Mr Fahmid Rahman v Australian Taxation Office

[2015] FWC 8074

[2015] FWC 8074

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Fahmid Rahman
v
Australian Taxation Office
(U2015/11672)

DEPUTY PRESIDENT BULL SYDNEY, 24 NOVEMBER 2015

Order to produce documents – applications from both parties for orders requiring production of documents

[1] These are the reasons for a decision given on transcript on 23 November 2015.

[2] In this matter the applicant Mr Fahmid Rahman claims he was unfairly dismissed by his employer the Australian Taxation Office. A response which named the Commonwealth of Australia as represented by the Australian Taxation Office with a trading name of Australian Taxation Office (ATO) as the respondent was filed by solicitors K & L Gates. The application will be amended to reflect the correct name of the respondent as per s.586(a) of the Fair Work Act 2009 (the Act).

[3] The ATO sought orders for discovery relating to the applicant’s efforts at seeking alternate employment and income received following his termination. The order as sought was issued by Deputy President Gooley on 5 November 2015, and required compliance by 12 November 2015. On 11 November 2015, by email Mr Rahman made an application to have the order set aside on the basis that the request is ‘premature’ and a ‘breach of my privacy’. He further stated that he would consider any relevant request once reinstated.

[4] The matter was listed for hearing on 23 November 2015 at which Mr Glover of Counsel sought leave to appear on behalf of the ATO. Mr Rahman did not oppose the representation. Pursuant to s.596(2)(a) I granted leave for Mr Glover to appear.

[5] The jurisdiction of the Commission to make an order for the production of documents arises from s.590 of the Act, and in particular 590(2)(c). The Act states:

“590 Powers of the FWC to Inform Itself
....

590(2)...

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

[6] In exercising its discretion to issue an order to produce documents, the Commission as stated by Munro J in Clerks’ (Alcoa of Australia – Mining and Refining) Consolidated Award (Alcoa) Case 1: will generally be guided by what applies in courts of law:

“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate.

...

The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute.

...

A party will not be required to produce documents where to do so would be oppressive; or where the demand for production 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. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”

[7] The issue of balancing the various rights of the parties was considered by Clarke J in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd 2:

“If a court is called upon to rule that a subpoena is an abuse of process (ie oppressive) in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld.”

[8] At the hearing, Mr Rahman further submitted that the ATO, due to its unique position and the obligations of employers and employees would be aware of the information it seeks. Following questions from the Commission Mr Rahman advised the Commission that due to the reasons for his dismissal, he had not sought alternative employment and consequently not earned any income since his termination of employment.

[9] On the basis of Mr Rahman’s response, he clearly has no relevant documentation to provide the ATO in respect of the order issued. Mr Glover accepted that Mr Rahman’s response answered the order and no further action would be required by Mr Rahman.

[10] Mr Rahman also filed a request for production of documents addressed to Frances Cawthra (an ATO employee) regarding documents between ATO management and an unnamed contractor between “22 February 2012 to date” concerning the applicant and alleged code of conduct charges. Mr Rahman clarified at the hearing that the contractor referred to was a Ms Deegan.

[11] The ATO opposes the order issuing suggesting that it is too wide and a ‘fishing expedition’. Mr Glover noted that the application was filed before the respondent had filed its evidentiary material for the unfair dismissal hearing.

[12] I was not convinced that the documents sought by Mr Rahman had not already been made available by the ATO. Mr Rahman did not identify any documents that he specifically required or had not been provided with a copy of. Mr Glover consented to a narrower order in the following terms (which has been issued by the Commission following the hearing):

“All documents between Ms Cawthra in her role as sanction delegate and Ms Barbara Deegan in her role as independent external investigator/determining officer between 17 July 2015 and 2 September 2015”.

[13] The Order issued by Commission is on the terms as consented by Mr Glover, with a compliance date of 30 November 2015 by Ms Cawthra. Mr Rahman is free to make any further application should he believe on reasonable grounds that he is not in possession of all relevant documentation.

DEPUTY PRESIDENT

Appearances:

F Rahman on his own behalf

T Glover of Counsel for the respondent

Hearing details:

2015

Sydney

23 November

 1   [1988] AIRC 391 Print F9441

 2   [1984] 1 NSWLR 710, at 719-720

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