M Rufus v Greyhound Racing Control Board T/A Greyhound Racing Vic

[2011] FWA 8024

[2011] FWA 8024

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

M Rufus
v
Greyhound Racing Control Board T/A Greyhound Racing Vic
(U2011/10725)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 24 NOVEMBER 2011

Application for unfair dismissal remedy - order for production of documents - application to set aside order - alternate order for production of documents issued.

[1] On 25 October 2011, I made an order directed to the Greyhound Racing Control Board t/as Greyhound Racing Victoria (the Respondent) to produce various documents said by Mr Rufus (the Applicant) to be relevant to the matter in U2011/10725.

[2] On 27 October 2011, the Respondent applied to set aside that order. In submissions made by the Respondent during proceedings on 17 November 2011, it indicated that it does not oppose the making of an alternate order, of more limited scope, in that the alternate order it was not opposed to was limited to documents in relation to stewards subject to the 2011 Racing Integrity Commissioner inquiry and subject to conditions directed to protect the confidentiality of the employees concerned. It did so without conceding the relevance of the documents within the more limited scope reflected in the order it did not oppose and whilst reserving its right to argue that the information was not relevant in the arbitration.

[3] The Applicant argued that the order of 25 October 2011 should not be varied, save to limit the period to which the documents relate to the past five years. It submitted that in the particular circumstances of this matter, employees to whom the circumstances of the Applicant can be compared are all employees and not the narrower group of stewards, as contended by the Respondent. The Applicant further submitted that the order should be directed generally to documents concerning any employee of the Respondent, within the scope of the 25 October 2011 order, and not simply those employees identified in the Racing Integrity Commissioner inquiry out of which the termination of the Applicant’s employment arose.

[4] I am satisfied that information concerning the actions taken by the Respondent in relation to conduct by other employees of a similar kind that led to the termination of the Applicant’s employment is relevant to the case advanced by the Applicant. However, I am of the view that the order made on 25 October 2011 is unnecessarily broad in its terms and would require a significant compliance burden on the Respondent, such that the burden upon the Respondent and the invasion of private rights outweighs the imperative to ensure that all relevant material is available in the arbitration to enable the respective parties to advance their cases.

[5] In those circumstances I will set aside the order of 25 October 2011 and make a new order, of more limited scope, which I find properly meets the balance referred to by Munro J in the Clerks (Alcoa) Case. 1

[6] The new order will extend beyond the scope of the order not opposed by the Respondent and deals differently with the issues of confidentiality raised by the Respondent. In the first respect, I am satisfied that an order should issue concerning documents which deal with any investigation of and action by the Respondent in respect of its employees in respect of a breach or alleged breach by an employee of the Greyhound Racing Victoria Integrity Policy consequent upon the 27 June 2011 and 15 July 2011 correspondence from the Racing Integrity Commissioner to the Respondent, attached to the 16 November 2011 Affidavit of Brian Williams.

[7] In reaching this view, I find that the limitation of the documents to those concerning stewards employed by the Respondent, as suggested by the Respondent, is too limited and the documents should be produced for all employees, with two exceptions, dealt with in the Racing Integrity Commissioner correspondence. On my understanding, informed by the Racing Integrity Commissioner correspondence, all of the employees, including employees other than stewards, were subject to similar requirements as the Applicant under the Respondent’s policies and rules in respect of betting activities, whether under rule 2.3.4, rule 2.4, rule 2.5 or rule 3. In my view, documentation in relation to all of these employees is of relevance and the provision of the documentation in relation to that discrete group of employees will not involve too great a burden upon the Respondent, when compared with the competing consideration of ensuring that all relevant material is available in the arbitration.

[8] Further, it is my view that the scope of the order proposed by the Applicant, as amended, would impose a significant burden on the Respondent in requiring it to search all of its records, over five years, to identify and produce any document concerning its actions in relation to any employee engaged in gambling (even if limited to gambling in breach of the Greyhound Racing Victoria Integrity Policy). Whilst the summary of results of stewards enquiries in Exhibit BW4 in the Affidavit of Brian Williams might expedite the search in relation to relevant incidents identified within it (subject to accessing source documents to ascertain if the persons involved were employees of the Respondent and the precise nature of the incident), it would not obviate the need to fully search all documents within the possession of the Respondent to ensure that it fully complied with the terms of the order, as sought by the Applicant.

[9] The alternate order, in effect replacing the order of 25 October 2011, will be directed to the Respondent, requiring it to provide to Fair Work Australia the documents, records and other information specified in a Schedule to the order by 2.00 pm on Thursday, 24 November 2011.

[10] In order to protect the privacy of other employees to whom documents produced relate, the order will allow the documents produced to mask the name of the individual employees to whom the documents relate, provided:

● the Respondent produces a copy of the 27 June 2011 and 15 July 2011 correspondence from the Racing Integrity Commissioner to Greyhound Racing Victoria, attached to the 16 November 2011 Affidavit of Brian Williams, which attaches to each employee an alternate identification (e.g. Employee A, Employee B etc.);

● the documents produced in relation to each employee are identified as being documents in relation to the particular employee by reference to that alternate identification; and

● a copy of all documents, including the 27 June 2011 and 15 July 2011 correspondence from the Racing Integrity Commissioner to the Respondent, is produced to Fair Work Australia without masking the identity of the employees to allow Fair Work Australia to confirm that the documents with the identity of the employees masked accurately correlates the alternate identification in the correspondence of the Racing Integrity Commissioner and the other documents produced.

[11] Only the documents with the masked identity of employees will be accessible to the Applicant and his representatives.

[12] Notwithstanding the implied limitation on the use of documents produced, 2 I will nonetheless include in the order limitations on the use to which the Applicant and his representatives can put the information obtained through the documents. To further protect the privacy of other employees to whom the documents produced relate, the order will also include provisions that:

● The Applicant and/or his legal advisers are permitted to inspect and/or take copies of the documents provided solely for the purpose of prosecuting the Applicant’s claim in this proceeding;

● No person other than the parties to the proceeding and their legal advisers shall be permitted access to the file of the proceeding except on direction issued by a member of Fair Work Australia;

● The Applicant shall not disclose any information of his knowledge gained from the inspection and/or copying of the documents provided to any person other than his legal representatives unless required by law to do so.

[13] The Schedule is in the following terms:

All documents, whether stored in hard copy or electronically, which deal with any investigation of and action by the Greyhound Racing Control Board t/as Greyhound Racing Victoria in respect of its employees in respect of a breach or alleged breach by an employee of the Greyhound Racing Victoria Integrity Policy consequent upon the 27 June 2011 and 15 July 2011 correspondence from the Racing Integrity Commissioner to Greyhound Racing Victoria, attached to the 16 November 2011 Affidavit of Brian Williams. To avoid doubt, this includes documents in relation to the three additional GRV employees identified under the heading “Further Information sought” in the 15 July 2011 correspondence. The documents include but are not limited to the requirements upon GRV of “conducting interviews with relevant staff members regarding their betting activities and the breaches of various policy and rules; the initiation of internal disciplinary processes; and the imposition of sanctions” listed in the 15 July 2011 correspondence from the Racing Integrity Commissioner to Greyhound Racing Victoria, attached to the 16 November 2011 Affidavit of Brian Williams.

To avoid doubt, it is not necessary to produce documents in relation to:

● the employee identified in the 15 July 2011 correspondence from the Racing Integrity Commissioner to Greyhound Racing Victoria, attached to the 16 November 2011 Affidavit of Brian Williams as having resigned from GRV on 4 February 2011; or

● the employee identified in the 15 July 2011 correspondence from the Racing Integrity Commissioner to Greyhound Racing Victoria, attached to the 16 November 2011 Affidavit of Brian Williams as having been exonerated from the inquiry of the Racing Integrity Commissioner.

[14] The Respondent suggested that the order should exclude TABCORP betting account records in relation to employees on the basis that they are voluminous in relation to some employees and deal with betting activity beyond the scope of the Greyhound Racing Victoria Integrity Policy. I have included in the order a clause providing that it does not require the Respondent to provide the TABCORP betting account records of those employees. I have done so because the Racing Integrity Commissioner correspondence contains a summary of the TABCORP betting activity of all the relevant employees, each of those employees was provided with a letter summarising that activity 3 and each of those employees was provided with a more detailed summary of that activity.4 That material in relation to other employees should be produced as a result of the order. Further, I note that the Respondent indicated, in any case, that it would provide the TABCORP betting account records to the Applicant if they were requested once the material produced in answer to the order had been made available to the Applicant. I have not included the additional caveat concerning records that the Respondent may rely on at the arbitration. The material the Respondent seeks to introduce into evidence at the arbitration is a matter for it, subject to its admission by the Member hearing the matter, and is not relevant to or constrained by the order to produce.

[15] I have not included the provision in the order suggested by the Respondent in relation to confidentiality of evidence, material and transcript (in clause 6 of the order it did not oppose).

[16] Any further issue concerning the confidentiality of material admitted into the arbitration will be dealt with by the Member hearing the matter, on their own motion or subject to application by either party under ss.593 and/or 594 of the Fair Work Act 2009.

SENIOR DEPUTY PRESIDENT

Appearances:

G Goldsmith for M Rufus.

M Champion, of counsel, for the Greyhound Racing Control Board t/as Greyhound Racing Victoria.

Hearing details:

2011.
Melbourne:
November 17.

 1   Print H2892.

 2   Home Office v Harman [1982] 1 All ER 532 and British American Tobacco Australia Services Ltd v Cowell
[2003] VSCA 43.

 3   In the case of the Applicant it is recorded in Exhibit MPR-6 to his statement.

 4   In the case of the Applicant it is recorded in Exhibit MPR-4 to his statement.

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