Masud Behnia v Macquarie University

[2021] FWC 6299

[2021] FWC 6299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.592 - Application for production of documents

Masud Behnia
v
Macquarie University
(C2021/6424)

COMMISSIONER MATHESON SYDNEY, 9 NOVEMBER 2021

Application for an Order pursuant to s.590(2)(c) for production of documents.

[1] On 1 November 2021, the Applicant applied for an order for production of documents.

[2] The substantive application is listed to be heard on 20 December 2021.

[3] The Applicant seeks that the Commission make an order for production on the following terms (Draft Order):

“1. All documents containing the Applicant’s medical information, created or received by the Respondent between 1 April 2016 and 1 June 2021 contained in the Applicant’s employee file.

2. All documents reviewed by the Selection for Redundancy Committee (or any member of that committee) in or about June 2021 that refer to the Applicant.

3. All documents created by the Selection for Redundancy Committee (or any member of that committee) in or about June 2021 that refer to the Applicant.

4. All correspondence sent or received by Ms Justine Kay or any file notes of communications prepared by Ms Kay:

a. that was created between 1 June and 1 November 2021; and

b. that refers to the Applicant and his disability, medical condition, or any adjustments.”

[4] A conference was held on 8 November 2021 to deal with the application for an order to produce.

[5] Section 590 of the Fair Work Act 2009 (Cth) (Act) provides:

“(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsections (1), the FWC may inform itself in the following ways:

…

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

…”

[6] The Respondent opposes paragraph [4] of the Draft Order proposed by the Applicant on the grounds of relevance and submitted that the request amounted to a “fishing expedition”.

[7] In relation to the issue of relevance a Full Bench of the Commission said in Clermont Coal:

“The test is whether the documents sought have an apparent relevance to the issues in the proceedings. Since, in the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, the test of relevance applied by courts has usually also been applied by the Commission”.  1

[8] A Full Bench of the Commission went further in summarising the principles applying to the issue of orders for production by the Commission under s.590(2)(c) in Esso where it said:

“It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.” 2

[9] The decision to make or not make an order is discretionary. In D.A. v Baptist Care 3, the discretion was described as one that will generally be exercised in favour of the applicant for an order unless it would be “vexatious or frivolous or otherwise an abuse of process to issue the summons.”

[10] In D.A. v Baptist Care, the Deputy President helpfully set out a non-exhaustive list of considerations relevant to the exercise of the discretion, including:

•  “Apparent (not necessarily direct) relevance to the issues in dispute;

•  Whether a sound forensic basis for seeking the material has been provided or whether the orders represent a fishing expedition;

•  Whether the documents are being sought for a collateral or improper purpose;

•  Whether questions of legal professional privilege or confidentiality arise;

•  The implications for the party concerned including the cost, inconvenience and delay associated with compliance;

•  Whether compliance would reveal internal deliberations as to industrial strategy or policy; and

•  The potential impact of production upon any contentions to be determined in the matter.” 4

[11] During the conference on 8 November 2021, the Applicant submitted that the question I am required to determine was whether the body constituted by the Respondent, being the Selection for Redundancy Committee, which made an assessment in relation to the Applicant in June 2021:

(a) was required to make reasonable adjustments, taking into account the Applicant’s disability for the purposes of clause 25.9 of the Macquarie University Academic Staff Enterprise Agreement 2018 (Enterprise Agreement); and, if so

(b) did in fact made reasonable adjustments, in accordance with clause 25.9 of the Enterprise Agreement.

[12] The Applicant further submitted that I will be required to determine whether the Respondent had sufficient information to know:

(a) the Applicant had a disability; and

(b) what, if any, reasonable adjustments might be required in the course of the Selection for Redundancy Committee’s assessment.

[13] In relation to the Draft Order, the Applicant submitted:

(a) The documents in paragraph [1] of the Draft Order will show the level of information the Respondent already possessed about the Applicant’s disability, even before he submitted any information himself to the Selection for Redundancy Committee (being the committee which the Applicant alleges failed to make reasonable adjustments in relation to his employment).

(b) The documents sought in paragraphs [2], [3] and [4] of the Draft Order will show the matters the Selection for Redundancy Committee took into account in assessing the Applicant, and in particular, whether it took account of his disability and what (if any) adjustments it made to his assessment.

(c) Ms Kay’s correspondence on these matters will be relevant because she has signed the Respondent’s Employer Response, which specified that the Selection for Redundancy Committee had “adjusted their expectations for performance against criteria”. These documents are relevant to the question of whether or not the Respondent made reasonable adjustments as a part of its assessment process, and if it did, what they were. It is “on the cards” that the documents sought will assist the Commission in determining the existence and nature of adjustments, given the likelihood that the documents will reveal the basis for the Respondent’s position before the Commission.

(d) The documents sought will assist the Commissioner in determining whether the Respondent was sufficiently informed of the Applicant’s disability so as to be able to make reasonable adjustments in the committee process.

(e) The documents sought will assist the Commission in determining whether the Respondent did in fact make any adjustments at all.

(f) The documents sought will assist the Commission in determining whether, if the Respondent did make adjustments, those adjustments constituted reasonable adjustments.

[14] It is noted that the Respondent raises a jurisdictional objection to the substantive application. During the conference on 8 November 2021, the Respondent clarified that it maintained the jurisdictional objection but submitted that this was not directly relevant to the issue of the Applicant’s application for an order to produce documents and submissions on the Draft Order were made on that basis.

[15] The Respondent submitted that:

(a) Leaving aside the issue of jurisdiction, the issue in dispute is narrow, focussing on a redundancy assessment that took place in June 2021 by the Selection for Redundancy Committee vis a vis clause 25.9 of the Enterprise Agreement.

(b) Ms Justine Kay is the Senior Employee Relations Consultant that was later involved in the management of the dispute raised by the Applicant in and from September 2021. The seeking of communications outside of June 2021 and unconnected to the Selection for Redundancy Committee decision at that time is a fishing expedition.

(c) The issue in the proceedings is not an enquiry into the Respondent’s response. It is whether the action or decisions in June 2021 comply with clause 25.9 properly construed.

(d) The source documents are contained in paragraphs [2] and [3] of the Draft Order and paragraph [4] if it is limited to June 2021 and communications from Ms Kay with the Selection for Redundancy Committee. These are the only documents relevant to the facts in dispute.

(e) Paragraph [4] of the Draft Order is overly broad, would capture a significant amount of communication that would not have apparent relevance in the proceedings and is not focused on seeking matters that the Applicant identified as being relevant in the proceedings, being the assessment carried out by the Selection for Redundancy Committee in June 2021.

[16] In relation to the Respondent’s proposed limitation of the scope of paragraph [4] of the Draft Order, the Applicant submitted that the adjusted scope is “unduly narrow given the obvious prospect that there are documents which post-date June 2021 which nonetheless refer to the assessment (and thus whether disability was accounted for and adjustments made) completed in June 2021”.

[17] Paragraphs [1]-[3] of the Draft Order to produce have not been challenged by the Respondent. I find the documents requested to be of apparent relevance and I will include them in the order.

[18] I am persuaded that correspondence and documents sent or received by Ms Kay post June 2021 relating to the decision making of the Selection for Redundancy Committee, as applicable to the Applicant, are of apparent relevance to the dispute. However, I accept the Respondent’s submission that the current breadth of paragraph [4] of the Draft Order would also capture documents that would not have apparent relevance in the proceedings. I am not persuaded that the breadth of the request in paragraph [4] of the Draft Order as sought by the Applicant is necessary considering the matters in contention. In the circumstances of this matter, I am also conscious to minimise inconvenience and delay associated with compliance with any order made. In relation to paragraph [4] of the Draft Order a narrower and less onerous order to produce documents will be issued, in the following terms:

4. All correspondence or documents sent or received by Ms Justine Kay:

a. that were created between 1 June 2021 and 1 November 2021; and

b. that refer to the Applicant and his disability, medical condition or any adjustments; and

c. which were sent to or received from members of the Selection for Redundancy Committee.

[19] The Order issued in conjunction with this decision will require compliance by 4:00pm Tuesday, 16 November 2021.

COMMISSIONER

Appearances:

S Lavery of Laxon Lex Lawyers for the Applicant.
J Mattson of Bartier Perry for the Respondent.

Hearing details:

2021
Sydney (by telephone)
November 8.

Printed by authority of the Commonwealth Government Printer

<PR735607>

 1  Clermont Coal Pty Ltd; Clermont Coal Operations Pty Ltd; Collinsville Coal Operations Pty Ltd; and Glencore Coal Queensland Pty Ltd v Troy Brown; Campbell Dews; Damien Mason; Gregory Holmes; Jeffrey Mason; and Glynis Sabbo [2015] FWCFB 2460.

 2   Esso Australia Pty Ltd v AWU, AMWU and CEPU[2017] FWCFB 2200 at [6].

 3   D.A. v Baptist Care SA [2019] FWC 7358 at [36].

 4   D.A. v Baptist Care SA [2019] FWC 7358 at [37].