David Sultana v Tripod Services Pty Ltd T/A Tripod Farmers Group

[2015] FWC 4361

[2015] FWC 4361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Sultana
v
Tripod Services Pty Ltd T/A Tripod Farmers Group
(U2015/5358)

COMMISSIONER WILSON MELBOURNE, 29 JUNE 2015

Application for unfair dismissal remedy - procedural decision - orders to produce.

[1] Mr David Sultana, the Applicant in this matter, by way of an application by his paid agent has sought the Commission issue an Order for the Production of Documents covering three classes of documents. On 25 June 2015 I convened a Mention Hearing of the application and determined it by ordering the production of one class of document only. I refused the application for production of the other two classes and undertook to provide my reasons for doing so at the earliest opportunity.

[2] In making my decision I gave consideration to the limited amount of material before the Commission in relation to Mr Sultana’s substantive application, and the submissions he made in support of his application for the production of documents, and the oral submissions of the parties’ representatives, made in the mention hearing on 25 June. The material before me in relation to Mr Sultana’s substantive application is the originating application, made on 12 May 2015, and an amended application made on 28 May 2015 and the employer response made on 27 May 2015.

[3] Mr Sultana’s originating and amended applications were filed on his behalf by a paid agent, Michael Alkan of HR Experts.

[4] In deciding Mr Sultana’s application for an order from the Commission for the production of documents, I have given consideration to the Commission’s authorities and practices in relation to the issuing of such orders. I take into account the principles set out by Justice Munro to the effect that a subpoena or order must specify with reasonable particularity the documents which are required to be produced; that an order is not to be used for the discovery of documents against a person not liable to make discovery or as a substitute for discovery which should be applied at the proper time; the documents sought must be relevant to an issue legitimately arising in a hearing the matters in dispute 1. The Commission also guards against the oppressive production of documents or where it might be a “fishing expedition” where the request might be “an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all”.2

[5] In following those principles the above was elaborated upon by Vice President Ross, (as His Honour then was);

“The approach outlined by his Honour has been applied by other members of the Commission in subsequent decisions. I have applied the approach outlined to the determination of the matter before me. In particular I am required to balance on the one hand the reasonableness of the burden imposed on the recipients and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and ensuring that all material relevant to the issues before me are available to the parties to enable them to advance their respective cases.

The balance between these factors depends upon the circumstances of a particular case. In this context I am conscious that the outcome of these proceedings may have serious consequences for the respondents if the order sought is granted.” 3 (references omitted)

[6] Finally, I take into account the following analysis by Commissioner Bissett in the matter of SPI Power Net Pty Ltd v CEPU of important issues relating to attendance and production orders. While that matter, decided under the Fair Work Act 2009, dealt specifically with the issues relevant to an application to set aside an already issued order, the analysis is apposite to the question that requires determination here, namely; whether the Commission’s discretion to grant an order that has been applied for should be granted. The Commissioner held the following, with which I respectfully concur;

“[19] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd Cowdroy J considered the test to be applied in setting aside a subpoena. After considering a number of authorities his Honour found at [13] that:

The correct test to be applied to determine whether a subpoena should be set aside was stated by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 at ALR 103, namely:

(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].

(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].

[20] SP AusNet also referred me to a decision of the Supreme Court of Victoria in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria where the principles to be followed in determining if a party is entitled to access documents subject of a subpoena are summarised. I do not replicate those principles here but indicate that they do not conflict with any of the matters outlined above. In any event, I have had regard to the principles outlined in that decision in determining the application for an order to produce in this matter. Even so, care needs to be taken not to approach the assessment of a request for production of documents as an exercise of each document having to receive an appropriate number of ‘ticks’ against a set of listed principles. There is a judgement to be made in balancing of those principles in the above mentioned decision.

[21] SP AusNet also put that, in addition to the above principles, any order should not be so wide as to require the person to whom the order is addressed to make a judgement as to which of the possessed documents are relevant documents and that the order must not be oppressive”. 4

[7] From these authorities, I consider the principles I must apply include the following;

• there must be reasonable particularity to the request



• the documents sought must have apparent relevance relevant to an issue legitimately arising in a hearing the matters in dispute;



• consideration is to be given to the questions of who the proposed order should be directed to, and the time at which it should be issued;



• the Commission will guard against “fishing expeditions”;



• the burden or prejudice to the party who is subject to an order will be considered; and



• the interests of public and private rights will be balanced.

[8] There are three classes of documents sought by the Applicant. These are: certain of the Respondent’s policies; documents relating to his termination; and his employment file.

[9] The Applicant’s submissions in regard to the production of these documents include that they are essential to put forward a case and will promote fairness.

[10] The Applicant’s substantive unfair dismissal case is set out in his Amended Application. He puts forward that he was dismissed from several allegations, including a lack of punctuality; inattention to his duties, including for reason of making a delivery to an incorrect address, driving erratically, and causing damage to company property; and a serious allegation regarding his fitness for work. The Applicant argues that the punctuality complaints are mitigated because of his stressors arising from his marital circumstances; denies the facts of an incorrect delivery; denies erratic driving, and asserts that the he was faced with uneven roads and poorly loaded pallets; agrees certain damage was caused by him to property, but argues the damage was caused by the circumstances of the task he was completing. The Applicant denies completely he was unfit for duty.

[11] The Respondent’s material maintains that the Applicant was dismissed for misconduct without substantial elaboration.

[12] My assessment of the material that is presently before the Commission is that the Applicant’s case is likely to surround the critical issue of, having been dismissed for misconduct, whether the conduct alleged actually occurred; per Edwards v Giudice (1999) 94 FCR 561, at [6]‒[7]. That matter will require resolution of the facts of what actually occurred. The extent to which the Respondent will seek to rely, if at all, upon matters other than the events that actually occurred is yet to be seen.

[13] Class 1 of the documents sought is for the production of certain policies held by the Respondent. If I am right about the matter before the Commission requiring determination of the facts of what actually occurred in order to resolve whether the conduct alleged by the Respondent actually occurred, then an order for the production of class 1 will most likely be premature. The Respondent may choose not seek to rely on any aspect of its policies, and instead rely entirely on evidence about what did, or did not happen, in the workplace. While that is not to say that the policies will not have relevance to the matters requiring determination by the Commission, it is to say that the extent of their relevance will not be known in this case until after the Respondent has filed its material. This aspect of the Applicant’s application (class 1) is refused. Liberty is given to reapply after the Respondent has filed its material, and if that occurs, the issue for consideration at that time will be a reasonable connection of relevance between the documents sought and the case as disclosed in the parties’ respective statements and submissions.

[14] Class 2 seeks documents pertaining to the Respondent’s records relating to the termination of the Applicant. While it is unlikely that additional documents will exist to those either presently held by the Applicant or that will be brought forward in due course in the Respondent’s filings, I am prepared to grant this aspect of the order. The matter appears to rise or fall on its factual base, and such documents may assist the Applicant in preparing his case. Notwithstanding my preparedness to grant this order, I granted only the first part of the draft, to the effect that part of the draft that the Respondent will be required to produce;

“All and any records relative to the termination or separation of the Applicant”

[15] The other part of the order granted is a definition, also contained within the Draft, of “Records” as follows.

“Records” include: all paper documents, including but not limited to all letters, faxes, reports, briefing papers, electronic data, photos, including but not limited to emails, posts to websites, texts and instant messages.

[16] I refused the original Draft for class 2, set out below in underlined text, for the reason that the combination of the whole is tautological and, for that reason, it is likely prone to misinterpretation and thereby dispute.

“2. All and any records relative to the termination or separation of the Applicant including but not limited to the following records: termination letter, witness statements, investigation reports, camera footage, investigation meeting transcripts/notes, collected professional or internal advice, communication records, termination or separation meeting transcripts/notes and evidence of notification to the Applicant referencing potential termination.”

[17] Either the order sought is for the production of ALL documents pertaining to the Applicant’s termination, or it is not. There is simply no need to over-prescribe in the way proposed, which, if misinterpreted, has the undesirable consequence of promoting further dispute before the Commission.

[18] Class 3 of the documents sought for production is for the Applicant’s personnel file in its entirety. On the basis of the material presently before the Commission, I am understated of the relevance of the production of the file. That is not to say that Mr Sultana is not entitled to see the material on the file, or that it may not have relevance to the matters requiring determination. I am also of the view that, in the way it is advanced at this early stage of the proceeding, the request is a “fishing expedition” on the part of Mr Sultana and his paid agent. Relevance for the material may be established at the earliest after consideration by the Commission of the Applicant’s submissions and witness statements or after the Respondent has filed its material. For this reason, liberty to reapply is given.

[19] An order consistent with the above reasoning – namely the granting of an edited class 2 only – was issued by me on 26 June 2015.

COMMISSIONER

Appearances:

Mr M Alkan, paid agent, (HR Experts) for Mr D Sultana (Applicant)

Mr D Marsh, solicitor, (Landers and Rogers) for Tripod Services Pty Ltd

Hearing details:

2015.

Melbourne:

25 June

 1   Clerks (Alcoa) Case (1988) Print H2892

 2   Ibid.

 3   Patrick Stevedores Number 2 Pty Ltd, Ross VP, (1998) Print P8680, p 3

 4   [2012] FWA 4350, at [19] - [21]

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