Ian Cochran v Energex Limited

[2013] FWC 9564

[2013] FWC 9564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Cochran
v
Energex Limited
(U2013/13035)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 DECEMBER 2013

Application for relief from unfair dismissal – production of documents.

[1] Mr Ian Cochran worked for Energex Limited T/A Energex for 31 years. His employment was terminated on notice for alleged misconduct. Mr Cochran claims that the termination of his employment was harsh, unjust or unreasonable.

[2] On 19 November 2013, a notice to produce was issued directing Energex to produce certain documents.

[3] Energex objected to the production of the documents on various grounds.

[4] Mr Jim Murdoch, for Energex and Mr Mark Healy for Mr Cochran were given permission to appear in relation to the application to set aside the notice to produce.

[5] A letter detailing the objection was filed by Mr Cochran and I do not intend repeating the matters set out in those submissions. In summary, Mr Murdoch’s submissions were as follows:

1. The notice to produce should be set aside until the parties had filed their witness statements and submissions. It was only at this stage that the parties and the Fair Work Commission (Commission) will know what the matters that are in dispute are and therefore what documents may be relevant to the controversy. Energex submitted that Mr Cochran had made a number of admissions and therefore the scope of matters in dispute may be limited. It was submitted that Energex is required to file the evidence that it will rely upon and if there is any relevant documentation missing, a notice to produce can be issued then.

2. Some of the material sought is irrelevant to the proceedings.

3. The request is oppressive as it will take considerable time and resources to locate the material. As one example, one category seeks documents going back 20 years. Further, the request lacks particularity.

4. Some of the documents sought are confidential because it relates to other persons and raises privacy issues. Further, the employees interviewed as part of the investigation were assured confidentiality, privacy and protection in relation to disclosures made by them.

[6] Mr Healy relied upon the decision of Commissioner Jones in Australian Nursing Federation v Victorian Hospitals’ Industrial Association 1 to submit that a party can be ordered to produce documents which are relevant provided the request is not oppressive or a fishing expedition.

[7] Mr Healy relied upon the letter of termination to support the scope of the order. He submitted that orders 2, 3, 4, 5, 7 and 8 could have been replaced with an order that Energex produce all documents in respect of the investigation.

[8] Mr Healy accepted the proposition that where misconduct is alleged, the Commission is not bound by any investigation and that Energex will be required to produce evidence to enable the Commission to determine if the conduct in fact occurred. However Mr Healy submitted that the documents sought were relevant because Mr Cochran wished to impugn the investigation process. He further submitted that no decision to terminate Mr Cochran’s employment, which was based on a flawed investigation, could be fair.

[9] Mr Healy submitted that Mr Cochran’s work performance was relevant because it is clear that Mr Peter Weaver, who made the decision to terminate his employment, had regard to his entire employment history.

[10] Mr Healy denied that Mr Cochran had made any admissions or made admissions which are relevant to the dismissal.

[11] Mr Healy submitted that the request was not oppressive but he accepted that order 1 should be amended to refer to performance appraisals and order 6 should be limited to a lesser period of time.

[12] Mr Healy submitted that his client will be exposed to additional costs if he is required to file his material without access to the documents as he will be required to file additional material after Energex has filed its material.

Conclusion

[13] I have decided to set aside the orders.

[14] I accept the submissions of Energex that it is not possible to determine which categories are relevant until the parties have filed their evidence in this matter. For example, it is not clear at this stage what regard Energex had to any performance issues in reaching its decision to terminate Mr Cochran’s employment. Further, it is not clear which of the 33 employees who were interviewed will be called to give evidence. Further, if Energex contends that the valid reason for the termination arises because of misconduct, it will have to satisfy the Commission that the misconduct occurred and put before the Commission evidence that supports its case.

[15] Until the matters in dispute are clear and the parties have put forward the evidence on which they rely, it will not be possible for the Commission to assess the relevance of the documents and determine what access should be given to the documents. 2

[16] I accept that Mr Cochran will be required to revisit these issues however, that is often the situation as the matters taken into account in the decision to terminate an employee’s employment are known only to the employer. As a result, it is often necessary for the employee to provide reply evidence.

[17] After the material is filed Mr Cochran can seek further orders to produce if necessary.

DEPUTY PRESIDENT

<Price code A, PR545369>

 1   [2011] FWA 8756

 2   Ibid at [12]

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