Mr Palesetina Milovale Masoe v MMA Vessel Operations Pty Ltd

[2015] FWC 5454

[2015] FWC 5454

FAIR WORK COMMISSION

DECISION

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

Mr Palesetina Milovale Masoe
v
MMA Vessel Operations Pty Ltd
(U2015/2732)

COMMISSIONER CLOGHAN PERTH, 24 SEPTEMBER 2015

Application for relief from unfair dismissal – production of documents – representation.

[1] This is an application by Mr Palestina Masoe (Mr Masoe or Applicant) seeking a remedy for alleged unfair dismissal from his former employer, MMA Vessel Operations Pty Ltd (MMA or Employer).

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

[3] Mr Masoe is represented by the Maritime Union of Australia (MUA).

[4] At this time, the Employer is represented by Mr D Parker of counsel.

[5] Prior to arbitration of the substantive application, both parties brought separate applications which required the Commission’s determination.

[6] The first issue relates to the Applicant’s request for the production of documents.

[7] The second application is the Employer’s application to be represented by a lawyer pursuant to s.596 of the FW Act.

[8] The third matter was described by the parties as the “bankruptcy issue”.

ORDER FOR THE PRODUCTION OF DOCUMENTS

[9] The Applicant is seeking pursuant to paragraph 590(2)(c) of the FW Act, that MMA provide:

“Any report prepared by Price Waterhouse Coopers [PWC] in relation to the inquiry referred to in paragraph 4 of the statement of Frances Harrison.”

[10] Pursuant to Directions issued by the Commission, Ms Harrison provided a witness statement which reads at paragraph 4 as follows:

“The 8 January interview was part of an inquiry commissioned by the Respondent into workplace bullying and harassment at the DSB [Dampier Supply Base].”

[11] The reference to “8 January interview” is a reference to paragraph 3 which reads as follows:

“On 8 January 2015, I participated in an interview with the Applicant. Also present during that interview were Mr Rob Jamieson (Senior Consultant – Forensic Services, PWC). The Applicant was supported in that interview by Mr Kyle McGinn (Organiser, MUA) and Mr Tim Wahlstein (a colleague of the Applicant’s and an employee of the Respondent).”

[12] Mr Masoe’s employment was terminated as a consequence of his conduct involving two incidents. The first incident involves the Applicant’s response to a complaint of bullying which does not directly involve Mr Masoe. The second incident relates to alleged threatening behaviour by the Applicant to another employee.

[13] This is not an application where there is uncertainty about what document the Applicant is seeking or a document that requires considerable time and resources to produce. For these reasons, I am satisfied that the “tests” identified by the MUA are met with respect to “particularity” and “not oppressive”.

[14] The next “test” identified by the Applicant’s representative is that the document must be relevant to an “issue raised on the pleadings”. The MUA refer to Judgement of Greenwood J in McIlwan v Ramsay Food Packaging Pty Ltd [2005] FCA 1233 [35] (f) as follows:

“the test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand.”

[15] The Applicant’s proposed Statement of Facts are that:

• on 30 December 2014, Mr McAllister approached him and asked him to complete an Event Statement Form (ESF);



• Mr Masoe enquired as to what the event was;



• Mr McAllister responded with words to the effect of “someone has drawn a picture of a penis and written someone’s name on it and someone has made a complaint about it”;



• Mr Masoe told Mr McAllister that he did not know anything about the drawing of the penis with a name on it;



• Mr McAllister told Mr Masoe words to the effect of, “then write down that you don’t know anything about it”. Mr Masoe states that Mr McAllister said, “then write that down”; and



• Mr Masoe wrote “don’t know” and two pictures. One picture was of a face with tears running down it with a “sad face” next to it. The second picture is “of a helmet” (to symbolise a penis). The helmet contains a smiley face with a stick figure next to it. Both pictures, according to Mr Masoe, were intended to be humorous.

[16] Mr Masoe was subsequently interviewed on 8 January 2015 regarding the material contained in the ESF.

[17] On 22 January 2015, the Employer sent to Mr Masoe a letter entitled “Letter of Concern”. The Letter of Concern expresses the Employer’s concern at the Applicant’s “flippant approach” to a fellow employee’s allegation regarding bullying and harassment in the workplace. The Letter of Concern addresses other matters which are discussed later in this Decision.

[18] The Applicant’s representative states that, “the contest between the parties can be summarised as whether or not the Applicant’s conduct with regard to the Event Statement Form, justified his dismissal”. I agree.

[19] It is reasonably clear to me that the Applicant’s case is not one that relies entirely on documentary evidence. The contest between the parties is, in the first instance, what transpired between Mr Masoe and Mr McAllister when Mr Masoe was asked to complete the ESF. Related, but separately, will be a second issue concerning the Applicant’s state of mind. The Applicant’s pleadings in relation to his state of mind are expressed in a number of ways such as Mr Masoe being “confused”, “did not know”, “I got the impression”, “the picture was meant to be humorous”, “there was nothing to indicate”, “I believe”, “if I had understood”, “it was certainly not my intention”, “meant to express” and “this was my honest and genuine reaction to the situation”.

[20] The “contest” regarding the Applicant’s state of mind set out above will be crucial to my determination of whether his conduct justified, in part, his dismissal. This “contest” together with other matters set out in the letter of termination will determine whether the dismissal was unfair.

[21] I now turn to the second incident in the Letter of Concern of 22 January 2015 and that is Mr Masoe’s alleged threatening behaviour towards a fellow employee.

[22] Mr Masoe confirmed on 9 January 2015, to Ms Harrison, that he confronted a fellow employee, Mr James Patterson on 27 December 2014 and “accused him of speaking ill of [Mr Masoe] to another employee while at the Dampier Mermaid pub. You confirmed that you ended that conversation with Mr Patterson by stating to him, “every dog has his day”.

[23] The content of the conversation between Mr Masoe and Mr Patterson prior to its ending, as set out above, is in dispute.

[24] The Applicant’s proposed Statement of Facts states that, he “did not intend to threaten or intimidate Mr Patterson”.

[25] The Applicant will refer to his previous working relationship with Mr Patterson, what he meant by various statements he made, what his intentions were during the conversation, the context of the conversation, his objective in having the conversation and the tone of the discussion.

[26] Mr McAllister and Mr Patterson are proposed witnesses in the hearing.

[27] In the meetings on 8 and 9 January 2015, the Applicant was asked questions about his interaction with Mr Patterson on or about the afternoon of 27 December and the events of 30 December 2014.

[28] While not as conclusive as the MUA suggest, I am reasonably satisfied that the decision of the Employer to dismiss Mr Masoe was, in part, as a result of the interviews on 8 and 9 January 2015; interviews in which Mr Jamieson was present.

[29] Mr Fulham is the Employer’s Land Logistics General Manager. Mr Fulham signed both the Letter of Concern and his Termination of Employment correspondence.

[30] Mr Fulham was advised by Ms Harrison.

[31] Ms Harrison advised Mr Fulham of her discussions with Mr Masoe on 8 and 9 January 2015 in the presence of Mr Jamieson. In fact, the Employer’s Letter of Concern states, in its introduction, “I refer to your discussions with Frances Harrison (HR Manager-Onshore) and Rob Jamieson (Investigator-PWC) on 8^th and 9^th January 2015 in relation to two separate matters”.

[32] Mr Jamieson was, at the time, according to Mr Fulham’s proposed witness statement, “conducting an inquiry into specific allegations of bullying and harassment at the DSB which Ms Harrison was assisting with”. 1

[33] Mr Fulham goes on to say, in his proposed witness statement, that while the two allegations were discussed at the meetings on 8 and 9 January 2015, they “were separate from other HR issues being dealt with by Mr Harrison at the time and the allegations being dealt with by Mr Jamieson.”

[34] A preliminary reading of Mr Fulham’s proposed witness statement is that the incidents which led to Mr Masoe being dismissed were extraneous to the more broader issue of “bullying and harassment” at DSB. If so, there may be no reference to Mr Masoe, or the incidents referred to in his letter of termination of employment, in “any report prepared by PWC”. Alternatively, Mr Fulham may be mistaken in his belief and it is mentioned in “any report” prepared by PWC.

[35] Alternatively, if Mr Fulham is correct and Mr Masoe’s incidents are not considered in “any report” created by PWC, the issue is one of whether the final report or “any reports”, provide context to the matters which led to Mr Masoe’s dismissal.

[36] Mr Parker for MMA submits that, “it is very important to not delve into irrelevant and extraneous issues and other [matters], whether there are investigations into conduct or otherwise, unless there is very clear relevance to a matter in issue in these proceedings.” 2 (my emphasis). I agree. Further, “the applicant can’t use the fact that there might have been other matters going on in the workplace at that particular time as some sort of excuse to traverse all of those matters seeking to find potential grounds upon which to make an allegation of unfair dismissal.”3  I also agree that this should not be a “fishing expedition”.

[37] With respect to “relevance”, on the agreed facts, Mr Jamieson was present during the discussions between Mr Masoe and the Employer on 8 and 9 January 2015. Mr Jamieson’s presence demonstrates, whether wittingly or not, a connection between the matters raised in those discussions regarding the two incidents involving Mr Masoe, and the purpose of Mr Jamieson’s role in the workplace, which was to inquire into “bullying and harassment”.

[38] If Mr Jamieson’s role had been to inquire into “autonomous work groups” or some other such issue, then it would be a completely different matter. However, on the papers, both matters which led to Mr Masoe’s dismissal, relate to “bullying and harassment” which Mr Jamieson was inquiring into.

[39] At this point in the proceedings I am left with the following. If the two incidents which have led to Mr Masoe’s dismissal were, according to Mr Fulham’s proposed witness statement, “separate” to the more broader issue of bullying and harassment at DSB, why was Mr Jamieson present for the discussions? As Mr Jamieson was present, it is a reasonable inference that the two incidents were part of the wider inquiry into bullying and harassment at DSB.

[40] If the discussions relating to the two incidents formed part of the wider inquiry into bullying and harassment, as a reasonable inference indicates, there is a direct relevance between what is being sought by the MUA and Mr Masoe’s unfair dismissal proceedings.

[41] If the discussions on 8 and 9 January 2015 regarding the two incidents involving Mr Masoe were not part of the broader inquiry and there is a satisfactory explanation for the presence of Mr Jamieson at the discussions, I have no contemporaneous and documentary evidence of what was said at the meetings. The full extent of the written evidence from the Employer at this time is:

“During the 8 January interview the Applicant stated to me and to Mr Jamieson that:

(a) the crying face he had drawn on the front side of the Event Statement Form was a depiction of how he felt at the time of the incident, being that he was “pissing himself laughing” at the incident; and

(b) the cartoon he had drawn on the reverse side of the Event Statement Form again depicted how funny he found the incident.”

[42] I have no contemporaneous or documentary evidence from the Applicant of the discussions on 8 and 9 January 2015.

[43] Put simply and shortly, the Employer has carried out a disciplinary process which ultimately may prove to be fair and reasonable, but the only documentary material regarding the two incidents are the “Letter of Concern” and “Termination of Employment” correspondence. While I have a copy of the Employer’s Code of Conduct and associated PowerPoint presentation, these documents do not go to the process of dismissing Mr Masoe.

[44] On balance, I consider there is a relevance between Mr Masoe’s dismissal and the PWC prepared reports (if any) relating to Mr Masoe’s actions concerning both incidents which led to his dismissal. The order is not intended as a broad sweep of the actions of all those involved in the two discrete incidents, but only narrative which may assist the Commission in determining the truth of both Mr Masoe’s discussions with his work colleagues and his state of mind.

REPRESENTATION

[45] MMA makes application pursuant to s.596(1) of the FW Act to be represented by a lawyer in the substantive hearing into Mr Masoe’s application.

[46] Section 596(2) of the FW Act provides that the Commission may grant permission for a party to a hearing being represented by a lawyer if:

“(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[47] MMA submits that the Commission should grant permission on each of the bases set out in s.596(2) for the following reasons.

• “there is a degree of complexity inherent in the Application and that the Application will be dealt with more efficiently if the Respondent is permitted to be legally represented” (para 596(2)(a));



• Mr Masoe is an undischarged bankrupt (para 596(2)(a));



• an application for the production of documents which is opposed by the Employer (para 596(2)(a));



• familiarity of the legal representative in the preparation of materials for the hearing (para 596(2)(a));



• the Employer’s Employee Relations Manager, Mr O’Brien has carriage of the matter from the Employer’s perspective and, in any event, does not have the necessary experience in contested matters in the Commission to effectively represent the Employer in this application (para 596(2)(b));



• denial of a lawyer will result in the involvement of other employees who do not have the necessary skills and knowledge to represent the Employer (para 596(2)(b));



• Mr Masoe is not self-represented and his MUA representatives have considerable experience in this jurisdiction and it would be unfair to deny the Employer similar representation (para 596(2)(c)).

CONSIDERATION OF EMPLOYER’S APPLICATION TO BE REPRESENTED BY A LAWYER PURSUANT TO s.596 OF THE FW ACT

[48] Flick J, in Warrell v Walton [2013] FCA 291 stated:

“…It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 which provided in relevant part as follows:

“2291.    FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee or an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292.    However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, cl 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.
…
2296.    In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”

[49] The Employer has addressed the three (3) requirements in s.596(2) of the FW Act. At least one of the requirements must be satisfied, for the Commission to consider its general discretion to grant permission for MMA to be represented by a lawyer.

Section 569(2)(a) - it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter

[50] The Employer relies on all the above grounds either separately or together in seeking permission to be represented by a lawyer.

[51] As I have already foreshadowed, there are three key issues in this application:

1. the discussion between Mr Masoe and Mr McAllister when Mr Masoe was asked to complete the ESF;

2. Mr Masoe’s state of mind when he completed the ESF; and

3. the discussion between Mr Masoe and Mr Patterson which resulted in the allegation by the Employer of threatening behaviour by Mr Masoe towards Mr Patterson.

[52] There are other issues but I see the above as key issues to the determination of whether Mr Masoe was unfairly dismissed.

[53] In the absence of any independent witnesses, issues 1 and 3 will be dependent, it appears, entirely on cross examination of both parties. I do not think it can be disputed that legal counsel can assist in this process. In particular, legal counsel that is external and independent, to the Employer.

[54] Mr Edmonds, for the MUA, submits that MMA has an in-house lawyer – Mr O’Brien. Mr Edmonds submits that either Mr O’Brien or a lawyer from the Australian Mines and Metals Association (AMMA) could represent the Employer.

[55] The Employer did not contest that Mr O’Brien was a lawyer or that it was a member of AMMA. However, one party’s preference is not the test when applying s.596 of the FW Act.

[56] The test in paragraph 596(2)(a) of the FW Act, relates to the matter being dealt with more “efficiently” taking into account the “complexity” of the matter.

[57] Mr Edmonds is most probably correct when he states that unfair dismissal applications are “run-of-the-mill” 4 for the Commission. However, it is always “taxing” for the Commission to determine the truth of a matter, where there are competing assertions without witnesses.

[58] The Commission, in dealing with an unfair dismissal application, is required to make findings of fact. Findings of fact are assisted in terms of efficiency and relevance with purposeful cross examination. I am satisfied that, in this case, where one of the key issues is what happened in discussions between Mr Masoe and others in the workplace, it would be dealt with more efficiently (and I should also add, effectively) with the assistance of lawyers trained and familiar with searching for what was actually said in discussions which cannot be corroborated.

Section 596(2)(b) - it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively

[59] Mr Edmonds, correctly, acknowledges that Mr O’Brien, while a lawyer, attends the Commission primarily as a witness and not as an advocate. Further, Mr O’Brien attends either as an observer or representative in conferences.

[60] It is a matter entirely for the MUA, but I tend to agree with Mr Edmonds that Mr O’Brien will never “appear” for the Employer unless he gets experience “on his feet”. Be that as it may, the test in paragraph 596(2)(b) is one of fairness in not allowing a party to be “effective”. In regard to the circumstances of Mr O’Brien, I am satisfied that MMA would not be effectively represented if he was the Employer’s advocate. In reaching this conclusion, I am not intending to be offensive to Mr O’Brien. To make the Employer adopt such a course of action in requiring it to use Mr O’Brien, or other employees, would be unfair.

[61] I now turn to Mr Edmonds’ alternative submission that AMMA could represent MMA. In my view, if I endorsed such a submission, I would “lock in” every member of AMMA or any other employer/employee organisation, to legal representation from that organisation only; I am not prepared to mandate such an approach.

[62] Having set out the circumstances surrounding Mr O’Brien and excluding the mandatory alternative proposed by MUA, I am satisfied that the Employer would be unable to represent itself effectively without a lawyer and would be unfair.

Section 596(2)(c) - it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter

[63] In this application, the Employer is not seeking permission to be represented by a lawyer in circumstances where Mr Masoe is self-represented. Mr Masoe will be represented by a capable and competent lawyer who is the MUA’s National Legal Officer or Ms Palmer who has significant experience in this jurisdiction.

[64] Taking into account fairness between Mr Masoe’s representative and the Employer’s request for permission to be represented by a lawyer, I am satisfied that no unfairness would result if permission was granted for the Employer to be represented by a lawyer.

[65] For the reasons set out above, I am satisfied that the requirement in s.596(2), in particular paragraph 596 (2)(a) of the FW Act has been met. I am also satisfied, in the circumstances, that I should exercise my general discretion in s.596 of the FW Act, and give the Employer leave to be represented by a lawyer in the substantive hearing.

BANKRUPTCY ISSUE

[66] On 19 June 2015, the MUA advised the Commission and the Employer that the “Applicant is an undischarged bankrupt”. The MUA, at that time, was awaiting instructions on when the Applicant “became bankrupt”.

[67] The MUA submitted that the Commission should follow the decision of the Full Bench in Melanie Millington v Traders International Pty Ltd[2014] FWCFB 888 (Millington).

[68] Mr Parker, for the Employer, acknowledged that the Full Bench Decision in Millington is binding on the Commission, as constituted. However, the Employer was not conceding that the Commission, as constituted, has jurisdiction to deal with Mr Masoe’s application consistent with the approach adopted by the Full Bench in Millington.

[69] While the Employer did not concede that Millington gave the Commission jurisdiction to deal with Mr Masoe’s application, it did not point to anything that was manifestly wrong with the Decision, save to say, another Full Bench or Court may have taken a different view.

[70] On the information provided to the Commission and consistent with Millington, I find that there is no jurisdictional impediment to Mr Masoe’s application being heard and determined by the Commission.

CONCLUSION

[71] My Associate will contact the parties with respect to the appropriate form of the Order to be made with respect to the production of documents consistent with paragraphs [9] to [44] above.

COMMISSIONER

Appearances:

L Edmonds, on behalf of the Applicant.

D Parker, of counsel, on behalf of the Respondent.

Hearing details:

2015:

Perth,

24 June.

 1   Mr Fulham’s proposed witness statement – para 6

 2   Transcript PN208

 3   Transcript PN209

 4   Transcript PN58

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