Mr John Nemcic v Australian Electoral Commission T/A AEC

[2018] FWC 2540

[2018] FWC 2540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr John Nemcic
v
Australian Electoral Commission T/A AEC
(U2018/74)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 7 MAY 2018

Application for an unfair dismissal remedy – procedure – request by employer for witness to give evidence by video link – contention by applicant that order for production of documents not complied – directions made

[1] These are reasons for decision concerning two further interlocutory matters which have arisen in this matter.

[2] This matter is set down for hearing tomorrow, in Adelaide, over three consecutive days 8, 9 and 10 May 2018.

[3] In interlocutory proceedings leading up to the hearing, I have issued two sets of directions, made a decision on representation and issued two decisions and orders concerning production of documents. That background is set out in my most recent decision (on production) of 1 May 2018. 1

[4] Since my decision of 1 May, two further matters of contention have arisen: firstly, whether a witness to be called by the respondent employer should be permitted to give evidence by video link; and secondly, whether the respondent employer has fully complied with one of my directions for the production of documents.

[5] I conducted a hearing by telephone on 7 May to hear each party on these matters, following the receipt of email correspondence on 3, 4 and 6 May. I now deal with each of these matters.

Whether Mr Holcombe be permitted to give evidence by Video Link

[6] The respondent employer has filed statements for five witnesses which it intends to call. One is by Mr Lex Holcombe. Mr Holcombe is Canberra based. He is not an officer of the employer. He is a legal practitioner and partner at HWL Ebsworth.

[7] Mr Holcombe’s evidence has apparent relevance to the matter. His firm was engaged to prepare a report (or reports) prior to Mr Nemcic’s dismissal on matters said to be relevant to the decision to dismiss. The report(s) were the subject of my first order for production.

[8] Mr Holcombe requests to give evidence by telephone or by video conference from Canberra. I am advised that he has prior commitments in Canberra on Tuesday 8 May and a hearing in the ACT Civil and Administrative Tribunal commencing Thursday 10 May. He is available to give evidence on Wednesday 9 May but submits that it would be a substantial inconvenience to travel to Adelaide and back given the aforementioned commitments.

[9] Mr Moloney for Mr Nemcic opposes the request. He submits that Mr Holcombe is an important and potentially the most important witness in proceedings. He submits that his cross examination will be prejudiced if Mr Holcombe gives evidence by telephone or by video link. He says issues of credit may arise, and the Commission is best placed to consider such matters if a witness appears in person. He says that the matter involves considerable documentation, and questioning a witness on documents by video link is inefficient. He says that a cross examiner should not be required to notify a witness in advance of documents that may be the subject of specific questions.

[10] It is an object of the Commission’s unfair dismissal jurisdiction that it be “quick, flexible and informal.” 2 Regard must be had to the needs of both employees and employers. Section 589(1) of the Fair Work Act 2009 (FW Act) empowers the Commission to make decisions as to how, when and where a matter is to be dealt with. Section 398(4) requires the Commission to take into account the wishes of the parties as to the way in which an unfair dismissal application is considered and the Commission informs itself.

[11] In this matter, I have decided that holding a hearing (rather than a conference) is the most effective and efficient way to resolve the matter (section 399). I have granted permission for the parties to be legally represented in the interests of the efficient conduct of proceedings given the quantum of evidence.

[12] It is desirable that witnesses in contested proceedings before the Commission give evidence in person. However, this is not always possible. It is not uncommon in the work of the Commission that evidence is given by persons by telephone or by video link, with the Commission’s permission. Modern technology permits and enables that. There are few reasons not to take advantage of the technology available in the interests of convenience, efficiency and cost. 3

[13] In considering this matter I adopt an approach which endeavours to be as flexible and accommodating to witnesses as possible but which does not materially compromise the need to ensure fairness to the parties, and in particular the importance of cross examination of witnesses of potential significance.

[14] I take into account that Mr Holcombe is only one of five witnesses to be called by the employer. The other four are said to be made available in person, two of which are travelling from interstate. This is clearly a relevant factor and indication that the employer is not attempting to inhibit the receipt of evidence by the Commission.

[15] I also take into account that Mr Holcombe is not an officer of the employer but an independently engaged professional who is not an officer of a party to these proceedings and who has professional commitments beyond those of serving the employer. That said, his evidence has apparent relevance and apparent importance.

[16] I accept that cross examination of a witness appearing by video link is not as easy for the cross examiner or the Commission, and in some cases may not be as impactful on issues of credit as cross examination in person. This is particularly so with a witness of apparent importance such as Mr Holcombe. However, these considerations should not be overstated and must be balanced against considerations of reasonable flexibility and the need to minimise cost or disruption to witnesses, especially those running businesses or who are professionally committed to more than one party to proceedings. The same questions can be asked by the cross examiner as if they were present in person, and the witnesses demeanour can still be observed.

[17] In the matter before me, that is the case with Mr Holcombe. I note that a large number of documents are referred to and attached to his witness statement. However, the quantum of documents in these proceedings may mean that his cross examination is less efficient depending on which questions are asked as other documents may need to be shown to him in cross examination.

[18] Taking all the circumstances into account, I consider that it is reasonable (provided an effective and reliable video conferencing facility between Adelaide and Canberra is able to be established) to grant permission to Mr Holcombe to give his evidence by video link. Subject to any further or contrary direction, I so direct. I have requested my Associate to make inquiries as to practicality.

[19] Given the time limits on Mr Holcombe’s availability, I will (if required) permit the respondent to interpose Mr Holcombe’s evidence into proceedings on Wednesday 9 May with ample time being afforded for his cross examination.

Whether document category 4 of my order for production of 1 May 2018 has been complied with

[20] My order of 1 May 2018 required that four categories of documents be produced by the respondent employer by 4.00pm 3 May.

[21] Category 4 of that order was as follows: 4

“The AEC file containing the Easycount re-count of ballot papers for the PFA Election, if such a file exists.”

[22] I also ordered that “the AEC take all reasonable steps to locate the existence of documents (if any) referred to” including (where necessary) by searches of its electronic data bases. If not produced, I required the respondent to file a statutory declaration that all reasonable steps have been taken to locate such documents and that no such documents are known to exist or have been located. 5

[23] In my reasons for decision for making this order I said: 6

“This category concerns the AEC File containing the Easycount re-count of ballot papers for the PFA Election.

It is acknowledged that documents relating to the Easycount recount are relevant. The Respondent submits that all available documents in this category have been produced, and no further documents exist. In particular it submits that there are no communications between it and the PFA in relation to the Easycount recount. The Applicant does not concede that such a file does not exist.

Given this category is of apparent relevance, if the file does not exist, as the Respondent asserts, then there is no prejudice arising in including this category in the order.”

[24] The production of documents was accompanied by a statutory declaration of 3 May 2018 of Mr Paul Darren Hawes to the effect that no file is “in existence in the SA office of the AEC” and that he had been advised that “there was no file in existence in the NSW office of the AEC”.

[25] A statutory declaration of Anne-Maree Lisa Garrett of 4 May 2018 has also been filed to similar effect and setting out steps she had taken to ascertain if such a file existed.

[26] Mr Moloney for Mr Nemcic submitted that these statutory declarations only depose to the fact that there is no separate Easycount file, whereas the Commission order (which he sought and was in part granted) was “the AEC file containing the Easycount recount” if such a file exists.

[27] Essentially Mr Moloney submits that there is or may be a file in existence from which the relevant Easycount documents were sourced even though it is not a specifically marked or dedicated ‘Easycount’ file.

[28] I agree that the statutory declarations of Mr Hawes and Ms Garrett, whilst informative, are not so specific as to discount this possibility. Whilst they depose to the fact that there is no separate Easycount file it is not clearly established whether there is a file from which the Easycount documents were sourced that has not already been produced. My 1 May 2018 order was that the AEC file containing the Easycount re-count be produced if it exists irrespective of whether it is a separate Easycount file.

[29] In these circumstances I direct that the respondent employer conduct a further search connected with this Order and produce the file (to the Commission and to the applicant) if it does exist no later than thirty (30) minutes prior to the commencement of proceedings at 10am on 8 May 2018, or if such a file does not exist then to file (by that date and time) a further statutory declaration of an officer of the employer with sufficient particularity to this effect.

[30] I so direct.

DEPUTY PRESIDENT

Appearances:

P. Moloney, with permission, andJ. Nemcic, for the Applicant

K. Stewart and G. Wells, with permission, for the Respondent

Hearing details:

2018.

Adelaide; by telephone

7 May.

Printed by authority of the Commonwealth Government Printer

<PR606858>

 1   [2018] FWC 2427

 2 Section 381(1)(b)(i) Fair Work Act 2009

 3   Smith v Department of Foreign Affairs and Trade[2007] AIRC 351 (PR976973) at [19]

 4   Order PR606712

 5   Ibid at [4] and “Note” to Order

 6   Decision on Production [2018] FWC 2427 at [27] to [29]