Jay Higgins v Coles Supermarkets Australia Pty Ltd T/A Coles

[2017] FWC 4301

[2017] FWC 4301

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jay Higgins
v
Coles Supermarkets Australia Pty Ltd T/A Coles
(U2016/12761)

COMMISSIONER SIMPSON BRISBANE, 18 AUGUST 2017

Application for relief from unfair dismissal.

[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Jay Higgins who alleges that the termination of his employment from Coles Supermarkets Australia Pty Ltd T/A Coles (Coles) was unfair.

[2] The matter was heard in Brisbane on 1 and 2 August 2017. At the hearing, Mr Higgins was represented by Ms Kerri Fredericks of Anderson Fredericks Turner and Coles was represented by Mr Andrew Pollock of Counsel instructed by Herbert Smith Freehills.

[3] Five witness statements were filed in support of Mr Higgins’ case, four from himself 1, and one statement from his mother Mrs Ann Higgins2. Both Mr Higgins and Mrs Higgins gave oral evidence in support of their statements.

[4] Coles filed statements and called evidence from four witnesses, Mr Danniel Lacey, former Bakery Manager 3, Mr Timothy Scales, Toowong Store Manager4, Ms Johanna Brown, Regional Human Resources Manager5 and Ms Jan Stevenson, Queensland State Manager6. All four witnesses for Coles gave oral evidence in support of their statements.

[5] During the course of cross examination of Ms Brown, Ms Fredericks called for a document that was not already in evidence, namely the email by which Ms Johanna Brown (then Ms Johanna Rafferty) first received screenshots of the text messages and explicit photographs relevant to Mr Higgins’ dismissal.

[6] At approximately 2:00pm on Wednesday 2 August 2017, Coles produced this email, which was taken into evidence and marked as ‘Exhibit 15’ (Exhibit 15).

[7] During the course of cross examination of Ms Stevenson, Ms Fredericks called for a further document that was not already in evidence, namely the email by which Ms Jan Stevenson first received screenshots of the text messages and explicit photographs relevant to the Applicant’s dismissal (Requested Document 1).

[8] Late on the final day of Hearing, Coles submitted that due technological difficulties, it was not able to provide a copy of Requested Document 1 at the hearing. I determined that Coles was to provide requested Document 1 to Mr Higgins’ representatives within the next day and adjourned the Hearing at 4:47pm.

[9] On 3 August 2017, Coles’ representatives sent a copy of Requested Document 1 to my Chambers and copied Mr Higgins’ representatives.

[10] On 4 August 2017, Mr Higgins’ representatives sent an email to Coles’ representatives requesting the provision of the following further documents:

1. “Jan Stevenson’s email to Johanna Rafferty sent on Wednesday, 7 September 2016 at 1:14 PM” (Requested Document 2) and;

2. “Johanna Brown’s email to Christopher Shelley set out in Exhibit 15” (Requested Document 3)

[11] On 4 August 2017, Coles provided copies of Requested Document 2 and Requested Document 3 to Mr Higgins’ representatives.

[12] On 9 August 2017, Mr Higgins’ representatives sent an email to chambers requesting leave to recall Ms Johanna Brown and Ms Jan Stevenson. On 10 August 2017, Coles sent an email to my chambers indicating it objected to such leave being granted.

[13] On 10 August 2017, I wrote to the parties advising them that I had decided not to grant Mr Higgins’ representatives request at this time, as I is unable to discern a reason that would justify recalling the witnesses.

[14] I did however invite Ms Fredericks to make further submissions as to why leave should be granted to recall Ms Brown and Ms Stevenson by close of business Friday 11 August 2017. Further, I invited Coles to file submissions in response by close of business Tuesday 15 August 2017.

Permission to recall Ms Johanna Brown

Exhibit 15

[15] Ms Fredericks submitted that she was denied the opportunity of cross examining Ms Brown in relation to Exhibit 15 and set out a table containing a number of excerpts of the transcript, and apparent issues. 7 It was submitted that the Commission should grant leave for Ms Fredericks to cross examine Ms Brown on the issues raised in his submissions in relation to Exhibit 15 in the interests of justice and procedural fairness.

[16] Coles submitted that Ms Fredericks was in fact afforded an opportunity to cross examine Ms Brown in relation to Exhibit 15. 8

[17] Coles referred to the following excerpt of the transcript:

“PN2624

MR POLLOCK: That then leaves I think, Commissioner, the email with the attached screen shots from the text messages that was referred to in Ms Brown's evidence and she was going to make some attempts to find that over lunch in her archives. I'm just having a look at this now. I've been told that that email has been obtained. I have a copy of that here.

PN2625

I am instructed, and I'm just looking through these now, there are in the attachments, because they are image screen shots of a much longer message sequence, there are some double ups of it. You will read the messages and it won't look like it's in chronological order; it does require a bit of piecing together, at least in my initial review of this, these appear to be - although they're jumbled a bit, it's the same content as is annexed to the various statements and appears in the court book. Again, my learned friend might have a different view. At least there's nothing that I can see - there are no messages in here that don't appear in the other version or vice versa.

PN2626

THE COMMISSIONER: Do you want to take a minute to look at this Ms Fredericks before you respond?

PN2627

MS FREDERICKS: I guess I can just query - this is just in the order of how it was appearing in the annexure?

PN2628

MR POLLOCK: I think he'd set out there a series of attachments to the email. To clarify that, Commissioner, you'll see at the top of the email at the relevant header there is below subject, there is attachments and a series of .png files which in my experience are image files. To that end, the way in which they appear in this bundle are in the order of the way that the email program ordered them by way of attachments, rather than any other deliberate ordering or otherwise.

PN2629

THE COMMISSIONER: Sure.

PN2630

MR POLLOCK: Again Commissioner, it's really for my learned friend to perhaps address you as to whether or not there's anything that arises from that. I must say I can't see what that would be, but my learned friend can say something about that.

PN2631

THE COMMISSIONER: Ms Fredericks, do you need a moment to consider what you want to do?

PN2632

MS FREDERICKS: I think that I can probably just make submissions, Commissioner. It seems, although it does seem by looking at the order in which the text messages appear, that that might account for the confusion in the discussion record, but I guess I can put that to Ms Stevenson. There's probably no need to recall Ms Brown about the point.

PN2633

THE COMMISSIONER: If you're content with that.

PN2634

MS FREDERICKS: I think so.

PN2635

THE COMMISSIONER: All right then, I don't want you to feel like you've been rushed into making that decision, but if you're comfortable that that's what you want to do.

PN2636

MS FREDERICKS: I mean - just one moment.

PN2637

THE COMMISSIONER: Sure.

PN2638

MS FREDERICKS: It's okay, thank you.

PN2639

THE COMMISSIONER: Thanks for that.

PN2640

MR POLLOCK: With that in mind, Commissioner, that document or that bundle of documents should be tendered and noted also.

PN2641

THE COMMISSIONER: I will admit the documents which I think we're going to call the email - which is the actual email that we were talking about in the evidence, because there's a number of different ones referred to on the front page?

PN2642

MR POLLOCK: That must be, as you see there's a series of forwards. That must be - the witness Ms Brown was previously known as Ms Rafferty.

PN2643

THE COMMISSIONER: Okay.

PN2644

MR POLLOCK: That accounts for the appearance of that name.

PN2645

THE COMMISSIONER: This is the email that was sent from Ms Stevenson to Ms

Rafferty at 1.14 pm on 7 September.

PN2646

MR POLLOCK: Yes, I think that.

PN2647

THE COMMISSIONER: There's that email and the accompanying attached screen shots of text messages and photos. I'll admit those documents as exhibit 15.

EXHIBIT #15 EMAIL SENT FROM MS STEVENSON TO MS RAFFERTY

ON 07/09/16 WITH ACCOMPANYING ATTACHED SCREEN SHOTS OF

TEXT MESSAGES AND PHOTOS

PN2648

MS FREDERICKS: Just one thing, Commissioner, I mean obviously I hadn't looked at the details before it was exhibited. You'll notice in this email of 6 September 2016 to Jan Stevenson, that there's a reference to Mr Higgins being terminated for stealing a bun.

PN2649

THE COMMISSIONER: Yes.

PN2650

MS FREDERICKS: There is a story about that. We didn't explore it in these proceedings for the view that it wasn't relevant here. I wouldn't want anything prejudicial to be taken from that, given that I haven't had the opportunity for my client to explain what happened in those circumstances.

PN2651

THE COMMISSIONER: I guess my first impression would be the issues hasn't made its way into the evidence anywhere. It's not in the document that was prepared by the HR team for the purposes of the meeting. I just think that probably nothing turns on it. Are you content with that Mr Pollock?

PN2652

MR POLLOCK: Completely content with that approach, Commissioner.

PN2653

THE COMMISSIONER: Thanks.

PN2654

MR POLLOCK: I understand from that, that from what my learned friend says that Ms Brown is not required to be recalled for any further cross-examination.

PN2655

THE COMMISSIONER: No.

PN2656

MR POLLOCK: With that in mind, I call Jan Stevenson.”

[18] In relation to Exhibit 15, I am inclined to accept Coles’ submission that Ms Fredericks was in fact afforded an opportunity to cross examine Ms Brown on any issues arising out of Exhibit 15 after it had been produced. It is clear from the Transcript that Ms Fredericks made a decision not to recall Ms Brown after Exhibit 15 was admitted into evidence. I therefore do not accept Mr Higgins would be at any disadvantage if I do not grant leave for Ms Brown to be recalled to give evidence on Exhibit 15. To the contrary, I am of the view that giving Ms Fredericks a second opportunity to cross examine Ms Brown on Exhibit 15 would in fact disadvantage Coles.

Requested Documents 1, 2 and 3

[19] Ms Fredericks submitted that since calling for Exhibit 15, Coles has provided further email exchanges between witnesses (i.e. Requested Documents 1, 2 and 3). Ms Fredericks submitted that there are issues arising out of these emails that call into question the contents of the emails exhibited at the Commission. 9

[20] Ms Fredericks submitted that Requested Documents 1, 2 and 3 go to the heart of the process employed by Coles in dismissing Mr Higgins. She submitted that these Documents include issues of credibility and honesty of the witnesses involved, which goes to the heart of the matters to be determined by the Commission in these proceedings.

[21] Coles submitted that Ms Fredericks failed to identify any new information or evidence that came to light after Ms Brown’s cross examination that Ms Fredericks was denied the opportunity for cross examination on. Coles submitted that there is no substantive difference between Requested Documents 1, 2 and 3. Further, Coles submitted there is no content contained in Requested Document 1, 2 or 3 that was not already provided to Ms Fredericks at the Hearing in Exhibit 15.

[22] To justify the time and costs associated with recalling Ms Brown, Ms Fredericks needs to demonstrate that any of the Requested Documents submitted after 2 August shed some new light on a specific fact in issue. Whilst making some general submissions surrounding the credibility and honestly of the witnesses, it appears as though Ms Fredericks has not identified any specific discrepancies between the Requested Documents, and Exhibit 15. Further, Ms Fredericks has not identified why such a discrepancy would warrant the recalling of Ms Brown.

[23] I have reviewed the attachments to Coles submissions, and have closely examined Exhibit 15, Requested Document 1, Requested Document 2 and Requested Document 3. I am not satisfied Ms Fredericks has sufficiently identified any specific issues that arise from these documents, that would warrant the recalling of Ms Brown.

Permission to recall Ms Jan Stevenson

[24] Ms Fredericks submitted that the matter was adjourned on the basis that she had not completed her cross examination of Ms Stevenson. Ms Fredericks submitted that she had called for a document (Requested Document 1) which she did not receive during the course of the Hearing. Ms Fredericks referred to the following excepts of the transcript:

“PN2031

THE COMMISSIONER: Yes. And then I will leave the matter open to the extent that you will have liberty to apply to seek to recall, if you think you need to. My inclination would be to minimise costs. It is just going to be about that document, I would be content for that to be done perhaps by - for that evidence to be given by telephone, because of don't want parties to incur the costs of having to appear in person for just this issue.

PN2032

MS FREDERICKS: Well, in the meantime, Commissioner, would it be convenient to give it to at least until 5 o'clock to see if they can in fact produce the document?

PN2033

THE COMMISSIONER: Sure. Yes.”

…

“PN2034

Okay. Right. I suppose we stand down until 5.00 and we just wait and see if we get the email, Commissioner.

PN2035

THE COMMISSIONER: I'm content to allow - unless you have got any particular objection to this - Mr Pollock to re-examine, so that in the event that the document - we're finished then and we can wrap up. Are you content with that clause, Mr Pollock?

PN2036

MR POLLOCK: Yes, Commissioner. Again, I'm - - -

PN2037

THE COMMISSIONER: I'm just anticipating there's a real prospect the document is not going to arrive.

PN2038

MR POLLOCK: I think that's precisely right, Commissioner. So I would have thought that the course that you mapped out would be the appropriate one to adopt. Because I - if you would just bear with me for one second, Commissioner?

PN2039

THE COMMISSIONER: Sure.

PN2040

MR POLLOCK: I don't have anything in re-examination. So with that in mind, I don't consider - well, standing down for 35 minutes, given the time lines with flights and the fact that we have a mapped out course, think that's the appropriate way to move forward on it - given that the advice that we've got around the increased security measures - I don't want to miss my flight.

PN2041

THE COMMISSIONER: I think what we'll do, Ms Fredericks, is that we will adjourn the matter. But you will get this document at some point, next day or so I expect. If you want to recall Ms Stevenson, you can seek to do that and I'm telling you now I would require that that happen over the telephone and it won't be requiring anyone to fly anywhere, and I will make it - my associate can liaise with you both about the time that we can do that, but it probably could be done in 15 minutes sometime in the next week or so.

PN2042

Are you both agreeable with that course? I know, Ms Fredericks, it's not your preferred course but anyway I won't ask you to say you agree, but that's what we will be doing. All right. Anything else?

PN2043

MS FREDERICKS: No. Thank you, Commissioner.”

[25] Ms Fredericks submitted that at no point was it submitted on Mr Higgins’ behalf that cross examination of Ms Stevenson had been concluded. Ms Fredericks submitted that she was forced to acquiesce to an adjournment mid cross examination without having the opportunity to cross examine on the contents of the email that she had called for in evidence. 10

[26] Coles rejected Ms Fredericks’ submission that cross examination of Ms Stevenson had not concluded. It submitted that the Hearing concluded, and the proceedings were adjourned on the basis that Ms Fredericks was granted liberty to seek leave to recall Ms Stevenson if such recall was justified by new information provided after the hearing – i.e. by the production of Requested Document 1. 11

[27] Coles submitted that Ms Fredericks has failed to identify any new substantive information or evidence that has come to her attention since the time of Ms Stevenson’s cross examination. 12 It submitted that Requested Document 1 contains no new information beyond that which was already in evidence at the time of Ms Stevenson’s cross examination.13

[28] Coles submitted there is nothing in the materials provided to Ms Fredericks following Ms Stevenson’s cross examination that would put any different complexion on the evidence already given by Ms Stevenson, nor does it open any probative lines of cross examination. 14

[29] I do not accept Ms Fredericks’ submission that cross examination of Ms Stevenson had not concluded, and thus she is therefore somehow entitled to complete cross examination of this witness. I made it clear that pending the production of the document, Ms Fredericks was granted the liberty to apply to seek to recall Ms Stevenson if she thought it necessary. Ms Fredericks therefore needs to demonstrate a reason that would justify the time and cost of recalling Ms Stevenson.

[30] It appears that Ms Fredericks has again failed to identify any new substantive information that has come to her attention since the time of Ms Stevenson’s cross examination. Further, in my view, she has not identified a specific reason that justifies the recalling of Ms Stevenson.

[31] I appreciate that Ms Fredericks may be of the view that had Requested Document 1 been produced at the Hearing, she would likely have been afforded an opportunity to cross examine Ms Stevenson on this further evidence. However, I must take into consideration the requirements of s.577 of the Fair Work Act that provides:

“The FWC must perform its functions and exercise its powers in a manner that:

   (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.”

[32] After reviewing Requested Documents 1, 2 and 3 and in the absence of any specific discrepancies or issues being raised by Ms Fredericks, I am of the view that allowing Ms Stevenson to be recalled to give evidence on these Documents will result in unnecessary costs. I cannot discern any substantial difference between the Documents and those already admitted into evidence at the time of Ms Stevenson’s cross examination. Whilst I appreciate that in Ms Brown’s case, Ms Fredericks was offered an opportunity to cross examine on Exhibit 15, and this is distinguishable from Ms Stevenson’s case where this opportunity has not been offered given the relevant documents were not produced before the conclusion of the Hearing, this technicality does not justify the recall sought where no justification has been provided for doing so.

[33] On the basis of my conclusions set out above I have decided against allowing either Ms Brown or Ms Stevenson to be recalled.

[34] Given the parties were invited to file submissions on the issue as to whether witnesses were to be recalled, and this matter has not been determined until the time of this decision being issued, the dates for filing closing submissions have been amended as follows:

1. The Applicant will file with the Commission and serve on the Respondent, any closing submissions by no later than 5:00pm Monday 21 August 2017.

2. The Respondent will file with the Commission and serve on the Applicant, any closing submissions by no later than 5:00pm Friday 1 September 2017.

COMMISSIONER

 1   Statement of Jay Higgins dated 4 April 2017; Statement of Jay Higgins dated 3 July 2017; Statement of Jay Higgins dated 17 July 2017 and Statement of Jay Higgins dated 24 July 2017.

 2   Statement Ann Higgins 5 July 2017.

 3   Statement of Daniel Lacey dated 17 July 2017.

 4   Statement of Timothy Scales dated 17 July 2017.

 5   Statement of Johanna Brown dated 17 July 2017.

 6   Statement of Jan Stevenson dated 17 July 2017; Statement of Jan Stevenson dated 24 April 2017.

 7 Applicant’s Outline of Submissions – Leave to recall Ms Brown and leave to complete cross examination of Ms Stevenson at [5].

 8   Respondent’s Submissions – Recall of Ms Johanna Brown and Ms Jan Stevenson at [18]-[20]

 9 Applicant’s Outline of Submissions – Leave to recall Ms Brown and leave to complete cross examination of Ms Stevenson at [15].

 10 Applicant’s Outline of Submissions – Leave to recall Ms Brown and leave to complete cross examination of Ms Stevenson at [22].

 11 Respondent’s Submissions – Recall of Ms Johanna Brown and Ms Jan Stevenson at [29].

 12 Respondent’s Submissions – Recall of Ms Johanna Brown and Ms Jan Stevenson at [25].

 13 Respondent’s Submissions – Recall of Ms Johanna Brown and Ms Jan Stevenson at [34].

 14   Ibid.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR595431>