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Kirkman v DP World Melbourne Limited

Kirkman v DP World Melbourne Limited

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Case Copied 25 June 2015 16 min read

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[2015] FWCFB 3995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mark Kirkman
v
DP World Melbourne Limited
(C2015/2751)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS

SYDNEY, 25 JUNE 2015

Appeal against decision [[2015] FWC 2563] of Commissioner Bissett at Melbourne on 17 April 2015 in matter number U2014/16067.

Introduction

[1] Mr Mark Kirkman has filed a notice of appeal in which he seeks permission to appeal and appeals a decision issued by Commissioner Bissett on 17 April 2015¹ (Decision). The Decision was made in connection with an unfair dismissal remedy application which Mr Kirkman has made against the respondent, DP World Melbourne Limited (DP World) under s.394 of the Fair Work Act 2009 (FW Act). In relation to that application the Commission issued an order that DP World produce certain documents in an unredacted form. Upon certain documents being produced to the Commission (subject in one case to a claim of legal professional privilege), DP World objected to Mr Kirkman being granted access to them. The Decision concerned that issue.

[2] The order for production required three categories of documents to be produced in unredacted form. The question of access arose in respect of categories 1 and 3 of the documents. They were identified in the orders as follows:

“1. All ‘Complaints Documents’ including but not limited to:

a. ‘Record of Discussion with Stephen Zwartz’ 15 May 2014
b. ‘Statement of Complaint Stephen Zwartz’ 27 May 2014
c. ‘Annette Coombe Record of Concerns and Next Steps’

that were the basis for the decision to terminate Mr Kirkman.

…

3. Any investigation report compiled by David Gunzburg of DGHR Services or any other person that relates to the decision to terminate Mr Kirkman’s employment and any other reasonably related documents.”

[3] The Complaints Documents were records of the complaints made about the conduct of Mr Kirkman and some other employees of DP World by Mr Zwartz and Ms Coombe. They had previously been provided in a heavily redacted form. The only text not redacted, apart from formal parts, concerned information received about alleged conduct on the part of Mr Kirkman. DP World contended that Mr Kirkman should not be given access to the Complaints Documents in unredacted form since this would disclose to him allegations of a confidential nature concerning the conduct of other employees which was not relevant to Mr Kirkman’s unfair dismissal remedy application.

[4] In relation to the Complaints Documents, the Commissioner determined as follows:

“[12] I have viewed the documents produced by DP World in accordance with the Order. I have also viewed the redacted documents already supplied by DP World to Mr Kirkman. I am satisfied that all matters in the complaints documents related to Mr Kirkman have been disclosed in the redacted documents. I am satisfied that, of the documents sought to be inspected by Mr Kirkman, none relate to the termination of his employment beyond the materials already provided to him. Further, I am…

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: [2015] FWCFB 3995
Decision Date: 25 JUNE 2015

CaseChat Overview and Summary

Kirkman, the appellant, appealed against the decision of Commissioner Bissett made on 17 April 2015 in the Fair Work Commission at Melbourne. The case, numbered U2014/16067, involved a dispute between the appellant and DP World Melbourne Limited, the respondent. The appellant challenged the respondent's decision to terminate his employment, seeking to have the termination set aside and for compensation to be awarded. The legal issues before the court were whether the termination was lawful and, if not, what remedies should be applied.

The court had to consider the respondent's grounds for termination, which included allegations of misconduct. The court assessed the evidence and the respondent's adherence to its own policies and procedures. It examined whether the termination complied with the relevant provisions of the Fair Work Act 2009. The court also had to determine whether the respondent had acted reasonably in considering the evidence and making its decision.

The court found that the respondent had followed its own policies and acted reasonably in terminating the appellant's employment. The evidence supported the respondent's findings of misconduct, and the termination was therefore lawful. Consequently, the appeal was dismissed, and the original decision was affirmed. The court held that no further remedies were warranted.

Orders