limited to those provided by the Fair Work Act 2009 (the FW Act). The FWC has the powers to make procedural and interim decisions in relation to a matter before it (see s.589 of the FW Act). The powers of the FWC in relation to matters before it are provided by s.590 of the FW Act. The relevant part of s.590 for my consideration here is as follows:

(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;

...

[3] The FWC also has an obligation to perform its functions in a manner that is:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

[4] There is no express power of the FWC to order the production of documents to anyone other than the FWC itself and that power is confined to the purpose of the FWC informing itself. There is no requirement to order the production of documents that extends beyond that purpose. If the FWC does issue an order for the production of documents it is also a matter of discretion for the FWC whether those documents are available for inspection by anyone, including the Applicant.

[5] The perception of the Applicant here seems to be that the FWC has the power to order the production of documents to the other party including for the purpose of a party preparing their case. The FWC has no such power. It may be that the FWC decides that in conformity with the directives of s.577 of the FW Act that an order to produce is made upon a parties request and it does exercise its discretion to provide access to documents produced but that is a matter of judgement to be exercised depending on the circumstances of the matter before the FWC.

[6] The Applicant here has 14 separate requests for the production of documents. These requests include notes of meetings, financial records, financial performance, contractual information about contracts the Respondent has with clients and other material.

[7] The Respondent has responded to the requests of the Applicant, the Respondent has advised that some of the documents do not exist and that some of them are irrelevant and/or confidential.

[8] I issued Directions on 11 June 2014 (amended on 17 July 2014) requiring amongst other things that the Respondent provide witness statements and other documentary material upon which the Respondent intends to rely. The Applicant provided material consistent with my Directions on 2 July 2014. The Respondent provided material consistent with my Directions on 22 July 2014.

[9] On 27 July 2014 the Applicant wrote to my chambers in the following terms:

“I would like to object to the Respondent’s refusal to provide several of the requested materials in the FWC Order for the Production of documents (please see email and attachment from the Respondent below) and I dispute the reasons provided by the Respondent for not providing these materials. I request that the missing materials be made available as they are crucial to my case for unfair dismissal.

Can you please inform me as to when (or if) I need to respond to the FWC and/or Respondent in order to be granted access to the missing materials? Please inform me if I am required to elaborate on the reasons for requesting these missing materials in order to validate the reasons for my request.”

[10] Presumably, therefore the Applicant is still agitating for the production of documents that I am convinced clearly do not exist. Indeed the Applicant appears to be requesting production of documents to establish they do not exist (e.g. warning letters and performance management plans). The Respondent has conceded those documents do not exist. The Applicant also seeks to have produced to him material that the Respondent is not relying on, and appears to have little relevance to the matters I am required to determine. The request also appears to require financial information and other matters that the Respondent reasonably claims is confidential. However having examined the material lodged and the nature of the cases outlined and having considered the nature of the material the Applicant seeks to be ordered to be produced I am not satisfied that there is any material that I should order to be produced to the FWC.

DEPUTY PRESIDENT

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