Mr Cameron Sharp v Stradbroke Ferries Pty Ltd

[2015] FWC 3549

[2015] FWC 3549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Cameron Sharp
v
Stradbroke Ferries Pty Ltd
(U2015/1051)

COMMISSIONER BISSETT MELBOURNE, 26 MAY 2015

Application to vary Order to Produce.

[1] Mr Cameron Sharp has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. He was employed by Stradbroke Ferries Pty Ltd (the Respondent) on 28 February 2012 and his employment was terminated on 18 February 2015.

[2] Directions were issued which required the Applicant file and serve his submissions, witness evidence and any other material by 27 April 2015 and the Respondent file and serve its material by 18 May 2015. The application was listed for arbitration in the week beginning 15 June 2015.

[3] On 8 April 2015 the MUA, representing Mr Sharp, requested the Commission issue an order, directed to the Respondent, requiring the production of certain documents. The Order was issued on 13 April 2015. That Order required that the documents be produced at 10.00am on 20 April to:

FAIR WORK COMMISSION

Level 14, Central Plaza Two

66 Eagle Street

Brisbane, Qld, 4000

And scanned by email to [email protected]

[4] On 20 April 2015 Mr Kent, General Counsel for the Respondent, advised that the Respondent had been unable to comply with the Order as he had been on leave and for a number of other cogent reasons. He requested the Order be amended ‘to require disclosure by 11 May, 2015’. This was not opposed by the MUA.

[5] An amended Order was issued dated 23 April 2015 requiring production by 1 May 2015. The Order still required that the documents by produced to the Commission and scanned by email to the MUA.

[6] On 1 May 2105 the documents were produced to the Commission. They were not ‘scanned by email’ to the MUA. That day Mr Kent also contacted the Commission to advise that the Respondent objected to the Applicant being able to inspect the documents prior to the Applicant’s submissions and witness evidence being filed with the Commission and served on the Respondent. The reasons for this objection were further spelt out in an email from Mr Kent on 4 May 2015 to the Commission and the MUA.

[7] As a result of the email the MUA wrote to the Commission on 6 May 2015 and indicated that, as the Applicant was unable to review the documents produced by the Respondent, he was unable to comply with the directions which required the filing of materials by 8 May 2015.

[8] On 8 May the MUA 2015 was advised that its request for an extension within which the Applicant was to file his material had not been granted. The MUA responded to this correspondence and confirmed it sought access to the documents produced, noted that the Order also required the documents to be ‘scanned by email’ to the MUA and requested the matter be dealt with by a mention before a member of the Commission. The MUA response also said that:

Given the Applicant is not able to view the documents that may be relevant to the settlement or hearing of this matter we are unfortunately unable to comply the direction timetable, as previously indicated to the Commission on 6 May 2015. (sic)

[9] The matter was listed for mention to determine if the MUA should be given access to the documents produced and related applications on Friday 15 May 2015 and subsequently heard on 18 May 2015.

To whom should the documents be produced?

[10] It is unusual for an order for production of documents to require that those documents be produced directly to the requesting party, particularly in circumstances where the Respondent was not aware at the time the request for the order was made nor given an opportunity to be heard on whether the order should be made.

[11] It is not unusual for an order for production of documents to be issued without hearing from the party to whom the order is directed. The inclusion of the requesting party as a receiver of the documents when they are produced in such circumstances would seem, however, to deny the right of the party to whom the order is directed being heard as to any objection to production or inspection of the documents produced. Procedural fairness dictates that an order in such terms should not be made.

[12] The Respondent has requested that the Commission amend the order to remove the requirement to provide the documents to the MUA. The MUA, at the hearing of this matter, made little or no comment on this.

[13] I will therefore amend the Order so that the requirement to produce the documents ‘scanned by email to [email protected]’ is removed from the Order.

Should the Order be set aside or the documents provided to the Applicant?

[14] Prior to the hearing of these matters the Respondent made application that the order of 23 April 2015 be set aside in totality. In the alternative it says the Applicant should not be given access to the documents produced prior to him properly pleading his case (ie filing his submissions, witness statements etc).

[15] In summary the Respondent says:

● Nothing has been put by the MUA suggesting the documents are necessary to enable the Applicant to file his submissions and evidence.

● The Applicant has information on the basis of the case against him. This is detailed in the show cause notice and the dismissal letter, both of which are attached to the Form F2 application filed by the Applicant.

● The desire by the Applicant to see the documents produced prior to filing his submissions and evidence allows an inference to be drawn that the Applicant wishes to better understand the Respondent’s evidence prior to him being required to commit to his version of the events surrounding his termination. This suggests the documents are sought for an incorrect purpose and/or are a ‘fishing expedition’.

● It would be improper for the Applicant to see the documents prior to filing his submissions and evidence as the determination of the substantive application will go to matters of credibility of witnesses. The Applicant’s evidence will be affected by him seeing the documents of the Respondent prior to filing.

● The Respondent has no issue with the Applicant being given access to the documents once his evidence and submissions are filed.

[16] The MUA submits that:

● It is difficult for it to know the Respondent’s case as no F3 has been filed. The release of the documents would assist in this understanding.

● The release of the documents to the Applicant is in the public interest.

● Release of the documents would allow a speedy resolution of the case.

● The Applicant is unable to advance his case without the documents.

[17] During the course of the hearing it became apparent that a Form F3 (Employer response to the application) had been completed by the Respondent but not filed with the Commission. Mr Kent undertook to file the document that day.

[18] In filing the Form F3 the Respondent reiterated that the documents produced pursuant to the Order should not be released to the Applicant. It says they should be properly annexed as necessary to the statements of the Respondent’s witnesses at the time the Respondent files.

[19] On receipt of the Form F3 the MUA indicated that it continues to press for release of the documents. The MUA says that it needs the documents:

In order to properly review and articulate the case of its Member. For instance and without limiting our arguments, we are particularly keen to see the substance of any purported policies that are said to exist by the Respondent and or evidence of any meetings that are said to have occurred where the Applicant is said to have been warned about his conduct needing improvement. In our view, these types of documents may rapidly establish whether or not the Applicant’s termination was specifically “unfair or unreasonable” pursuant to s.385(b) of the Fair Work Act , or alternatively encourage the parties to otherwise settle and discontinue this application.(sic)

[20] In summary the Respondent submits that the documents not be released to the MUA until such time as the Applicant’s case is made on the grounds that they may result in him altering his evidence and/or that the documents are no more than a fishing expedition.

[21] Jurisprudence in relation to orders to produce is well settled. It is pertinent to repeat some of it here.

[22] In Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 Munro J said:

A party will not be required to produce documents where to do so would be oppressive, or where demand for production is a “fishing expeditions”, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all.¹

[23] In McIlwain v Ramsey Food Packaging Pty Ltd and others, Justice Greenwood summarised the principles that govern the courts in relation to discovery and subpoena of documents. As is relevant in this matter he said:

The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright(1888) 21 QBD 509), or to investigate the character of the opposing party’s evidence (Griebart v Morris[1920] 1 KB 659, 666).

The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. 2

[emphasis added]

[24] The Respondent has set out what it relies on for the dismissal with a reasonable degree of detail. It is not required, at the time of lodging its Form F3, to identify the evidence on which it relies. It is in fact asked to respond to the Applicant’s contentions. It is the case that, generally the Respondent will outline why it considers its actions in dismissing the employee justified. The evidence to support its case will be fully identified once the Applicant has filed its detailed submissions and evidence.

[25] The material filed by the Applicant in his application for unfair dismissal, in particular the show cause letter and the letter notifying dismissal, indicate that the Applicant is well aware of the matters upon which the Respondent relies for its decision. These are further articulated in the Form F3 lodged by the Respondent.

[26] The Applicant is aware of the meetings that the Respondent says he attended and the events on which the Respondent relies for its decision. If the Respondent has said certain meetings occurred or policies were provided, it is up to it to produce evidence at the appropriate time to prove such facts. If, in filing its evidence, the Respondent does not do so, it is then open to the Applicant to make whatever submissions he considers appropriate in response.

[27] The MUA says that the documents may be relevant to the settlement or hearing of the case. This seems to me to be an example of seeking documents as a ‘fishing expedition’ to discover if he has a supportable case so if he should continue or otherwise with his application. 3 The approach of the MUA in this case seems to be to first make an application for unfair dismissal, second seek documents from the employer and then third, determine if there is a case to be run. Either that or it seeks to know the Respondent’s case before it puts the Applicant’s case. Neither reason justifies access to the documents.

[28] No argument was put as to why the documents should be released on public interest grounds.

[29] The Applicant is being asked to file his submissions and his evidence as to why he considers his dismissal to be unfair. There is no cogent reason advanced by the MUA as to why the Applicant cannot put his evidence and submissions without viewing the documents produced.

[30] For these reasons I refuse access to the documents at this point in time. This does not, in my view, inhibit the Applicant from lodging his submissions and witness evidence in support of his claim that he was unfairly dismissed.

[31] I have however noted that the Respondent does not object to the Applicant being able to view the documents after he has filed his submissions and evidence. Should the Applicant continue to press for release after he has filed his submissions and evidence he should contact [email protected] and advise so. The file will be noted to release the documents at such a time.

Amended directions

[32] Amended direction will be issued with the respect to the substantive application. They will require that the Applicant file and serve his materials by 12 June 2015 and the Respondent by 3 July 2015. The matter will be listed (most likely) in the week of 20 July 2015.

[33] Confirmatory directions will be formally issued shortly.

[34] The parties are reminded that directions are issued to ensure timely determination of the application made. Whilst directions must ensure procedural fairness and be in the context of providing a fair go all round, it is ultimately for the Commission to issue those directions. It is not up to one party or the other to continue to decide not to comply with those. If directions are sought to be varied an application must be made to do so. If a hearing or mention is required to determine that matter it should be indicated in the request.

[35] The parties should note that future correspondence on this file should be addressed to [email protected].

COMMISSIONER

Appearances:

K Bolwell for the Applicant

M Kent General Counsel for the Respondent

Hearing details:

2015

Melbourne (Telephone):

May 15, 18

1 Print H2892 at p 3.

 2 (2005) 221 ALR 785, cited in Australian Nursing Federation v Victorian Hospitals' Industrial Association[2011] FWA 8756.

 3   Applicant email of 8 May 2015.

Printed by authority of the Commonwealth Government Printer

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