Mr John Nemcic v Australian Electoral Commission T/A AEC

[2018] FWC 2427

[2018] FWC 2427

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, 1 MAY 2018

Application for an unfair dismissal remedy – second application for order to produce made by Applicant – apparent relevance of certain documents established – order made

[1] These are reasons for decision concerning a request for the production of documents.

[2] An application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) has been made by Mr John Nemcic. The Respondent is Mr Nemcic’s former employer, the Australian Electoral Commission (AEC). The matter is listed for hearing on 8, 9 and 10 May 2018.

[3] I conducted directions hearings on 20 February, 2 March and 15 March 2018.

[4] On 20 February 2018 and 27 March 2018 I issued directions requiring both Mr Nemcic and the AEC to file and serve outlines of their position, witness statements and documents on which they intend to rely. 1  The parties have complied with these directions.

[5] Both Mr Nemcic and the AEC are represented in this matter by external legal practitioners, Mr Moloney for Mr Nemcic and Ms Stewart of counsel and Ms McLachlan for the AEC. On 30 April 2018 I granted permission for the parties to be so represented at the hearing of this matter. 2

[6] Interlocutory issues have arisen between the parties concerning the production of documents. By and large, the Respondent has produced documents sought by the Applicant in response to specific requests made by the Applicant’s representative. However, not all disputes over the production of documents have been resolved between the parties.

[7] On 16 March 2018 I made a decision and issued an Order 3 granting a request by the Applicant for the production of certain documents in an unredacted form. The Respondent complied with this Order.

[8] On 26 April 2018 the Applicant’s representative requested that the Commission make further orders for the production of five categories of documents. 4 This was resisted by the Respondent. Both parties filed written submissions on the request.5 I conducted an interlocutory hearing by telephone on 1 May 2018. This decision concerns that request.

[9] I have considered the matter and conclude that it is appropriate to make a further Order.

[10] As noted in my decision of 16 March 2018, the power to make an order for production is provided for in section 590(2)(c) of the FW Act:

“590  Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

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

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).”

[11] The principles applying to the issue of orders for the production of documents under section 590(2)(c) are set out in Re Penelope Vickers 6:

“The principles applying to the issue of orders for production by the Commission under s.590(2)(c) are well established. The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings. Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced. The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.”

[12] I now deal with each of the categories of documents sought by the Applicant in its request of 26 April 2018.

Category 1: A Complete List of Relevant Files and Documents

[13] This request is in the nature of an order for general discovery. If made, it would render the need to make more specific orders redundant. However, consistent with Re Penelope Vickers I consider that the most appropriate course, particularly at this late stage of pre-trial proceedings, is for the documents sought to be described with sufficient particularity. I also note that many documents have already been provided by the Respondent, and those already provided would be again captured by this category. I decline this request.

Category 2: A Complete Colour Copy of the AEC File for the PFA Election

[14] This category concerns the AEC file for the Police Federation of Australia (PFA) election. The Respondent has produced documents from this file, including colour versions. However the Respondent has not produced the complete file.

[15] The Applicant submits that it is unable to conclude that all relevant documents have been produced from the file unless it examines the file.

[16] The Respondent submits that the complete AEC file includes commercially sensitive information to the arrangement between the PFA and the Respondent (such as fee arrangements). At the hearing the Respondent qualified this position, indicating that the commercial information is detail of notional costs of conducting the PFA election, not charged costs (as no costs were charged). The Respondent further submits that the file contains personal details of persons balloted including serving police officers, which are not relevant.

[17] It is highly probably that certain documents on this file are relevant to the matter. However, not all are likely to be. It is acknowledged, for example, by the Applicant that personal information of police officers that may be on the file is not relevant. I do not consider that it would it be in the public interest to make such details available.

[18] As a general proposition, I do not consider that commercial arrangements between an employer and a client have apparent relevance to a decision by an employer to dismiss an employee for misconduct whilst working on matters relating to servicing that client. Each case has its own circumstances that may displace this general proposition.

[19] While the commercially sensitive content referenced by the AEC is detail of notional cost and not actual costs or charged fees, I am satisfied that this information is, to a limited degree, sensitive bearing in mind that the AEC operates in a contestable market for the conduct of industrial elections (see for example, section 437(4) of the FW Act which provides for a person other than the AEC to be nominated to conduct a protected action ballot). To the extent that the Applicant in this matter intends to submit that costs (or notional costs) of the election (or a re-election) are relevant, that matter can either be raised in cross-examination or a submission can be made without having to draw on documents which disclose the specific notional cost identified by the Respondent.

[20] With these qualifications, I am persuaded that the Applicant is at a disadvantage in having had produced to it only those documents on the file for which it has prior knowledge, and not having had the file produced. I will order that the file be produced to the Applicant with two qualifications: the order will exclude documents disclosing personal details of persons balloted including serving police officers and the order will also exclude documents disclosing commercially sensitive content relating to costs (actual or notional) between the AEC and the PFA.

Category 3: Communications between the AEC and the PFA SA related to the PFA Election

[21] This category concerns all communication between the AEC and the Police Federation of Australia South Australian Branch / Police Association of South Australia related to the subject PFA Election including but not limited to correspondence and emails.

[22] I consider that these documents have apparent relevance to the matter. Those that the Respondent considers relevant have already been produced. It is likely they are on the AEC file for the PFA election, and thereby encompassed by category 2 documents. However, should they not all be so included, I will make a separate order in respect of any of these documents not in Category 2 but likewise exclude any commercially sensitive content or personal information of police officers.

Category 4: Email Communications between Tom Scheffler and Jenny Southhall

[23] This category concerns all email communications between Tom Scheffler (Secretary of the PFA) and Jenny Southhall (an employee of the AEC).

[24] I consider that these documents have apparent relevance to the matter. Ms Southall has filed a witness statement. That statement makes reference to email communication from and with Mr Scheffler.

[25] The Respondent submits that certain emails have been produced but at least one that is referred to in Ms Southall’s statement cannot now be located. It has asked its internal information technology department to search for that document(s).

[26] I will order that (except where a document this category has already been produced) that this category of document be produced. I will also order that the Respondent take all reasonable steps to locate the existence of any unfound email or emails including by requiring its information technology (IT) employees or contractors to conduct a search of its IT systems to locate such emails or evidence of the existence of such emails.

Category 5: AEC File containing Easycount re-count in PFA Election

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

[28] 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.

[29] 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.

Conclusion

[30] I will make orders in the terms set out in this decision.

[31] Consistent with my decision of 16 March 2018, I consider it appropriate that the order be qualified by requiring the production of documents only for the purposes of these proceedings and that they not be used, copied or otherwise circulated by Mr Nemcic or his representatives other than for the purpose of these proceedings. The Applicant accepts this caveat.

[32] I will require the production by 4.00pm on Thursday 3 May 2018.

[33] An Order is published in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

P. Moloney, with permission, and J. Nemcic, for the Applicant

K. Stewart and D. McLachlan, with permission, for the Respondent

Hearing details:

2018.

Adelaide; by telephone.

1 May.

Printed by authority of the Commonwealth Government Printer

<PR606711>

 1   Directions 20 February 2018; Amended Directions 27 March 2018

 2   Decision on Representation 30 April 2018 [2018] FWC 2404 DP Anderson

 3   Decision on Production 16 March 2018 [2018] FWC 1565 DP Anderson; Order PR601213

 4   Email 26 April 2018 430pm to Chambers – Anderson DP

 5   Applicant’s Written Submissions 30 April 2018; Respondent Written Submissions 1 May 2018

 6   [2017] FWCFB 3131 at [18] as cited in Findley v MSS Security Pty Ltd [2018] FWCFB 1065 at 28