Mr Joshua Brewer v St Columba College Munno Para Inc T/A St Columba College

[2018] FWC 4661

[2018] FWC 4661

FAIR WORK COMMISSION

DECISION

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

Mr Joshua Brewer
v
St Columba College Munno Para Inc T/A St Columba College
(U2018/5357)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 9 AUGUST 2018

Application for an unfair dismissal remedy – interlocutory issues - application for order to produce by third party – apparent relevance established for certain documents only – order made – application for de-identification of certain witnesses and concerning evidence of a minor – taking of evidence in private – direction issued

[1] An application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (FW Act) has been made by Mr Joshua Brewer. The Respondent is Mr Brewer’s former employer, St Columba College Munno Para Inc. The matter has not been resolved by conciliation. It is listed for hearing on 30 and 31 August 2018.

[2] I conducted directions hearings on the application on 12 July 2018 and 8 August 2018. I issued directions on 12 July 2018. Both Mr Brewer and St Columba College are represented by external legal practitioners. By decision dated 3 August 2018 1 I granted permission for the parties to be so represented.

[3] My directions of 12 July 2018 required both Mr Brewer and St Columba College to file and serve in advance of the hearing outlines of their position, witness statements and documents on which they intend to rely. Each has done so. 

Application for third party production

[4] On 24 July 2018 solicitors for Mr Brewer made an application under section 590(2)(c)for the production of documents by a third party, Woolworths Limited.

[5] Five categories of documents are sought to be produced for a ten week period from 1 January 2018 to 9 March 2018 being:

● records of rosters, working hours and duties of a person who worked casually at the Woolworths Playford store (Person A) (categories 1 and 2);

● records of CCTV from the check-out area of the Woolworths Playford Store on the days Person A worked at the store (category 3);

● Woolworths policies or procedures concerning employee complaints of conduct by customers (category 4); and

● any document recording a complaint by Person A during the relevant period (category 5).

[6] I heard the application at the directions hearing on 8 August 2018.

[7] In advance of the directions hearing I caused the application to be served on Woolworths Limited. Woolworths, through internal human resource and legal officers, appeared and made submissions at the hearing. The legal representatives of Mr Brewer and of St Columba College also appeared and made submissions.

[8] The central ground on which Mr Brewer seeks production of this material by Woolworths Limited is that documents of the type sought would provide evidence to assist the Commission in making findings on certain disputed facts, and in particular the frequency and nature of interaction between Mr Brewer and Person A at the Woolworths Playford store in the period leading to his dismissal.

[9] Woolworths Limited does not oppose the application in-principle but says that its terms are too wide ranging and oppressive. It also says that relevant CCTV footage no longer exists with respect to the check-out area of this store given that company policy is to destroy such footage after 30 days.

[10] St Columba College neither supports nor opposes the orders sought.

[11] In determining this matter I take into account that orders are sought against a third party business which would not otherwise be associated with the proceedings. However, no issue of the Commission’s power is involved here. The power to order production extends to production by third parties, not just direct litigants. As said in Clermont Coal Operations Pty Ltd v Troy Brown and Others, which also concerned third party production: 2

“The power of the Commission under s.590(1) to “inform itself in relation to any matter before it in such manner as it considers appropriate”, which under s.590(2)(c) includes requiring the production of copies of documents and records to the Commission, is expressed in very broad terms. The Deputy President clearly had power to make the orders the subject of this appeal.”

[12] The principles applying to the issue of orders for the production under section 590(2)(c) are well established. They have recently been summarised by a full bench of the Commission in Re Penelope Vickers: 3

“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.”

[13] Even more recently it has been said in Kennedy v Qantas Ground Services Pty Ltd: 4

“in considering whether to order the production of documents, the test is whether the documents sought have an apparent relevance to the issues in the proceedings. The Commission will not order production of irrelevant documents, or material of only marginal or tangential relevance, as this will not assist the Commission in determining a matter before it.”

[14] Mr Brewer did not press his request for category 3 documents (CCTV footage) in light of Woolworths Limited’s intimation that such footage no longer exists. I therefore deal only with categories 1, 2, 4 and 5.

[15] I am satisfied that categories 1 and 5 have “apparent relevance” to the proceedings before me. I have the benefit of the written materials (including witness statements) filed by the parties in response to my directions. Those materials establish:

● that Mr Brewer was dismissed for misconduct. That misconduct included an allegation by his employer (and denied by Mr Brewer) concerning conduct towards Person A at the Woolworths Playford store in the months leading to his dismissal;

● that Person A is a student at the St Columba College, and is a minor;

● that Person A is casually employed by Woolworths at the Playford store as a check-out operator;

● that Mr Brewer has filed a witness statement and intends to give evidence on that statement at the hearing of this matter;

● that a witness statement from Person A has been filed by St Columba College which intends to call Person A to give evidence on her statement at the hearing of this matter;

● that there is an apparent factual dispute between the evidence of Mr Brewer and the evidence of Person A concerning the frequency of visits made by Mr Brewer to the Woolworths Playford store, and the interaction between them at the Playford store.

[16] I am satisfied that findings of fact on events at the Woolworths Playford store may be directly relevant to the determination of the substantive application.

[17] Category 1 is relevant because the documents sought may establish facts relevant to the frequency of visits by Mr Brewer to the Woolworths Playford store.

[18] Category 5 is relevant because the documents sought, if they exist, may establish facts relevant to the nature of interactions between Mr Brewer and Person A at the Woolworths Playford store.

[19] I am not satisfied that orders should be made with respect to category 2. Its relevance is more remote to the issues before me. Whilst the competing witness statements do not exclude the possibility of interaction outside the check-out area, the evidence is largely directed to the check-out area. In any event, Woolworths Limited submitted that its documentary records do not identify whether a check-out operator is tasked to do work elsewhere in the store. To the extent this is a relevant issue, it is a matter on which Mr Brewer and Person A can be examined and cross examined at the hearing. However, given that Woolworths also advised that the category 1 documents may disclose the position description of an employee, I will make provision for that information to be included in the order I make concerning category 1.

[20] I am not satisfied that orders should be made with respect to category 4. To do so would require disclosure by a third party of their internal policies and procedures. While there is no rule that orders of that type may not be made in appropriate cases, the Commission and its predecessors “have traditionally been cautious in ordering any party to produce documents which would reveal internal deliberations as to its industrial strategy or policy”. 5 I consider such documents to be remote to the issues before me. To the extent this is a relevant issue, Person A can be examined and cross examined on her knowledge of such matters. I consider that direct evidence of that type and the orders I will make relating to category 5 render category 4 of only tangential relevance, at least on the material currently before me.

[21] Woolworths contend that the 10-week period in respect of which the documents are sought is excessive. Woolworths considers that Mr Brewer should nominate specific dates only, and do so by reference to his banking records of when he made purchases at the check-out. I do not agree. Mr Brewer’s witness statement indicates that he made both credit card and (rarely) cash purchases. If that is so, banking records would not be a sufficient basis on which the Commission could make findings about frequency of visits to the store. Further, I am satisfied that the factual issues arising from the competing witness statements relate to conduct over the whole of this period.

[22] Woolworths also contend that the request is fishing and oppressive in the sense of it having to be addressed at store level, and involves time and effort examining past records. Woolworths did not seek to present more specific evidence on this issue beyond the submissions made to me. I take into account the time and effort required of a business, and in particular a third party, in having to comply with such an order. I do not however consider it to be oppressive per se. Woolworths is a business with a general capability to access its records, whether documentary or electronic. The records relate to ten weeks in the current year (2018), not earlier. Bearing in mind that I am not making orders relating to categories 2, 3 or 4 the level of burden being placed on Woolworths is not oppressive. Nor is documentary evidence of relevant facts alleged in witness statements already before the Commission a fishing exercise.

[23] Woolworths sought seven business days to comply with any orders I make. I consider this to be reasonable having regard to the orders and the scheduled hearing dates.

Application concerning taking of evidence by a minor

[24] On 26 July 2018 solicitors for St Columba College made an application under rule 7 of the Fair Work Commission Rules 2013 for a direction concerning procedure. Having regard to clarifications made by St Columba College at the directions hearing on 8 August, the direction sought is two-fold: that a direction be made that Mr Brewer not be present in the court room at the same time as evidence is given by Person A nor be visible to Person A whilst she is giving her evidence; and that a direction be given that the names of Person A or any parent of Person A not be published by the Commission.

[25] The power to make orders of the type sought is sourced from the statutory power in the FW Act including powers in section 589 (as to how, when and where a matter is to be dealt with), section 593 (concerning hearings) and section 594 (concerning confidential evidence).

[26] As already noted, Person A is a student and a minor. Evidence is to be called from Person A. Person A’s witness statement says that: 6

“I am only prepared to give oral evidence in these proceedings if Mr Brewer is not in attendance. I feel uncomfortable around Mr Brewer, and I do not want him to look at me. I am worried that he will be angry at me…”

[27] A witness statement from Person A’s mother has also been filed by St Columba College which intends to call Person A’s mother to give evidence on her statement at the hearing of this matter.

[28] In granting permission for the parties to be represented in this matter I noted: 7

“The evidence also appears to relate to matters of a sensitive nature, including potentially evidence of children. Taking evidence from witnesses may require particular care and professional discretion. The hearing of the matter is also attended by an added degree of complexity given that orders or directions may need to be issued concerning the taking of evidence or the publication or circulation of certain evidence.”

[29] Consistent with these observations, I am satisfied that it is appropriate for the Commission to make appropriate arrangements for the taking of evidence by Person A which does not unduly cause distress to Person A but which also does not compromise natural justice and procedural fairness to Mr Brewer. These dual objectives can be readily met by directing that Mr Brewer not be present in the hearing room at the same time as evidence is given by Person A nor be visible to Person A whilst she is giving her evidence. Such a direction does not preclude Mr Brewer’s legal representative from being in the hearing room during the taking of her evidence. Nor does it preclude Mr Brewer being in an adjoining room able to observe proceedings by video link but with no visibility of Mr Brewer being streamed back into the hearing room.

[30] Technology available to the Commission, at least in Adelaide (where the hearing is to occur), is able to accommodate this arrangement.

[31] I will so direct.

[32] I also consider the objective of de-identification of Person A to be desirable in any decision published by the Commission.

[33] Person A is a minor. She is not a party to the proceedings but appears to be associated with the factual narrative of this matter. She (and her mother) are giving evidence as witnesses, not as parties. In so doing, they (along with the other witnesses) are assisting the Commission to make relevant findings of fact and appropriately exposing their evidence to testing by cross examination. There is no public interest in their identification, and no prejudice to the parties from the de-identification.

[34] De-identification is not opposed by Mr Brewer.

[35] I do not consider it necessary to make a direction in that regard as the Commission is in control of the content of its decisions. I intimate that I intend to describe the student using the pseudonym ‘Person A’ in any decision I make. I have so described her in this decision for that reason.

[36] I consider that Person A’s mother should also be de-identified, as revealing her identity in my decision would be likely to identify her daughter, at least by surname. I intend to identify Person A’s mother with the pseudonym ‘Person B’.

[37] Should other directions or orders concerning the conduct of proceedings or confidentiality be considered appropriate or necessary, I have provided the parties liberty to apply.

[38] I issue an order for the production of documents and a direction concerning the hearing of this matter consistent with this decision in conjunction with its publication. My order concerning production is directed at records concerning Person A. I am satisfied that Woolworths Limited is aware of the identity of Person A and able to comply with my order in the terms issued.

DEPUTY PRESIDENT

Appearances:

M. Ats and P. McCabe, with permission, F. Bernardi and J. Brewer, for the Applicant

D. Ey, with permission, for the Respondent

M. Lopez-Ayala and L. Radjenovic, for Woolworths Limited

Hearing details:

2018.

Adelaide; by Telephone.

8 August.

Printed by authority of the Commonwealth Government Printer

<PR609786>

 1   [2018] FWC 4580

 2   [2015] FWCFB 2460 at [21]

 3   [2017] FWCFB 3131 at [18] as cited in Findley v MSS Security Pty Ltd [2018] FWCFB 1065 at 28 ; see also Association of Professional Engineers, Scientists and Managers, Australia v Airly Coal Pty Ltd PR962479 14 September 2005 citing Beaumont J in Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90

 4   2018 FWCFB 4552 at [41], 8 August 2018

 5   Clermont Coal Operations Pty Ltd v Troy Brown and Others[2015] FWCFB 2460 at [23]

 6   Witness Statement of Person A paragraphs 47 - 49

 7   [2018] FWC 4580 at [6] – [7]