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Kennedy v Qantas Ground Services Pty Ltd

Kennedy v Qantas Ground Services Pty Ltd

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[2018] FWCFB 3847

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Ross Kennedy
v
Qantas Ground Services PTY LTD T/A Qantas Ground Services PTY LTD, Qantas Group
(C2018/2983)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER CIRKOVIC

MELBOURNE, 2 JULY 2018

Applications for Orders requiring production of documents – Applications for Orders requiring persons to attend the Fair Work Commission.

[1] On 19 December 2017, Mr Ross Kennedy, the Applicant in unfair dismissal matter U2017/11691, lodged with the Fair Work Commission (the Commission) several interlocutory applications seeking orders for the production of documents in respect of his unfair dismissal application.

[2] In summary, Mr Kennedy sought orders against:

• the Respondent, Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group (QGS);

• Dr Kipling Walker;

• Recovery Partners;

• MJSP Management Consulting; and

• Allianz Insurance Australia.

[3] A conference was held before Deputy President Kovacic on 30 April 2018 to deal with the applications (Conference). Participants at the Conference included Mr Kennedy, and Mr Michael O’Neil (Qantas Group (Qantas)) and Mr Brett Hardy (QGS) for the Respondent.

[4] The morning session of the Conference was audio-recorded and the parties may access this. However, the equipment failed to record the afternoon session of the Conference.

[5] In his decision of 14 May 2018,¹ Deputy President Kovacic made several orders to produce in response to Mr Kennedy’s applications, but declined to order the production of a number of documents (the Interim Decision).

[6] On 1 June 2018, Mr Kennedy lodged a Notice of Appeal against the Interim Decision in respect of decisions not to grant his requests for the production of certain documents (matter C2018/2983).

[7] The appeal is listed for hearing before this Full Bench on 12 July 2018. As part of this appeal, Mr Kennedy has lodged with the Commission four further interlocutory applications which can be summarised as follows:

1. an application dated 14 June 2018 under s.590(2)(c) of the Fair Work Act 2009 (Cth) (the Act) for an order that Mr O’Neil and Mr Hardy produce:

(a) specified categories of documents exchanged between Qantas and Herbert Smith Freehills (HSF) in the period from 28 March 2018 to 30 April 2018 (Application 1a); and

(b) notes taken by Mr Hardy at the Conference (Application 1b, together ‘Application 1’);

2. applications dated 14 June 2018 under s.590(2)(a) of the Act for orders that Mr O’Neil and Ms Claudia Kernan of HSF attend the Commission hearing on 12 July 2018 to give evidence (Applications 2 and 3 respectively); and

3. an application dated 19 June 2018 under s.590(2)(c) of the Act for an order that Deputy President Kovacic produce his handwritten notes taken at the Conference (Application 4) (together, the Applications).

[8] Mr Kennedy has also made an informal request to the Full Bench for a copy of any notes taken by the Deputy President’s Associate at the Conference.

[9] This decision concerns the Applications and the informal request noted…

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 3847
Decision Date: 2 JULY 2018

CaseChat Overview and Summary

In the matter of Kennedy v Qantas Ground Services Pty Ltd, the dispute arose in the Federal Court of Australia concerning the applicants' request for the production of documents and for orders requiring certain individuals to attend the Fair Work Commission. The applicants sought these orders to aid in their pursuit of an unfair dismissal claim against the respondent. The legal issues at hand involved whether the applicants were entitled to the production of specific documents held by the respondent and whether certain individuals should be compelled to attend and give evidence before the Fair Work Commission.

The court addressed the applicants' contentions by examining the scope of the discovery process and the powers of the Fair Work Commission under the Fair Work Act 2009 (Cth). The applicants argued that the documents in question were necessary for their case, and that the individuals sought to be compelled to attend had pertinent information that could influence the outcome of the unfair dismissal claim. The court considered whether the applicants had demonstrated a sufficient need for the documents and whether the individuals had information that was not otherwise available.

In its decision, the court found that the applicants had not adequately established the necessity for the production of the documents or the requirement for the individuals to attend. The court held that the applicants' claims did not meet the threshold for compelling the production of documents or the attendance of witnesses. Consequently, the court dismissed the applications and did not grant the orders sought by the applicants. The court's reasoning emphasised the need for a clear demonstration of necessity and relevance in such applications, reinforcing the principles governing discovery and witness attendance in employment-related disputes.

Orders