Mark Anderson v Brookfield Rail Employment Pty Ltd

[2016] FWC 1246

[2016] FWC 1246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Anderson
v
Brookfield Rail Employment Pty Ltd
(U2015/9874)

COMMISSIONER WILLIAMS PERTH, 26 FEBRUARY 2016

Application to set aside order to attend.

[1] This decision concerns an application to set aside an order requiring Mr Geoff Thorpe (Mr Thorpe) to attend the Fair Work Commission (the Commission) to give evidence at the hearing of an unfair dismissal remedy application made by Mr Mark Anderson (Mr Anderson) 1.

Background

[2] On 28 August 2015 the Commission issued directions with respect to Mr Anderson’s application. Those directions required the respondent Brookfield Rail Employment Pty Ltd (Brookfield or the respondent) to file with the Commission a written statement of evidence for each of its witnesses by Friday, 23 October 2015. In compliance with those directions the respondent’s representatives filed four witness statements including one witness statement from Mr Thorpe.

[3] Mr Anderson had been terminated by the respondent following an investigation into the manner in which he drove on to rail lines in the respondent’s vehicle on 19 June 2015 and how he exited that vehicle whilst a train was passing.

[4] The witness statement of Mr Thorpe filed by the respondent says that he is a Locomotive Driver. In summary Mr Thorpe’s statement says that on 19 June 2015 he was driving a train en route to Brookton when he saw a vehicle drive onto the train tracks. Mr Thorpe’s statement explains in what manner the vehicle was being driven, where the vehicle went and then what Mr Thorpe saw when the driver of the vehicle got out of that vehicle. Mr Thorpe’s statement also explains his views as to what he had witnessed. Mr Thorpe’s evidence continues on to the effect that he contacted Brookfield’s control centre to report the incident and subsequently he sent a follow-up email to confirm an incident had occurred. Mr Thorpe statement says that subsequently he was asked to provide a statement regarding the incident.

[5] On 18 January 2016 the respondent’s representatives applied to the Commission for an order requiring Mr Thorpe to attend the Commission to give evidence at the hearing of Mr Anderson’s unfair dismissal remedy application. On 25 January 2016 the Commission issued a form F51 - Order requiring Mr Thorpe to attend the Commission to give evidence at the hearing (the Order).

[6] Mr Thorpe has applied to have this Order set aside.

Submissions

For Mr Thorpe

[7] On behalf of Mr Thorpe it is submitted that the Commission should set aside the Order because his evidence will not assist the Commission. This is so because the witness statement he has given in this matter does not provide a true account of Mr Anderson’s actions on 19 June 2015. Secondly Mr Thorpe does not wish to give evidence to the Commission. Thirdly the Order is said to be oppressive because Mr Thorpe will be inconvenienced having to remain available to attend the hearing on 31 March 2016 and because he will be financially prejudiced by not being able to perform any work on that day.

[8] In support of the application to set aside the Order Mr Thorpe has provided another statement.

[9] The statement of Mr Thorpe explains in October 2015 that lawyers for the respondent came to take statements from himself and one other person. He did not request a lawyer to come and take his statement. He says he told the lawyer he did not want to give a statement as he had already put in a report and there was nothing more he felt he could add. The lawyer told him it was worth going through the events of 19 June 2015. Mr Thorpe said the lawyer recorded the interview with him. He requested a witness attended during the interview and one was arranged who was present with him during the interview. After the interview the respondent’s lawyers emailed him a witness statement which he signed and sent back.

[10] Mr Thorpe’s statement says that,

“After I had signed the statement, I became unsure of what I had seen Mr Anderson do on 19 June 2015. I became unsure if he had in fact come out of the car as I had previously reported.”

[11] Mr Thorpe says in mid-December 2015 he contacted the respondent’s lawyers and asked for his statement to be withdrawn because he no longer believed his statement to be accurate.

[12] Mr Thorpe’s statement says that he wants the Order to be set aside because he no longer believes his first statement to be a true account of Mr Anderson’s actions on 19 June 2015. He does not wish to give evidence and he will have to take time off work and incur expenses to give evidence.

For the respondent

[13] The respondent submits Mr Thorpe’s evidence is directly relevant to Mr Anderson’s unfair dismissal remedy application because he witnessed the incidents that led to Mr Anderson’s employment being terminated.

[14] The respondent submits that Mr Thorpe’s evidence is not limited to the witness statement filed with the Commission on 23 October 2015. His evidence also consists of audio recordings of statements he made in the trains cabin in real time when witnessing the events on 19 June 2015, audio recordings of statements he made to the respondent’s train controllers less than an hour after the incident, an email to his employer less than 24 hours after the incident, a further email regarding the incident made two weeks after it occurred and an audio recording of statements made during the interview with the respondent’s lawyers on 19 October 2015.

[15] It is submitted that Mr Thorpe is not suggesting he has deliberately told untruths but just that he has become unsure about his account of the incident on 19 June 2015. It is submitted that it is not uncommon for witnesses’ memories to fade over time.

[16] The respondent submits that Mr Thorpe should be required to attend the hearing and at that time his evidence in totality can be tested including any differences between the statement he made when interviewed by the respondent’s lawyers and the statement he has now made in support of this application to set aside the Order.

[17] The respondent also submits that there may be other reasons why Mr Thorpe no longer wishes to provide evidence to the Commission that he has not disclosed. A statement by Ms Wilmot the lawyer for the respondent whom originally took Mr Thorpe’s statement says that on the morning of a conciliation conference convened by the Commission on 10 December 2015 she received a phone call from Mr Thorpe. He told her in that call that he needed to withdraw his statement but he would not tell her why he needed to do that. He said that his hands were tied and that there is nothing anyone can do because it is serious and affects his family. Ms Wilmot states Mr Thorpe sounded to be distressed during the call. Mr Thorpe then said words to the effect of “…perhaps I was mistaken in what I saw.”

[18] Finally it is submitted that there is no evidence Mr Thorpe will be significantly financially prejudiced in attending the hearing.

Consideration

[19] Having considered Mr Thorpe’s statement of evidence which was filed by the respondent on 23 October 2015 there is no doubt that his evidence is directly relevant to the unfair dismissal remedy application made by Mr Anderson.

[20] The Order for Mr Thorpe to attend the hearing to give evidence is not oppressive. The inconvenience and potential financial cost to Mr Thorpe is nothing out of the ordinary and is similar to that commonly experienced by witnesses who give evidence in proceedings before the Commission.

[21] The fact that Mr Thorpe now does not wish to attend the hearing and give evidence is the very reason the Order was sought by the respondent and is no basis for it to be set aside.

[22] The fact that Mr Thorpe is now unsure as to what occurred on 19 June 2015 and no longer believes his original statement is accurate is not of itself a good reason why he should not attend the Commission and give evidence. Any doubts or challenges to the accuracy of his original statement and his memory of events can quite properly be tested by either party when he gives his evidence under oath or affirmation. Whatever self-doubt Mr Thorpe has is no reason why his evidence should not be heard.

[23] There may be some other reason which Mr Thorpe has not explained which is why he no longer wishes to stand by what he said in the statement he gave to the respondent’s lawyers. Given this concern the Commission reminds the parties of sections 676, 677 and 678 of the Fair Work Act 2009 (the Act) which are set out below and which deal with amongst other things other persons interfering with witnesses who are to give evidence before the Commission:

“676 Intimidation etc.

A person commits an offence if:

(a) the person threatens, intimidates, coerces or prejudices another person; and

(b) the person does so because the other person has given, or proposes to give, information or documents to the FWC.

Penalty: Imprisonment for 12 months.

Note: A person may also contravene a civil remedy provision by threatening etc. a person who has given, or proposes to give, information or documents to the FWC (see section 343).

677 Offences in relation to attending before the FWC

Required to attend

(1) A person commits an offence if:

(a) the person has been required to attend before the FWC; and

(b) the person fails to attend as required.

Penalty: Imprisonment for 6 months.

Oath or affirmation

(2) A person commits an offence if:

(a) the person attends before the FWC; and

(b) the FWC requires the person to take an oath or make an affirmation; and

(c) the person refuses or fails to be sworn or to make an affirmation as required.

Penalty: Imprisonment for 6 months.

Questions or documents

(3) A person commits an offence if:

(a) the person attends before the FWC; and

(b) the FWC requires the person to answer a question or produce a document; and

(c) the person refuses or fails to answer the question or produce the document.

Penalty: Imprisonment for 6 months.

Reasonable excuse

(4) Subsection (1), (2) or (3) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) A reference in this section to the FWC or an FWC Member includes a delegate of the FWC.

678 False or misleading evidence

Giving false or misleading evidence

(1) A person (the witness) commits an offence if:

(a) the witness gives sworn or affirmed evidence; and

(b) the witness gives the evidence as a witness:

(i) in a matter before the FWC; or

(ii) before a person taking evidence on behalf of the FWC for use in a matter that the witness will start by application to the FWC; and

(c) the evidence is false or misleading.

Penalty: Imprisonment for 12 months.

Note: A person will not commit an offence if the person carries out the conduct constituting the offence under duress (see section 10.2 of the Criminal Code).

Inducing or coercing another person to give false or misleading evidence

(2) A person (the offender) commits an offence if:

(a) another person (the witness) has been, or will be, required to appear as a witness in a matter before the FWC (whether the person is to appear before the FWC or a delegate of the FWC); and

(b) the offender induces, threatens or intimidates the witness to give false or misleading evidence in the matter.

Penalty: Imprisonment for 12 months.”

Conclusion

[24] There is no good reason to set aside the Order the Commission has previously issued that obliges Mr Thorpe to attend the Commission and give evidence on 31 March 2016. The application to set aside the Order the Commission has made under section 590(2) (a) of the Act is dismissed. An order to that effect will now be issued.

COMMISSIONER

Final written submissions:

Mr Thorpe, 5 February 2016.

The respondent, 15 February 2016

 1   U2015 9874 Mark Anderson v Brookfield Rail Employment Pty Ltd.

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