Mr Matthew Smith v AWH Pty Ltd

[2016] FWC 5589

[2016] FWC 5589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Matthew Smith
v
AWH Pty Ltd
(U2016/2275)

COMMISSIONER CLOGHAN PERTH, 11 AUGUST 2016

Application for relief from unfair dismissal - production of documents.

[1] Mr Matthew Smith (Mr Smith or Applicant) has made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, AWH Pty Ltd (AWH or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The Employer asserts that the Applicant is not protected by the unfair dismissal provisions of the FW Act as his dismissal was a case of genuine redundancy.

[4] On 20 June 2016, I set the matter down for hearing on 15 August 2016.

[5] As part of the procedural directions for the hearing, Mr John Ward, the Employer’s General Manager provided, on 13 July 2016, a proposed written witness statement in preparation for the hearing. As part of that proposed witness statement, he states at paragraph 7:

“As a consequence of the poor performance of AWH WA:
…
(c) Total employee numbers in AWH WA reduced by 28 in the 2015/2016 financial year, a reduction of more than 30% of the AWH WA workforce.”

[6] On 9 August 2016, Mr Paul King, Agent for the Applicant, made application for the production of the following documents pursuant to s.590(2) of the FW Act:

“The attachment to the sworn affidavit of John Redmond Ward Titled Staff Turnover marked as JW3 provides a list of staff turnover in Western Australia. The Applicant requires the following information regarding each employee names in the JW3 list;

a. Date the employee commenced their employment
b. Facility/location where the employee was based. e.g. Rous Head
c. Whether the employee was employed on a full time, part time or casual basis
d. Residential/Postal address of each employee
e. Telephone (landline or mobile) for each employee
f. Email address of each employee”

[7] The application for the production of documents followed a similar request to the Employer on 3 August 2016. The Employer stated that it would only provide such documents if ordered by the Commission. Consequently, Mr King’s application to the Commission.

RELEVANT LEGISLATIVE FRAMEWORK CONCERNING “GENUINE REDUNDANCY”

[8] The meaning of “genuine redundancy”, as set out in s.389 of the FW Act, has essentially three statutory “tests”. They are as follows:

• whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the business;



• whether the employer has complied with any obligation in a modern award or enterprise agreement, to consult about the redundancy; and



• regardless of whether the job was no longer required or whether consultation had been complied with, whether it would have been reasonable, in all the circumstances, for the person to have been redeployed within the employer’s enterprise or associated entity (if any).

APPLICANT’S SUBMISSION

[9] The Applicant submits that the production of documents are necessary for the following reasons:

• relevant to the issues to be tested in the substantive proceedings;



• there is a legitimate forensic purpose for their production;



• to produce the documents would not be oppressive; and



• the demand for production is not a “fishing expedition”, in fact it is to rebut the Respondent’s evidence already known.

[10] Further:

• “the veracity of the attachment to Mr Ward’s evidence “needs to be tested and without that information [see above]…the Applicant will not be placed in a position where he can challenge the Employer’s evidence regarding the staff turnover list”;



• procedural fairness; and



• “there is an inherent requirement that he [the Applicant] be able to put his case and produce all evidence available so that the Tribunal may make a fairly well informed determination based upon all the evidence available to it”.

EMPLOYER’S SUBMISSION

[11] A summary of the Employer’s submission is as follows:

• relevance to its jurisdictional objection;



• the documents would have to be “created” in order to comply with such an order to produce;



• the information on the 30 individual ex-employees is highly confidential;



• such an order would be a breach of its privacy policy and the Privacy Act (Cth);



• it is an attempt to question the “character of the Employer’s evidence”;



• delay and disruption to the hearing. The application for production of documents was not made until six (6) days before the hearing; and



• the application is designed to add to the burden of the Employer for no genuine reason.

APPLICANT’S SUBMISSION IN REPLY

[12] A summary of the Applicant’s response is:

“The purpose of obtaining the list is to test its veracity and to contact each person named on that list to establish if the Employer followed correct procedure with each redundancy

It goes to the Applicants evidence that the Employer fails to consult in accordance with s.389(1)(b) FW Act

Further the Applicant may request certain persons on that list to attend the hearing to give evidence…

The Applicant submits that the Commissioner cannot test the veracity of the list by just having possession of that list and if the Commissioner were to contact each person on the list then the Applicant should be provided with natural justice due process and be given the opportunity to put his own questions to each person on that list.”

[13] Submissions were completed on 10 August 2016.

CONSIDERATION

[14] In performing its functions and exercising its powers under the FW Act, the Commission must act in a manner that:

• is fair and just;



• is quick and informal and avoids unnecessary technicalities; and



• is open and transparent. 1

[15] The Commission may inform itself, including the requirement to produce documents, in relation to any matter before it, as it considers appropriate. 2

[16] The power of the Commission to compel the production of documents is discretionary, not mandatory.

[17] Mr Ward’s proposed evidence in relation to the Employer’s profit and loss statement for the 2015/2016 financial year is that it experienced a loss of $2.446m and missed its budget by a significant margin. As a consequence, it introduced a series of operational changes.

[18] As part of the operational changes, a number of employees had their employment terminated on grounds of redundancy. Included in the operational changes was the abolition of Mr Smith’s position of Business Development Executive. Mr Ward describes the reasons for the abolition of this position and the distribution of the various tasks and responsibilities.

[19] The fact that a number of other employees had their employment terminated may be evidence of context but the legislation requires that I find, or otherwise, that the position of Business Development Executive was no longer required to be performed, as a discrete position, by the Employer.

[20] The Applicant may contest the number of other employees whose positions were made redundant, and can do this by way of cross examination of Mr Ward. However, the issue of other employees’ circumstances will not be determinant of whether the Employer no longer wanted to continue with the discrete position of Business Development Executive; that is for the Commission to determine on the facts and evidence.

[21] It is notable that, in the Applicant’s response to the Employer’s Statement of Facts, he states that:

• the Employer’s loss of approximately $2.5m;



• the 16 redundancies, including Business Development Executive; and



• the total reduction of the AWH workforce by 30%

is irrelevant to the Employer’s jurisdictional objection.

[22] If, as the Applicant asserts that the above facts are irrelevant to the Employer’s jurisdictional objection, I find it difficult to understand why the Applicant is now seeking the employment details of not only the other 15 employees whose positions had been made redundant, but a further 13 employees who resigned and two (2) employees, whose employment was terminated.

[23] Without the benefit of submissions, I am inclined to agree with the Applicant that the individual circumstances of the 15 employees whose employment was terminated on the grounds of redundancy are not relevant to Mr Smith’s specific circumstances. However, for the Employer, the fact that 16 employees whose employment ended by way of a redundancy, is part of the overall context of the abolition of the Business Development Executive position.

[24] In summary, I am unable to determine how the employment details of two (2) employees who were dismissed will assist me in this matter at all. Further, I can see no benefit of knowing the employment details of 13 employees who resigned. Finally, I am not persuaded that the employment details of 15 employees whose employment ended on the grounds of redundancy will assist me specifically in relation to the position of Business Development Executive.

[25] For the benefit of both parties, I wish to place on record that I had, and have, no intention of contacting any person on Mr Ward’s list of staff turnover for the financial year 2015/2016.

[26] In making the above statement, whether the Applicant wishes to contact any of those persons on the list, and have them give evidence, is a matter for Mr Smith. However, in doing so, the Commission would need to bear in mind that the Applicant has had the list of employees since 13 July 2016, made application to the Commission for the details on 9 August 2016 and a hearing taking place on 15 August 2016.

[27] I am inclined to agree with the Employer that the information being sought in the order is confidential. However, it would be inappropriate to make any judgement as to whether the production of the employment details is a breach of the Employer’s privacy policy and/or the Privacy Act (Cth).

[28] I have no reason to disbelieve the Employer that it would be required to “create” such a document with the information on the Schedule. I would be surprised that such a document would exist or had been prepared as part of the Employer’s normal business operations.

[29] While I agree it would be a “burden” to create such a document, I prefer not to speculate on the level of that burden.

[30] The Applicant states that the purpose of obtaining the employment details of all those on the list is to establish whether the Employer followed the correct redundancy procedures. “It goes to the Applicant’s evidence that the Employer fails (sic) to consult in accordance with s.389(1)(b) FW Act”. In my view, it would be wrong, even if the Employer failed to consult in the other 15 instances of redundancies in the 2015/2016 financial year, that it could not, and did not, consult on the occasion of the abolition of Mr Smith’s position. I will need to determine whether the Employer consulted with Mr Smith in accordance with any applicable industrial instrument, on the facts and evidence provided in the hearing.

[31] I should also add, for the same reasons, it would be wrong to conclude that the Employer met the provisions of s.389(1)(b) in Mr Smith’s case, because it had done so in the other 15 cases of redundancy.

[32] Finally, Mr King has the opportunity in cross examination to “test” the veracity of the document as it is attached to Mr Ward’s witness statement.

CONCLUSION

[33] For the above reasons, I exercise my discretion for the Commission not to inform itself in application U2016/2275 in the manner sought by the Applicant pursuant to s.590(2) of the FW Act.

COMMISSIONER

 1 Section 577 of the FW Act

 2 Section 590 of the FW Act

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