Kelvin Gorrie v Greensphere Pty Ltd T/A Multihull Solutions

[2021] FWC 4664

[2021] FWC 4664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelvin Gorrie
v
Greensphere Pty Ltd T/A Multihull Solutions
(U2021/3478)

COMMISSIONER SIMPSON BRISBANE, 2 AUGUST 2021

Order for production of documents.

[1] On 22 April 2021, Mr Kelvin Gorrie filed an application for unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (the Act) alleging his employment with Greensphere Pty Ltd T/A Multihull Solutions (the Respondent) was terminated unfairly.

[2] The Respondent filed a jurisdictional objection to the application based on its submission that Mr Gorrie was an independent contractor. That matter was listed to be heard by the Commission on 4 and 5 August 2021 however has been adjourned to a date to be advised due to the current lockdown in Brisbane.

[3] On 15 July 2021, the Respondent filed a Form F52 Application for an order for production of documents, records or information to the Commission. This same day, I issued an Order granting production of all but one document (the Order). An Order for this document was not granted on the basis that the request was too broad, and I invited the Respondent to reword the request. The Respondent did not provide an amended request. On 19 July 2021, the Applicant sent correspondence to my chambers objecting to the Order on various grounds.

[4] Subsequently, on 22 July 2021 and 23 July 2021, the Applicant filed two Form F52 Applications for an order for production of documents, records or information to the Commission (the Applicant’s F52 Applications), which in total, listed 62 categories of documents.

[5] On 23 July 2021, I directed the Respondent to file written submissions addressing the Applicant’s objection to the Order made on 15 July 2021 and in respect of the Applicant’s F52 Applications.

[6] The following decision addresses the Applicant’s objection regarding the Order of 15 July 2021 and the Applicant’s Form F52 Applications on 22 and 23 July 2021.

ORDER OF 15 JULY 2021

Legitimate Forensic Purpose

[7] The Applicant raised that the Respondent had failed to demonstrate the relevance of the documents sought in terms of the relevant tests.

[8] In response to this, the Respondent submitted the orders sought by the Respondent would assist the Commission determine the nature of the relationship between the Applicant and the Respondent. That being whether the Applicant served the Respondent in its business or carried on a trade or business of his own.

[9] The Respondent stated that there is not one single test that can be applied to the question and the law requires a multi-factorial approach. Further, the Respondent noted that a number of indicia have been identified as being relevant to determining the totality of the relationship between the parties. These include whether tax is deducted from payments to the putative employee and what is disclosed in the tax returns.

[10] The Respondent cited that Full Court decision of the Federal Court of Australia in Tattsbet v Morrow, 1 where Justice Perram highlighted the fact that whether the putative contractor collects GST and complies with other regulatory requirements was also important.

[11] The Respondent submitted that as articulated by Justice Greenwood in McIlwain v Ramsey Food Packaging Pty Ltd and others 2, the question is whether the documents can throw some light “on at least some of the issues in the principal proceeding”. The Respondent submitted the tax returns and the invoices go further than merely throwing light on the issues to be determined. The Respondent submitted the documents are directly relevant to the question of whether the Applicant was running a business as an independent contractor.

[12] The Respondent’s position is that the Applicant was able to contract with other entities and did in fact contract with other entities while he contracted with the Respondent. The Respondent further provided that there is evidence the Applicant has employed staff in his business and conducted business with other entities.

Documents identified with sufficient particularity and ‘fishing expedition’

[13] The Applicant stated that the Order is speculative and amounts to a ‘fishing expedition’ with the documents relating to third parties not relevant or related to the relationship between the parties.

[14] The Respondent submitted that there is no dispute about what documents are required as they are easily identifiable and sufficiently particularised.

[15] The Respondent further provided that contrary to the submission of the Applicant, they are not sought for the purpose of ‘finding’ a case. Rather, they are sought for the purpose of seeking to further advance the case that will ultimately be made by the Respondent at hearing.

Oppressive

[16] The Applicant submitted on the basis of confidentiality along with the ground of oppression, the Order places an unreasonable burden on the recipients, and an adverse impact on third parties.

[17] The Respondent submitted that the scope of the Order for production is not so wide as to be oppressive. The documents are narrow in their character and the volume arises from the number of years over which they exist and are now sought.

[18] It was the Respondent’s evidence that any invoices issued by the corporate trustee for the K &T Gorrie Family Trust (ABN 99 572 471 604) (the Trustee) to other entities will inform the Commission about whether the Trustee was doing business outside of the contract with the Respondent. The Respondent contracted with the Trustee for approximately eight years. The Respondent noted that the Applicant does not explain why he does not have access to the trust deed of the K & T Gorrie Family Trust. The Respondent submitted the trust deed will inform the Commission as to the purpose of the trust.

[19] Similarly, the Respondent stated that the Applicant points to no evidence and does not explain why he cannot obtain the tax returns sought in the Order, as those documents ought to be easily obtainable from the company’s records or the accountant of the company. Likewise, the tax returns of the named individuals ought to be reasonably easy to obtain from personal records or each individual’s accountant.

[20] The Respondent submitted the Applicant’s concerns about privacy and confidentiality are unwarranted. The Respondent, its directors, senior staff and its legal advisors are bound by the same implied undertaking as to the use of the documents outside of the litigation in the Commission as they would be in a Court.

[21] It was submitted by the Respondent that the Applicant has also complained the Order requires the disclosure of commercially sensitive documents. The Respondent notes that it is not clear how the Applicant can both claim he was not running a business between March 2013 and April 2021 and that some documents requested of that business are ‘commercially’ sensitive.

[22] The Respondent stated that the Applicant claims the request for tax invoices of the trustee is “oppressive” to third parties but points to no evidence of oppression. The invoices are from his business. No third party is required to produce documents as the invoices are squarely within the possession, custody or control of the Applicant.

[23] Similarly, the Respondent submitted that the Applicant submitted the invoices issued by his own business since 6 April 2021 are not within his possession, custody or control. The Respondent submitted that in circumstances where that would seem highly unlikely, there is no explanation provided by the Applicant.

[24] The Applicant submitted that he would incur great costs and is not capable of enduring such costs. Regarding this, the Respondent stated that no submissions are made as to the actual cost to the Applicant of producing the documents which might have allowed the Commission to assess whether there was indeed an unreasonable financial burden on the Applicant. The Respondent submitted the majority of the documents, if not all, would likely be in the possession, custody or control of the Applicant.

[25] The Respondent submitted there is no serious or unfair burden upon the Applicant in producing the documents given the degree of relevance to the matters to be decided by the Commission.

Timing of application

[26] Given the matters in dispute between the parties and the relevance of the documents to those matters, the Respondent considered it likely the Applicant would annex at least some of the documents sought in the Respondent’s application to his statement filed 9 July 2021, in circumstances where the Respondent had indicated the documents were relevant and ought to be produced. The solicitors for the Respondent informed the representatives for the Applicant in correspondence dated 6 May 2021 the documents were sought and restated that intention at a mention of the matter on 26 May 2021.

[27] The Respondent submitted that in email correspondence to the Commission on 20 July 2021, the representative for the Applicant acknowledged the previous notice given to the Applicant regarding the production of the documents sought and complained the Respondent took no action until the last minute. When the documents were not annexed to the Applicant’s statement, the Respondent promptly filed its application.

[28] The Respondent respectfully submitted no criticism should be made of the Respondent in this respect.

The Order

[29] The Respondent submitted the Order made by the Commission on 15 July 2021 should be reinstated on the basis that the documents sought are highly relevant, are within the Applicant’s possession, custody or control and there is no evidence of oppression arising from their production.

Consideration

[30] Having considered the respective submissions I am satisfied that the documents sought by the Order currently set aside, may be relevant to facts in issue, and are sought for the purpose of seeking to further advance the Respondent’s case and are not a fishing expedition.

[31] I have been persuaded not to require the production of documents in relation to schedule 4 pertaining to Mr N Gorrie who appears to have been a minor at the relevant times and appears to have had minimal engagement in the relevant matters.

[32] I am otherwise satisfied the production of the material sought that pertains to the period of time prior to the commencement of the relationship between the Applicant and the Respondent may be relevant and may assist the Commission in determining the matter.

[33] I am not satisfied it would be oppressive to require the documents to be produced as it would be expected the documents should be in the control of the Applicant. On that basis I have determined to reinstate the Order previously issued.

APPLICANT’S REQUEST FOR DOCUMENTS OF 22 JULY 2021

[34] The Applicant filed a Form F52 Order for production of documents on both 22 and 23 July 2021. Together, these Form F52’s named a lengthy list of documents.

[35] The Respondent indicated that they object to the granting of the orders sought in the Applicant’s Application made on 22 July 2021 on the basis that the application is frivolous, vexatious and an abuse of process.

[36] The Respondent submitted that the Applicant has not put the Respondent on notice that any of the documents would be sought, and while that is obviously not a barrier to such an application being granted, the Respondent submitted that it casts doubt about the sincerity of the application.

The documents sought by the Applicant

[37] The Applicant seeks documents issued by his business or that were received by his business at paragraphs 1-7 in the Schedule attached to the Draft Order in the Applicant’s Application (the Schedule). Regarding this, the Respondent submitted the Applicant will have those documents in his possession, custody or control. The Applicant stated that he has been unable to obtain the documents and requires the documents to be able to advance his case.

[38] In paragraphs 8, 9 and 10 of the Schedule, the Applicant seeks minutes, recordings and emails relating to the “weekly sales meetings” held by the Respondent and any other businesses of the Respondent including The Yacht Sales Co. The Respondent submitted the minutes and recordings of weekly meetings over an eight-year period is too broad a category to justify production when the relevance of the documents is not clear. The Respondent further stated that they can produce any relevant minutes, recordings and emails in its possession should the Commission order production of any particular meeting or meetings. The Applicant submitted that the weekly staff meetings are in themselves relevant as to the nature of the relationship and the issues in dispute. The independence of the Applicant was non-existent, and his integration into the Respondent’s business are evidenced in the minutes and recordings of the sales meetings.

[39] In paragraphs 11 and 12 the Applicant has requested all emails and recordings relating to conferences held by the Respondent or associated entities. The Applicant has provided Annexures of five video recordings from 2017 entitled “Team Seminars”. Upon review of those recordings, the Respondent stated that it is not clear how they are relevant to the matters to be decided. Further, the Respondent submitted that they do not have access to any documents of the Sydney Marine Group as it is the private corporate entity through which Marcus Ashley-Jones contracts with the Respondent. The Respondent submitted without any suggestion of relevance the orders sought are a mere fishing expedition.

[40] In paragraphs 13 to 18, the Applicant seeks evidence of expenditure on a number of items. The Respondent submitted the seeking of production of such documents is merely an attempt to waste the Respondent’s time and resources. Further the Respondent again noted that they do not have access to any documents of the Sydney Marine Group as it is the private corporate entity through which Marcus Ashley-Jones contracts with the Respondent.

[41] In paragraphs 19 and 20 the Applicant seeks various training manuals. The Respondent submitted the Applicant is on a mere fishing expedition and that the Applicant has already Annexed (1E) and referred to in his statement a training manual and handbook. However, the Respondent stated that they can produce copies of the referred to pre-owned Sales Consultant’s Training Manual, handbooks of the Respondent and training manuals of the Respondent and associated entities (the latter if such documents exist). The Respondent submitted that no New Boat Sales Consultant’s Training Manual and Handbook exists. The Respondent said it does not have access to any handbooks and training manuals (if they exist) of the Sydney Marine Group as it is the private corporate entity through which Marcus Ashley-Jones contracts with the Respondent.

[42] In paragraphs 21 to 25, the Applicant seeks employment documents for Marcus Overman, an employee of the Respondent. The Respondent submitted that it is not contested that Mr Overman is an employee of the Respondent, so it is not immediately obvious what the relevance is of these documents. The Respondent stated that the document can be produced if the Commission makes an order that it do so.

[43] In paragraphs 26 to 33 and 56, the Applicant also seeks the same documents for all other employed sales consultants in Australia and those employed by the Respondent overseas. The Respondent stated that it does not deny it has employees and it is not clear how the documents are relevant. Further the Respondent does not have access to any documents of the Sydney Marine Group as it is the private corporate entity through which Marcus Ashley-Jones contracts with the Respondent.

[44] In paragraphs 34 to 55 and 57, the Applicant seeks the contracts, payslips, group certificates, reimbursements, commissions and other invoices paid in relation to a number of its contract brokers. The Respondent submitted there are no pay slips or group certificates for its contract brokers and it would not be able to produce such documents. The Respondent stated that they can produce the contracts, reimbursements and commissions relating to its brokers, but it is not clear how such documents throw any light on the issues to be determined by the Commission. The Respondent further submitted the documents will demonstrate the brokers are engaged via a contract for services. The commissions paid are as per the terms of the contracts. The Respondent submitted the production of such documents is unwarranted but is able to produce the documents. Further, the Respondent again submitted it does not have access to any documents of the Sydney Marine Group.

[45] The Respondent submitted no Settlement Deed or Agreement between the Respondent and Ms Bennett of any kind exists, and that it is not clear how any such deed could be relevant even considering the Applicant’s claims in relation to Ms Bennett which the Respondent submitted are without basis.

[46] The Respondent submitted the Applicant’s application for production should not be granted. It submitted the documents are not sufficiently relevant to justify the time and resources required to gather the documents. Production of the documents would likely require a period of time that jeopardises the hearing dates. The Respondent submitted the matter has already suffered significant delays. It is the Respondent’s submission that the documents are not genuinely required by the Applicant to make out his case.

[47] The Respondent submitted the Commission ought to exercise its discretion under s.590(2)(c) of the Fair Work Act 2009 to not grant the Applicant’s F52 Application.

[48] The Applicant emphasised that the documents are relevant and are not as stated by the Respondent to be oppressive, and with the Respondent’s resources as a multi-million dollar organisation would have no issues with the production of the documents without any jeopardy to the hearing dates.

Consideration

[49] It would have been expected that the Applicant would have within his control the documents he seeks an order from the Commission that the Respondent produce described in paragraphs 1 - 7. Despite this, I am satisfied the production of these documents may assist me in determining the matter and an Order will be issued requiring their production, however the order will be directed to the Respondent, and not other entities.

[50] I am satisfied copies of the minutes of weekly sales meetings described in paragraph 8 may be relevant to facts in issue. I do not intend to require production of all recordings and emails as described in paragraphs 9,10 or other material described in paragraphs 11 to 18 as I am not yet satisfied all of the material is sufficiently relevant to order its production at this stage.

[51] I am satisfied the training manuals may be relevant to facts in issue and will issue the orders sought in paragraph 19 and 20 to the extent that they are directed at the Respondent.

[52] I am not satisfied at this stage that it is necessary or sufficiently relevant to order the production of documents in relation to Mr Overman who it is a stranger to the proceedings and given it is not contested Mr Overman is an employee of the Respondent. Paragraph 26 to 33 and paragraph 56 are refused for the same reasons.

[53] I am not satisfied at this stage that it is necessary or sufficiently relevant to order the production of documents in paragraphs 34 to 60 as the documents are not directly relevant to the relationship between the Applicant and the Respondent.

[54] In a separate Application for an order for production the Applicant sought that the Respondent produce the contract of sale for the boat ‘Pacific Dream’ and the contract of sale for the boat ‘Jupiter 1’ as sold in 2017. The Respondent’s submissions do not appear to address the issue of the production of these documents. I intend to issue an Order for their production. If it is the case that the Respondent has not had an opportunity to respond to the production of these documents, they may do so.

[55] The documents required to be produced as described in this decision will be required by a separate Orders to be produced to chambers and the Applicant or Respondent’s representative as the case may be by 5pm Friday 6 August 2021.

[56] In response to a separate request from the Applicant by email to chambers on 29 July 2021 seeking further direction as to the filing of additional documents the Commission directs that any further documents that the Applicant seeks to rely on be filed and served by 5pm Friday 6 August 2021.

COMMISSIONER

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 1 [2015] FCAFC 62; (2015) 233 FCR 46 at [70].

 2 [2005] FCA 1233.