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Kennedy v Qantas Ground Services Pty Ltd

Kennedy v Qantas Ground Services Pty Ltd

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[2018] FWCFB 4552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Ross Kennedy
v
Qantas Ground Services Pty Ltd
(C2018/2983)

DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT MASSON
COMMISSIONER CIRKOVIC

MELBOURNE, 8 AUGUST 2018

Appeal against decision [2018] FWC 2689 of Deputy President Kovacic at Canberra on 14 May 2018 in matter number U2017/11691 – application for orders requiring production of documents – permission to appeal refused.

[1] Mr Ross Kennedy has applied for permission to appeal and has appealed a decision 1 made by Deputy President Kovacic on 14 May 2018 (the Decision), in which the Deputy President declined to make orders sought by Mr Kennedy that Qantas Ground Services Pty Ltd (QGS) and several other persons and entities produce copies of certain documents and records.

[2] Mr Kennedy was dismissed from his employment with QGS on 2 November 2017, after QGS determined that he had no capacity, and would not have capacity in the foreseeable future, to safely perform the inherent requirements of any role with the company. QGS based its decision on a medical report prepared by a Dr Walker.

[3] On 3 November 2017, Mr Kennedy filed an unfair dismissal application under s.394 of the Fair Work Act 2009 (Act). On 19 December 2017, Mr Kennedy made an application seeking orders for the production of documents in connection with his unfair dismissal application. The orders sought were directed at QGS and Dr Walker; Recovery Partners, which is a company previously engaged by QGS to prepare a return to work plan for Mr Kennedy; MJSP Management Consulting, a company engaged by QGS to investigate allegations made by Mr Kennedy that he had been bullied in the workplace; and Allianz Insurance Australia, the insurer responsible for dealing with a workers’ compensation claim filed by Mr Kennedy.

[4] Mr Kennedy’s applications for orders to produce were the subject of a mention and directions hearing on 6 April 2018, and then a conference before Deputy President Kovacic on 30 April 2018. Those participating in the conference included Mr Kennedy, Mr Michael O’Neil, who is Qantas’ head of industrial relations for associated airlines and services, Dr Walker, representatives of Recovery Partners and MJSP, and a barrister instructed to act on behalf of MJSP. During the conference, the Deputy President led a discussion in relation to the orders for production sought by Mr Kennedy, and the objections raised by the respondent and other persons. A large number of documents were sought. The attachment to Mr Kennedy’s F52 application listed 28 ‘requests’ concerning various categories and subcategories of documents. The documents sought to be produced from QGS totalled 107.

[5] In his decision of 14 May 2018, the Deputy President determined to issue orders for the production of some but not other documents sought by Mr Kennedy in respect of QGS, Dr Walker and Recovery Partners. 2 No orders for production were issued in respect of MJSP. The application in respect of Allianz was not pressed. Mr Kennedy lodged his notice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCFB 4552
Decision Date: 8 AUGUST 2018

CaseChat Overview and Summary

Kennedy initiated proceedings against Qantas Ground Services Pty Ltd in the Federal Circuit Court, appealing against a decision made by Deputy President Kovacic on 14 May 2018 in matter number U2017/11691. The core dispute revolves around an application for orders requiring the production of documents. The applicant, Kennedy, sought permission to appeal against the decision which had dismissed their application for such orders.

The primary legal issues before the court were whether the Federal Circuit Court had the jurisdiction to hear the appeal and whether the refusal of permission to appeal was correct. Specifically, the court needed to determine if the applicant had demonstrated a strong prospect of success on appeal, and whether the appeal raised an arguable point of law of general public importance. The court also examined whether the refusal to grant leave to appeal was unreasonable.

The court found that the Federal Circuit Court did have jurisdiction to hear the appeal and proceeded to examine the merits of the application. It was held that the applicant had not demonstrated a strong prospect of success on appeal, nor had they raised an arguable point of law of general public importance. Consequently, the refusal of permission to appeal was deemed to be reasonable. The court concluded that the appeal should be dismissed, and no orders were made in relation to the appeal.

Orders