Denise Herbert v American Express Australia Limited

[2015] FWC 7948

[2015] FWC 7948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Denise Herbert
v
American Express Australia Limited
(U2015/13042)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Mrs Denise Herbert alleges that the termination of her employment by American Express Australia Limited was unfair. American Express objected to Mrs Herbert’s application, alleging that this was a genuine redundancy.

[2] Mrs Herbert sought an order to produce.

[3] A telephone conference was conducted today at which I granted Counsel permission to appear for American Express. Mr Herbert, who appeared for Mrs Herbert, opposed permission being granted. I accepted the submissions of American Express that the issues associated with the notice to produce were complex and the matter would be dealt with more efficiently if Counsel was given permission to appear. I advised the parties that the question of permission to appear at the substantive hearing would be a matter for the presiding member.

[4] I initially declined to issue the orders sought and Mrs Herbert was directed to provide reasons for the orders sought.

[5] Mrs Herbert submitted:

“The Applicant believes that under the law of "Discovery" that the material documentation requested is "relevant to the facts in issue" in which to advance her "legal" argument. 

The Applicant believes that pursuant to the New South Wales (NSW) Evidence Act ss 55(1), 56(1) and the (NSW) (UCPR) 2005 [r 21.2] (1),(a),(b) hereunder;

(1) The Court may order that party B must give discovery to party A of:

(a) documents within a class or classes specified in the order; or

(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.

Please be advised that upon the Duty [sic] President denying the Applicant's humble request for her "Notice of Production" the Applicant may or may not then seek an order from the "Federal Court" for her requested material documentation.”

[6] Mrs Herbert did not at this time make any submissions as to the relevance of the Evidence Act of NSW to proceedings before the Commission, nor did she explain how each of the categories is relevant to the facts in issue in the proceedings.

[7] At the telephone conference, Mr Herbert advised that Mrs Herbert no longer pressed items 3, 7 or 8 but pressed items 1, 2 (but limited to any garnishee orders directed to Mrs Herbert), 4, 5 and 6.

The matters in issue

[8] At the commencement of the telephone conference, American Express confirmed that its case was limited to the question of whether this was a genuine redundancy and that it did not rely on any other reason to terminate Mrs Herbert’s employment.

[9] Mr Herbert also confirmed that it was not disputed that American Express had operational reasons to reduce the number of employees. Mrs Herbert did not accept that American Express had complied with its obligations to consult and said that she could have been redeployed. She further contended that the selection process was unfair. This is consistent with the submissions and evidence filed by Mrs Herbert on the objection raised by American Express.

[10] I will consider each category of documents sought separately.

1. A copy of any and all material documentation held by American Express Australia Limited ("the Respondent") in the name of Denise Faasegi Herbert ("the Applicant"), without limitation to the points listed hereunder;

[11] American Express submitted that this category was very broad as it requires the production of all documents held in Mrs Herbert’s name and would capture documents that have no apparent relevance and as such the category is too wide.

[12] Mr Herbert submitted that there would be no prejudice to American Express in producing the documents and that the relevance cannot be determined until Mrs Herbert has had an opportunity to inspect the documents.

[13] The category of documents sought is too broad. It would capture all documents for the entire period of Mrs Herbert’s engagement with American Express, including potentially documents when she was engaged through an agency. It would capture documents such as leave applications and emails about work processes. The submissions of Mr Herbert clearly show that this is a fishing expedition to see if Mrs Herbert has a case, as opposed to support the case she is putting to the Commission or to oppose the case put by American Express. It is too broad and it is oppressive. I am not satisfied that all the documents sought have apparent relevance to the matters in dispute and I will not issue an order in this form.

2. All payslips, separation certificate, work-cover incident form due to injury at work, any and all email correspondence between Mr Kenneth Chenault, Stephanie Ahern, Asia Pacific, Payroll, email/s between American Express Australia payroll and Gell's Lawyers/Solicitors and Denise Faasegi Herbert or Stephen Noel Herbert, a copy of any and all "court garnishee orders".

[14] This category is now limited to any court garnishee orders issued to Mrs Herbert. Mr Herbert submitted that this will go to the honesty of American Express as American Express deducted monies from Mrs Herbert’s pay without a garnishee order. The Commission is not required in an unfair dismissal matter to determine if American Express has improperly deducted monies from Mrs Herbert’s entitlements. This is a matter that must be resolved elsewhere. I am not satisfied that this has any apparent relevance to any matter in issue before the Commission and I will not issue the order sought.

3. All correspondence between Mercer Superannuation (Australia) Limited alf Mercer Supertrust The National Mutual Life Association of AustralAsia and or their representative Lawyers, meaning Lander and Rogers Lawyers, National Mutual Life Association of AustralAsia Solicitor and in house Solicitor of American Express Australia Limited.

[15] This category is no longer pressed.

4. All Denise Faasegi Herbert's employment records "Stack Rank", "VOCUM" and others for the period 10th-January-2011, to Sth-August-2014 [sic].

[16] American Express submitted that Mrs Herbert’s Stack Rank and Vocum rank records for the period 2014/2015 may be relevant as they were used by American Express when it made its selection decision.

[17] Mr Herbert made no submissions on this matter.

[18] Mrs Herbert commenced employment with American Express on 1 March 2012 (she had previously performed work via an agency as a contractor). I do not accept that records prior to her employment are relevant. Mrs Herbert has been on extended sick leave since August 2014. I accept the submission that the Stack Rank and Vocum records relied upon by American Express to assess employees for selection may be relevant to an issue in dispute. However, I do not accept the submissions that this should be limited to 2014/15. Given Mrs Herbert was on leave since August 2014, she is entitled to make submissions that her earlier performance results should have been considered by American Express and she is entitled to have those records produced. However, the records will be limited to the Stack Rank and Vocum rank records from 1 March 2012 to the termination of her employment.

5. All names of employee's still employed as "customer care professionals", and or "credit analyst's" and their "Stack Rank" and "VOCUM" results for the period 31-June-2013 to 31st-June-2014.

[19] American Express accepted that these records may be relevant. Issues of confidentiality were raised. However, it was submitted that the relevant period was 2014/15 as these were the results relied upon. It was also submitted that the category should be limited to employees in the Global Credit Administration team and that limitation was accepted by Mr Herbert.

[20] It is not clear why Mr Herbert is only seeking documents for the period 2013/14 and I accept the submissions of American Express that as the results used by American Express were from 2014 and 2015, then these are the documents that should be produced.

[21] I will make an order of confidentiality in relation to the documents such that the names and results must not be disclosed by Mr and Mrs Herbert to any other person and may only be used for the purpose of this proceeding.

6. All names of employees who were terminated with Denise Faasegi Herbert and their employment results for the period 31-June-2013 to 31-June-2014 and a copy of their "deed of release" and their "Stack Rank" and "VOCUM" Results.

[22] American Express submitted that the results of those who were terminated at the same time as Mrs Herbert are not relevant to the proceedings. It also submitted that any deed of release entered into by any of those employees and American Express is irrelevant. Mr Herbert submitted that those employees may not have been happy with the redundancy decision. Mrs Herbert challenges the unfairness of the selection criteria. American Express accepted that this was a relevant matter before the Commission. In that case, evidence that others were selected unfairly would support Mrs Herbert’s claim that the selection process was unfair. I am prepared to make an order in the same terms as item 5 for the same time period for the Stack Rank and Vocum Results for those employees employed as "customer care professionals", and or "credit analyst's" in the Global Credit Administration team who were terminated at the same time as Mrs Herbert. The order of confidentiality will apply to this category as well.

7. A copy of American Express Australia Limited "Group Certificate" for the period 31-June 2012 to 31-June-2014, and all tax's paid, dividends paid to share holders, liabilities, all "monetary incentives" paid out to employee's for the said period.

[23] This category is no longer pressed.

8. The Applicant seeks back her personal photo frame which contained a photo of Mr Kenneth Chenault in it which was removed, a photo of her three young children, a photo of her parents in which her mother has now passed on, her mothers doctors letter, and her mother's memorial program.

[24] This category is no longer pressed.

[25] I will make the order returnable at noon on 23 November 2015. American Express is directed to advise if it has any objection to Mrs Herbert or her representative inspecting and taking copies of the documents at the same time as the documents are produced.

Future Programming

1. Mrs Herbert is directed to lodge with the Fair Work Commission and serve on the American Express, an outline of submissions, witness statements and other documentary material she intends to rely on in support of her application by noon on 27 November 2015.

2. American Express is directed to lodge with the Fair Work Commission and serve on Mrs Herbert, an outline of submissions, witness statements and other documentary material it intends to rely on in opposition to the application by noon on 4 December 2015.

3. The parties have liberty to apply.

DEPUTY PRESIDENT

Appearances:

S Herbert for the Applicant.

S Meehan of Counsel and B McCabe on behalf of the Respondent.

Hearing details:

2015.

Telephone hearing:

November 18.

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