Jonathan Mace v ASC Pty Ltd

[2014] FWC 670

[2014] FWC 670

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Mace
v
ASC Pty Ltd
(U2013/13492)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 28 JANUARY 2014

Application for unfair dismissal remedy - procedural issues - transcript - orders for the production of documents.

[1] These reasons for decision reflect a request to this effect made in a hearing on 23 January 2014. This hearing dealt with an application for an order for the provision of certain documents for an unfair dismissal application made by Mr Mace with respect to the termination of his employment with the Australian Submarine Corporation (the ASC). The ASC was represented by Mr Short, of counsel. Mr Mace was represented by Mr Hardie of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). In these reasons for decision I have set out the reasons for the position I adopted with respect to the orders sought by Mr Hardie and my refusal to order that the transcript be typed at this time.

[2] I note that Mr Mace’s unfair dismissal application was lodged at the same time as three other applications, all of which have subsequently been settled.

[3] Mr Mace’s application is listed for hearing on 4 and 5 February 2014. On 7 November 2013 I issued directions which required the filing and serving of an outline of submissions by 13 December 2013 and witness statements by 17 January 2014. The ASC was required to file and serve witness statements by 24 January 2014.

[4] On 17 January 2014 Mr Hardie lodged a separate application through which he sought orders that various documents be provided to him by the ASC. That application was dealt with by way of the telephone hearing on 23 January 2014. In that hearing, Mr Hardie agreed that he had not intended to pursue a separate application and that the request for orders was part of Mr Mace’s unfair dismissal application.

[5] The orders sought were for various correspondence, reports and policies.

[6] In the hearing I requested that the ASC provide to Mr Hardie a copy of the applicant’s security clearance application, if that existed, and copies of the policy documents sought by Mr Hardie. I did not make orders with respect to the other material sought but reserved to Mr Mace his right to request that material before, or during the hearing of his application once the ASC material had been filed and served.

[7] I adopted this position because, at the time of the hearing on 23 January 2014, the ASC material had yet to be filed and served and in any event I was not then persuaded that the material sought was relevant to consideration of Mr Mace’s application. To the extent that material was relied upon by the ASC in this matter I expected that to be provided by the ASC consistent with my directions.

[8] At the present time no further request for this material has been made by Mr Hardie but again the right to request this, or other material, is reserved.

[9] At the conclusion of this telephone hearing Mr Hardie requested that an order for typed transcript be issued. I confirmed that I was not currently persuaded that the matter was of a nature that required typed transcript. I advised that the parties were at liberty to order the transcript. Again, Mr Hardie requested my reasons for that refusal decision to be provided in written form. I understand that my decision to refuse to order that transcript be typed has now been appealed and have set out my reasons in this respect accordingly.

[10] There is no requirement in the Fair Work Act 2009 for the provision of typed transcript. Accordingly, it is a matter left to the discretion of the relevant Commission member. The typing of transcript is a particularly expensive option given that access to sound files can be arranged.

[11] There is nothing in this matter to date that dictates that typed transcript is necessary for the fair and expeditious determination of this matter. Both parties are represented by experienced advocates and the issues clear to me at the present time do not disclose issues of a nature or complexity that dictates that transcript should be ordered simply because one party has requested it.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

T Hardie “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for the applicant.

A Short counsel for the respondent.

Hearing details:

2014.

Adelaide (by telephone):

January 23.

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