Mr David Rayner v Little Moreton Pty Ltd T/A H-R Products

[2017] FWC 948

[2017] FWC 948

FAIR WORK COMMISSION

DECISION

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

Mr David Rayner
v
Little Moreton Pty Ltd T/A H-R Products
(U2016/10836)

DEPUTY PRESIDENT BINET PERTH, 24 FEBRUARY 2017

Application for unfair dismissal remedy - application for order for production of documents.

[1] On 31 August 2016, Mr David Rayner (Mr Rayner) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Little Moreton Pty Ltd T/A HR Products (HR Products).

[2] The Application could not be resolved by conciliation and was consequently listed for a Hearing in Perth on Friday 3 March 2017, for the determination of the merits of the Application.

[3] On 3 January 2017 and 9 January 2017, respectively, Mr Rayner filed an application for an order requiring a person to attend the FWC and an application for an order requiring the production of documents to the FWC. These applications were resolved without a formal order, in a telephone conference convened on 10 January 2017.

[4] On 7 February 2017, Mr Rayner filed a further application for an order requiring the production of documents to the FWC (Production Application). The Production Application sought production to the FWC of the following:

(a) Document(s) attesting to the physical dimensions of the lunch room defined as the place where the alleged assault incident of 18 August 2016 took place. Such document to provide specifically the dimensions of length, width and height both internally and externally of the said lunch room.

(b) Photographic images of the interior and exterior of the said lunch room including specifically:
(i) Images of in-situ positioning of all furniture and fittings in accordance with the layout at the material time.

(ii) Images of the exterior of the said lunch room showing all fixtures, fittings, stairways, racking, and storage work areas or other related obstacles.

[5] In his Production Application, Mr Rayner provided the following grounds for why he sought production of the above documents:

“1. Each document and or image is critical to test, refute or establish the veracity of statements detailed in various Witness Statements.

2. No direct or incontrovertible evidence such as CCTV (as in DP World v Lambley) has been adduced.

3. The documents sought will allow the examination of witnesses to be more, direct, focused specific thereby reducing overall, the amount of time necessary to examine these Witnesses.”

[6] On 13 February 2017, HR Products filed a response to Mr Rayner’s Production Application, outlining that it does not consent to the production of the documents requested on the following grounds:

“1.       These are not documents that currently exist and in agreeing to provide, or being ordered to provide, those documents, the Respondent must undertake the task of creating diagrams, taking measurements and taking photographs.

2.       The Applicant has requested that these photos and diagrams be of the lunchroom as it was at 18 August 2016. The Respondent is aware that the furniture has been moved around since then and is unsure that it could accurately place the furniture in the correct position.

3.       The Applicant’s stated reasons for these are essentially to cross examine witnesses and we submit that this is not necessary. The Applicant is able to ask straightforward questions of the witnesses as to where they where, what they saw and to, if necessary challenge them on their statements. We submit that the evidence capable of being adduced in the photographs and diagrams is easily, readily and properly available to be adduced by the asking of questions in cross examination.”

[7] On 15 February 2017, Mr Rayner filed submissions with the FWC in support of his Production Application (Submissions). In his Submissions, Mr Rayner refers to section 590 of the FW Act, in particular subsection 590(2)(c) as providing scope for the Production Application. Section 590 of the FW Act provides as follows.

“590 Powers of the FWC to inform itself

(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 subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).” (emphasis added)

[8] In his Submissions, Mr Rayner submits that the documents sought in the Production Application are crucial to his case as it is vital for the facilitation of a fair and just hearing for the FWC to be provided with the context of the lunch room, including its dimensions, the furniture layout, etc, together with internal and external images of same. He submits that such evidence is unable to be provided by just oral eye-witness evidence alone and goes on to say that the dimensions of the lunch room, together with the furniture layout, make it such, so as to be physically impossible for the asserted events to have happened in the manner detailed in HR Products’ witness statements. Mr Rayner further submits that the eye-witness statements relied on by HR Products are extremely contradictory and, consequently, that it may be unwise, unreliable and wholly unsatisfactory to rely solely upon them.

[9] As an alternative to relying on section 590(2)(c) of the FW Act to justify why his Production Application should be upheld, Mr Rayner refers in his Submissions to section590(2)(g) – FWC ‘undertaking or commissioning research’ – suggesting, this section provides the legislative grounds for his proposal that the FWC attend HR Products’ worksite to familiarise itself with the scene of the alleged incident on 18 August 2016 which led to his dismissal.

[10] In addressing HR Products’ objection to production, Mr Rayner relied on an extract from a secondary commentary source, Butterworths Discovery and Interrogatories, Second Edition (1990), which asserts that:

“… so long as the thing is cable of being evidence and has information to impart it does not matter that the deciphering of that information requires the imposition of an instrument.

Accordingly, tape recordings, movie sound tracks, floppy discs and gramophone records, may all be classified as documents for the purposes of discovery.”

[11] This extract assists Mr Rayner only as far as it recognises that items other than written documents might be the subject of orders for production. It does not identify any authority for his assertion that a party can be required to create a document for the purposes of production.

[12] I note that the draft order supporting the Production Application is not directed to a specified person (but rather, Little Moreton Pty Ltd T/A HR Products).

[13] Counsel for HR Products has confirmed that the furniture has been moved in the lunch room since the date of the incident involving Mr Rayner on 18 August 2016 and asserts that it would be difficult if not impossible, to accurately place the furniture in the position the furniture was in on that day. I am satisfied that there is no utility in the FWC directing HR Products to create the requested documents or for the FWC to inspect the HR Products’ worksite.

[14] I am satisfied that the Application can be properly and fairly heard at Hearing, and the evidence of the context in which the incident came about to be sufficiently adduced without the imposition of an order to the effect sought by Mr Raynor.

[15] Mr Rayner will be given the opportunity at the Hearing to cross-examine HR Products’ witnesses to challenge their evidence, where necessary, and adduce his own evidence in respect of the lunch room and the incident which occurred therein.

DEPUTY PRESIDENT

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