Kraig Butler v Master Builders' Association of New South Wales, The

[2014] FWC 7964

[2014] FWC 7964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kraig Butler
v
Master Builders’ Association of New South Wales, The
(U2014/12400)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Kraig Butler has sought orders for production from The Master Builders’ Association of New South Wales (MBA). The orders were resisted by the MBA.

[2] At the hearing of the application, the MBA agreed to provide documents in categories 1, 2, 3 and 4(c) within seven days and as a consequence no orders in relation to those categories will be issued.

[3] Mr Bulter seeks the following orders:

“4. For the period 1 January 2014 to date, any document recording or evidencing any consideration by the Master Builders’ Association of:

(a) Kraig Butler’s capacity for work or absence from work;

(b) Kraig Butler’s proposed return to the workplace; or

5. Any email, correspondence, text message or other communication between or among Kraig Butler or Brian Seidler from 22 April 2010 to date concerning:

(a) Kraig Butler’s allegations that he had been bullied and/or harassed in the workplace;

(b) Kraig Butler’s capacity to attend the workplace in 2014;

(c) Kraig Butler’s absence from work in 2014; and

(d) Kraig Butler’s return to work in 2014.

6. Any document for the period from 22 April 2010 to date recording any:

(a) consideration by the Master Builders’ Association of any allegation made by Kraig Butler of any bullying of him;

(b) any step taken by the Master Builders’ Association to investigate and/or deal with any such alleged bullying.

7. All native electronic copies of the letter from Brian Seidler, Executive Director of the Master Builders’ Association, to Kraig Butler dated 27 August 2014, with all metadata retained.”

[4] At this stage of the proceedings the material before the Commissions discloses the following matters are in dispute:

1. Was Mr Butler’s position redundant?

2. Was Mr Butler’s employment covered by a modern award?

3. If Mr Butler’s employment was covered by a modern award did the MBA comply with its obligations under the modern award to consult with Mr Butler about the redundancy?

4. Was the real reason Mr Butler’s employment was terminated was because he had made complaints about being bullied and harassed and his absences from work?

[5] However, at this stage of the proceedings, the parties have not filed material in support of their respective contentions.

Category 4

[6] This category seeks documents from 1 January 2014.

[7] It was submitted that these documents are relevant to the real reason for the termination of Mr Butler’s employment. It was submitted by the MBA that Mr Butler did not suggest in his material that his employment was terminated because of any proposed return to work or his capacity for work or absence from work. I consider that this is too narrow a reading of Mr Butler’s statement filed on 6 November 2014. Mr Butler alleges that one of the reasons his employment had been terminated was because he had taken time off work. It is clear that there were discussions between the MBA and Mr Butler prior to the termination of his employment about his return to work and his capacity to perform his contract of employment. I will make the orders sought in order 4(a) and (b) as I consider them relevant to the matter in dispute between the parties.

Categories 5 and 6

[8] These categories seek documents from 22 April 2010. Mr Butler has not filed any material in support of his contention that his employment was terminated because he made complaints about bullying and because he was absent from work. At the highest he says it is his belief.

[9] There is nothing in the material filed which suggests that Mr Butler raised any issues about being harassed and bullied at work prior to 12 March 2014. Until such time as Mr Butler has filed material in support of his contentions, I am not prepared to issue an order requiring the MBA to review its records from 22 April 2010 as I am unable to determine if those records are relevant to any matter in dispute between the parties.

Category 7

[10] It was submitted that this category is relevant to the issue of consultation. Mr Butler’s statement advised that he received a letter dated 27 August 2014 by email on 2 September 2014. The MBA does not in its material dispute that the letter dated 27 August 2014 was not delivered until 2 September 2014. Until the MBA files its material it is not clear that there is any dispute that the decision to terminate was made on or before 27 August 2014. I do not propose to issue the order sought.

DEPUTY PRESIDENT

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