Kate Saidi v Healthscope Operations Pty Ltd

[2022] FWC 3233

[2022] FWC 3233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kate Saidi
v

Healthscope Operations Pty Ltd

(U2022/8984)

DEPUTY PRESIDENT EASTON SYDNEY, 8 DECEMBER 2022

Application for an unfair dismissal remedy – application for Order for Production – apparent relevance – Order granted with amendments.

1. On 6 September 2022 Ms Kate Saidi made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that she had been unfairly dismissed from her employment with Healthscope Operations Pty Ltd.

1. The following background information does not appear contentious:

(a)Ms Saidi was employed with Healthscope Operations as a mid-wife;

(b)from 30 September 2021 a Public Health Order required Ms Saidi to be vaccinated against COVID-19;

(c)Ms Saidi was not vaccinated and stopped attending work on 25 September 2021;

(d)on 10 March 2022 Ms Saidi received one dose of the Novavax vaccine;

(e)on 23 March 2022 Ms Saidi contracted COVID-19;

(f)Ms Saidi was given an Australian Immunisation Register Medical Exemption Certificate which Ms Saidi says constitutes an exemption from the Public Health Order;

(g)Healthscope Operations has a policy that requires employees to be double vaccinated against COVID-19, subject to exemptions;

(h)Healthscope Operations insisted that Ms Saidi apply for an exemption under its policy, and Ms Saidi applied for an exemption;

1. Ms Saidi’s exemption application was refused; and

(j)ultimately Ms Saidi was dismissed from her employment. 

1. On 30 November 2022 Ms Saidi made an application for an order requiring production of documents using the requisite Form F52. The Order is sought in the following terms:

1. Copies of any and all documents evidencing communications (internally or externally) concerning:

   (a)   the Applicant's return to the Respondent's workplace;

   (b)   the Applicant's request to return to the Respondent's workplace;

   (c)   the Respondent's request that the Applicant apply for a medical exemption;

   (d)   the Applicant's request for a medical exemption;

   (e)   consideration by the Respondent of the Applicant's request for a medical exemption.

1. Copies of documents concerning the processing and approval or rejection of any medical exemptions made to the Respondent by employees of the Respondent (other than the Applicant) during the period 1 September 2021 to the date of this Notice to Produce, including the following employees: Belinda Martin.

1. The Healthscope Operations opposes the orders on the basis of relevance, the categories are too broad and the application constitutes a fishing expedition.

1. Healthscope Operations filed and tendered evidence about the difficulties for Healthscope Operations if it had to strictly comply with the terms of the Order, evidence about previous correspondence with Ms Saidi’s representatives and an informal provision of documents, and other matters.

1. Consistent with the requirement under the Act to exercise the Commission’s powers in a manner that is quick, informal and avoids unnecessary technicalities (per s.577), an interlocutory hearing was held by telephone on 6 December 2022.

1. Upon receiving and testing the submissions of the parties I decided to confine the breadth of some categories. The parties helpfully co-operated to provide draft orders in amended…