Mr Colin Wright v AGL Loy Yang Pty Ltd

[2015] FWC 8820

[2015] FWC 8820

FAIR WORK COMMISSION

DECISION

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

Mr Colin Wright
v
AGL Loy Yang Pty Ltd
(U2015/12039)

COMMISSIONER WILSON MELBOURNE, 21 DECEMBER 2015

Application for relief from unfair dismissal - consideration of an application for an order to produce documents etc.

[1] This decision relates to an application for the issue of orders for the production of documents against six persons and entities in relation to an application made by Colin Wright, who has made an unfair dismissal application against his former employer AGL Loy Yang Pty Ltd.

[2] The matter has progressed past the conciliation stage and dates for hearing of the matter have been set for late February 2016. Witness statements and outlines of submission have been filed on behalf of both parties. An Outline of Submission and 2 witness statements, including that of Mr Wright, have been filed on behalf of the Applicant. An Outline of Submission and 6 witness statements have been filed on behalf of AGL Loy Yang.

[3] The circumstances of Mr Wright’s application include that he was dismissed by AGL Loy Yang on 17 September 2015, having been employed with them since 2012 in the capacity of a plant operator level 8 at the Loy Yang A power station and coal mine in the Latrobe Valley. Mr Wright was dismissed following an investigation by the Respondent into the circumstances of a motor vehicle accident in which Mr Wright was involved after leaving work on the morning of 27 August 2015. The Respondent put forward in its letter of termination to Mr Wright that he had made an admission to police about having used synthetic drugs prior to the motor vehicle accident. However in the course of the investigation by the Respondent Mr Wright advised them that he did not recall the events of leaving work and does not recall speaking to the police at the accident scene. The letter of termination also indicates that Mr Wright provided a copy of his blood alcohol results taken at the Latrobe Regional Hospital following the accident and advised that he was unable to provide drug test results either from the police or the hospital as they had not been provided to him and he was unsure whether testing had been done.

[4] The applications for the orders for production of documents have been sought by the Respondent in the matter and are against;

• Victoria Police in respect of its investigation of the motor vehicle accident involving Mr Wright on 27 August 2015;



• Latrobe Regional Hospital in relation to its medical records pertaining to Mr Wright’s admission following the motor vehicle accident;



• Two medical practitioners consulted by Mr Wright, namely Dr Dev and Dr Purayil; and



• Two pathology service companies, namely Racing Analytical Services Ltd and Healthscope Pathology, who provided pathology services to Mr Wright’s general practitioners.

[5] The material filed by the Applicant includes, in his Outline of Submission, that he does not and cannot deny or admit a conversation with police in which he is alleged to have admitted to use of synthetic cannabis at Loy Yang A on the morning 27 August 2015. The context of this is that the Applicant simply does not know whether the conversation as alleged took place. He also denies the use of synthetic cannabis or other drugs on AGL property on the morning of 27 August 2015 after his shift. Mr Wright’s witness statement describes a minimal recollection of the motor vehicle accident, and recollects consequential damage to property only because he saw the damage when he returned the next day. His witness statement includes that he has no recollection of having a conversation with anyone at the scene and that if he did speak to someone he does not know what he said.

[6] The Applicant’s witness statement also includes pathology reports of tests apparently taken at the Latrobe Regional Hospital on the day of the motor vehicle accident, as well as pathology reports made by Doctors Dev and Purayil on 7 and 8 September 2015. The pathology reports ordered by the Latrobe Regional Hospital are from Dorevitch Pathology and the reports ordered by Mr Wright’s medical practitioners are from Healthscope Pathology and Racing Analytical Services.

[7] The Respondent’s material includes the 6 witness statements referred to previously. Within those witness statements is that of Nick Demetrios, AGL’s Head of Security and Emergency Management. Within his statement Mr Demetrios relates a phone call he received from Constable Christensen of the Traralgon Police Station on 27 August 2015 at about 8:39 AM. The witness statement advises that Constable Christensen told him that police had attended the scene of the accident in which Mr Wright was involved and that Mr Wright had been the driver of the crashed vehicle. Mr Demetrios says that Constable Christensen told him that Mr Wright had been interviewed by police and had told them that after finishing work he had decided to have a smoke of a synthetic substance before driving home. There is presently no witness statement filed either by Constable Christensen or any other police officer.

[8] The Applicant consents to orders being made against each of the persons and entities proposed, but not to the breadth of the orders as sought by the Respondent. It argues several relevant points;

• The breadth of the definition of the word “document” employed by the Respondent would encompass many things, including drafts, and there is no legitimate forensic purpose to that request. In reply, the Respondent argues that a narrower terminology would be disadvantageous to it, and especially so in relation to the order on Victoria Police for reason that is should be able to see the notes taken, as well as the settled investigation report, for reason that any admission by Mr Wright may well be within the notes, but not the final investigation report; and



• The information sought from the hospital and the medical practitioners should be confined to the outcome of tests for the presence of alcohol and synthetic drugs. To order the production of all documents would invade Mr Wright’s privacy, be a “fishing expedition”, and, to the extent that the order went beyond “synthetic drugs”, would go beyond the allegation the Respondent investigated and from which it formed the view it should dismiss Mr Wright. In reply, the Respondent argued its request was not “fishing” and that it should be able to see what led to the motor vehicle accident.

[9] The request made by the Respondent in this matter is an application pursuant to s.590(2)(c) of the Fair Work Act 2009 and the matter requires determination in accordance with well-settled principles. Documents must be relevant to an issue, and not for the purposes of “fishing” or to test whether a party has a supportable case; relevance does not require that a party demonstrate direct relevance to the contest between the parties, but rather the documents sought must have some apparent relevance to the pleadings as they stand. 1 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, with the test of relevance applied by courts usually also applied by the Commission.2 Application of the tests requires examination of two questions:

“First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?” 3

[10] Consideration of the question of adjectival relevance looks toward the possibility of whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. 4

[11] There is a general presumption that a party will not be required to produce documents where to do so would be oppressive; or where the application is a “fishing expedition”, 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. 5

[12] The Applicant’s Counsel concedes some aspects of relevance as referred to above. In broad terms that concession goes to;

• The finalised police documents, but not their notes or drafts;



• Tests sought by the hospital and the medical practitioners, together with the results provided, but only with respect to alcohol and synthetic drugs, with no concession going to non-synthetic drugs; and



• In respect of the test results of the hospital, only tests ordered on 27 August 2015 should be the subject of the order.

[13] The Applicant argues that seeking medical documents broader than the classes conceded is “fishing”.

[14] I am satisfied in this regard that the orders sought by the Respondent in the matter have an apparent relevance to the matters requiring determination by the Fair Work Commission. The critical question of whether or not Mr Wright was under the influence of drugs or alcohol at the time of the motor vehicle accident is one that not only exercised the mind of AGL at the time it made the decision to dismiss Mr Wright, but has also been a key feature of the defence put forward by Mr Wright not only in respect of the stages of the investigation conducted by AGL, but also in the material filed by him in these proceedings.

[15] Two overarching matters arise which have bearing upon each of the proposed orders. The first of those matters relates to the definition of the term “documents” and the second of the matters relates to whether the orders should be confined only to documents relating to the presence or use of “synthetic drugs” and not to a wider class of drugs.

[16] Whereas the Respondent seeks a very expansive definition of the term “document”, the Applicant’s definition refers only to the term having the meaning provided in the Evidence Act 1995 (Cth).

[17] Given that the orders, other than the one issued on Victoria Police, are likely to eventually be served upon either laypeople or people not experienced in interpretation of such orders, I consider it appropriate for there to be a usable definition of “documents” within each of the orders, so the person responding knows what must be produced. Consideration of both the terminology used by the Respondent and the definition of the term employed within the Evidence Act leads me to decide that the following will be used in the orders to be made;

“In this Schedule, “Document” has the meaning given in the Evidence Act 1995 (Cth), and includes any record of information including an electronic record, and includes:

(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.”

[18] The second question involves consideration of whether the orders should relate to records of any drugs, or only synthetic drugs. It appears to be the case that at all stages of the Respondent’s investigation, dismissal and now proceedings before the Fair Work Commission, AGL Loy Yang has referred to an allegation that the Applicant used a “synthetic drug” and not non-synthetic ones. However, in context, that allegation comes from a single phone call by a police officer to one of the witnesses for the Respondent. As I have noted, a witness statement is not included for the police officer.

[19] Whereas it would likely be problematic for the Respondent’s case for it to now argue that the dismissal related not to a synthetic drug use but to use of other drugs, I am satisfied that this is one of those cases where the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. Accordingly, I am satisfied that it is appropriate in all the circumstances for reference within the orders to be made to a wider class of drugs than merely synthetic drugs.

[20] The Applicant argues the order on the police should be reduced in its scope, including limiting the production to records of discussions with Mr Wright and any statement he provided, and to the outcome of the police investigation. In the context of the matters in the argument, I do not agree that the order on the police should be as confined as the Applicant seeks and instead the order made will be closer to the information sought by the Respondent.

[21] In relation to the orders upon the Latrobe Regional Hospital and the general practitioners, I am satisfied that in all the circumstances it is appropriate to confine the orders to tests sought and their results, if any.

[22] As a result of the foregoing considerations, the following orders will be issued;

1. Victoria Police

1. For the vehicle accident involving Mr Colin Wright (Mr Wright) which occurred on Thursday, 27 August 2015 at approximately 6:45am whereby his vehicle crashed into a house on Shakespeare Street, Traralgon and was investigated by Traralgon Police Station:

a) All Documents (originals or clear, sharp photocopies of them) recording or evidencing the vehicle accident described above;

b) All Documents (originals or clear, sharp photocopies of them) recording or evidencing:

i. any information and any witness statements provided to the Victorian Police on 27 August 2015 or at a later date by Mr Wright and other witnesses, including police records and file notes;

ii. any contact between Colin Wright and the Victorian Police about the above vehicle accident, or Mr Wright's mental or physical wellbeing leading up to the vehicle accident, including any requests for Mr Wright to attend a medical examination or undergo drug and alcohol tests and any subsequent test results produced to the Victorian Police;

iii. details of any charges against Mr Wright in respect of the incident;

iv. details of any drugs or drug paraphernalia found in Mr Wright's vehicle or on Mr Wright in the course of the investigation.

2. Latrobe Regional Hospital

1. For the patient named Mr Colin Wright (DOB: 30.03.1964) who was admitted to Latrobe Regional Hospital on Thursday, 27 August 2015 following a motor vehicle incident all documents that:

a) identify the drug and alcohol tests (if any) that were requested for Mr Wright during his admission on 27 August 2015;

b) show the results of any of the aforementioned tests.

3. Dr Dev and Dr Purayil; Healthscope Pathology and Racing Analytical Services Ltd

1. For the patient named Mr Colin Wright (DOB 30.03.1964), documents that:

a) identify the drug and alcohol tests (if any) requested by or for Mr Wright in the period 27 August 2015 to 24 September 2015;

b) show the results of any of the aforementioned tests.

COMMISSIONER

Appearances:

Mr M Harding (of counsel) for the Applicant

Mr D Williams (solicitor) for the Respondent

Hearing details:

2015.

Melbourne (by telephone).

18 December.

 1   ANF v VHIA [2011] FWA 8756, at [13]; see also Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101, at [8].

 2   Clermont Coal v Brown and Others[2015] FWCFB 2460, at [19].

 3   ANF v VHIA[2011] FWA 8756, at [13]; see also Trade Practices Commission v Arnotts Limited [1989] FCA 248, at [44].

 4 Ibid, at [13].

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

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