Lucas McAuley v Northern Territory Government T/A Department of Primary Industry and Resources

[2017] FWC 5669

[2017] FWC 5669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lucas McAuley
v
Northern Territory Government T/A Department of Primary Industry and Resources
(U2017/8664)

COMMISSIONER WILSON MELBOURNE, 2 NOVEMBER 2017

Application for an order for the production of documents.

[1] Application has been made by Lucas McAuley for an order from the Fair Work Commission for the production by the Respondent in this matter, the Northern Territory Government in its capacity as the Department of Primary Industry and Resources (DPIR), of seven classes of documents in support of Mr McAuley’s application to the Commission for an unfair dismissal remedy.

[2] The seven classes of documents and the reasons advanced by Mr McAuley for their production are set out below. For the reason that some of the classes of documents refer by name to particular people whose names are then connected with matters that may either be the subject of a factual contest or unconnected with the matters that need to be determined by the Commission, I have de-identified both the classes of documents sought and the reasons advanced by Mr McAuley;

“1. Employment file for Person A, including any managerial guidance or disciplinary issues relating to poor performance, the correspondence between Person A and DPIR regarding him wanting a transfer due to not being able to perform his duties and any Memo’s or emails from Person B detailing issues with poor performance and work health and safety issues.”

The reason advanced by Mr McAuley for this class of document is that he believes the conduct of Person A justified the recording of certain conversations; that the latter placed himself and others at risk of civil and criminal litigation; and that Person A requested he be removed from the management role.

“2. All Northern Territory employment file documents, investigation diaries, emails and memos for Person C, relating to investigation associated with misconduct or disciplinary matters.”

Mr McAuley submits that there are factors within Person C’s employment file which would lead to adverse findings against them, with co-workers seeking alternative employment as a result of the person’s conduct. Mr McAuley also submits, it seems, that his termination amounts to gender discrimination given that Person C, being a woman, was not terminated, even though her behaviour was ostensibly similar.

“3. All Northern Territory employment file documents, investigation diaries, emails and memos for Person D, relating to investigation associated with misconduct or disciplinary matters.”

Mr McAuley puts forward that the person referred to has breached the Department’s code of conduct, and that the behaviour he refers to should have been documented and reported. Mr McAuley also submits that Person D has a prior history of misconduct, and that production of the documents would highlight (through comparison) that the reason Mr McAuley was terminated was because he was a whistle-blower.

“4. All Northern Territory employment file documents, investigation diaries, emails and memos for Person E, relating to investigation associated with misconduct or disciplinary matters. Including incident involving Person F in July and August 2016, firearms offences with NT police and the sinking of a government vessel.”

Mr McAuley submits that Person E has a significant history of misconduct, including placing the lives of other employees at serious risk and that production of the documents would highlight (through comparison) that the reason Mr McAuley was terminated was because he was a whistle-blower.

“5. Details of settlement on the civil law suit brought against Person B and senior animal welfare inspector Person C by complainant Person G.”

Mr McAuley submits that production of this document will demonstrate the Respondent is at risk from civil litigation due to another employee’s behaviour.

“6. Copy of search warrant served on Person H by Northern Territory police serious crime relating to police investigation case # 8035346.”

And

“7. Copies of any search warrants issued on the department for primary industries and resources relating to police investigation case # 8035346”

Mr McAuley submits in relation to his request for the two classes of search warrant documents that the documents will demonstrate a reasonable belief on the part of the police that criminal offences had been committed by employees of the Respondent and that him recording conversations would protect his legal interests.

[3] The arbitration of Mr McAuley’s unfair dismissal application is due to be heard in Darwin commencing on Monday, 13 November 2017. To date only Mr McAuley has filed his material, with the Respondent due to file its material on Friday, 3 November 2017. The material filed by Mr McAuley consists of an outline of submission, 28 documents and several extracts of video footage, each filed on 23 November 2017, together with a further seven documents filed on 24 and 25 October 2017.

[4] The Northern Territory Government objects to the production of any of the classes of documents sought by Mr McAuley, putting forward that the material sought by him is both not relevant to the matters to be determined by the Commission as well as that the Applicant’s request is vague, wide and general and that it would be onerous for the Respondent to have to provide the material within the time available. The Respondent also puts forward that the material sought by Mr McAuley appears to be a “fishing expedition” and that some classes of documents sought by the Applicant would be confidential or private material and relevantly unconnected with the grounds for Mr McAuley’s termination of employment.

[5] Mr McAuley’s request in this matter is an application pursuant to s.590(2)(c) of the Fair Work Act 2009 and the matter requires determination in accordance with well-settled principles. Documents must be relevant to an issue, and not for the purposes of “fishing” or to test whether a party has a supportable case; relevance does not require that a party demonstrate direct relevance to the contest between the parties, but rather the documents sought must have some apparent relevance to the pleadings as they stand. 1

[6] In the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, with the test of relevance applied by courts usually also applied by the Commission. 2 Application of the tests requires examination of two questions:

“First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?” 3

[7] Consideration of the question of adjectival relevance looks toward the possibility of whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. 4 The documents must be of a nature capable of being relevant to an issue which may arise for determination in a hearing.5 The concept of relevance for the purposes of production of documents is wider than the concept of relevance for the purposes of admission.6

[8] There is a general presumption that a party will not be required to produce documents where to do so would be oppressive; or where the application is a “fishing expedition”, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. 7

[9] I decline to grant the application for the order for the production of any of the seven classes of documents sought by Mr McAuley. Consideration of the material presently before the Commission does not disclose that any of the materials that are the subject of Mr McAuley’s application have apparent relevance to the matters to be determined by the Commission. Further, I consider that each of the classes of documents sought by Mr McAuley are for the purposes of a “fishing expedition” or are sought by him for a collateral purpose other than in support of his application for unfair dismissal remedy. Notwithstanding the Respondent’s submissions on the subject, I am not satisfied at this time that production of the documents would either be oppressive, or result in an unnecessary breach of confidentiality. Disclosure of certain classes of the documents (and potentially 1, 2, 4 and 5) may lead to prejudice to the Respondent by drawing into the public arena matters that have insufficient relevance to these proceedings, but with the collateral possibility of consequential prejudice to the interests of the Northern Territory Government or persons employed by it.

COMMISSIONER

 1   ANF v VHIA [2011] FWA 8756, at [13]; see also Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101, at [8].

 2   Clermont Coal v Brown and Others[2015] FWCFB 2460, at [19].

 3   ANF v VHIA[2011] FWA 8756, at [13]; see also Trade Practices Commission v Arnotts Limited [1989] FCA 248, at [44].

 4 Ibid, at [13].

 5   Clerks (Alcoa) Case (1988) Print H2892.

 6   Santos Ltd & Others v Pipelines Authority of SA [1996] SASC 5628, [87], cited in Australian Municipal, Administrative, Clerical and Services Union v Moreland City Council[2017] FWC 3283, [35].

 7   Clerks (Alcoa) Case (1988) Print H2892.

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