Mark Kirkman v DP World Melbourne Limited

[2016] FWC 4690

[2016] FWC 4690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Kirkman
v
DP World Melbourne Limited
(U2014/16067)

COMMISSIONER BISSETT MELBOURNE, 14 JULY 2016

Application for unfair dismissal remedy – order requiring medical report - confidentiality order – amendment to earlier confidentiality order.

[1] On 4 April 2016, the Fair Work Commission (the Commission) issued an Order to Attend proceedings in the Commission to Ms Annette Coombe (the Order or summons). The Order was issued at the request of DP World Melbourne Limited (DP World) in relation to an unfair dismissal application made by Mr Mark Kirkman. The Order was amended on 19 April 2016.

[2] On 11 April 2016, Ms Coombe’s solicitor advised that she had sought medical advice as to her capacity to safely respond to the summons. A copy of the medical report from Ms Coombe’s general practitioner was provided to the Commission.

[3] Following a Mention in relation to compliance with the Order, the Commission issued a further order requiring Ms Coombe to provide a further medical report to the Commission and to representatives of the parties to the unfair dismissal application. A confidentiality order with respect to the medical report was also issued. A further medical report in compliance with the order was provided by Ms Coombe’s psychologist on 31 May 2016 and provided to the Commission on 3 June 2016 (the 31 May 2016 report).

[4] A further Mention with respect to compliance with the Order was held on 6 June 2016.

[5] On 17 June 2016, Ms Coombe’s solicitor advised that no agreement could be reached on obtaining further medical evidence and requested the Commission list the matter for a Directions Hearing to have the summons set aside.

The application

[6] On 12 July 2016, the Commission heard Ms Coombe’s application that the Order that she attend the Commission be set aside on the grounds that she was not competent to give evidence on medical grounds or, alternatively that the Commission order that DP World meet the reasonable medical, legal and other costs of Ms Coombe complying with the Order.

[7] In making the application, Ms Coombe relies on the medical report of 31 May 2016. Ms Coombes submits that there is alternative material that DP World can access that goes to the relevant matters on which her evidence is sought including:

● Witness statements she made in a related matter;

● Transcript from proceedings in that related matter; and/or

● A report produced for DP World that deals with the incident for which Mr Kirkman’s employment was terminated.

[8] Ms Coombe submits that the medical evidence is such that it can be concluded that any requirements on her to give evidence would result in a deterioration of her mental health. She submits that her health should not be put at any further risk by being required to participate in proceedings between the parties that have caused her health problems.

[9] Further, she submits that the refusal of DP World to pay her costs, except in limited circumstances, will adversely impact on her ability to properly understand the effect of compliance with the order on her health, the requirement to address the adverse effects to her health of complying with the Order and the legal consequences of her decision and the ability to present these to the Commission.

[10] DP World opposes the application that the order be set aside. It said that there were three options open to the Commission in dealing with the application. It could:

● Grant the application that the Order be set aside;

● Require a further medical report as to Ms Coombe’s capacity; or

● Require compliance with the Order.

[11] DP World seeks that I not grant the application to set aside the Order. Rather, it says that if I am not satisfied as to Ms Coombe’s competence to give evidence, I should order the production of further medical advice.

[12] DP World says that, whilst there may be some alternative material that may deal with the matters Ms Coombe’s evidence would cover, because of the way proceedings in the related matter were dealt with there is no direct evidence on the particulars relevant to the unfair dismissal case (which is one of over 200 incidents in the related matter), no evidence at all in the related matter from Mr Kirkman and no specific findings with respect to the conduct which will be a requirement in the unfair dismissal matter.

[13] Mr Kirkman made very brief submissions that he sought this application be dealt with expeditiously to enable his application for unfair dismissal to be heard. He otherwise made no submissions in relation to this application.

Background

[14] In 2014, Ms Coombe, along with Ms Sharon Bowker and Mr Stephen Zwarts sought orders directed to DP World and the MUA to stop bullying (the stop bullying matter). The matter was heard by Deputy President Gostencnik in 2015 and a decision issued in November 2015. 1 In that decision the Deputy President noted that ‘DP World does not contest that the Applicants have been bullied at work within the meaning of s789FD’2 and that the MUA ‘did not lead any evidence to rebut any allegation of Bullying Behaviour allegation directed to the MUA Respondents made by the Applicants’ [sic].3 On this basis, the Deputy President found that Ms Coombe (and Ms Bowker and Mr Zwarts) had been bullied at work. He found that there was a risk of bullying occurring in the future and orders and undertakings were subsequently given and made.

[15] Since that time, the Commission understands that Ms Coombe has not, except for a very short period of time, been at work.

[16] Mr Kirkman has made an application seeking relief from unfair dismissal. His employment was terminated for conduct that is said to have occurred on or around 13 and 19 January 2014 and was part of the conduct complained of in the stop bullying matter. The witnesses to Mr Kirkman’s conduct are Ms Coombe and/or Mr Zwarts (to whom an order to attend has been issued and which is not contested) although not each of them to all of the conduct.

[17] No specific evidence was given in relation to the incidents relied on for the dismissal of Mr Kirkman in the stop bullying matter by either Ms Coombe or Mr Zwarts or Mr Kirkman. This is because of the admissions or failure to rebut by the parties to that matter.

Consideration of medical reports

[18] The question to determine in deciding whether to set aside the Order is if Ms Coombe is competent to give evidence given her medical condition. The presumption in the Evidence Act 1995 (Cth) (the Evidence Act) is that a witness is competent and compellable to give evidence. 4 Whilst the Commission is not bound by the rules of evidence the Evidence Act provides a useful starting point in resolving the matter if the Order should be maintained or should be set aside.

[19] In the 31 May 2016 report, Ms Coombe’s treating medical practitioner concluded that the requirement for Ms Coombe to give evidence in relation to her employment at DP World will likely contribute directly to a significant deterioration in her mental health and that he could not think of any specific arrangement for the giving of evidence that might minimise this risk.

[20] In reaching this conclusion, the medical practitioner had regard to the history of his treatment of Ms Coombe and his current diagnosis of her condition.

[21] I make no criticism of the medical report in reaching conclusions by considering the totality of Ms Coombe’s experience. It seems to me that for Ms Coombe, it may well be difficult to consider one part of the conduct she confronted in the workplace separated from all other parts.

[22] I am not satisfied however that, in reaching his conclusion, her medical practitioner has been properly appraised of what will be required of Ms Coombe in giving evidence, the limitation of the evidence in the context of the broader matters she confronted in the workplace or the types of arrangements that might be made to enable her to give her evidence in a way to minimise any traumatic effect on her.

[23] I am therefore not satisfied at this stage, that Ms Coombe cannot give evidence in the matter before the Commission but neither am I satisfied that, at this point, she can.

[24] For this reason, I intend to require a further medical report in respect to Ms Coombe.

[25] I will order that Ms Coombe attend for a further medical examination by her medical practitioner who prepared the 31 May 2016 report. The precise nature of the information sought from him will be as agreed previously between representatives of Ms Coombe and DP World (as advised during the hearing of this application). The cost of the medical report and any reasonable expenses incurred by Mr Coombe in attending (i.e. transportation costs, but not legal costs) should be met by DP World and I strongly recommend that it do so.

[26] The order will require that the medical report be provided within four weeks of the making of the order.

[27] I make this order because Ms Coombe does have evidence directly relevant to the application for unfair dismissal before the Commission. I am not unsympathetic to her concerns with respect to her health and the need to deal, once again, with some matters previously dealt with in the stop bullying matter but I must balance this against the need to have the best evidence available before the Commission in the unfair dismissal matter.

[28] Upon receipt of that report, and upon hearing as necessary from the parties, the Commission will determine if Ms Coombe is required to comply with the Order or if it should be set aside.

[29] The medical report will be provided to the parties as identified in the order and will be subject to an amended confidentiality order as specified.

Consideration of costs matter

[30] Ms Coombe put, as an alternative, that the Commission issue an order requiring DP World to meet her costs, including legal costs, associated with the compliance with the Order

[31] I am not satisfied that I have the power to grant the costs sought by Ms Coombe.

[32] The Fair Work Act 2009 (the Act) allows the Commission to award costs in a relation to a matter before the Commission where a party has caused costs to be incurred through some unreasonable act or omission (s.375B and s.400A of the Act, in relation to dismissal matters) or, more broadly, where an application is made or responded to vexatiously or without reasonable cause or where it should have been reasonably apparent that the application or response had no reasonable prospect of success (s.611 of the Act).

[33] Ms Coombe has suggested that the Commission has broad discretionary powers to grant or set aside a summons and a relevant consideration in the exercise of that discretion should be if the person subject to the summons is to be reimbursed reasonable costs of complying with the summons, including legal costs. It is perhaps that this goes to whether the order made is oppressive but no specific submissions have been made on this point.

[34] I am not convinced that the Commission’s discretion in deciding to issue an order does include whether reasonable costs are being covered. Given my decision above, this is not a matter I need to determine and it does not, at this point, provide grounds to set aside the Order.

Conclusion

[35] An order reflecting my decision will issue with this decision.

[36] The Commission expects that if there are any issues with compliance with the order this will, in the first instance, be resolved through direct discussion between the parties prior to the application to vary being made to the Commission.

COMMISSIONER

Appearances:

F. Knowles, of counsel, for Mr Kirkman.

T. Capelin for Ms Coombe.

H. Skene for DP World Melbourne Limited

Hearing details:

2016.

Melbourne and Sydney (video-link):

July 12.

 1   [2015] FWC 7312.

 2 Ibid, at paragraph [11].

 3 Ibid, at paragraph [13].

 4   Evidence Act 1995 (Cth), s.12.

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