Garth Mangan v BHP Coal Pty Ltd
[2022] FWC 1575
•21 JUNE 2022
| [2022] FWC 1575 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Garth Mangan
v
BHP Coal Pty Ltd
(U2022/4317)
| DEPUTY PRESIDENT MOLTONI | BRISBANE, 21 JUNE 2022 |
Application for relief from unfair dismissal - application for Orders for Production – general principles – apparent relevance – parties’ entitlement to test and contest the case advanced against them – due administration of justice – confidentiality – interlocutory decision – s 590(2)(c)
On 13 April 2022, Mr Garth Mangan (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with BHP Coal Pty Ltd (Respondent).
On 13 June 2022, the Applicant made an application to the (Commission) under s.590(2)(c) of the FW Act seeking orders for the production of documents that, it claims, are relevant to his case.
The Applicant seeks the production of documents in the following categories:
a)The investigation report produced by Dianne Cubbins in relation to a factual investigation into an EthicsPoint report that Ms Cubbins conducted as particularised in correspondence sent from email address [email protected] to the Applicant on January 12, 2022 (Category One);
b)All documents, within the meaning of the Evidence Act 1995 (Cth), that were:
a.Created by the Dianne Cubbins in conducting the investigation at (1) above;
b.Received by Dianne Cubbins in conducting the investigation at (1) above;
c.Sent by Dianne Cubbins in conducting the investigation at (1) above;
d.Relied upon by Dianne Cubbins in making conducting the investigation at (1) above (Category Two);
c)The EthicsPoint report, which contained allegations regarding the Applicant’s conduct as particularised in email correspondence from email address [email protected] to the Applicant on January 12, 2022 (Category Three);
d)The investigation report produced by Dianne Cubbins, or another person, that was relied upon by the Respondent in correspondence dated (incorrectly) 1 April 2022 authored by Brent McKay, Manager Production Coal BMA Saraji Mine, regarding the findings of the investigation (Category Four);
e)All documents, within the meaning of the Evidence Act 1995 (Cth), that were:
a.Created by the Dianne Cubbins, or any other person, in conducting the investigation at (4) above;
b.Received by Dianne Cubbins, or any other person, in conducting the investigation at (4) above;
c.Sent by Dianne Cubbins, or any other person, in conducting the investigation at (4) above;
d.Relied upon by Dianne Cubbins, or any other person, in making factual findings in relation to the investigation at (4) above (Category Five); and
f)All emails, sms messages and other correspondence sent and received by Ms Dianne Cubbins in relation to the investigation referred to in (1) above when she was working on behalf of the Ethics and Investigations team at BHP as outlined in her email of January 12, 2022 (Category Six).
The Applicant argued that the documents were relevant to the matters the Commission was required to determine and submitted as follows:
“The documents are being sought because the Respondent’s failure to properly particularise the Applicant’s alleged conduct or provide probative evidence supporting the allegations which the Applicant was initially advised of by way of email on 12 January 2022.
In correspondence dated (incorrectly) 1 April 2022 authored by Brent McKay, Manager Production Coal BMA Saraji Mine, Mr McKay advised that “The investigation is now complete” and that the investigation made findings regarding the Applicant’s conduct. These findings were relied upon by the Respondent when terminating the Applicant’s employment.
The documents relied upon by the investigator Dianne Cubbins, or any other person, when making their findings are being sort due to the lack of information provided in the allegations allowing the Applicant to provide a cogent response to the allegations raised especially in circumstances where his employment could be terminated. Some of the allegations were historic in nature and only 3 of the 20 allegations put to the Applicant provided a specific day as to when an incident occurred. The other 17 allegations only referenced that there was an incident which occurred on or around a month and year. No names were provided as to who the Applicant purportedly said the statement to for any of the Allegations.
Due to the historic nature of a number of the allegations and the failure of the Respondent to properly particularize the alleged conduct, the Applicant has suffered significant prejudice.
This matter involves significant contests of fact. Relevantly, the “Practice note: Fair hearings” Fair says the following (at [18]):
“Where a fact needs to be established, and that fact is contested, the Commission will determine the question on the balance of probabilities (i.e. whether it is more likely than not). In considering the evidence, the Member may seek further information from the parties, but will not rely solely on statements made from the bar table, unless those statements are unchallenged. Members may inform themselves in relation to matters before them as they consider appropriate, including by, inter alia, requiring a person to provide copies of documents or records, or to provide any other relevant information to the Commission.”
The Applicant submits that the Commission can be satisfied that in making the orders sought by the Applicant, it will allow the Applicant to fairly put his case.”
The Respondent submitted that it was prepared to provide the documents in Categories One and Four subject to an order being made by the Commission but otherwise objected to the production of the remaining documents requested on the grounds of confidentiality, that some may qualify for protection under the Corporations Act and the Respondent’s Whistleblower Policy and that it was not in the interests of justice to do so.
Attempts to resolve the production issues through a conciliatory process were unsuccessful. This decision addresses the ‘production’ application.
Principles
In CEPU v South32 Ltd[1] Deputy President Beaumont provided the following helpful summary:
a)the power conferred by s 590(2)(c) is a broad discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it;[2]
b)the power should be exercised in accordance with the principles applied by the courts in civil proceedings when issuing subpoenas;[3]
c)the documents sought must have apparent relevance to the issues in dispute in the proceedings;[4]
d)access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced;[5]
e)the documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive, in the sense ‘of placing an unreasonable burden on the person required to comply’,[6] and the request for production must not be a fishing expedition;
f)the Commission may also take into account 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;[7] and
g)generally speaking, the Commission will exercise its discretion in favour of an applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process.[8]
In the Full Bench decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd t/a Fredon[9] the Bench found at [19]:
“that in considering whether to exercise its discretionary power to require production of documents under s 590(2)(c) of the FW Act the Commission will be guided by the practice followed by courts in civil proceedings when issuing subpoenas. In short compass, the test is whether the documents sought have an apparent relevance to the issues in the proceedings.[10] In this regard a Full Bench of the Commission in Kennedy v Qantas Ground Services Pty Ltd[11] observed:
“...The documents sought must have apparent relevance to the issues in the proceedings. Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced. The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.[12]
The following passage from the Full Court’s decision in Wong v Sklavos9 is often cited in relation to apparent relevance:
“Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia [1996] SASC 5578; (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-
[38].”
Justice Abrahams in Roberts-Smith v Fairfax Media Publications Pty Limited (No 15) further observed:10
“… The test for apparent relevance has been described as having a low threshold. A document or class of documents may satisfy that threshold if it gives rise to a line of enquiry relevant to the issues before the trier of fact: Hooke v Bux Global Limited (No 2) [2018] FCA 836 at [38], citing Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498 at [11]. What is involved then is a question about reasonable likelihood, not possibility: Chief Executive Officer of Australian Transactions Reports and Analysis Centre v TAB Ltd [2016] FCA 122 at [40] citing Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6].”
Confidentiality
The Full Court[13] further reinforced that confidentiality is not of itself a reason to set aside a subpoena:
“The documents sought by Dr Sklavos are undoubtedly of a confidential kind and it is very understandable that the appellants wish to protect that confidentiality. However, as is well established, confidentiality is not of itself a reason to set aside a subpoena: Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) FCA 1040; (2001) 110 FCR 157 at [80]-[83]. King CJ observed in Alliance Petroleum Australia NL v The Australian Gaslight Company (1983) 34 SASR 215 at 239 that it is commonly the case that “the risk to the confidentiality of the information must be tolerated in the interests of the administration of justice”.”
The Full Court accepted that the confidentiality of the documents sought is nonetheless one of many factors to be considered. The Full Court cited the following passage from Apache Northwest Pty Ltd v Western Power Corporation[14] with approval:
“The next issue is that relating to confidentiality. There is, no doubt, some need in this matter to balance competing interests. In the end, however, the public interest in the administration of justice should prevail ...
Her Honour, rightly in our view, found herself unable to ascribe any public interest to the confidentiality of the documents in question in the present case, however much it may be in the appellants’ individual interests. She did, however, accept that, although, standing alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of the documents involved and the type and degree of burden placed upon those to whom the subpoena is addressed. She also accepted that the relevance of the confidential documents being sought to the issues in the arbitration is a further factor”[15]
Category One and Four
The Respondent has indicated it is prepared to provide the documents in Category One and Category Four.
Category Two, Three, Five and Six
The Applicant’s submissions in relation to this Category are set out earlier at Paragraph [4].
The Respondent argued that in Esso Australia Pty Ltd v AWU & Ors [2017] FWCFB 2200, a Full Bench made the following observations in relation to the approach that ought to be taken to an application such as this:
“The principles to be applied in determining whether and if so what form of order should be made are not seriously in contention, and as the Unions point out, these principles were summarised in Australian Nursing Federation v Victorian Hospitals’ Industrial Association, which we adopt without repeating them. It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and 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.”
Further, both the Applicant and the Respondent emphasised the following passage from Re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985[16]:
“Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”
The Applicant contends that the documents are sought in order to properly particularise the allegations or provide probative evidence in regard to those allegations.
The Respondent contends that the documents sought do not have any relevance to the issue of inadequate particulars, that if it is the Applicant’s case that he did not receive sufficient particulars of the allegations then the relevant evidence will be allegations that were put to him and the show cause letter to which he was asked to respond. The Respondent further contends that attempting to seek further particulars at this juncture is not a legitimate forensic purpose as the question the Commission must consider is whether the Applicant was given an opportunity to respond to the allegations and any argument that he did not have sufficient detail to do so ought be considered at that time. The Respondent submitted that the Commission will not be required to consider whether the Respondent had more information that it could have provided to the Applicant and therefore they are of no relevance to the matter at issue.
The Respondent also argues that the documents related to the investigation are irrelevant to determining whether there is a valid reason based on the evidence put before the Commission rather than that before the decision maker or investigator.[17]
The Respondent also argued that it is not a legitimate purpose to issue an order requiring production of documents “as a substitute for discovery which should be applied at the proper time.[18]
The Respondent also made a range of submissions which I do not intend to reproduce here but in summary put that the orders being sought were wide ranging, with no or doubtful relevance and would capture private, confidential information of third party individuals.
Matters in issue in the proceedings
The application is made under s.394 of the FW Act. In determining the application, the Commission is relevantly required to take into account the matters at s.385 and s.387 of the FW Act. While the Applicant bears an onus to prove that his dismissal was unfair, the reason for dismissal is a matter within the knowledge of the Respondent and it is incumbent on the Respondent to establish at hearing, that the reason for dismissal was a valid reason. Accordingly, to the extent that there is an onus, it falls on the Respondent in this respect.[19]
Contested Categories
Category Two
The second contested category pressed by the Applicant is:
“All documents, within the meaning of the Evidence Act 1995 (Cth), that were:
a)Created by the Dianne Cubbins in conducting the investigation at (1) above;
b)Received by Dianne Cubbins in conducting the investigation at (1) above;
c)Sent by Dianne Cubbins in conducting the investigation at (1) above;
d)Relied upon by Dianne Cubbins in making conducting the investigation at (1) above.”
I have had regard to the submissions of the Applicant and the Respondent and turned my mind to the consideration of the apparent relevance of that material to the matters in issue. Whilst the range of documents sought is confined to documents pertaining to the investigation, they remain broad and lacking in sufficient particularity, given the complex nature of such an investigation.
I am also cognisant of the words of the Full Bench in Kennedy v Qantas Ground Services in that the documents sought appear to be exploring if there is a supportable basis for the case that might be potentially advanced rather than supporting a case which is intended to be advanced without further particularity.
Additionally, albeit weighing only slightly against the making of such an order, the broad nature of the orders sought are likely to capture the private and confidential information of third party individuals which do not have a nexus to the apparent relevance of the issues in question and are likely to cause an oppressive amount of work if I were to order that such information be redacted.
In all the circumstances, I am not prepared to make an order in the terms sought, nor make an order in modified terms in regard to Category 2.
Category Three
The third contested category pressed by the Applicant is:
“The EthicsPoint report, which contained allegations regarding the Applicant’s conduct as particularised in email correspondence from email address [email protected] to the Applicant on January 12, 2022”.
Whilst the Respondent contends that such reports are made on the representation that they will remain confidential, that alone is not a sufficient reason to weigh against the making of an order.
I accept the submissions of the Respondent that the report is not relevant to the matters in issue in the sense that the Respondent will need to demonstrate that the allegations that were in fact put to the Applicant throughout the disciplinary process provided a valid reason or reasons for dismissal and were sufficiently particularised to establish that procedural fairness was afforded. Whether or not the Respondent had access to more information is not relevant. What is relevant is what is relied on by the Respondent as a valid reason or reasons for dismissal and was put to the Applicant at the relevant time.
The Applicant is able to put evidence about the reason or reasons for dismissal that were given to him and whether he was given an opportunity to respond to those reasons. As previously noted, it is then a matter for the Respondent to establish whether the reason was valid and whether it was sufficiently particularised to ensure that the Applicant had an opportunity to respond to the reason for dismissal. In all the circumstances, I am not prepared to make an order in the terms sought, nor make an order in modified terms in regard to Category 3.
Category Five
The fifth contested category pressed by the Applicant is:
“All documents, within the meaning of the Evidence Act 1995 (Cth), that were:
a)Created by the Dianne Cubbins, or any other person, in conducting the investigation at (4) above;
b)Received by Dianne Cubbins, or any other person, in conducting the investigation at (4) above;
c)Sent by Dianne Cubbins, or any other person, in conducting the investigation at (4) above;
d)Relied upon by Dianne Cubbins, or any other person, in making factual findings in relation to the investigation at (4) above.”
I have had regard to the submissions of the Applicant and the Respondent and turned my mind to the consideration of the apparent relevance of this material to the matters in issue. Whilst the range of documents sought is again confined to documents pertaining to the investigation, they remain broad and lacking in sufficient particularity, given the complex nature of such an investigation.
I hold the same concerns as I do in relation to the documents in Category Two, in that the documents sought appear to be exploring if there is a supportable basis for the case that might be potentially advanced rather than supporting a case which is intended to be advanced without further particularity.
Additionally again, albeit weighing only slightly against the making of such an order, the broad nature of the orders sought are likely to capture the private and confidential information of third party individuals which do not have a nexus to the apparent relevance of the issues in question and are likely to cause an oppressive amount of work if I were to order that such information be redacted.
In all the circumstances, I am not prepared to make an order in the terms sought, nor make an order in modified terms in regard to Category Five.
Category Six
The sixth contested category pressed by the Applicant is:
“All emails, sms messages and other correspondence sent and received by Ms Dianne Cubbins in relation to the investigation referred to in (1) above when she was working on behalf of the Ethics and Investigations team at BHP as outlined in her email of January 12, 2022”.
In considering the email in question from Ms Cubbins to the Applicant on 12 January 2022, I am of the view that the email provides reasonable details of very serious allegations that allegedly occurred between 4-6 weeks earlier. I find it difficult to believe that the details provided in that email do not provide sufficient particulars to enliven the Applicant’s memory as to whether such serious incidents occurred or not.
Further, I am not convinced of the apparent relevance of the emails, SMS and other correspondence sent and received by Ms Cubbins in relation to the matters in issue. I rely on my earlier comments at [30] in this regard.
In all the circumstances, I am not prepared to make an order in the terms sought, nor make an order in modified terms in regard to Category Six.
Conclusion
In light of the above, I will make an order that the Respondent produce the documents at Category 1 and Category 4 of the Notice to Produce. Those orders will be issued separately.
DEPUTY PRESIDENT
[1] [2021] FWC 3043 at [44].
[2] Citing Re Penelope Vickers [2017] FWCFB 3131 at [8] (‘Vickers’); Esso Australia Pty Ltd v Australian Workers’ Union, Australian Manufacturing Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2017] FWCFB 2200 at [6] (‘Esso’).
[3] Citing the above cases and in addition Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2011] FWA 8756 at [10].
[4] Citing Clermont Coal Operations Pty Ltd v Brown & Dews and Others [2015] FWCFB 2460.
[5] Citing Vickers at [8]; Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [19].
[6] Citing Esso at [6] and [18].
[7] Citing Esso at [6].
[8] Citing R v Marks; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation [1981] HCA 33; (1981) 147 CLR 471 at 483.
[9] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd t/a Fredon[2021] FWCFB 128 [19].
[10] Trade Practices Commission v Arnotts Limited [1989] FCA 340, 21 FCR 306, 88 ALR 90 at 103; Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 [1989] AIRC 391, Print H2892, 2 June 1988 and Clermont Coal Operations Pty Ltd v Brown & Dews and Others[2015] FWCFB 2460 at [19].
[11] [2018] FWCFB 3847.
[12] Ibid at [23]; see also Clermont Coal Operations Pty Ltd v Brown & Dews and Others [2015] FWCFB 2460 at [19]; Kirkman v DP World Melbourne Limited[2015] FWCFB 3995 at [19] and Esso Australia Pty Ltd v AWU and ors[2017] FWCFB 2200 at [6].
[13] Wong v Sklavos (2014) 319 ALR 378, [2014] FCAFC 120 at [30].
[14] (1998) 19 WAR 350 at 379-81.
[15] Wong v Sklavos (2014) 319 ALR 378, [2014] FCAFC 120 at [31].
[16] [1988] AIRC 391.
[17] Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588 at [34].
[18] Re Clerks' (Alcoa of Australia – Mining and Refining) Consolidated Award 1985 Print H2892 at p2.
[19] Hinchey v North Goonyella Coal Mines Pty Ltd (2009) 178 IR 252 at [35].
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