Mr Jason Deeney Mr Chris Hughes Mr Richard Park Mr Denis Seiffert v Patrick Projects Pty Ltd
[2018] FWC 7679
•18 DECEMBER 2018
| [2018] FWC 7679 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jason Deeney
Mr Chris Hughes
Mr Richard Park
Mr Denis Seiffert
v
Patrick Projects Pty Ltd
(U2014/982, U2014/983, U2014/1008, U2014/1059)
DEPUTY PRESIDENT BULL | SYDNEY, 18 DECEMBER 2018 |
Application for orders for witness attendance and production of further documents.
[1] Mr Jason Deeney, Richard Park, Christopher Hughes and Denis Seiffert (the applicants) have made unfair dismissal applications, based on their terminations of employment, which were effected by their then employer Patrick Projects Pty Ltd (the respondent) on the ground of redundancy. The applicants contend that the terminations were unfair.
[2] On 15 June 2018, following an application by the applicants, the Commission declined to order the compulsory attendance of Mr Neill and Mr Kendrew, Directors of the respondent. Leave was provided for the applicants to renew their application during the proceedings, with the decision stating 1:
“I am not prepared to grant the order sought by the applicants for the compulsory attendance in Perth of the named Directors. Should it become clear during the proceedings that the Directors can provide relevant evidence concerning the unfair dismissal applications the applicants would be able to renew their attendance application.”
[3] An appeal against this decision was dismissed. 2
[4] At the conclusion of proceedings on Friday 7 September 2018, the evidence of both parties was completed. On Monday 10 September 2018, Mr Strauss on behalf of the applicants stated he would like to make submissions to have ‘someone else appear’. 3 Mr Strauss made reference to a Ms Anning4 being ordered to appear, but did not identify any other person. Mr Strauss stated that the applicants were not seeking the production of any further documents not already ordered to be produced by the respondent.5 However, the applicants wished to see the list of documents (Volume 2) not produced by the respondent6 on grounds relating to privilege, confidentiality or relevancy.
[5] On 20 September 2018, the respondent advised the applicants that it no longer sought to restrict access to the Volume 2 documents and that, should the applicants seek access to any Volume 2 documents, they would be provided electronically with the necessary redactions of personal information of other employees.
[6] On 22 October 2018, the Commission issued a statement advising the applicants that, having now heard the evidence of the respondent, should they require the Commission to revisit its 15 June 2018 decision declining to order the compulsory attendance of the two company directors, they should do so with accompanying reasons by 4.00pm 29 October 2018. The matter was further listed for 9 November 2018.
[7] On 29 October 2018, Mr Strauss filed submissions requesting further documents be produced and further witnesses examined. 7 What documents were sought and what witnesses were requested for examination was not made clear with the submission stating that this would be presented at the 9 November 2018 hearing.8
[8] At the hearing on 9 November 2018, further submissions were made on behalf of the applicants concerning the recalling of Mr Burton and orders for additional witnesses to attend. Mr Strauss was advised to file submissions supporting his requests by 23 November 2018 and the respondent to reply by 30 November 2018. This advice was confirmed in Directions issued to the parties on 16 November 2018.
Further Witnesses
[9] Written submissions on behalf of the applicants dated 25 November 2018 were received by the Commission. The applicants stated that they were not satisfied with the oral evidence of Mr Burton 9 in relation to the printing of the “Little Red Book”, said by the respondent to have been printed by the Stop and Copy Print Centre and provided to the applicants upon commencement of their employment. Since the evidence of Mr Burton, the applicants’ representative has spoken to the owner of the Stop and Copy Print Centre, Mr Arnfield, regarding the invoices said by the respondent to be for the printing of the Little Red Books (Red Book).
[10] The applicants submitted that the respondent has provided false and intentionally misleading evidence to the Commission and on this basis they require for examination the attendance of:
• Mr Raymond Neil, Director of the respondent;
• Mr Jeffrey Kendrew, Director of the respondent;
• Mr Michael Stutley or the proper person from K & L Gates;
• Mr Damien Burton, former Business Manager;
• Ms Kate Fisher, former Human Resources Manager;
• Mr Aaron Arnfield, Owner of Stop and Copy Print Centre; and
• Mr Troy Donahue, former Supervisor.
[11] The application is opposed by the respondent.
[12] The nature of the application is in essence to allow the applicants to reopen their case by allowing further witnesses to be called, noting the applicants were given leave to renew the attendance application for Directors Mr Neil and Mr Kendrew should during the proceedings it become clear that they could provide relevant evidence concerning the unfair dismissal applications.
Mr Burton
[13] The applicants seek an order that the respondent’s witness Mr Burton be recalled, stating:
‘After hearing the Respondent’s evidence, in particular Mr Damian Burton, the Applicants were not satisfied the Respondent’s evidence was consistent with the truth. 10
[14] It is also stated that Mr Burton be recalled to be further examined on matters including:
“discrepancies in previous evidence and further evidence in relation to failure to print and issue the Little Red Book containing all the terms and conditions of employment, evidence inconsistent with the truth, failure to issue terms and conditions of employment, not following ramp down or redundancy procedures including status quo, contents of affidavit 18 July 2014, any other items, including statements about the Little Red Book being issued to all employees to the Full Bench on 31 March 2015 [C2015/1994-2015 FWCFB 2718.”
[15] Mr Burton has already given his evidence and was subject to cross examination by the applicants’ representative. He was not cross examined about the respondent’s invoices relating to the printing of copies of the Red Book when he last gave evidence on 7 September 2018. The issues raised by the applicants upon which they seek to have Mr Burton return to the witness box for further examination are all matters that could have been put to him in the first instance, particularly in regard to his evidence given in 2015 that could have been put to him in cross examination in September 2018. I am not satisfied that there exists any justification to provide the applicants with a further other opportunity to cross examine Mr Burton.
Mr Arnfield
[16] The applicants submit that Mr Arnfield, the Stop and Copy Print Centre owner should also be compelled to attend the hearing to provide evidence concerning the printing of the Red Book and invoices tendered by the respondent. It is put that Mr Arnfield has, following the conclusion of the applicants’ evidence, made the following comments to the applicants’ representative regarding the printing of the Red Books:
‘that’s what it says [in relation to the invoices] and ‘cannot recall from so many years ago’
‘I am thinking they were bound and they would have had a cover and backing, but cannot recall’
‘I don’t think I did the A5 book as it is a different type of binder than we use. Again you have to go by the invoices, we billed what we did, it was years and years ago.’
[17] The alleged comments of Mr Arnfield are vague and equivocal. The invoices themselves are not said to be challenged by Mr Arnfield; ‘Again you have to go by the invoices, we billed what we did, it was years and years ago.’
[18] I am not satisfied that the compulsory calling by the Commission of Mr Arnfield after the close of the applicants’ cases, to provide the evidence he is alleged to have stated above regarding invoices issued over 6 years ago that he cannot recall, will be illuminating. Copies of the invoices were in the applicants’ possession before Mr Burton gave his evidence; any enquiry with the owner of the Stop and Copy Print Centre appears could have been made before the evidence of the applicants concluded.
Mr Neil and Mr Kendrew
[19] The compulsory attendance of Mr Neil and Mr Kendrew is sought by the applicants on grounds different from when the application was dealt with in [2018] FWC 3514. The request is made so the Directors can be examined on matters including:
“documents not produced as ordered, financial records (not produced), substitution of documents to falsely represent documents, not responding to authority of the Commission, conduct of the representative misleading the Deputy President, responsibility, any other items.”
[20] Mr Neil and Mr Kendrew were not appointed as Directors until some 2 years after the applicants’ redundancies and around one year after the respondent had demobilised from and completed its scope of work at the Australian Marine Complex. 11 They are not in a position to give direct evidence that could assist the Commission about the applicants’ redundancies. The applicants have raised allegations regarding the documents produced by the respondent; they are able to make submissions to the Commission concerning these allegations.
Mr Stutley and or the proper person from K & L Gates
[21] The attendance of Mr Stutley and or the proper person from K & L Gates is sought on the grounds that, as the respondent’s legal representatives, Mr Stutley and or the proper person from K & L Gates can be:
“examined on matters including submissions made to the Commission on 25 February 2015 stating the Applicant was issued with the Little Red Book [2104/7097 (sic) but marked U2014/7079].”
[22] A submission made by the respondent’s representatives is not evidence before the Commission. The respondent’s legal representatives act on instructions from the respondent and can only repeat those instructions before the Commission. In any event, based on the submissions now disputed having been made in 2015, the applicants have had ample time to have made their application prior to the close of their case.
Ms Fisher
[23] It is submitted that Ms Kate Fisher, the respondent’s former Human Resources Manager, should be ordered to attend the hearing to be examined on matters including:
“the letters of offer of employment to the transferring employees including Mr King, which confirms the Little Red Book and the all the employment terms and conditions were not issued to the employees at the time.”
[24] Reasons as to why leave should be granted to allow the applicants to re-open their case and have Ms Fisher be required to attend for examination are not provided other than stating what she may be examined on. Nothing is alleged to have arisen since the close of the applicants’ evidence to justify the compulsory attendance of Ms Fisher before the Commission.
Mr Donahue
[25] It is also requested that Mr Troy Donahue, a former supervisor, be ordered to attend to be examined as to:
“Project ramp down, the quantities of work and quantities of training, as at the time redundancies were being commenced and as at the time redundancies were being effected.”
[26] It is stated that Mr Donahue is willing to attend as a witness for the applicants. No reasons are provided why he wasn’t called by the applicants as part of their case, or that he may provide evidence not previously known or available during the presentation of the applicants’ cases.
[27] The thrust of the applicants’ request for the attendance of new witnesses or the recalling of a previous witness appears to be that now having heard the evidence of the respondent they would like to have another opportunity to argue their case.
Production of documents
[28] On 1 December 2015, on the applicants’ initiative, the Commission 12 issued an Order for the respondent to produce certain documents to the Commission. The applicants, in their 25 November 2018 written submission, state that the respondent was ordered to and has not complied with the Direction to produce ‘financial’ records.
[29] The Orders to produce documents that issued on 1 December 2015 do not refer to ‘financial’ records but to documents in 21 specific categories, which included for example Order 8 extracted below, which relates to the training provided by the respondent:
“ 8. In one (1) separate bundle, all tax invoices provided and payments received, including but not limited to, for training by the employer (Patrick Projects) and any other related business entity such as the parent (Asciano Limited) to the Logistics Contractor (Agility) and or the Principle (Chevron).
[30] In respect of training records the respondent states that after undertaking the relevant searches it has produced all documents which were in its possession, custody and power being the training and competency records held by the respondent. The respondent submits it was not able to locate or identify any training invoices. 13
[31] The respondent submits that it has complied with the Orders issued by SDP Drake. It has waived its objections to the applicants having access to the Volume 2 documents, and objects to the production of further documents now sought, in particular “financial’ records.
[32] The 1 December 2015 Order issued by SDP Drake sought the production of all “bank statements of the respondent from incorporation to the present time.” 14 The respondent submits that it objected to the production of ‘bank statements’ in its response at the time on the grounds that the documents have no relevance to the unfair dismissal applications, the request is oppressive and amounts to a fishing exercise and that the documents are commercial in confidence.
[33] The respondent submits that the objection was not overruled. 15 The objection is still maintained on the grounds of relevance and that the documents are commercial in confidence.16
[34] I am not satisfied of the relevance of the production of the respondent’s ‘financial’ records or how the documents will assist the Commission in its deliberations or that such an order should now issue after the close of the applicants’ evidence.
Conclusion
[35] Evidence relating to a material point which a party was unable to foresee as relevant may be admitted after the closure of a case. In civil cases this is a rare occurrence due to the function served by the requirement of parties to file witness statements and submissions and the ability to request discovery. 17
[36] In Andersfurn Pty Ltd v Philip Banks 18 Hiley J made the following observations:
“[25] Where application is made to re-open a matter before judgment has been pronounced, a court will do its best to ensure that justice continues to be provided to all parties. An important consideration will be likely embarrassment or prejudice to the party opposing the application.19 Per Clarke JA in Nweiser 20 at page 478D:
“The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place …”
[37] In the Federal Court decision of Inspector General in Bankruptcy v Bradshaw 21 Kenny J stated at [24]:
“The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285at 287; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (“UTA”) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (“Silver Fox”) at [22] and [25].”
[38] Leave to re-open the applicants’ case to hear further evidence has not been demonstrated to be in the interests of justice taking into account the applicants’ absence of reasons why the evidence was not led in the first place, and that the comments attributed to Mr Arnfield will not assist the Commission in its deliberations. The applicants have had ample time and opportunity to present their case and are now able to make submissions on the evidence produced during the hearing in their final submissions, including the credibility of the respondent’s witness.
[39] As Deane J in Sullivan v. Department of Transport observed:
“Neither the Act 22 nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."23
[40] In the Full Bench decision of Angelo Coco v Thuringowa Enterprise Centre Incorporated t/a The North Queensland Small Business Development Centre 24 at [40], the Full Bench noted that procedural fairness does not require that a party be given an opportunity to file new evidence which it could have obtained and filed in accordance with the directions or at least at some much earlier stage. At paragraph [43] the Full Bench stated:
“In Aon Risk Services Australia Limited v Australian National University the High Court emphasised that “[s]peed and efficiency, in the sense of minimum delay and expense” are essential elements of the just resolution of proceedings, and that not only the cost but the inconvenience and stress caused to parties are important considerations when considering a procedural motion likely to cause significant delay in the conduct of a matter. These considerations are imported into s.577 of the Act, which requires the Commission to perform its functions and exercise its powers in a manner that is, among other things, “quick”. In refusing to admit evidence which would have further postponed the hearing and determination of a proceeding which had already been attended by significant delay, we consider that the Commissioner acted consistently with these principles. The decision to refuse to admit Ms Gadsby’s witness statement was a discretionary one, and we do not consider that any appellable error can be identified in that decision.”
(References omitted)
[41] The circumstances presented by the applicants in their application are not based on new evidence that was unavailable during the course of their case, nor is it submitted the orders are sought due to inadvertent error or mistaken apprehension of the facts. The applicants have known the basis of the respondent’s defence for a considerable period of time. The applicants needed to present the evidence that was relevant and necessary to their applications when the opportunity was provided.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR703270>
1 [2018] FWC 3514 at [45]
2 [2018] FWCFB 5010
3 PN9469
4 PN9659, PN9666, PN9969-9971, PN9988
5 PN9691
6 PN9804, PN9900
7 Written submissions 29 October at [2]
8 Written submissions 29 October at [19] [20]]
9 Request for Further witnesses/documents 25 November 2018 at [19]
10 Paragraph [18] of 25 November submission.
11 Respondent’s Submissions in Reply 30 November 2018 at 5.2
12 SDP Drake
13 #13 of Submissions in Reply 30 November 2018
14 Order 15
15 See Finding of 12 April 2016, PR578986
16 See 316 of Submissions in Reply
17 See Evidence Commentary and Materials PK Waight and CR Williams 4th Edition at p.331 NOTES
18 [2015] NTSC 43
19 Smith v New South Wales Bar Association [No 2] (1992) 176 CLR 256 at 266-267; Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 139 and McDonnell v Darwin City Council (1997) 7 NTLR 76 at 88.
20 Urban Transport Authority NSW v Nweiser (1992) 28 NSWLR 471
21 [2006] FCA 22
22 Administrative Appeals Tribunal Act 1975
23 (1978) 20 ALR 323 at p. 343
24 [2014] FWCFB 5648
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