Joseph Fenech v Animal Supplies (Wholesale) Pty Ltd

[2014] FWC 9122

[2014] FWC 9122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Fenech
v
Animal Supplies (Wholesale) Pty Ltd
(U2014/14085)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 DECEMBER 2014

Application for relief from unfair dismissal – order to produce.

[1] Mr Joseph Fenech alleged that the termination of his employment by Animal Supplies (Wholesale) Pty Ltd was unfair. Animal Supplies allege that Mr Fenech was a subcontractor and is therefore not able to make a claim for unfair dismissal.

[2] On 5 December 2014, Mr Fenech filed an application for an order to produce. I initially declined to issue the order and the matter was set down for a procedural conference/hearing. I advised at the conclusion of the conference/hearing that I would not issue the order and these are my reasons.

[3] Mr Fenech sought CCTV footage of:

i. a meeting that was said to have occurred on 22 October 2014

ii. services provided by Mr Fenech between 26 October 2014 and 1 December 2014

iii. services provided by Tristar Transport Services on 26 November 2014 and 1 December 2014

[4] At the conference/hearing I granted permission for the parties to be represented by a paid agent/lawyer. That permission was limited to the procedural conference/hearing and the parties were advised that they would need to get permission to appear at the substantive hearing.

[5] It became apparent in the procedural conference/hearing that there was no dispute between the parties that a meeting between Mr Fenech and Mr Richard Garforth from Animal Supplies occurred on or around 22 October 2014. It is also not disputed that the work performed by Mr Fenech is now being performed by Tristar Transport.

The approach to the granting of orders

[6] Commissioner Jones 1 set out the principles to be followed by the Fair Work Commission in deciding whether to issue a notice to produce and I adopt the approach outlined in that decision.

Conclusion

[7] It is unusual for orders for production to be issued prior to conciliation. However there is no prohibition on the issuing of such orders. Such orders may be necessary to preserve evidence particularly in circumstances where the evidence may be deleted due to normal business practices. For example, CCTV footage may only be retained for a short period of time.

[8] In this case, it is clear that it is not disputed what work Mr Fenech performed for Animal Supplies nor that Animal Supplies decided that it no longer wished that work to be performed by Mr Fenech and that work is now performed by Tristar Transport. Further, the meeting on or about 22 October 2014 is not disputed. In those circumstances, the CCTV footage sought is not relevant to any matter in dispute between the parties and I decline to issue the order.

DEPUTY PRESIDENT

 1   Australian Nursing Federation v Victorian Hospitals' Industrial Association [2011] FWA 8756

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