Mr Wayne David Shortland v The Smiths Snackfood Co
[2010] FWA 3599
•6 MAY 2010
[2010] FWA 3599 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Wayne David Shortland
v
The Smiths Snackfood Co
(U2010/5459)
COMMISSIONER CLOGHAN | PERTH, 6 MAY 2010 |
Discovery of documents.
[1] This is an application by Mr Wayne David Shortland (the Applicant) seeking a remedy for unfair dismissal. The application was lodged on 25 January 2010. The matter was unable to be resolved at conciliation and referred to me for arbitration. The Employer in the application is “The Smith’s Snackfood Company” (the Employer).
[2] On 16 March 2010, the Employer filed an F4 Objection to Application for Unfair Dismissal Remedy. The Employer’s objection essentially sets out the reasons why the Applicant’s application for a remedy should be dismissed without going to the merits of the claim. A copy of the Employer’s objection has been provided to the Applicant.
[3] Simply put, the Employer’s objection is as follows:
- the contract of employment was ended through frustration due to the Applicant’s incapacity to perform the role for which he was employed;
- re-instatement of the Applicant would place the Respondent in breach of its statutory health and safety obligations;
- the Applicant was employed on a casual basis and engaged by the hour and whose employment may be terminated by either party giving one hour’s notice;
- the application is frivolous or vexatious, futile, untenable and/or incapable of being treated as bona fide; and
- the application has no reasonable prospects of success.
[4] On 12 April 2010, I advised the Employer that I was not prepared to accept its contentions, without the Applicant being given the benefit of a hearing, receiving evidence and submissions, before making a decision on whether Mr Shortland can seek a remedy under the Act.
[5] On 12 April 2010, I issued Directions in relation to a hearing on 12 May 2010.
[6] On 22 April 2010, the Applicant sought discovery of 52 documents relating to his application. Some of the documents are in multiples.
[7] Subsequently the Respondent sought a determination relating to discovery of the 52 documents.
[8] On 29 April 2010, my Associate advised the parties of a hearing on 5 May 2010. In the email, my Associate advised the Applicant that the hearing on 12 May 2010 relates to the jurisdictional issue and that it was necessary for him to demonstrate that the 52 documents are essential to that issue. My Associate also advised that I would hear from both parties as to the relevance and importance of the 52 documents.
[9] The Applicant failed to attend the hearing at the commencement time. My Associate telephoned the Applicant. The Applicant did not answer nor was she able to leave a message. The telephone call tone eventually ceased after a period of time.
[10] At 9:15 am, I commenced the hearing and sought a submission from the Respondent. In brief, the Respondent submitted that the Applicant was on a “fishing expedition” and questioned the relevance of the documents for the purposes of the jurisdictional hearing on 12 May 2010.
[11] I have examined each of the Applicant’s request for documents and generally agree with the Respondent’s submission that they appear to be irrelevant to the jurisdictional argument to be contested. For example, I cannot see the relevance of:
- All large paper period sanitation checklists that are placed in the production hallway.
- Forklift immobilizer issue sheet log showing signatures.
- All hydraulic oil usage for peelers for time of employment.
- Document relating to the extension of airline to new multipack system.
- List of all documents, training books using the words inappropriate and procedures on its use in management.
[12] However, I do consider that the following documents appear to be relevant to the proceedings on 12 May 2010:
(16) All employment records for Wayne Shortland in HR file or in SAP format.
(17) Hours records per shift, per week, per month, per year, by department, by cost centre showing hours in “production services” and “dexion” and by warehouse departments.
(48) All first medicals for W Shortland.
(49) All progress medicals for W Shortland.
(50) All documents reporting on the return to work programs for W Shortland.
And, subject to any confidentiality issues, the following documents:
(51) All communications and reports given to and received from Dr Khan of Prime Health and any physio specialists involved in his ongoing treatment.
(52) The authorities of consent x 3 on the visit to Joel Silbert’s office of authority to have consent to report only as per authorised.
[13] The Respondent agreed to provide the above documents to the Applicant in approximately 48 hours.
[14] In reaching this decision, I have taken into consideration the following:
- a party should not be required to produce documents where the documentation requested is ostensively a “fishing expedition” to discover whether there is a case in the proceedings instituted or elsewhere;
- the documents must be relevant to, or will legitimately arise, on the day of the hearing;
- the burden or reasonableness on the other party to produce the documents is not oppressive; and
- the nature of the proceedings to be contested at the hearing on 12 May 2010.
[15] In summary, the documents described in item: 16, 17, 48, 49, 50, 51 (with above caveat) and 52 (with above caveat) are required to be produced to the Applicant with a copy to the Tribunal. The remaining documents in items 1 to 52 do not have to be produced by the Respondent to the Applicant.
COMMISSIONER
Appearances:
Mr D Van de Hoef and Mr R McGhee for the Respondent.
Hearing details:
2010
Perth
5 May
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