Mr Fahmid Rahman v Commonwealth of Australia as represented by the Australian Taxation Office

[2015] FWC 8281

[2015] FWC 8281

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Fahmid Rahman
v
Commonwealth of Australia as represented by the Australian Taxation Office
(U2015/11672)

DEPUTY PRESIDENT BULL SYDNEY, 30 NOVEMBER 2015

Unfair Dismissal - Order to produce documents– application for order requiring production of documents at the request of the applicant

[1] These are the reasons for a decision given on transcript on 30 November 2015.

[2] In this matter, the applicant Mr Fahmid Rahman claims he was unfairly dismissed by his employer the Commonwealth of Australia as represented by the Australian Taxation Office (ATO/the respondent).

[3] On 25 November 2015, Mr Rahman made an application for an order pursuant to s.590(2)(c) of the Fair Work Act 2009 for the production of documents ranging from 22 February 2012 to 2 September 2015 concerning the code of conduct charge which has led to his dismissal. The draft order names seven persons to whom the order is to apply.

[4] The matter was listed for hearing on 30 November 2015. Mr Rahman appeared on his own behalf and Mr Glover of Counsel appeared on behalf of the ATO.

[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). In exercising its discretion to issue an order to produce documents, the Commission will generally be guided by what applies in courts of law 1.

[6] The ATO opposes the order issuing submitting that it is too wide and oppressive and amounts to a fishing expedition. Further it is stated that the reasons provided for requiring documents prior to the ATO suspecting a breach of its code of conduct are not raised in the unfair dismissal application.

[7] Pursuant to the powers of the Act, documents requested must have prima facie an apparent relevance to the issues raised in the application and thus a legitimate forensic purpose not to be an abuse of process. (See Trade Practices Commission v Arnotts Limited 2)

[8] I am not persuaded that the order sought by Mr Rahman is reasonable or relevant to his unfair dismissal claim due to the breadth of the documents sought. A narrower order to produce in the following terms has been issued, following the adjournment of the hearing. As specified in the Schedule of the Order, the respondent is required to produce:

1. All documents between Ms Barbara Deegan/Ashurst Lawyers and any of the following individuals between 13 March 2015 and 2 September 2015:

● Robyn Clayton;
● Funda Mustafa;
● Greg Last;
● Martin Leonard;
● Jacqui Curtis; and
● Dom Shiel

2. All documents between Ms Frances Cawthra and any of the following individuals between 17 July 2015 and 2 September 2015:

● Robyn Clayton;
● Funda Mustafa;
● Greg Last;
● Martin Leonard;
● Jacqui Curtis; and
● Dom Shiel

[9] The Order to produce requires compliance by 4pm 2 December 2015.

DEPUTY PRESIDENT

Appearances:

F Rahman on his own behalf

T Glover of Counsel for the respondent

Hearing details:

2015

Sydney

30 November

 1   Munro J in Clerks’ (Alcoa of Australia – Mining and Refining) Consolidated Award (Alcoa) Case [1988] AIRC 391 Print F9441

 2 (1989) 88 ALR 90 at 103

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