Mr John Nemcic v Australian Electoral Commission T/A AEC

[2018] FWC 1565

[2018] FWC 1565

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, 16 MARCH 2018

Application for an unfair dismissal remedy - application for order to produce made by Applicant – apparent relevance established – order made

[1] These are the written reasons for decision advised to the parties at the conclusion of a directions hearing on 15 March 2018.

[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 has not been resolved by conciliation. It is listed for hearing on 8, 9 and 10 May 2018.

[3] I conducted directions hearings on the application on 20 February 2018 and 2 March 2018. Both Mr Nemcic and the AEC were represented by external legal practitioners, Mr Moloney for Mr Nemcic and Ms McLachlan for the AEC. I have, to date, granted permission for the parties to be so represented.

[4] On 20 February 2018 I issued directions requiring both Mr Nemcic and the AEC to file and serve in advance of the hearing outlines of their position, witness statements and documents on which they intend to rely.  

[5] An issue has arisen between the parties concerning the production of documents by the Respondent to the Applicant. On 20 February 2018 Mr Moloney on behalf of Mr Nemcic made an oral application at the directions hearing for an order for the production of documents. He produced a draft Order and written submissions. On 20 February 2018 and again on 2 March 2018 I was satisfied that discussion between the representatives on Mr Nemcic’s request had not been exhausted. Mr Moloney’s application was adjourned to 15 March.

[6] On 15 March I was advised that the AEC had produced to the satisfaction of Mr Nemcic the documents that had been sought other than one category of documents: unredacted versions of two reports by HWL Ebsworth dated 3 July 2017 and 30 October 2017 respectively. I was advised that the AEC had produced redacted versions only of these reports.

[7] Mr Moloney renewed his application for production of the unredacted versions of both reports. In support of his application Mr Moloney contended that the documents are relevant. He referred to the AEC’s response to the primary application in which the AEC says that it drew conclusions about Mr Nemcic’s conduct based in part upon these reports. He contended that these reports formed part of the investigation conducted by the employer leading up to Mr Nemcic’s dismissal. He also said that compliance with the order would not be an onerous obligation on the employer.

[8] Ms McLachlan opposed the order. She advised that the AEC had willingly provided documents to Mr Nemcic’s legal representative in response to his request including the redacted versions of the HWL Ebsworth reports. She says that the unredacted versions concern allegations and findings made against a second employee and that those allegations and findings are not relevant to Mr Nemcic’s application. In the redacted versions of the reports, the name of the second employee is identified but not certain other matters including details of allegations and findings pertaining to that second employee.

[9] For the purposes of considering this matter I was provided a copy of the redacted versions of both reports.

[10] I have considered the matter and conclude that it is appropriate to make an Order.

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) have recently been summarised by a full bench of the Commission in Re Penelope Vickers 1:

“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 am satisfied that the unredacted versions of both of the HWL Ebsworth reports are of “apparent relevance” to the proceedings. I note that the redacted versions suggest that matters relating to both Mr Nemcic and the second employee arose out of a common event or events. In those circumstances the Commission may need to make findings as to whether that event or those events did in fact occur, and who did what and why. The fact that disparate allegations by an employer are made against two employees does not make factual matters known to or concluded by the employer or its investigators irrelevant where those allegations concern common events. Further, I am satisfied that at least on the applicant’s case the conduct of the second employee is factually relevant to assertions Mr Nemcic makes as to why he believes his dismissal to have been harsh, unjust or unreasonable.

[13] In all of the circumstances I consider that it would be unsatisfactory for the Commission to be asked to make findings about such factual matters but not have before it the full version of both reports. I also consider that it may be prejudicial to the applicant in the presentation of its case and in its cross examination of potential witnesses.

[14] Given that I am satisfied the unredacted version of both reports are of apparent relevance it is appropriate to make an Order. I note that the AEC’s opposition is not based on any other asserted prejudice or impracticality.

[15] I do however 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.

[16] I will require the production of the unredacted versions of the HWL Ebsworth reports dated 3 July 2017 and 30 October 2017 to be produced to the Commission and to Mr Nemcic’s representative by no later than the close of business Friday 16 March 2018.

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

DEPUTY PRESIDENT

Appearances:

P. Moloney, with permission, for the Applicant

D. McLachlan, with permission, for the Respondent

Hearing details:

2018.

Adelaide.

15 March.

 1   [2017] FWCFB 3131 at [18] as cited in Findley v MSS Security Pty Ltd [2018] FWCFB 1065 at 28

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