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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Mr Fahmid Rahman, who brought proceedings against the Commonwealth of Australia, represented by the Australian Taxation Office, in the Federal Circuit Court of Australia. Mr Rahman sought an order that would require the production of documents, specifically those related to the proceedings. The dispute arose from an application made by Mr Rahman under the Fair Work Act 2009, seeking relief from an alleged unfair dismissal. The central issue before the court was whether it had the jurisdiction to compel the production of documents, which were not already in the possession of the applicant, as part of the proceedings for unfair dismissal.

The court had to determine if it could grant the order for the production of documents, considering that Mr Rahman had not previously made an application under the Fair Work (Division 5) Act 2009, section 409. The court also needed to examine whether the application for the production of documents was relevant to the resolution of the unfair dismissal matter. Additionally, the court considered whether the documents were already in Mr Rahman's possession or whether the application was being used as a fishing expedition. The court's decision hinged on the interpretation of the relevant sections of the Fair Work Act and the principles of procedural fairness.

In making its decision, the court noted that the application for the production of documents was not in accordance with the statutory requirements of the Fair Work Act. The court found that the application did not fall within the scope of the provisions that allow for the production of documents, as it was not linked to an application for relief under the Act. Consequently, the court held that it did not have the jurisdiction to make the order sought by Mr Rahman. The court further observed that the application was potentially a fishing expedition, given that Mr Rahman had not previously sought these documents, and they were not necessary for the resolution of the unfair dismissal matter. As a result, the application was dismissed.

The final orders of the court were that the application for the order to produce documents was dismissed. The court emphasised that the decision was based on the lack of jurisdiction and the nature of the application, which did not comply with the statutory framework. No further orders were made regarding the substantive unfair dismissal proceedings.

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

REASONS FOR DECISION

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established