Mark Sciberra v Mackies Asia Pacific Pty Ltd

[2014] FWC 9406

[2014] FWC 9406

FAIR WORK COMMISSION

PROCEDURAL DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Sciberra
v
Mackies Asia Pacific Pty Ltd
(U2014/14019)

COMMISSIONER WILSON MELBOURNE, 23 DECEMBER 2014

Procedural and interim decision; powers of the FWC to inform itself.

[1] By way of correspondence from the paid agent of the Applicant in this matter, on 18 December 2014, the Applicant sought an order from the Fair Work Commission (the Commission) pursuant to s.590 of the Fair Work Act 2009 requiring a person to provide copies of documents or records, or to provide any other information to the Commission. The application was provided to the Commission by email and was set out in the requisite form F52.

[2] The Applicant’s Representative, Michael Alkan, Senior HR Consultant from HR Experts, seeks reasons from me as to why one aspect of the proposed order was not granted. These are my reasons.

[3] An earlier application for an Order for the Production of Documents, unrelated to the documents which are the subject of the application on 18 December 2014, was made by the Applicant’s Representative on 1 December 2014 and was granted by Deputy President Gooley on 2 December 2014. For the sake of completeness, I note that the Respondent’s Representative also sought an Order for the Production of Documents from me on 18 December 2014, which was granted without alteration.

[4] Mr Sciberra’s application for unfair dismissal remedy was made on 1 December 2014, and a telephone conciliation conference was held on 16 December 2014.

[5] Subsequent to the telephone conciliation conference, Directions for the filing of outlines of submission and witness statements were issued in the usual manner. Within that document, there is a requirement that the Applicant’s material be filed no later than 12:00 PM on 19 January 2015 and a further requirement that the Respondent’s material be similarly provided no later than 12:00 PM on 9 February 2015. Dates for hearing of the matter are yet to be set.

[6] The application as made by the Applicant’s Representative sought five classes of documents as follows;

“1. The Respondents Drug & Alcohol Policy, Termination Policy and or other policies relied upon or utilised in the dismissal of the Applicant. All policies requested are those current at the time of the Applicants termination i.e. 19 Nov 14.

2. All and any investigatory records relied upon and relative to the termination of the Applicant including but not limited to the following records: witness statements, investigation reports, investigation meeting transcripts/notes, termination meeting transcripts/notes and evidence of notification to the Applicant referencing potential termination.

3. Any and all records concerning the Applicant including but not limited to the following records: employment file in its entirety and training documents.

4. Any and all attendance records highlighting and demonstrating the Respondents specific operational employees’ onsite on 5 November 2014.

5. Any and all records highlighting and demonstrating the skill set, training received and qualifications by the alleged witnesses in carrying out and conducting an Alcohol consumption assessment and or testing.

“Records” include: all paper documents, including but not limited to all letters, faxes, reports, briefing papers, electronic data, including but not limited to emails, posts to websites, texts and instant messages.”

[7] The supporting material provided by the Applicant’s Representative at the time of seeking this order included the following submission;

“Clause one (1) of the schedule

● The requested records are essential and crucial in the assessment of the Respondents internal rules, regulations and procedures concerning substance abuse, testing of substance abuse and standard disciplinary actions concerning a substance abuse breach. Accordingly the requested records are heavily relied upon by the Applicant and may contribute substantially to the Applicants defense.

Clause two (2) of the schedule

● The requested records are essential and crucial in the determination of the balance of probabilities assessment carried out by the Respondent that is the decision-making processes. The requested records also form part of full disclosure requirements and the application of proper and fair disclosure is a vital component of a fair system. Fairness requires full disclosure should be made of all material held by the Respondent that weakens its case or strengthens that of the Applicant.

Clause three (3) of the schedule

● The requested records are essential and crucial in the determination and assessment of the Applicants awareness and knowledge of relevant rules, regulations and or policies concerning the breach which resulted in the termination of the Applicants employment by the Respondent. Accordingly the requested records are heavily relied upon by the Applicant and may contribute substantially to the Applicants defense.

Clause four (4) of the schedule

● The requested records are essential and crucial in the Applicants appropriate determination in ordering and requiring a person (witnesses) to attend the Fair Work Commission subject to the Fair Work Act 2009, s.599(2)(a) and Fair Work Commission Rules, Rule 53.

Clause five (5) of the schedule

● The requested records are essential and crucial in determining the Respondents dependence on evidence provided by the alleged witnesses as well as the appropriateness of this dependence based on witness skill set, training and qualifications in carrying out a substance abuse assessment and or test. Accordingly the requested records are heavily relied upon by the Applicant and may contribute substantially to the Applicants defense.”

[8] In considering the application for the Order for the Production of Documents, I took into account not only the material provided by the Applicant’s Representative set out above, but also the material set out in the originating application on the form F2, together with the employer response material set out on in the employer’s form F3. As at the date of application for the Order for the Production of Documents as sought by the Applicant’s Representative, no other material had been filed by either the Applicant or the Respondent’s Representative.

[9] The Applicant’s application of unfair dismissal remedy was filed on 1 December 2014. The application discloses a dismissal for allegations of misconduct arising out of behaviour on 5 November 2014. The alleged misconduct was not only committed by the Applicant but also another employee. The employment of the other employee finished on 6 November 2014. The Applicant was advised on 10 November 2014 that there was a meeting for disciplinary purposes of 11 November 2014. In that meeting, allegations of misconduct were put to the Applicant which he denied. He was subsequently dismissed on 19 November 2014. The allegations of misconduct on the part of the Applicant go to being off site for an extended period during which alcohol was consumed, and that he returned to the workplace appearing to be under the influence of alcohol, contrary to policy.

[10] The Employer Response Form repeats much of the foregoing as outlined in the originating application and refers briefly to investigation interviews conducted on 10 November 2014 with two employees who were, it is said, witnesses to the alleged misconduct.

[11] In addition to the material contained on the file, I have also given consideration to the Commission’s authorities and practices in relation to the issuing of such orders. I take into account the principles set out by Justice Munro to the effect that a subpoena or order must specify with reasonable particularity the documents which are required to be produced; that an order is not to be used for the discovery of documents against a person not liable to make discovery or as a substitute for discovery which should be applied at the proper time; the documents sought must be relevant to an issue legitimately arising in a hearing the matters in dispute. 1 The Commission also guards against the oppressive production of documents or where it might be a “fishing expedition” where the request might be “an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all”.2

[12] In relation to those principles, the following has also been held;

“The approach outlined by his Honour has been applied by other members of the Commission in subsequent decisions. I have applied the approach outlined to the determination of the matter before me. In particular I am required to balance on the one hand the reasonableness of the burden imposed on the recipients and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and ensuring that all material relevant to the issues before me are available to the parties to enable them to advance their respective cases.

The balance between these factors depends upon the circumstances of a particular case. In this context I am conscious that the outcome of these proceedings may have serious consequences for the respondents if the order sought is granted” (references omitted). 3

[13] Finally, I take into account the following considered by Commissioner Bissett in the matter of SPI Power Net Pty Ltd v CEPU. 4In that matter, the Commissioner made reference to the principles relevant to assessing the relevance of documents sought by a party to be produced to a Commission hearing;

“[19] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd Cowdroy J considered the test to be applied in setting aside a subpoena. After considering a number of authorities his Honour found at [13] that:

The correct test to be applied to determine whether a subpoena should be set aside was stated by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 at ALR 103, namely:

(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].

(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].

[20] SP AusNet also referred me to a decision of the Supreme Court of Victoria in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria where the principles to be followed in determining if a party is entitled to access documents subject of a subpoena are summarised. I do not replicate those principles here but indicate that they do not conflict with any of the matters outlined above. In any event, I have had regard to the principles outlined in that decision in determining the application for an order to produce in this matter. Even so, care needs to be taken not to approach the assessment of a request for production of documents as an exercise of each document having to receive an appropriate number of ‘ticks’ against a set of listed principles. There is a judgement to be made in balancing of those principles in the above mentioned decision.

[21] SP AusNet also put that, in addition to the above principles, any order should not be so wide as to require the person to whom the order is addressed to make a judgement as to which of the possessed documents are relevant documents and that the order must not be oppressive”. 5

[14] In relation to the application as made by the Applicant’s Representatives on 18 December 2014, I made the following decisions;

1. I considered that the request for the “Respondent’s Drug and Alcohol Policy, Termination Policy and/or other policies relied upon or utilised in the dismissal of the Applicant” was germane to the matters that will need to be decided by the Commission upon the hearing of this matter. Accordingly I decided to grant an Order for production of the first class of documents sought by the Applicant’s Representative.

2. I considered that the investigative records relied upon relating to the dismissal of the Applicant are also clearly relevant to the matters that will need to be decided by the Commission upon the hearing of this matter. Accordingly I decided to grant an Order for production of the second class of documents sought by the Applicant’s Representative.

3. Documents contained upon the Applicant’s employment file and particularly evidence of training they have undertaken in the course of their employment is often, within reason, relevant to the matters that require determination by the Commission in the context of an application for unfair dismissal remedy. In this regard I note that the Applicant commenced his employment in June 2003 and that it may therefore be the case that some of the earlier documents will have less compelling relevance than later material. Nonetheless, I considered there to be sufficient relevance between the documents called for and the matters that need to be decided and therefore it was appropriate to grant an Order for production of the third class of documents sought by the Applicant’s Representative.

4. Given that the events that led to the Applicant’s dismissal were, it appears from the papers on the file, on 5 November 2014, there is some relevance to the production of attendance records, albeit for a class of employee wider than merely the Applicant and the other employee who left employment on 6 November 2014. Notwithstanding this view, I note that the Respondent may reasonably seek to have this aspect of the Order set aside, at least in part, were it to be shown that production of the materials as ordered lacks relevance or that it may unreasonably breach an employee’s privacy to do so. Nonetheless, I considered there to be sufficient relevance between the document called for and the matters that need to be decided and therefore it was appropriate to grant an Order for production of the fourth class of documents sought by the Applicant’s Representative.

5. The proposed fifth order is for the production of “records highlighting and demonstrating the skill set, training received and qualifications by the alleged witnesses in carrying out and conducting an Alcohol consumption assessment and or testing”.

I have refused this order for two reasons.

Firstly, and sufficient by itself, I consider the requested order to be a “fishing expedition”, in the manner referred to above, in the absence of more particularised reasoning from the Applicant’s Representative about how the requested documents pertain to the matters to be determined by the Commission. In the absence of those particulars, the risk is that the granting of the order may well be close to “an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all”.

Secondly, and also sufficient by itself, I consider the proposed order to be too wide as to be capable of compliance at this stage. No material has yet been filed by the Applicant in response to the prehearing directions. In addition and more compellingly, no material has yet been filed by the Respondent which indicates the names of the people concerned or the evidence that they may give, or even whether the Respondent seeks to rely upon their evidence in the hearing. It is not known at this time who are “the alleged witnesses”, or indeed how many there are (beyond the notation in the employer response form that the Respondent interviewed two employees). On the second ground, at least, the application is premature. For this reason, liberty is given to the Applicant’s Representative to re-agitate the application for these documents after the respondent’s materials have been filed. Should the Applicant’s Representative wish to do this, they are to approach the presiding member once such member has been allocated to the matter.

[1] Accordingly items 1, 2, 3 and 4 of the Applicant’s application for an Order Requiring Production of Documents, dated 18 December 2014, were determined by me to be appropriate for an order to be issued. I determined that item 5 should not be granted.

[2] An order consistent with the above was issued by me on Friday, 19 December 2014 with the relevant documents to return to the Fair Work Commission no later than 10:00AM on 12 January 2015.

COMMISSIONER

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

 2   Ibid.

 3   Patrick Stevedores Number 2 Pty Ltd, Ross VP, (1998) Print 8680, p 3.

 4   [2012] FWA 4350.

 5   Ibid at [19] - [21].

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