Millgate v Nationwide News Pty Ltd
[2021] NSWPIC 170
•3 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Millgate v Nationwide News Pty Ltd [2021] NSWPIC 170 |
| APPLICANT: | Timothy Millgate |
| RESPONDENT: | Nationwide News Pty Ltd |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 3 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Notice for production requesting documents relating to the applicant over a period of 9 months; determination of notice of objection lodged by respondent; relevance; legitimate forensic purpose; Held- notice for production set aside in whole; direction to respondent to produce a narrower range of documents relevant to facts in issue. |
| DETERMINATIONS MADE: | 1. The notice for production dated 15 April 2021 is set aside in whole. |
| DIRECTIONS MADE: | 1. The respondent to produce to the applicant within 14 days: (a) any document or communications sent and received by Ms Danica Robinson, Ms Charlotte Sos and Ms Alex Noakes, in relation to action taken or proposed to be taken by the employer with respect to performance appraisal or discipline in respect of the applicant, during the period 1 July 2020 to 19 November 2020; (b) any document or communications sent and received by Ms Danica Robinson, Ms Charlotte Sos and Ms Alex Noakes relating to the applicant’s change in portfolio, workload, revenue targets, support, guidance and mental health, during the period 1 July 2020 to 19 November 2020; and (c) to the extent not already covered above, any communication or document relating to: (i) the meeting between the applicant and Ms Robinson on 2 November 2020; and (ii) the meeting between the applicant, Ms Robinson and Ms Noakes on 12 November 2020. 2. The respondent is not required to produce: (a) any material which is not suitable for copying; (b) any material which is privileged; (c) any material which has already been produced to the applicant; (d) any material which is, to the best of the respondent’s knowledge or belief, in the possession or control of another specified person; or (e) any material in respect of which the respondent has no knowledge of its existence or location. |
STATEMENT OF REASONS
BACKGROUND
Mr Timothy Millgate (the applicant) claims to have suffered a psychological injury in the course of his employment with Nationwide News Pty Ltd (the respondent) between 1 July 2020 and 19 November 2020.
The applicant claims that his injury was due to a change in resource structure and increased workload and work pressure caused by the deterioration of the advertising market due to COVID-19. The applicant alleges that his condition was exacerbated by unreasonable management by his superiors and a failure by the respondent to properly respond to and accommodate his work-related psychological injury.
A claim for compensation in respect of the alleged injury was made on 15 December 2020.
An email acknowledging receipt of the claim and advising the applicant that he would be required to attend an independent medical examination (IME) with a psychiatrist was sent by the respondent’s insurer on 21 December 2020. On 4 January 2021, the insurer sent an email to the applicant offering him a choice of three alternative medical examiners.
There then followed a series of email exchanges between the applicant’s legal representative and the insurer as to whether the applicant had been required to submit himself for examination in accordance with the Workers Compensation Guidelines for the purposes of s 119(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 27 January 2021, the insurer sent a letter appointing an IME with Dr Robert Kaplan, psychiatrist, on 2 February 2021. On 27 January 2021, the applicant’s legal representative notified his objection to the proposed IME on the basis that the insurer had failed to establish that it had complied with the Guidelines. The applicant did not attend the scheduled IME appointment.
On 10 February 2021, the insurer issued a notice pursuant to s 78 of the 1998 Act disputing the applicant’s entitlement to compensation in reliance upon ss 4, 11A(1), 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act). In addition, it was asserted that the applicant’s failure to attend the IME appointment was in contravention of s 119 of the 1998 Act. As such, the applicant’s right to recover any potential compensation under the 1987 Act with respect to the alleged injury was suspended until the examination had taken place.
The present proceedings were commenced by an Application to Resolve a Dispute lodged on 14 April 2021. The applicant alleges that a notice for production (the Notice), dated 15 April 2021, was served on the respondent “by hand delivery” on 16 April 2021.
On 26 April 2021, the applicant’s legal representative wrote to the Commission noting that the respondent had failed to comply with the Notice. The Commission was requested to refer the matter to the State Insurance Regulatory Authority for consideration of prosecution of an offence under s 290(2) of the 1998 Act. The Commission wrote to the respondent with regard to the matter on 3 May 2021 and, on 12 May 2021, the respondent’s representatives responded indicating that they had no record of the Notice being served.
A teleconference was held on 13 May 2021 in which there was a lengthy discussion with regard to the documents sought under the Notice. The respondent indicated that it first received a copy of the Notice with the correspondence from the Commission dated 3 May 2021. The respondent made oral submissions that the Notice was oppressive and requested production of irrelevant documents. The applicant maintained that the documents were relevant and the Notice was not unduly onerous. The applicant was unwilling to narrow the scope of the documents requested under the Notice.
After a rather unproductive discussion, a written direction was issued extending the time for the respondent to comply with the Notice by delivering the requested documents or serving a notice of objection in accordance with r 41(2) until 20 May 2021. Leave was granted to the applicant to oppose any notice of objection by lodgement of a notice of opposition, on or before 24 May 2021. The parties were advised of my intention to determine any objection to the Notice in writing after 24 May 2021.
ISSUES FOR DETERMINATION
The following issue is presently in dispute:
(a) whether the Notice dated 15 April 2021 should be set aside.
Notice to Produce
The Notice dated 15 April 2021 requested the production of the following documents:
“1. All communications (including deleted but recoverable communications) sent and received by Charlotte Sos in relation to the Worker, Timothy Millgate, in the period 1 July 2020 to 15 April 2021.
2. All communications (including deleted but recoverable communications) sent and received by Danica Robinson in relation to the Worker, Timothy Millgate, in the period 1 July 2020 to 15 April 2021.
3. All communications (including deleted but recoverable communications) sent and received by Alex Noakes in relation to the Worker, Timothy Millgate, in the period 1 July 2020 to 15 April 2021.
4. The Google Hangouts message and chat history (including deleted but recoverable communications) between Danica Robinson and the Worker, Timothy Millgate, in respect of the period 1 September 2020 to 19 November 2020.
5. All documents and communications pertaining to complaints made about Danica Robinson by employees of your company during the period of her employment with your company.
6. All documents and communications pertaining to performance issues alleged, identified, and/or investigated in respect of Danica Robinson’s employment with your company during the period of her employment with your company.
Without limiting the generality of the word ‘communication’, where that word appears in this Notice it includes letters, correspondence, electronic mails, facsimile transmissions, conversations, file notes, memoranda, mobile phone or other electronic text and multimedia messages, iMessages, SMS messages, messages sent and received via internal company communication platforms, Whatsapp messages, Facebook and Facebook Messenger messages, and Google Hangout messages and pings.
Without limiting the generality of the word ‘documents’, where that word appears in this Notice it includes letters, communications, correspondence, electronic mails, facsimile transmissions, file notes, memoranda, accounting records, statements, order forms, invoices, quotations, receipts, drawings, plans and specifications, minutes of meetings and notes of meetings, deeds, dealings, authorities, consents and anything from which sounds, images or writings can be reproduced with or without the aid of anything else.”
Respondent’s notice of objection
The respondent lodged a notice of objection pursuant to r 41(2) on 20 May 2021.
The respondent objected to producing the documents requested on the ground that the schedule of requested documents was exceptionally broad.
For instance, Items 1 to 3 requested all communications (including deleted but recoverable communications) comprising;
"letters, correspondence, electronic mails, facsimile transmissions, conversations, file notes, memoranda, mobile phone or other electronic text and multimedia messages, iMessages, SMS messages, messages sent and received via internal company communication platforms, Whatsapp messages, Facebook and Facebook Messenger messages, and Google Hangout messages and pings".
These communications were requested over a period of 288 days (1 July 2020 to 15 April 2021). The respondent submitted that this was an unduly burdensome notice to comply with within a 7 day period.
The respondent said it was unable to ascertain precisely what was being sought. It was submitted that the Notice insufficiently particularised the documents called for.
The Notice did not clearly identify any particular document or documents relevant to a matter in issue. Such a far-reaching Notice was arguably a "fishing expedition".
With respect to Items 5 and 6, it was submitted that such requests were patently irrelevant to any fact in issue. Any demand to access complaints (if any) regarding Ms Robinson made by other employees during her employment should be considered inappropriate. Furthermore, details of her performance were said to be of no importance to the applicant's claim before the Commission.
Whilst a s 11A(1) defence had been identified in the s 78 notice, this related to the applicant alone. The burden lay with the respondent to demonstrate whether injury (if any) was 'wholly or predominantly' caused by actions of management in connection with the worker's performance management.
The respondent noted that the issuing party bore the onus of demonstrating that the documents had a legitimate forensic purpose in relation to the issues in the proceedings. Based on the terms contained within the Notice, this had not been satisfied.
Applicant’s notice of opposition
The applicant lodged a notice of opposition on 24 May 2021 pursuant to r 41(3).
The applicant identified issues in dispute in the proceedings and noted that the respondent relied on statements from three witnesses: Danica Robinson, the applicant’s direct report and the person alleged by the respondent to have undertaken the reasonable performance appraisal and/or discipline; Charlotte Sos, who was Ms Robinson’s direct report; and Alex Noakes, Senior Human Resources Business Partner, who was present during a formal performance appraisal meeting on 12 November 2020.
The applicant further identified 26 facts said to be in dispute between the parties. It was submitted that the respondent’s case, particularly its s 11A defence, wholly depended upon the Commission’s acceptance of the testimony contained in its three witness statements.
The applicant submitted:
“The Applicant alleges that these witnesses have selectively annexed emails to their statements, many taken out of context, which has served to paint a misleading picture of his work performance, the reasonableness of the witnesses’ conduct in their dealings with Applicant, and the motives of the witnesses underlying those dealings. Accordingly, the Applicant seeks the full production of communications of the witnesses concerning the Applicant in the relevant period so that the selective communications relied upon by the witnesses can be considered in their proper context.”
The applicant used as an example of the selective use of emails, an email to Ms Robinson attached to the applicant’s statement in which his work was praised. The applicant said that to permit the respondent to rely on the witness evidence while denying the applicant the opportunity of accessing communications “that reveal their true context” would constitute “a striking denial of procedural fairness”.
The applicant described as a central fact in issue:
“…whether Robinson has given false testimony concerning the events that occurred during her meeting with the Applicant on 2 November 2020. The Applicant alleges he reported his injury to Robinson at that meeting, and the Applicant’s testimony is corroborated by compelling contemporaneous evidence. Robinson denies that the injury was reported to her at that meeting. She also concedes that if the Applicant’s testimony on this subject is correct, then she failed to follow the Respondent’s protocols with respect to responding to a report of a work injury. It is plainly appropriate for all communications pertaining to this meeting to be produced given their obvious critical relevance to one of the central issues in dispute in these proceedings. The same submissions apply in respect of Noakes, to whom the injury was also reported on 12 November 2020.”
The applicant also submitted that the applicant’s work performance was a central issue which the applicant should as a matter of procedural fairness be permitted to enquire into by means of the production of the communications requested.
With regard to Items 5 and 6 of the Notice, the applicant submitted:
“… the Applicant’s case is that there were no issues with his work performance and that Robinson’s management of him was unreasonable because she was a poor manager whose management style was the subject of previous complaints and previously identified issues.”
Responding to the notice of objection, the applicant submitted:
(a) The scope of the Notice was “extremely narrow” being limited in time to a period of only 9 months and as to subject matter as it required only the production of communications pertaining to the applicant.
(b) The fact that communications may have been sent over more than one message platform did not make compliance any more onerous than if only one such platform had been used. The availability of different platforms did not serve to increase the total number of communications.
(c) No evidence had been tendered to demonstrate that production of the documents would be burdensome and search functions could identify the relevant communications quickly and easily.
(d) The Notice should not be characterised as a “fishing expedition” as there was good reason to believe that other records that contradicted the narrative sought to be advanced by the respondent’s witnesses had been overlooked.
(e) The documents were described with sufficient particularity and a Notice for Production was not limited to the production for documents of which the requesting party already had knowledge.
(f) The documents described at Items 5 and 6 were “centrally relevant to central facts” in issue in the case, and the principles of procedural fairness required that the applicant have access to those records if the respondent’s witness statements are to be admitted into evidence.
FINDINGS AND REASONS
Relevant law
Rule 39 of the Personal Injury Commission Rules 2021 provides:
“39 Notice for production
A requesting party may serve a notice for production on a producer at the producer’s address for service requiring the producer to produce for inspection a document that is —(a) clearly identified in the notice, and
(b) relevant to a fact in issue in the proceedings.”
Under r 40(2) a producer must comply with a notice for production within seven days of the date on which the notice was served on the producer. The manner of compliance is provided for in r 41:
“41 Compliance with notice for production
(1) A producer must comply with a notice for production by delivering to the requesting party, at the requesting party’s address for service and within the time required by rule 40(2), a clear copy of the document referred to in the notice that is—
(a) in the possession or control of the producer, and
(b) not the subject of a notice of objection referred to in subrule (2).
(2) A producer must also serve on the requesting party, at the requesting party’s address for service and within the time required by rule 40(2), a notice of objection concerning a document that has not been delivered, stating—
(a)the document is not suitable for copying but may be inspected at a specified place and time and on a date within 7 days of the date on which the notice of objection was served on the requested party, or another date agreed to by the parties, or
(b) the document is privileged and the reasons for the claim of privilege, or
(c) the document is not relevant to a fact in issue in the proceedings and the reasons why it is not relevant, or
(d) if the producer is a claimant—an amount sufficient to meet the reasonable expenses of complying with the notice for production has not been paid, and the reasons for making the assertion, or
(e) the document has already been produced to the requesting party, or
(f) the document is, to the best of the producer’s knowledge or belief, in the possession or control of another specified person, or
(g) the producer has no knowledge of the document’s existence or location, or
(h) another objection to production and the reasons for the objection.
(3) A requesting party who wishes to oppose a notice of objection must, within 2 working days of the date on which the notice of objection was served on the requesting party, lodge, and serve on the other parties, a notice of opposition.
(4) The notice of opposition must—
(a) set out the reasons for the opposition, and
(b) attach a copy of the notice for production and the notice of objection.
(5) The Commission or the President may determine an objection to a notice for production by—
(a) setting aside the notice for production wholly or in part, or
(b) directing the documents be produced to the requesting party or the Commission, or
(c) making another order the Commission or the President thinks fit.”
Facts in issue
Applicant’s statement
The applicant has attached to the Application to Resolve a Dispute a 14 page written statement plus annexures, dated 13 April 2021, in which he sets out the circumstances in which he alleges a psychological injury was sustained.
The applicant was employed as a Network Partnership Manager responsible for developing brand solutions/campaigns for advertisers. The applicant expressed the view that he was performing his work to an acceptable level and was a valued member of staff.
On 11 June 2020, the applicant was informed that the portfolio he was responsible for would change from news.com.au/MMH to The Australian effective 1 July 2020. The applicant was required to report to Ms Robinson, who in turn reported to Ms Sos.
The applicant stated that The Australian had lost a number of key clients due to Covid-19 and as a result, revenue targets were much harder to achieve. This resulted in significantly increased work pressure for the applicant. The applicant also had reduced support and assistance in his new portfolio. The applicant said:
“From July 2020, these additional work duties together with the constant pressure of being required to reach revenue targets, while working on a new portfolio made working extraordinarily difficult. As I was working without adequate support or assistance, I began to suffer from symptoms of stress and anxiety, which commenced in about mid-July 2020.”
The applicant denied that there were any significant issues with his work performance but conceded that the work-related stress and anxiety he had been experiencing since July 2020 did impact on his ability to carry out his work duties.
On 26 October 2020, the applicant consulted his general practitioner via telehealth consult and after a face to face consultation on 27 October 2020 was put on a mental health plan and prescribed anti-anxiety medication and melatonin.
On 2 November 2020, the applicant had a meeting with Ms Robinson in which she expressed concern about the applicant and said she had heard from other staff that he was suicidal. The applicant denied this but said:
“I told her that I was experiencing anxiety and stress related to pressures at work, in particular pressure to generate briefs and to work on client relationships with the sales team that were not getting results due to the Covid-19 environment and the reduced headcount caused by recent redundancies.”
Ms Robinson arranged for the applicant to speak with a psychologist from the Employee Assistance Program (EAP) the same day.
On 11 November 2020, the applicant was advised that he would be having a formal performance meeting with HR the following day. The meeting went ahead on 12 November 2020 and the applicant was placed on a Performance Improvement Program (PIP). A PIP check-in meeting took place with Ms Sos on 18 November 2020 in which the applicant spoke about his work-related anxiety.
On 19 November 2020, the applicant consulted his general practitioner and was certified unfit for work.
Medical evidence
The applicant relies on clinical notes, certificates of capacity, responses to questionnaires sent by the insurer and a report from his general practitioner, Dr Robert Burton. Dr Burton diagnosed an adjustment disorder secondary to a change in work role with a new manager.
The applicant also relies on clinical notes from the respondent’s EAP provider and a traditional Chinese medicine and acupuncture practitioner.
Notified disputes
The s 78 notice issued on 10 February 2021 disputed that the applicant had sustained an injury pursuant to s 4 of the 1987 Act. It was further alleged that any psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to performance appraisal, discipline and/or termination under s 11A(1) of the 1987 Act. In addition, the insurer did not agree that the applicant was entitled to weekly payments and medical or related treatment pursuant to s 33, 59 and 60.
The s 78 notice stated:
“A ‘Notice of Formal Performance Counselling Meeting ‘letter was issued to you on 11 November 2020. The concerns included:
Adhering to deadlines set for tasks;
Delivering adequate output for briefs and qualified proactives;
Taking the lead role on brief responses and proactive; andWorking to the alchemy framework and adopting the solutions architecture.
It was stated that the above issues had been raised informally during the 1:1 catch ups as well as on 11 September 2020, 21 September 2020, 8 October 2020, 22 October 2020 and 28 October 2020. During the informal process, it was confirmed that the insured provided weekly 1:1 daily check ins on workload and offered extra support, recommendations, shadowing and guidance on best practice. This had not resulted in any significant improvement in your performance. You were invited to discuss the concerns formally at a meeting on 12 November 2020. A support person was offered and details of the EAP were included in the correspondence.
The factual evidence strongly indicates that you alleged symptoms and ultimate incapacity manifested after a performance discussion and formal Performance Improvement Plan (PIP).”
Referring to witness statements attached to a factual investigation report annexed to the dispute notice, the insurer said “the actions of management appear to be justified in the circumstances.”
The notice also identified alleged inconsistences in Dr Burton’s evidence and the applicant’s refusal to attend an IME appointment and said it did not concede that the applicant had sustained a psychological injury.
Factual investigation
The respondent relies on two reports prepared by The Procare Group. The first, dated 12 January 2021, is described as an interim report and details efforts made to contact the applicant. Correspondence from the applicant’s legal representative indicated that the applicant was unwilling to submit himself for interview but would respond to any request for particulars. A response to a request for particulars dated 8 January 2021 was attached.
A second report, dated 27 January 2021, attached statements from Alex Noakes, Charlotte Sos and Danica Robinson. That evidence is summarised in the report as follows:
“The evidence from the Insured is the Claimant was undergoing informal performance counselling since 2 September 2020, that support was provided, and no improvement was being made. It is noted the Claimant reported suicidal thoughts to his colleagues and as a result, Robinson arranged a 'check-in' meeting to find out more, on 2 November 2020.
Robinson provides at no stage during this meeting did the Claimant raise any work-related issues but he was referred to EAP.
Following this meeting, Robinson believed the Claimant was ok and so the Insured proceeded with formal performance management. This was not disciplinary in nature and was aimed to improve performance.
A meeting was held on 12 November 2020 with Robinson and Noakes and the Claimant was issued with a for performance improvement plan. The Claimant mentioned on this occasion that he was suffering with anxiety issues and he was receiving treatment. According to Robinson and Noakes the Claimant did not report having any work-related issues or raise that his work was causing a deterioration of his mental health.
There was a catch-up meeting for the PIP on 18 November 2020 and Sos was present due to Robinson being on leave. Sos says the Claimant was teary during this meeting and recalls he raised not being able to meet the targets set in the PIP.
The Claimant had leave arranged starting the next day, 19 November 2020. On that date, he sent an email to Sos thanking her for her support the previous day. He went on to say he had reported his workplace issues to Robinson on 2 November 2020 and was surprised he was issued with a PIP a week later. The evidence of the Insured witnesses is this was the first mention of work-related issues.
The lnsured's position is the Claimant was supported to ‘nth degree’. The expectation placed on him, in regards to his role, was in line with all team members in the same role and despite the extensive supports in terms of consultation, coaching and feedback, he failed to improve. It is further noted that since his absence, team members have picked up his workload and achieved the targets set.”
Determination
Rules 39 and 41 require that a document requested in a notice for production be relevant to a fact in issue in the proceedings. The party seeking the production of documents bears the onus of showing, expressly and precisely, the apparent relevance of the documents sought to the issues in dispute.
It can be seen from the foregoing, that the key issues in dispute in this case are:
(a) whether the applicant sustained a psychological injury in the course of employment which satisfies s 4, and
(b) whether any such injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to performance appraisal, discipline and/or termination.
The applicant alleges that his injury was due to events in the workplace between July 2020 and 19 November 2020.
It is not evident from the details provided in the Notice, the applicant’s notice of opposition or the other evidence lodged in these proceedings how any communications between 20 November 2020 and 15 April 2021 are relevant to the facts in issue. I am satisfied that the request for communications in that date range should be set aside.
Turning to the period 1 July 2020 to 19 November 2020, the applicant has in his notice of opposition identified a number of “facts in issue”. A comparison of the witness evidence with the applicant’s statement reveals that several of those facts are not actually in dispute. I also do not accept that all the facts identified by the applicant are relevant to these proceedings. I do, however, accept that the following facts are relevantly in dispute:
(a) whether the applicant reported his work injury to Ms Robinson on 2 November 2020 and 12 November 2020.
(b) whether the applicant reported the work injury to Ms Noakes on 12 November 2020.
(c) whether the applicant failed to meet targets as alleged.
(d) whether there were problems in the execution by the applicant of his responsibilities.
(e) whether the applicant did not adhere to deadlines.
(f) whether the applicant did not deliver adequate output for briefs and qualified proactives.
(g) whether the applicant did not take lead roles on briefs and was proactive.
(h) whether the applicant did not work to the alchemy framework and did not adopt solutions architecture.
(i) whether these issues had been raised with the applicant informally.
(j) whether the applicant was offered extra supports, shadowing, and guidance on best practice.
(k) whether there was improvement in the applicant’s work performance between September and November 2020.
(l) whether the applicant was given a reasonable opportunity to have a support person present at the meeting of 12 November 2020.
In these circumstances and given the notified dispute with respect to s 11A(1), I would be prepared to accept that communications sent and received in relation to action taken or proposed to be taken by the employer with respect to performance appraisal or discipline in respect of the applicant would be relevant to a fact in issue in the proceedings.
Having regard to the applicant’s evidence as to the circumstances in which an injury was sustained, communications relating to the applicant’s change in portfolio, workload, revenue targets, support, guidance and mental health would also clearly be relevant to the facts in issue.
The Notice requests, however, a much broader range of documents, namely “all communications… in relation to the worker.” This potentially encompasses an enormous body of material pertaining to facts which are neither relevant nor likely to materially assist in resolution of the disputes before me.
In R v Saleam[1], the test for determining whether a party is required to produce documents was stated in the following terms:
“Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case.” (at [11])
[1] [1999] NSWCCA 86.
I am not satisfied that the documents, as described in Items 1 to 3 in their current form, are relevant and likely to materially assist the applicant’s case in their entirety.
It is noted that the documents described at Item 4 would be covered by the documents already described at Item 2.
Having regard to Items 5 and 6, I am not satisfied that documents pertaining to complaints made about Ms Robinson during the period of her employment or performance issues alleged, identified, and/or investigated in respect of Ms Robinson’s employment are directly relevant to the facts in issue in this case.
It is only Ms Robinson’s actions on behalf of the respondent in respect of performance appraisal or discipline of the applicant, or her management of the applicant’s change in portfolio, workload, revenue targets, support, guidance and mental health, in the relevant period, which are directly relevant.
The documents described in Items 5 and 6 could only be of tangential or oblique relevance. Importantly, I am not satisfied that it is on the cards that such material would materially assist the applicant’s case.
Rule 41(5) gives the Commission power to set aside a notice for production wholly or in part; direct that documents be produced to a requesting party or the Commission; or make any other order the Commission thinks fit.
Having carefully considered the materials and submissions before me, I am satisfied that it is appropriate to set aside the Notice to Produce in whole. I will, however, direct that the respondent produce to the applicant:
(a) any document or communications sent and received by Ms Robinson, Ms Sos and Ms Noakes, in relation to action taken or proposed to be taken by the employer with respect to performance appraisal or discipline in respect of the applicant, during the period 1 July 2020 and 19 November 2020;
(b) any document or communications sent and received by Ms Robinson, Ms Sos and Ms Noakes relating to the applicant’s change in portfolio, workload, revenue targets, support, guidance and mental health, during the period 1 July 2020 and 19 November 2020, and
(c) to the extent not already covered above, any communication or document relating to the meeting between the applicant and Ms Robinson on 2 November 2020 and the meeting between the applicant, Ms Robinson and Ms Noakes on 12 November 2020.
The respondent is not required to produce:
(a) any material which is not suitable for copying;
(b) any material which is privileged;
(c) any material which has already been produced to the applicant;
(d) any material which is, to the best of the respondent’s knowledge or belief, in the possession or control of another specified person; or
(e) any material of which the respondent has no knowledge of its existence or location.
In making these directions, I note that the respondent alleged that compliance with the Notice would be unduly burdensome having regard to the definitions applied to the terms “communications” and “documents”. I have used the same terms in the directions above and attach the same meaning. It is possible that a great many of the communication platforms or document types falling within those definitions will not contain any relevant material. It would be expected, however, that this could be determined relatively quickly by the respondent’s employees. In the case of electronic communications or documents, it is also expected that searches and filters could be applied to more rapidly identify relevant material.
I will direct that such material be produced to the applicant within 14 days of this direction.