Mark Kirkman v DP World Melbourne Limited

[2015] FWC 2563

[2015] FWC 2563 [Note: An appeal pursuant to s.604 (C2015/2751) was lodged against this decision - refer to Full Bench decision dated 25 June 2015 [[2015] FWCFB 3995] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

COMMISSIONER BISSETT MELBOURNE, 17 APRIL 2015

Application for relief from unfair dismissal - production of documents - order for inspection refused.

[1] On 11 March 2015 the Commission (Deputy President Gooley) issued an Order to Produce to DP World Melbourne Limited (DP World) for a number of specified unredacted documents. The Order was made on application by Mark Kirkman in support of his application for relief from unfair dismissal. The documents sought to be produced fell into three categories - the complaints documents; the decision making process documents and the investigation reports.

[2] On 2 April 2014 DP World produced the first and second categories of documents. With respect to the documents in the first category DP World advised that, if the Commission was to consider making the documents available for inspection, it wished to be heard on the matter. Further DP World advised that it had no documents that fell within the third category but that if the Commission was of the view that a report by David Gunzburg was a report that ‘relates to the decision to terminate Mr Kirkman’s employment’ such documents were subject to litigation privilege and, on this basis, should not be required to be produced.

[3] A hearing was held to deal with the objections by DP World to inspection and production of the documents on 13 April 2015.

[4] Permission was granted in accordance with s.392 of the Fair Work Act 2009 (the Act) for DP World to be represented in this hearing in that it would enable the matter to be dealt with more effectively.

The complaints documents

[5] DP World produced, as required, the complaints documents to the Commission. DP World has already provided to the Applicant a redacted version of these documents. The Applicant now seeks permission to inspect the unredacted documents as produced.

[6] DP World submits that the complaints documents contain information pertaining to matters much broader than the dismissal of Mr Kirkman and they include confidential information in respect of complaints against other employees including matters subject to ongoing investigation and inquiries by DP World. DP World also says the content related to Mr Kirkman has been disclosed in the redacted version of the documents already provided to Mr Kirkman and that to provide for inspection of the unredacted documents would prejudice other matters. The material to which DP World objects to inspection, it submits, is not relevant to Mr Kirkman’s application.

[7] DP World submits that the Commission should view the unredacted documents so that the Commission can be satisfied that the relevant parts of the documents have been disclosed.

[8] The Maritime Union of Australia (MUA) (representing Mr Kirkman) submit that, if there is confidential information in the documents or confidentiality concerns about the documents, the Commission should either issue a confidentiality order pursuant to s.594 of the Act and/or seek undertakings from the MUA as to access to the documents.

[9] The MUA says that to not provide inspection of the complaints documents would be a denial of natural justice to Mr Kirkman in that it would limit his capacity to present his case. Inspection of the documents, it submits, would ensure a ‘fair go all round’.

[10] It is trite that there are three distinct stages associated with an order to produce documents. The first is that the order is complied with and the documents produced. The second is a decision as to whether or not the documents so produced should be made available for inspection and the third is the admission of the material into evidence.

[11] The complaints documents have been produced to the Commission in accordance with the Order. The matter now for resolution is if inspection of the documents should be permitted. It will not always be the case that documents sought by a party pursuant to an order to produce will be relevant to the matter to be determined by the Commission.

[12] I have viewed the documents produced by DP World in accordance with the Order. I have also viewed the redacted documents already supplied by DP World to Mr Kirkman. I am satisfied that all matters in the complaints documents related to Mr Kirkman have been disclosed in the redacted documents. I am satisfied that, of the documents sought to be inspected by Mr Kirkman, none relate to the termination of his employment beyond the materials already provided to him. Further, I am satisfied that none are relevant to the unfair dismissal application before the Commission.

[13] Whilst it is true that I could deal with the confidentiality of the contents of the documents through an order or some other regime of confidentiality and inspection 1 I see no need to consider such a course of action given my decision as to relevance.

[14] The unredacted ‘complaints documents’ will therefore not be made available for inspection.

Decision making process

[15] These documents have been produced and made available to Mr Kirkman.

The investigation reports

[16] The Order required that documents in an unredacted form be produced that constitute ‘Any investigation report compiled by David Gunzburg of DGHR Services or any other person that relates to the decision to terminate Mr Kirkman’s employment and any other reasonable document.’

[17] DP World submits that it has no documents in this category and specifically, the report compiled by Mr Gunzburg (the Gunzburg report) is not a report which relates to the decision to terminate Mr Kirkman’s employment. Specifically, DP World submits that the report by Mr Gunzburg was in relation to a broader range of matters than just Mr Kirkman’s conduct. While the Gunzburg report may have found that complaints of Mr Kirkman’s conduct were substantiated, DP World then conducted its own internal investigation. It is on the basis of this internal investigation that DP World decided to terminate the Mr Kirkman’s employment.

[18] Even if the Gunzburg report is a report which relates to the decision to terminate Mr Kirkman’s employment, DP World claims that the report is subject to litigation privilege in that it was created by Mr Gunzburg after he was engaged by lawyers for DP World to undertake an investigation for the purpose of providing legal advice to DP World.

[19] The MUA submit that the Gunzburg report is the report which started the events that led to the decision to terminate Mr Kirkman’s employment. In this respect it says it is a report that relates to the decision to terminate Mr Kirkman’s employment.

[20] The MUA submits that the Gunzburg report does not properly constitute legal advice as it was prepared by a person not legally qualified and, further, it was not created for the purpose of any apprehended litigation. The MUA submits that the Gunzburg report was ‘created or had the effect’ of justifying the termination of Mr Kirkman’s employment.

[21] The MUA submits that correspondence from DP World of 18 June 2014 suggests that Mr Gunzburg was engaged by DP World and not for the purposes advanced by its lawyers in this matter.

[22] Having heard from the parties I required DP World to produce the Gunzburg report. Having received and considered the report I am satisfied that it is not a report relating to the decision to terminate Mr Kirkman’s employment and no inspection of it is warranted. It is a report of some breadth. On the submissions of DP World it gave rise to the decision to conduct an internal investigation which ultimately led to the decision to terminate Mr Kirkman’s employment. While it is a report that predates the decision to terminate Mr Kirkman’s employment and mentions Mr Kirkman that does not make it a report which relates to the decision to terminate his employment.

[23] The Gunzburg report is not the reason for or the basis upon which the decision to terminate Mr Kirkman’s employment was made.

[24] I am satisfied that the report is not relevant to the matter to be decided by the Commission in the application for unfair dismissal.

[25] As to the question of litigation privilege I am satisfied that Mr Gunzburg was engaged by DP World’s lawyers (despite the wording of letter from DP World). I am also satisfied that the Gunzburg report was for the purpose of the provision of legal advice. That the report was prepared by a non-legally qualified person it seems to me is not to the point. It is the purpose of the report that is relevant. However, given my decision as to relevance I do not need to definitively determine the question of privilege.

Revised directions and hearing date

[26] The hearing date for this matter and the associated directions have been vacated.

[27] Given my decision above, further directions will be issued for the filing and serving of submissions, witness statements and related material for a hearing in the arbitration roster of 15-19 June 2015. The directions will require the Applicant to file by 8 May 2015 and the Respondent to file by 29 May 2015.

[28] I refer the matter back to the Unfair Dismissal Case Management team for listing in the arbitration week 15-19 June 2015.

COMMISSIONER

Appearances:

K. Bolwell of the MUA for the Applicant.

E. Hawthorne and H. Skene of Seyfarth Shaw Australia for the Respondent.

Hearing details:

2014.

Melbourne (Telephone):

April 13.

 1   See, for example, The Association of Professional Engineers, Scientists and Managers, Australia v Airly Coal PR962479, [23]-[28].

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